Rough Justice 2nd Edition

Rough Justice

2nd Edition

Unanswered Questions From The Australian Courts

Robin Bowles

Copyright Robin Bowles 2011

Published by F.U.N. & K.Y. Pty Ltd at Smashwords

All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or be transmitted by any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the author.

ISBN 978-0-9871738-1-2

Unless otherwise stated, photographs in this book are from the author’s collection or from private collections and used with permission.

Table of Contents

Author's Note

Chapter One - Does the Law Deliver Justice?

Chapter Two - 'He shot his sister-in-law.'

Chapter Three - Trial by Jury

Chapter Four - The State he's in

Chapter Five - It's in the Genes

Chapter Six - Rough Justice in the Wild West

Chapter Seven - Moccasins on Everyone

Chapter Eight - The Roistering Knights of the Media

Chapter Nine - Letting the Catt out of the bag

Chapter Ten - The Lone Maggot

Chapter Eleven - So bizarre it's almost impossible

Chapter Twelve - The Wrap

AUTHOR'S NOTE

This book is being written in response to many questions I am asked in my travels around Australia. Why is Denis Tanner a free man after the Victorian State Coroner named him as the killer of his sister-in-law, Jennifer Tanner? Did Greg Domaszewicz really kill Jaidyn Leskie and get rewarded with a ‘Not Guilty’ verdict because he had a good lawyer? Why did John Button confess to killing his fiancée Rosemary Anderson if he didn’t do it? Why won’t Bradley Murdoch tell the police where he hid Peter Falconio’s body? Why was the jury foreman in the Graham Stafford trial so shocked after he read a book containing the full story of Leanne Holland’s murder that he rang Stafford’s mother to apologise for finding her son Guilty? Was Roseanne Catt, who served a ten-year jail term for the attempted murder of her husband Barry ‘an evil and manipulative woman or the victim of a terrible conspiracy’ between her husband and the police? Did Henry Keogh cold-bloodedly drown his fiancée in her bath, or has he served nearly half his life sentence as an innocent man, condemned by an incompetent forensic report?

The most common question of all—how can the courts get it so wrong when they are set up to protect us?—will also be explored. This book makes no claim to promote the guilt or innocence of any of the people discussed. Rather, it looks at the due process of the law and how, at times, that process can get derailed, which sometimes results in an unsafe conviction. That is, a guilty person may be found guilty, but not in a way that satisfies the law. You may say ‘Why bother to question the outcome?’ but the answer to that is, what if an innocent person is found guilty using the same methods? The law is carefully designed to give everyone a ‘fair go’, a prospect that is enshrined in Australian psyche. But sometimes, if manipulated or used incorrectly, it is more fair than others.

Take the case of the Mickleberg brothers in WA. Twenty years after Raymond, Peter and Brian Mickelberg were convicted in 1983 of swindling $650,000 worth of gold from the Perth Mint, a former police officer admitted that he and another detective lied and faked evidence during the trial of the three brothers for the Perth Mint gold swindle. The robbery, on June 22, 1982, was one of Perth’s boldest ever. Forty-nine gold bars were smuggled out of the invincible Mint and hidden elsewhere. The gold has never been found.

Raymond, a former SAS soldier, was released from jail in 1991 after serving eight years of a 20-year sentence. Peter served six years of a 14-year sentence. Brian Mickelberg had his conviction overturned after nine months in jail. He died in a helicopter crash in 1986.

During the trial, evidence against the Mickelbergs was compelling—especially the discovery of Ray Mickelberg’s fingerprint on one of three fake cheques used to pay for the gold. But the brothers protested from the start that the police had framed them.

In June 2002, the West Australian Attorney-General, Jim McGinty, told a court in WA that former police officer, Anthony Lewandowski, had come forward and given an affidavit to the Director of Public Prosecutions admitting he and the former CIB chief Don Hancock, who was murdered in 2001, had lied and fabricated evidence to convict the Mickelbergs because they were convinced of their guilt.

