by Anna Krien
Two options now remained: to discharge the jury and adjourn the trial, or to provide the jury and witnesses with a clear account of the defendant’s prior convictions – which in Justin’s case were none, thus distancing him from the ‘Beware of this Brute’ article, while not contaminating anyone who hadn’t seen or heard of it.
Judge Taft pondered the predicament. ‘If not adjourned, can the risk be met?’ He retreated to his chambers to consider.
*
It had been a long day. In the foyer, people stood and stretched while they stared out of the windows at the grey city, the last light sliding across the car park below, their necks clicking. The Dyer family looked exhausted, a night of no sleep catching up with them.
I thought about them returning to their suitcases and their beds, and falling asleep in their suits.
*
Judge Taft outlined the events of the day, describing the Herald Sun article as ‘an egregious error.’
The defence, he continued, had applied for a discharge and adjournment based on the offending publication’s influence. But what had been published was a falsehood, he countered, and therefore surely easier to rectify.
‘The mischief that has occurred can be carefully and appropriately overcome,’ said Judge Taft, as he delivered his ruling.
The trial, he said, would continue.
CHAPTER 10
It was around 7 a.m. when Sarah got home. There she phoned Tom and he came to her room. By noon, her parents were also there and the police were on their way. Sarah went to the Royal Women’s Hospital, and then the police drove her up and down the streets of South Melbourne, trying to find the townhouse and the alleyway. It wasn’t until much later that Sunday, when it was dark, that the police put their notepads away and turned their recorder off and Sarah was allowed to close her eyes.
From the moment when Sarah spoke to police to the day when they pressed charges against Justin, she would have been watched, examined, her credibility tested. In a small qualitative study of New Zealand detectives, the criminologist Jan Jordan found the factors that come into play when police doubt a rape complaint range from drunkenness or being stoned, delayed reporting, if there had been previous consensual sex with the accused, a history of rape or rape allegations, abuse or psychiatric disturbance, perceived immorality or intellectual impairment.
‘What is generally not questioned,’ said Jordan, ‘are the ways in which the very same cues the police see as indicating the complainant is a “slut” may be the very factors that make her vulnerable to rape.’ Consider, for example, a person’s sense of entitlement to a so-called slut – ‘She’s practically been through the entire team, why not me?’
Another factor is if the complainant sought to conceal from police aspects of the incident – for example, if she was high or had been flirting with the accused – in other words, if the complainant was trying to avoid being stereotyped. ‘Victims of rape are caught in a double-bind situation,’ said Jordan, ‘whereby they know they will not be regarded as credible if they are perceived as “immoral,” yet will be viewed as even less credible if they are detected trying to conceal their “immorality.”’
Jordan outlined the case of Malcolm Rewa, who was eventually caught and tried for forty-five counts of rape involving twenty-seven women in New Zealand in the late 1990s. Most of Rewa’s victims were well educated, professional and white, and many had been attacked in their own homes while sleeping. They were ‘credible’ victims and in this sense the attacker, a Maori man and a bikie, was the ideal rapist stereotype.
However, a couple of Rewa’s victims weren’t ‘perfect’– most importantly, one of the first women who had made a complaint to police in 1987 was, unlike his later victims, able to name Rewa as her attacker.
She was one of his few Maori victims, as well as one of the only women to have her own previous criminal convictions, factors that were perceived by police as undermining her credibility. Their dismissal of her testimony left Rewa free to attack a further known 26 women before this woman’s case was eventually heard in the 1998 trial, at which he was finally convicted of the crimes committed against her.
And yet, Jordan also noted, police are in a difficult position, having to tread a ‘fine line between the victim and the accused as they attempt to preserve the balance of justice and guard against the possibilities of wrongful conviction.’
When I asked Glenn Davies how he thought a rape complainant ought to be interviewed, he replied, ‘I think you respond in a believing manner and then corroborate,’ adding that in his investigations he was after ‘a result that truly reflected what happened. Not true or false, but what happened.’
And indeed, this is what moves a rape case forward – whether there are enough angles for it to be adequately tested. Yet there is an obvious problem with corroborating an allegation of rape. A rape is often like no other crime, especially murder. There is no body left at the scene. A sexual assault often involves a ‘he said, she said’ scenario, while the forensic aftermath of a rape can just as easily be passed off as the aftermath of consensual sex. ‘There’s this great disparity,’ Davies said. ‘You ask officers what they think is the second most serious crime next to murder and they’ll inevitably say “rape” – and yet it is a crime with the lowest conviction rate.’
Back in the days of no DNA tests, rapists could simply deny any sexual relations had occurred, while today the worst thing a guilty defendant can say is, ‘We didn’t have sex.’
‘We had sex, but it was consensual,’ is the way to go – or in Victoria you could get away with saying, ‘I believed it was consensual.’
Historically, the common law had it that a rape conviction could not occur without independent evidence – be it circumstantial or at least two witnesses to speak to a given fact. The law later gave way to allowing trials based solely on a complainant’s word, but the judge was required to give a judicial warning, known as the ‘corroboration warning,’ to the jury about the dangers of convicting on the word of the complainant alone.
