Eventually, after seeking legal advice from a leading SC, he presented himself to the police and was charged with murder. He was then remanded in custody. At that point Philip Dunn QC was briefed.
When Phil contacted me, I was driving in peak-hour traffic to Silverwater Prison in Sydney. He shared the bare bones of the case, and I suggested he send me the brief. Under pressure to arrive at the jail, I closed the conversation. ‘It’s a long shot, mate, the issue of provocation may be relevant.’
The defence of provocation dates back to medieval times and thinking. A time when it was held that a ‘wife’ was a man’s chattel. In essence it provides a defence to murder if it can be established that the accused, so overwhelmed by psychological distress, loses self-control and kills. Outrageous as this proposition is within any context, let alone in the twenty-first century, it existed on the statute books in Victoria at the time of the offence.
Several days later, the brief arrived. Phil was anxious for an opinion. After an extensive analysis of the allegations, I hastily arranged a professional visit to Port Phillip Prison to visit Ramage.
Several hours later I emerged, psychologically drained by the harrowing details, but nonetheless convinced that there was indeed a case to be made utilising the provocation defence.
Other mental health experts were then engaged, including a forensic psychiatrist, who buttressed the argument. The Crown would not resile from the view that this was an obvious case of murder and so the matter proceeded to trial before a jury.
After an exhausting process, Ramage was found not guilty of murder, but rather, the lesser offence of manslaughter. Instead of receiving a mandatory life sentence, he was imprisoned with a sentence of eleven years. He was required to serve a minimum of eight years before becoming eligible for parole.
The family of the deceased were understandably outraged. I suspect, too, that the sentencing judge was frustrated by the manacles imposed upon him by the law as it stood. And therein lies the point. The defence team did not legislate provocation as a loophole in the law. Parliament did. Given that this was available as a defence, whatever the private views which may have been held, it would have been professionally negligent not to explore and utilise it.
I have deep respect for Phil Cleary, an iconic football legend south of the border. He had experienced firsthand the grief of losing a loved one to domestic violence. His sister had been murdered by a spurned lover and, following her death, Cleary took up the cudgel to raise public awareness of the issue, with the goal of abolishing the provocation defence.
Following the Ramage verdict, Cleary wrote a highly controversial book about the case. Titled Getting Away with Murder, it traversed the line and resulted in a defamation case being brought against him. It alleged that for three hours prior to surrendering to the police, Ramage had met with his lawyers in a local hotel. The Senior Counsel who Ramage met argued his reputation had been besmirched, resulting in ugly public proceedings involving vast sums of money which resulted in him being awarded $630,000. Both Cleary and the publisher Allen and Unwin were publicly caned.
Nonetheless, the case caught the attention of the Victorian Attorney-General Rob Hulls and the provocation defence was abolished in 2005. No doubt Hulls was partly swayed by the barrage of over 3000 letters which were sent following the verdict, urging drastic reform.
Regrettably, other states in Australia are yet to follow the Victorian example. In my view, it should be abolished everywhere. The notion that a man can assault a woman, let alone kill her, on the basis of his masculinity being challenged belongs in the dark ages. Full stop.
My involvement in both the Ramage and Verdins cases sent a clear message to those who had believed that my career was over. Both cases had a dramatic impact on the law in Victoria. Both cases restored my self-confidence and enabled me to move further forward with the restoration of my career and reputation.
POSITIVELY CHURCHILLIAN
Without doubt, one of the most interesting cases I have worked on in recent years has been Nicholas Barton, none other than the great-grandson of the late Sir Winston Leonard Spencer-Churchill, the prime minister of Great Britain during World War II. In the eyes of many, Churchill not only saved England, but arguably, with the engagement of the allies, Europe.
Nicholas is the grandson of Winston’s son Randolph Churchill. Nicholas’s mother, Arabella Churchill, established and fostered the Glastonbury Festival until her untimely death from aggressive pancreatic cancer in 2007.
Nicholas was collateral damage in a major drug case involving the supply of a substantial quantity of MDMA in Coogee Beach, a mere stone’s throw from Bondi in Sydney.
In the past decade there has been an explosion of drug use in Australia’s major capital cities, and Sydney leads the pack. From as far afield as the Western Plains, through to the coastal suburbs, a drug dealer can generally be located within an hour or two.
Drugs range from cannabis through to crystal methamphetamines, as well as heroin. ‘Pills’, or MDMA as it is more scientifically known, has long been the party drug of choice among weekend revellers. It was in this cauldron of drug use that Nicholas found himself.
Despite his pedigree, Nicholas’s life had not been smooth sailing. Born into status and privilege does not guarantee an easy or free passage. Evidence was tendered that his mother had enjoyed a tipple over the years, and that she had suffered trauma at the hands of her famous father Randolph. Winston’s ‘black dog’ days have been notoriously documented and I suspected that his mood swings would have impacted upon his progeny. As is often the case within families, this can be perpetrated through the generations. Mental illness does not discriminate between the privileged and the poor.