Over their years of imprisonment and following their release from jail, Raymond and Peter Mickleberg made four unsuccessful attempts to have their convictions overturned—three appeals to the Court of Criminal Appeal, (where both police—Hancock and Lewandowski—again gave false evidence), and an appeal to the High Court.

Finally in June 2002, Lewandowski admitted that he and Hancock had fabricated confessions from the brothers, and had also lied at the trial and the subsequent appeals.

He also admitted stripping Peter Mickelberg naked and beating him. He said he and Hancock had fabricated confessions by all three, and had planted the damning fingerprint. He explained how easy it was to get the fingerprint from a series of Ray’s hands that as a hobby he had cast in rubber, brass, plastic and perspex. During the investigation of the robbery, several of those hands had been taken from Ray Mickelberg’s house for further investigation.

Lewandowski had said he had not gone public earlier because he had not wanted to cross former police partner Hancock, who died in a car bombing in an alleged bikie gang payback in 2001. So, loyalty to an old police partner (and self-protection, no doubt) took priority over an oath to uphold the law. And an oath to tell ‘the whole truth’.

There are those who still think the Mickelbergs were guilty, in spite of the WA court having quashed all three convictions in 2006, almost twenty-five years after they were convicted. Unfortunately from time to time, police ‘massage’ evidence a little (or a lot) to ensure the conviction of someone they are certain is guilty, or when they feel their case might be a bit ‘light on’ in places. Of course when this dubious practice comes to light that discovery can lead people to think that all the evidence is suspect, and can result in an acquittal —the opposite of what the police hope to achieve.

Evidence from projects (mostly known as Innocence Projects) set up in the US, Britain and Australia to assist prisoners who protest loud and long that they have been unjustly imprisoned (not forgetting there are NO guilty people in prison!) indicates that about 5% might be telling the truth. That may not seem very many, but in Australia it translates as around 1000 people. Not that many—unless you are one of them.

Consider for a moment how you would feel as you were led from a court, knowing you were innocent, heading for terrible incarceration for up to 25 years, with no prospect of parole, having trusted in the law to provide justice.

Or even how you’d feel if you knew you had done a few bad things in your life, but not this particular one, and the police thought you deserved to go to jail for those transgressions or just wanted you off the street and had used the justice system to achieve their goal.

Professor Paul Wilson, criminologist at Bond University in Queensland and the leader of one of Australia’s first Innocence Projects, says that our legal system is very loath to correct its mistakes without the firm and constant application of outside pressure. Once someone is convicted of a crime, they can use the appeal process (if permitted, an appeal is not automatic) and once those avenues are exhausted, short of a sending the Governor a letter begging for mercy, there’s not a lot more a convicted felon can do without a cheer group that believes in the prisoner’s innocence working away on the outside. These groups use various methods to further their causes, from formal appeals to staged questions in Parliament. Anything that keeps the case in the public eye is considered fair game. And ‘the public eye’ is important, because in the collective mind of the public the accused have been found guilty (or should have been) and they’ve been locked up. No matter if the process was flawed, the evidence was fabricated or lies were told. The law is above all that and justice will be done. But is it always? In my experience, definitely not.

Not every person discussed in this book has a structured group working on their behalf, but they all have some people on the outside who believe in their innocence of the crime for which they have been convicted. (Apart from their mothers!) Come with me down the tortuous pathway of police bungles, flawed forensics, lies and innuendos that can and often do, result in unsafe convictions.

Robin Bowles

Melbourne 2011

robin@robinbowles.com.au

CHAPTER ONE - Does the Law Deliver Justice?

Over the past ten years I have probably interviewed close to a thousand people. Each book usually means about 150 interviews, but in addition to face-to-face interviews there are follow-up visits, phone calls to check facts, emails and so on. One of the motivating factors for people to share their thoughts and feelings with me is their need for ‘justice’. Many feel justice has eluded them in their dealings with ‘the system’ or ‘the law’. They feel impotent against the strength of ‘authority’; angry because they feel they’ve been dealt with unfairly; unhappy with the perceived inequality they have suffered or vengeful on their own behalf or someone else’s because of the way they have experienced the law.