Advocates for reform battled these requirements, believing that such a warning too easily influenced juries not to convict, and that, as with all trials, due process was sufficient to detect any false accusation – in other words, the corroboration warning was discriminatory, particularly as the word of a complainant was considered sufficient for a conviction in cases of robbery or physical assault. Advocates also believed the corroboration warning originated in a misogynistic belief that women were untrustworthy and inclined to lie.
Others, however, argued the warning was necessary, that it sprang not from the nature of the witness but from the nature of the offence, as issues and motives surrounding allegations of rape are inherently more complicated than in other crimes.
In most parts of Australia, the United States and the United Kingdom, the requirement for a corroboration warning was abolished in the early eighties. Such a warning is now left to the discretion of the presiding judge. ‘Thank goodness,’ wrote the Manhattan sex-crimes prosecutor Linda Fairstein, that the victim’s ‘testimony – when it is credible – is all that is needed to convict a rapist, as it is any other criminal.’
But, as Cathy Young pointed out in Salon, there was another way to see such changes:
Of course, it then follows that to be ‘fair,’ we should convict defendants in rape cases on less evidence – and give the accuser’s word more weight – than in other crimes. Which makes those old sexist warnings about how hard it is for an innocent man to defend himself against a charge of rape ring uncomfortably true.
Without corroboration, we are left only with credibility. Was Sarah Wesley credible? For the police and Director of Public Prosecutions to take her allegation this far, she must have been. But what is credible? In such cases, it is the ability to tell a story that is convincing and plausible. But is this not, to a degree and by necess
ity, a performance? And if so, how credible is a conviction that is based on performance alone?
*
Sarah was the first to give evidence. The court was cleared. I stood and pushed through the heavy doors to the foyer. Except for Carol, who had permission to stay, Justin’s family and girlfriend filed out behind me. The doors clicked as the tipstaff locked them. It was almost noon.
Yesterday there had been a palpable feeling of righteousness among the Dyers. Sure, Justin and his family had been more than upset by the Herald Sun’s screw-up, but it was a tangible screw-up – something they could set their sights on and fight. They weren’t jousting at this ghost of a girl, a girl they couldn’t see, an incident they couldn’t take a screen shot of on their phones and say, ‘See? See?’ Yesterday it was as if the red had flooded back into their cheeks, but today the colour had leached out again.
Time moved like ice and we waited, looking at our phones. Intermittently one of us would walk over to the water bubbler – women putting their hands over the tops of their blouses to stop them from gaping open, men holding their ties flat against their shirts – and bend over to catch the cool metallic-tasting water, hands swiping at our mouths when we’d finished.
Inside the courtroom, the little diorama of activity continued. Sarah appeared by remote camera on a screen placed above the witness box. Justin was tucked away at the back of the room where she could not see him. The jury was led in. Then, in his methodical style, Ryan walked Sarah through the evening, asking about Eve nightclub, how she arrived at the townhouse and how she left it, the appearance of a ‘stranger’ on the street, and then the alley. Like quilters, the jury stitched her staccato answers into a story, a narrative. I imagined Justin’s stony, unreadable face as Sarah answered the Crown’s questions, describing each count of rape, and the jurors not just listening – but staring. Staring at Sarah and stealing glances at Justin, trying to surmise the truth from each flick of the eyes, squeeze it from each twist of the hands.
When the court doors were unlocked again, I was told that the defence’s cross-examination of Sarah would take the rest of the day and resume after the weekend. I dropped out of the wait. I put my notepad in my bag, said goodbye to the Dyers and walked past the security guards and their X-ray machines, out of the County Court.
CHAPTER 11
‘Mr Smith, you were held up at gunpoint on the corner of First and Main?’
‘Yes.’
‘Did you struggle with the robber?’
‘No.’
‘Why not?’
‘He was armed.’
‘Then you made a conscious decision to comply with his demands rather than resist?’
‘Yes.’
‘Did you scream? Cry out?’
‘No. I was afraid.’
‘I see. Have you ever been held up before?’
‘No.’
‘Have you ever given money away?’
‘Yes, of course.’
‘And you did so willingly?’
‘What are you getting at?’
‘Well, let’s put it like this, Mr Smith. You’ve given money away in the past. In fact you have quite a reputation for philanthropy. How can we be sure you weren’t contriving to have your money taken by force?’
‘Listen, if I wanted …’
‘Never mind. What time did this hold-up take place?’
‘About 11 p.m.’
‘You were out on the street at 11 p.m? Doing what?’
‘Just walking.’
‘Just walking? You know that it’s dangerous being out on the street that late at night. Weren’t you aware that you could have been held up?’
‘I hadn’t thought about it.’
‘What were you wearing?’
‘Let’s see – a suit. Yes, a suit.’
‘An expensive suit?’
‘Well – yes. I’m a successful lawyer, you know.’