When Nicholas was seriously busted in June 2006, Charles Waterstreet and the brilliant John ‘JD’ Weller were the obvious choice for the defence. As with Charles, JD has an impressive resume of victories. Highly regarded as a strategist and tactician, he can spend months or years working up a case through firm yet tacit behind-the-scene negotiations with those who matter on the prosecution team.
It became clear to the legal team that Nicholas needed a comprehensive psychological work-up. How could a charming intelligent person such as Nick fall into such catastrophic error? Surely some exploration of his deeper psyche may throw up some clues, if not answers? A solid, credible analysis of these dynamics just might sway the presiding judge to exercise the prerogative of mercy.
I was fortunate enough to be chosen for the task.
Most of my clients these days advise me they have ‘Googled’ me prior to seeing me. They generally tell me it makes them more comfortable discussing their history. They know that I know. And that I don’t judge. My understanding of drug use, addiction and impaired judgement is not just based on decades of hard-edged clinical experience and academic prowess. It is a function of having been there. Of having the rare glimpses of another realm and dimension to life, which only those who have made the journey can truly understand.
Nicholas knew of my history and me before I met him for the first time at Parklea jail. He had been on remand for many months. Shuffled from court to court, prison to prison, he was jaded. And yet, as family tradition and history determined, stoic.
I was immediately struck by his presence. He was the reincarnate of Winston Churchill both physically and through his facial expressions and mannerisms. He was also frightened. He was a sensitive soul, riddled with guilt and overwhelmed by the looming shadow of his mother’s illness – end-stage pancreatic cancer.
I saw him on a number of occasions in the lead-up to his sentence hearing. Charles, in his usual way, was keen to emphasise the psychological torment and struggle Nicholas had endured, not only in terms of his past history but also from the impact of his placement in prison. On the day of the hearing, Charles presented my report along with a brilliant plea tugging at the conscience of the soon-to-be retired judge. He did so by invoking our collective memories and gratitude to Sir Winston Chu
rchill. However, the learned judge made it clear that he was not going to be swayed by the Churchillian history and that the prisoner would be appraised on the merits of the case. Nonetheless, an amazing result was obtained in December 2007 – a 21-month non-parole period. With time served, Nicholas became eligible for release within two months.
As I had established some rapport with Arabella Churchill, I contacted her that evening to spread the wonderful news that Nicholas would be home in England to see her within nine weeks. She was overjoyed with this development and thanked me for my involvement and assistance. I pointed out the essential and vital work had been done by John Weller and Charles Waterstreet.
Within a day I was contacted again by her husband. With sadness, although a sense of relief in his voice, he advised that Nicholas’s mother had died during the night. It was clear that she had been hanging on by every morsel of her being to ensure that her beloved child would not spend years of his life rotting in a New South Wales prison. Once she knew that this would not occur, she was able to let go, at peace in the knowledge that whatever happened, he would be seen in the community and move on with his life.
THE TERRORS OF TERRORISM
Hand-picked by President George Herbert Bush, Vice-President Dan Quayle is best remembered for his astute aphorisms concerning the universe. ‘The Global Importance of the Middle East,’ he said, ‘is that it keeps the Far East and the Near East from encroaching on each other.’ Or another one: ‘I am not part of the problem, I am a Republican.’ A truism bestowed upon the American people and the planet when George Senior’s hapless son George ‘Dubya’ assumed the mantle of power after a hotly contested and arguably corrupt election in November 2000.
By any account, Dubya’s decision, made in alliance with UK leader Tony Blair and our own prime minister at the time, John Howard, to invade Iraq was catastrophic. Leaving any Freudian interpretation aside (Saddam Hussein had wanted to kill George Senior), the strike on Iraq was made on now totally discredited claims that Hussein possessed weapons of mass destruction.
The legacy of this lie has been the destruction of nations, the death and murder of millions and a redistribution of millions within the Middle Eastern diaspora. Beyond destabilising the globe, arguably it spawned the growth and spread of twenty-first century terrorism. My interest in this ever-expanding and troubling dynamic is longstanding.
Over the years I have had a number of high-profile so-called ‘terrorists’ referred to me. This began in 2004 when I was referred Bilal Khazal and Izhar ul-Haque by Chris Murphy. In many ways these cases opened doors to my resurrected career. Bilal Khazal was a baggage handler at Sydney Airport. A simple man of profound faith, he had been charged and convicted of disseminating terrorist material. Although he was ultimately found guilty, his offence involved little more than compiling existent material on the internet into one document which was then disseminated.
Izhar ul-Haque was a medical student. A gifted young man who spoke no English upon his arrival in Australia, within two years he had obtained a mark in the top 0.1 percent of the state in his HSC, enabling him to matriculate to the Faculty of Medicine. He was alleged to have travelled to Pakistan in early 2003 on a family holiday and had experienced deep shame because he’d failed two of four medical subjects. Consequently, and unbeknown to his parents, he disappeared and then spent three weeks with the terrorist group Lashkar-e-Taiba, where he undertook basic training. Eventually his father located him and ul-Haque returned to Australia with various diagrams which were commented upon by customs officials at Sydney Airport. At that stage the Howard Government had not enacted the Terrorism Laws and ul-Haque was let into the community. It was not until some time later that he was then arrested and remanded in custody, before being released on $200,000 bail.