Wikipaedia defines justice as ‘concerning the proper ordering of things and persons within a society. As a concept it has been subject to philosophical, legal, and theological reflection and debate throughout history.’ In modern times, for many, justice is overwhelmingly important from both sides of the equation—distribution and retribution. In my books I have dealt mostly with criminal justice, that is the distribution of justice to the friends and relatives of the victim and the legal retribution against the prisoner in the dock.

Wikipaedia again defines criminal justice as ‘the system of legislation, practices, and organizations, used by government or the state, which are all directed to maintain social control, deter and control crime, and sanctioning those who violate laws. The primary agencies charged with these responsibilities are police (law enforcement), courts, and corrections, which administer punishment for those found guilty. When processing the accused through the criminal justice system, government must keep within the framework of laws that protect individual rights. The pursuit of criminal justice is, like all forms of justice, fairness or process, essentially the pursuit of an ideal. Throughout history, criminal justice has taken on many different forms which often reflect the cultural mores of society.’ The death penalty is irreversible. It’s bad enough to think of guilty people suffering the legalized murder of convicted killers, but the thought that 5% of those hanged, beheaded, electrocuted, gassed, burnt and killed by the state by other draconian means might have been innocent is frightening.

For an example of how social mores have changed—in the time of Queen Elizabeth I, men who had been convicted of high treason were hanged, drawn and quartered. A lot of the body was on view during this process; so treasonous women were executed by a lesser evil—being burned at the stake, to preserve their dignity. The condemned man was dragged, on a thin horse-drawn pallet made of branches, to the place (usually public) of execution. One can only imagine their thoughts as they suffered this final journey, knowing what was to come. Firstly, they were hanged by the neck until nearly strangled, then cut down and their genitals were sliced off and thrown on a fire. Next they were slit from under their breastbone to their pubis, their entrails were pulled out and burned, while they were still alive. The other organs followed. Usually it was about this time that the wicked traitor (many of whom were probably innocent and had confessed under terrible torture) mercifully expired. Cause of death could be anything from shock, heamorrhage, loss of vital organs, or even strangling at the beginning (if they were lucky). The coup de grace was the removal of the man’s head and the chopping of the remainder of his body into four quarters. These relics of the poor condemned were partly cooked in a cauldron of water then hoisted to the ramparts above the city gates to deter anyone else who might be thinking of speaking ill of the Queen.

Elizabeth I had her lover, the Earl of Essex, condemned for treason, but ‘spared’ him the usual punishment and ‘mercifully’ had his head chopped off instead.

Most of these executions were conducted before a huge and enthusiastic crowd and many of the victims were only guilty of some invented subversive plot against them, or of having the wrong religious belief for the time. In the 1500s, 105 Catholic martyrs were executed in this way for no other reason than their religious beliefs and treasonously not following the King’s religion. King Henry VIII, having introduced Protestantism to England and overseen the Dissolution (plundering) of the Monasteries was not very keen on Catholics at any time. This style of execution for treason was only ceased in Great Britain in 1814. A gradual movement towards the abolition of capital punishment began in the 18th century promoted by the writings of Voltaire and his contemporaries. Today, more than half the world’s countries have abolished the death penalty either by law or through practice. In Great Britain, it was abolished (except for cases of treason) in 1971; it was abolished in France in 1981 and in Canada in 1976.

In 1977, a formal resolution of the United Nations General Assembly affirmed that throughout the world, it is desirable to progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment. It is interesting to note that although the USA is critical of human rights in China, Iran and Saudi Arabia, those countries, along with the United States, are the small group of countries where the death penalty is still on the statutes (as opposed to being killed in some kind of civil war or uprising which is quite endemic in many countries).