‘In other words, Mr Smith, you were walking around the streets late at night in a suit that practically advertised the fact that you might be a good target for some easy money, isn’t that so? I mean, if we didn’t know better, Mr Smith, we might even think that you were asking for this to happen, mightn’t we?’
So goes an excerpt from a handbook issued by the London Rape Crisis Centre in 1984. A neat send-up of a lawyer’s line of questioning of rape complainants, it ridicules attitudes that are long gone. Right?
Not necessarily. Just six months before Justin’s trial, Andrew Lovett, the only AFL footballer ever to face charges of rape, found himself before a jury. He hired David Grace, a QC, to defend him. Like David Galbally, Grace was a ‘footy lawyer,’ a legal counsel for the West Coast Eagles who had represented individual players, such as Carlton’s former captain Chris Judd, at the AFL’s own in-house tribunal.
During the Lovett trial Grace asked the complainant about the length of her skirt. ‘Was the skirt a short miniskirt? Was it a skirt that went from the waist down to your thighs? Did it start at your waist or below your waist? … Was there any flesh visible between the end of the singlet and the top of the skirt? … What was the distance between the top of the skirt and the bottom of the skirt?’
He asked if she intended to wear the clothes she did that night to ‘make yourself look attractive’ and, ‘That night you were interested in meeting young men, is that right?’ Not once did anyone in the courtroom point out that a woman may dress attractively – yes, to attract, but also to expand her choice of potential partners rather than to ‘invite’ unwanted sex.
At one stage of the questioning, the complainant tried to defend herself but it was as if she had accepted Grace’s logic: ‘I’ve never had a one-night stand in my life and if I was intending on that, wouldn’t I have worn a G-string instead of a Bonds pair of undies?’ she said.
Whether the woman had one-night stands and what she was wearing were not on trial; decades of rape awareness education and law reform have sought to do away with such assumptions. But it is as if many defence lawyers can’t quite give up the ghost of this line of questioning despite knowing it ought not factor in a rape investigation – it is just too good an opportunity to appeal to the lowest common denominator on the jury.
*
In his questioning, Malcolm Thomas also ticked off the lowest common denominators.
Did you scratch him?
Did you try biting him?
Did you punch out at him at all?
Did you hit out at him at all?
He asked about seeing Nate on the street after the alley, when Sarah waited with Justin for a cab. He asked if she said anything to him.
At this, Ryan sprang to his feet, asking to discuss the matter without the jury present. Taft agreed. Once the jury was dismissed, the judge turned to Thomas.
‘Mr Thomas,’ he said, ‘in re-examination the Crown could make an application to lead evidence as to why she might not be seeking help from Nate. I don’t know what she will say, but there may well be something which would ventilate the very issues which we have all been at pains to avoid.’
The jury was brought back in and Thomas continued. He asked Sarah about the height of her heels, how much alcohol she had consumed and the logistics of a man raping a much taller woman without any physical scuffle. Like a form of product placement, he dropped in the words ‘lie’ and ‘lying’ throughout his cross-examination. ‘Can I suggest to you …’ he began, as if he were simply offering Sarah alternative realities rather than trying to catch her out. He asked her about the alleys she had looked at with the police, about her slight delay in identifying the one that the prosecution was now claiming to be the alleyway. Was this, he hinted, because the police door-knock had produced a potential witness in this previously overlooked alley? Was identifying this alley a matter of convenience rather than reality, akin to
forcing pieces of a puzzle to fit?
It was an insinuation Ryan took issue with later in the trial. ‘There is an issue that is floating around as a consequence of these questions,’ he complained to Taft. ‘There’s the coppers put Ms Wesley up to what eventuated … it’s floating around here at the moment and about when things are happening and what things are happening and the old saying about “prepared to wound but not to kill” comes to mind.’
‘Prepared to wound but not to kill’ – surely a tried and true adage for many defence lawyers in a sexual assault case? To pick at the seams of an allegation, to create doubt without going too far and annihilating the complainant, and thereby eliciting a juror’s sympathy for her. But apart from these murky insinuations of doubt, there were actual discrepancies. As Thomas had said in his opening address, phone records don’t lie – and contrary to what the jury had been told, Sarah’s phone records revealed that there were no calls to Shaw from her phone until 7.16 a.m. Thomas added that she had paid the taxi driver outside her college just four minutes earlier.
Not only that, but Shaw had been trying to get in touch with her. He had even sent a text message offering to pick her up around the time she exited the alley on Dorcas Street. If Sarah had been trying so hard to contact him, Thomas intimated, then why didn’t she just answer his calls? And if she didn’t receive them, then why did her phone suddenly work when she and Justin exchanged numbers, she reciting her number to him and he calling her so that she could record his number. In-te-rest-ing, you could almost hear Thomas say, an eyebrow raised at the jury. And it was interesting. Why did Sarah’s phone records tell a different story? What reason would Sarah have to say otherwise? Was it because she thought her behaviour was confusing, not only to police but also to Justin, to Tom and perhaps even to herself?