In June 2006 I was referred Faheem Lodhi, the first person to be convicted under the new Anti-Terrorism Laws (The Anti-Terrorism Act 2005[1]) introduced by the Howard Government. Lodhi was a troubling case in terms of his seeming ordinariness. He was a trained architect and lived with his wife in suburban Sydney while, as the court determined, he was busily preparing acts of terrorism.
I interviewed and assessed him at the Metropolitan Remand and Reception Centre (MRRC) in Sydney. As with the other two men, he arrived under heavy escort in a ‘Guantanamo Bay’ suit comprising impenetrable luminescent orange fabric which was well framed by both his handcuffs and leg-irons. No less than four burly prison officers brought him to the prison office where I assessed him. Ever mindful of my security and safety, they waited outside ready to pounce if there was a problem. Not surprisingly, Lodhi continued to profess his innocence. When I questioned him concerning his feelings and fears for the future – he was looking at an extremely long sentence – he once again affirmed his faith by stating, ‘If it is Allah’s will, it is Allah’s will’. Following a trial, Lodhi was convicted of three terrorism-related offences: seeking information about chemicals capable of making explosives, acting in preparation of a terrorist act and possessing a terrorist manual, in addition to buying two maps of the electricity grid for the nefarious purpose of preparing a terrorist act. He was sentenced to twenty years imprisonment with a fifteen-year non-parole period.
In most recent times, I have assessed Omar Al-Kutobi who initially pleaded not guilty to a series of extremely troubling offences. Both my client and the co-accused Mohammad Kiad had been charged with conspiring to detonate a bomb and to kill a random member of the public with a knife in Sydney. They were both sentenced to twenty years imprisonment with a non-parole period of fifteen years in the New South Wales Supreme Court on 14 September 2016.
I wondered how a young individual with such promise in life had ended up in this situation. Al-Kutobi’s story in my view reflects a broader and important dynamic that needs to be considered in better understanding how young, intelligent men are radicalised.
It had been put to the court that Al-Kutobi had become radicalised as a consequence of researching what was occurring in the Middle East and, in particular, Iraq and Syria. His tale, however, is far more complex.
By the time that I came to interview Al-Kutobi, he had been in custody for approximately nineteen months. His exposure to the harsh realities of life in prison had certainly impacted upon his prior belief system and given him some insight into his wrongdoing, which was reflected in the fact he changed his plea to guilty. Like the other men accused of terrorism I have examined, he was brought to me in an orange suit, handcuffs and leg-irons, although on this occasion only two prison officers sat outside my room.
I found him to be humble, insightful and extremely remorseful for his actions. He was more than willing to share his story, one that was put before the court. The significant aspects of his development related to his experiences as an adolescent in war-torn Iraq.
Prior to the US-led invasion, his father had enjoyed a comfortable middle-class position as the owner of a photo-developing shop. After the invasion, his father was unable to continue this work and managed to secure employment as an interpreter for the US Army.
This was a highly dangerous position as it was perceived by many within the community as an act of betrayal, akin to the Ishu French collaborators who co-operated with the Nazis following the invasion of France. This occurred during Omar Al-Kutobi’s critical and turbulent adolescent years. He reported, ‘Everything changed with the war . . . there was no more school . . .’ As a consequence, his adolescent life was transformed overnight and he developed considerable and realistic fear and anxiety for his own safety and that of his parents and his brother.
Although he continued his education, it was fragmented due to the ongoing conflict in Iraq. He described one major incident where he witnessed the destruction of a public building by Shia militants and the numerous resulting cadavers. This in part led to his parents’ decision to flee to Syria.
At that time, Omar had also been subject to an attempted kidnapping at home, which related to his father’s work with the US Army.
The absence of a father-figure in his life no doubt added to Omar’s sense of insecurity. It was not until 2009 that his father permanently rejoined the family. His life had been endangered on a number of occasions including when he was shot at three times while working in the ‘safe’ Green Zone.
Despite the family’s high hopes, the Cyprian government declined their application for permanent residence. They were once again stateless and suffering high levels of uncertainty and anxiety. Omar’s parents decided that it would be safer for their son to relocate to Australia while the rest of the family relocated to Germany, hoping to eventually join him here. It was reasoned that, although the journey would be dangerous and uncertain, Omar would ultimately be in a much safer environment. He was still a mere boy without guidance, supervision or money.
The invasion of Iraq shattered many lives and many dreams. Al-Kutobi stated that, up until the invasion, he had fully expected to live and work with his family in Baghdad. He had hoped to study, but was now faced with a fragmented family situation, a dislocated education, a decimated peer group and the legacy of living in constant fear due to his father’s continuing work in Baghdad.
Dancing with Demons Page 24