It is only since 3 February 1967, when Ronald Ryan became the last man to be hanged in Victoria and also, Australia, that hanging (with a small group of ‘relevant’ spectators to witness the demise of a condemned man), was abolished in our own country. There was a huge public protest against the hanging of Ryan, who’d had a career as a petty crook, but who got the death penalty for allegedly shooting and killing a warder while trying to escape from Pentridge Prison. (Some people think he was framed, but that’s another story!) My then husband traveled from Sydney to Melbourne to demonstrate outside Pentridge and join the vigil. As he was French, I didn’t think much of his country’s record of humanity to the condemned; and since I was pregnant and still suffering the after effects of an army upbringing where retribution was swift and severe for offenders, I stayed at home. Even though most people believed Ryan was guilty, the attitude of the ‘peace and love’ generation was swinging well away from capital punishment.

This enormous groundswell indicated to other state governments that capital punishment had had its day, although it took another twenty years for the death penalty to be abolished in legislation nationally.

The chapter in this book, Rough Justice in the Wild West, could not have been written if the death penalty had been carried out on the two innocent young men who were later both pardoned for two murders they did not commit. Unfortunately others have hanged in place of the real killers—for example Colin Campbell Ross went to the gallows after being found guilty of the rape and murder of 12-year-old Melbourne schoolgirl Alma Tirtschke in 1921. An amazing book Gun Alley, by Kevin Morgan clearly demonstrates 88 years later that Ross could not have been the killer. The Victorian Government is considering a posthumous pardon. Fat lot of good that will do Colin Ross, but it might ease the stigma felt by his descendents.

Tales of innocent people going to the gallows are legion and this is not surprising, knowing that up to 5% of about 20000 prisoners serving their sentences in Australia are innocent. About 1000 people. This figure agrees with the British Criminal Cases' Review Commission—the body that assesses applications of those who believe they are innocent of crimes of which they have been found guilty—the false convictions rate is about 5%. In the USA this translates to around 10000 prisoners serving time for something they did not do, many of them on death row. A 2004 study done by Michigan University of ‘328 criminal cases over the last 15 years in which the convicted person was exonerated suggests that there are thousands of innocent people in prison today. The study identified 199 murder exonerations, 73 of them in capital cases. It also found 120 rape exonerations. Only nine cases involved other crimes. In more than half of the cases, the defendants had been in prison for more than 10 years.’ Almost all the exonerations were murder and rape charges, for which, in the USA people receive the heavy sentences, including the heaviest of them all—death.

The term ‘justice’ is often accompanied by the word ‘fairness’. Many people have told me that they don’t believe the system has been fair to them or their loved ones. In murder cases, the friends and family of the victim, and the accused, are often legal innocents. They don’t know anything about lawyers or the law and like Graham Stafford’s mother (The Lone Maggot), if they do know a lawyer it was probably the one that did the conveyancing on their home purchase. To be suddenly thrust into a life or death—Not Guilty or Guilty— situation is frightening, bewildering and expensive. An old joke that regularly does the rounds in legal circles is that the client is innocent until proven broke.

Evan Whitton, in his excellent book Serial Liars, quotes Lord Chancellor Kilmuir as saying, ‘Now the first and most striking feature of the common law is that it puts justice before truth. The issue, in a criminal prosecution is not, basically, Guilty or not Guilty, but can the prosecution prove its case according to the rules. These rules are designed to ensure fair play at the expense of truth. The attitude of the common law to a civil action is essentially the same: the question is, ‘has the plaintiff established his claim by lawful evidence?’ Not ‘has he got a really good case?’ Again, justice comes before truth.’ I hesitate to suggest an amendment to such an eminent personage, but I think ‘the law’; could be substituted for ‘justice’ here.

You will see throughout this book that justice is sometimes obtained by manipulating the law and not telling the truth. Sometimes the ‘facts’ are manipulated by external forces, such as the media, or imported experts giving their unshakeable (no matter how wrong, it is sometimes revealed) opinion—enough to send the prisoner to jail for a long time. Other manipulations are done by witnesses giving false evidence, including police; judges conducting a trial or summing up unfairly; inadequate representation; prosecution misconduct and circumstantial evidence are also open to misuse and manipulation. It depends sometimes on how much each side wants to win.

In the 2005 trial in Darwin of Bradley Murdoch for the murder of Peter Falconio, (So bizarre it’s almost impossible) the prosecution had a huge responsibility to obtain a conviction. Apart from the millions of dollars spent on tracking down Murdoch and collecting evidence against him, there was the ever-present spectre of the possible repeat bad publicity experienced after the Chamberlain case; there was no body, no weapon, no motive; only one unreliable eyewitness and a spot of DNA the size of half my pinkie nail. Other considerations in making sure a ‘win’ was obtained for the prosecution were the huge amount of publicity demonizing Murdoch that preceded and followed his trial; his picture being published before his trial on the web along with a story that he was the Falconio suspect (seen by Joanne Lees before she formally identified him from the same photo); the tourism consideration as the Northern Territory is promoted as a tourist destination; and concerns that a British national disappeared on their watch. Murdoch says his was the only trial he knew of where an official representative of the UK Government attended nearly every day. The NT Chief Administrator popped in one day for a look-see too. The Appeal Court and the High Court have rejected appeals by Murdoch on the due process of how his trial should have been conducted—accepted legal guidelines were, in his lawyers’ submissions, not followed—and handed down refusals to look at these matters on the grounds of ‘overwhelming evidence of his guilt.’

In the cases of John Button and Darryl Beamish in WA, despite another criminal, convicted multi-murderer Eric Cooke, confessing to a minister of religion as he was about to drop from the gallows, ‘I swear by Almighty God I ran that girl down, [Rosemary Anderson, John Button’s alleged victim]’ the system refused to investigate that possibility, telling people that Cooke was confessing to everything but the Great Train Robbery. His mother had said in evidence at his trial on other counts that Cooke wanted to go down in history as ‘greater than Ned Kelly’, which gave the police an excuse not to believe him. Cooke actually confessed to twenty murders and attempted murders. Police accepted all his confessions except for the murders of the two girls for which they already had convicted two young men, serving life sentences, and one of the attempted murders.

In an adversarial system such as ours, it stands to reason that if both sides present their case to the jury as inalterable facts and they are totally different, then one side must be lying. Letting the Catt Out of the Bag is a perfect example of this. Justice Jane Matthews was so exasperated when summing up that she said, ‘many, many lies must have been told during the course of this trial’. Lawyers find themselves right down at the bottom with used car salesmen and journalists as the least trusted professions in our community. This stands to reason when you think that to do their job properly and ethically, one side is lying as convincingly as possible to the jurors, their audience, and the judge is allowing almost everything they say through to the keeper. Anything either side says that is a ‘no ball’ or a ‘foul’ the judge (umpire) tells the jury to pretend they did not hear that. Like if a witness says, ‘He rapes little girls’ about the defendant, and there has been no evidence introduced by either side to demonstrate that, the judge says to the jury ‘disregard that.’ As, of course, they do.

Paradoxically, when lawyers implement the law correctly, by doing their best for ‘their side’ by lying better or more convincingly than ‘the other side’ the result may not be just. Another old legal joke that does the rounds is, ‘It’s only 99% of lawyers that give the rest a bad name.’ Defence lawyers have told me they do not want to know, and ethically can’t know, if their client is guilty as charged. If they suspect, but don’t know, or actually believe in the client’s innocence, it makes presenting their argument so much easier—and more ethical. ‘If my client were to confess to me,’ one lawyer in this book told me, ‘or for example, you showed me irrefutable proof of his guilt, ethically, I would probably have to withdraw.’ The operative word is irrefutable. As long as a lawyer can ethically argue that black is white, he’s still in the game. That’s often done by skirting the truth of the current charge by attempting to present an alternative hypothesis to the jury, to help them reach a ‘reasonable doubt’ decision.

Geoffrey Robertson QC wrote a book a few years ago that I took on holiday to read in the Whitsundays. My husband thought I was reading a crime thriller (my favourite reading material) when he saw the title—The Justice Game. In his book Robertson compared the conduct of a trial to a game with two opposing sides, one of which must win. The goal is not necessarily ‘a fair trial’, it is rather a process by which winning is everything and in fact a ‘fair’ trial might result in the defence losing. Oh dear! Sometimes this means that the defence counsel must resort to discrediting witnesses, grumbling about the prosecutor, pleading with the judge not to interrupt so often, anything to get the jury on side.

The barrister in the Murdoch case tried a few of these tactics and got a rap over the knuckles in the judge’s sentencing remarks; Joe Gullaci, now Judge Gullaci, when representing Denis Tanner at the two inquests (He Shot his Sister-in-law) kept grumbling about being ‘at the mushroom end of the bar table’, so often did he feel his team had been kept in the dark. It did seem as if a lot of surprises were sprung on the ‘mushrooms’, I saw that for myself. On the other hand, the barrister in the Domaszewicz trial (Moccasins on Everyone), performed brilliantly for the jury, allowing outspoken witnesses to discredit themselves by call him names—‘you are nothing but a spaz’ comes to mind—playing the put-upon underdog to the prosecution (a fairly straight, dry kind of guy who just couldn’t compete in the performance department); and got his client, whom everyone in the street thought was guilty, acquitted. The jury loved him and he won his case.

Evan Whitton says in Serial Liars, ‘Justice may be a game, but the playing field is not level… the game is rigged in ways which get money for lawyers: aspects of civil law are unfairly biased in favour of plaintiffs; criminal law is unfairly biased in favour of defendants.’

Some barristers play up to the audiences at the back of the court, the ‘trial groupies’ I call them, who spend their days attending high profile trials as entertainment. Nothing wrong with that—trials are usually very entertaining, and free. Whilst barristers can’t approach the jury, they can talk to the ‘groupies’ in adjournments and often do, assessing their ‘scores’ with the onlookers. As juries are supposed to be made up of ‘ordinary people’—a total fallacy—the groupies’ feedback is welcomed and often acted upon.

In my early days of crime writing I was attending the inquest into Jenny Tanner’s death and I knew one of the witnesses, an ex-police officer, was not telling the truth. In a short adjournment, even though I had resolved not to get involved as a participant, I couldn’t stop myself from approaching the counsel assisting the coroner, Mr Jeremy Rapke, who has since become a QC and then DPP of Victoria. I told him that the witness was lying and why. He reassured me that it was quite OK, he knew the man was lying.

’What about the Coroner? I asked indignantly. ’He has to make a decision based on these lies.’

‘The Coroner knows he’s lying too,’ he told me. ‘Don’t worry, he’ll take that into consideration. Lot’s of people lie in the witness box,’ he concluded matter-of-factly.

I was stunned. Why take the oath …? Since then I have learned something. He was right.

At times police also find themselves in the position of having to lie under oath. They excuse it as the ‘noble corruption’, because they are required to get results, so the means justifies the end. They often believe that they are fighting on two fronts—the rules of law and the crooks. (See ‘So bizarre it’s almost impossible’) Many police think the criminal legal system is loaded against them and that it bends over backwards to protect the bad guys; so in order to get the conviction they know in their hearts that slimy evil-doer in the dock deserves, they lie. Or they ‘massage’ evidence. They think that if it is OK for the defence lawyers to lie to keep their clients out of prison, it is equally acceptable for police to lie to put them away. The old standard of telling the truth, the whole truth, and nothing but the truth does not apply to police and lawyers who have the law on their side—only the witnesses. And according to Mr Rapke, lots of them lie too.

At police school, police are taught to say ‘I don’t recall’ or ‘to the best of my recollection’ when asked questions they don’t want to perjure themselves by answering. In other words, telling the truth might get them into trouble, or give the side for the bad guy an advantage. So it’s a white lie, not a black one. At the Jenny Tanner inquest, one ex-police officer answered this way 32 times during his evidence—trying to save his own arse, not to put the bad guy away. Observant defendants have noticed this neat little legal sidestep and now the likes of Alan Bond, Renee Rivkin, Terence Lewis (formerly Sir, who became only the 14th person since