Justice Denied by Bill Hosking QC with John Suter Linton

Foreword

His Honour Judge Stephen Norrish QC

There are very few people in the New South Wales legal community who have better experience and insight into the criminal justice system and the ability to comment on examples of where justice has been denied than William ‘Bill’ Delbridge Hosking QC.

From his early professional life working within the court system and his role as a ministerial advisor to becoming a barrister and then a judge in the busiest sentencing and trial court in the Commonwealth of Australia, Bill has acquired unique opportunities to participate in, contribute to and observe the criminal justice system over decades of enormous change and thus to understand, and in some cases correct, the wrongs and excesses that any imperfect system can produce.

During the inquiry into convictions of the Ananda Marga Three, as senior counsel representing one of the young men wrongly convicted of serious crimes for which they each spent almost seven years in gaol, Bill observed in submissions that ‘the well of justice had been poisoned at its source’. Hyperbole was not unknown to him in his advocacy, but as it turned out, there was no hyperbole in that observation.

Bill was first and foremost a master jury advocate and tactician, a rare skill among all lawyers. But he was not one to grandstand and was certainly not one for self-promotion. He worked assiduously to protect the interests of his individual clients, with the strength and courage to speak up when it was required and the keen and innate instinct to identify the prospect of a miscarriage of justice and, in many cases, to identify the means to avoid the consequences of that. However, despite the best efforts of lawyers, miscarriages of justice still occur.

When Bill commenced practice at the Bar, common practices of the period in police investigations were ‘the verbal’—the unsigned record of interview; flawed processes of out-of-court identification; reliance upon unreliable and later discredited science and scientific investigation; and the use of prison informers. These practices were well known not just to police and prosecutors, but also to judicial officers, many of whom did little or nothing to prevent miscarriages of justice occurring. The battle for the integrity of the justice system was largely fought by skilled and courageous lawyers such as Bill Hosking, representing accused persons and fighting the systemic unfairness on a case-by-case basis. It was not until the mid-1990s when Justice Wood conducted his Royal Commission into the New South Wales Police Service that the conduct of corrupt and dishonest police officers was exposed.

The direct and indirect consequences of that royal commission were revolutionary. The commission did not just lead to the reform of legislation to almost eliminate the practices in investigation that had led to many injustices in the past, but also to the public and official recognition of those practices by a legal system that previously had been either ill-equipped or uninterested in addressing.

This could not be said of the judges of the High Court of Australia who, since the 1977 decision in Driscoll v The Queen—about which Bill writes—provided leadership and direction over the next two decades in relation to matters such as the admission of confessional evidence, appropriate judicial identification warning and the proper approach to the admission of forensic evidence, where legislatures were too timid to act. Yet these decisions of the High Court were only desultorily followed by many trial courts and intermediate special courts. It took eight years after the decision in Driscoll for the unsigned record of interview to be cut down by the unanimous decision of the High Court in Stephens v The Queen, another decision emanating from New South Wales.

The protections now available under the Commonwealth and state laws have their origins not only in the leadership of the High Court, the impact of the Wood Royal Commission and to some extent the findings of the earlier Fitzgerald Inquiry in Queensland, but also in the work of the people who can be properly regarded as ‘knights of justice’ practising law across Australia, lawyers such as Bill Hosking and the other trial advocates throughout Australia who exposed to juries on a case-by-case basis the many deficiencies of the legal system: a system where rules for the protection of the person bearing the presumption of innocence were either not clearly defined or were unilaterally made by participants in the system who had a primary interest in securing convictions.

Before he undertook his revolutionary royal commission, Justice Wood had presided over the Ananda Marga inquiry. If the conduct of the investigators and others in the investigation of those men had ‘poisoned the well of justice’ at its source, the work of Bill Hosking and other lawyers in that inquiry must have contributed to the open-minded approach that Justice Wood took to his work in the royal commission a decade later.
The task Bill has undertaken in his examination of past injustices is one that has a contemporary resonance because, while on many occasions people in the community will complain about the inadequacy of sentences and the inappropriateness of acquittals, the capacity of the justice system to cause injustice to the person who wears the presumption of innocence is far greater. The measure of any justice system is its capacity to provide justice to the worst of the worst, not just to the most worthy. In this book, Bill also exposes where this test of our justice system has not been passed and explains why that was so.

This book demonstrates the need for everybody who participates in the justice system and the community to exercise the enduring vigilance needed to prevent mistakes of the past occurring in the future, even for those accused of involvement in unspeakable crimes that seize the public imagination and cause revulsion in reasonable minds.


Introduction

Public defenders are briefed in the most serious criminal cases, particularly when clients can no longer afford to retain the Bar’s elite. My clientele was wide and varied. The notorious, the oppressed, the young and the old. The wise and the foolish. My clients included solicitors, police, schoolteachers, doctors and nurses, underworld heavies and prostitutes.

These memoirs recall some of the many notable cases in which I appeared as a barrister. They provide a rare insight into the emotion and complexity of a defence barrister’s role. I have appeared in cases at all levels, the Local Court, District Court, Supreme Court, Court of Criminal Appeal, and six times before the High Court of Australia as leading counsel—only once successfully—and once for the Crown as junior counsel to the Solicitor-General, Harold Snelling QC. These are narratives of my clients’ misfortunes.

It is rare and more interesting to read a barrister’s frank admission of his own mistakes and errors of judgement, rather than accounts only of courtroom triumphs. There are both in this book. The emphasis is categorically, and unsubtly, from the defence viewpoint. Human frailty and its dark side underline the criminal trial process.

These are not impartial narratives, but my memoirs. There are none drawn from my years as a judge. Enough has been written about that period by the Court of Appeal and the Court of Criminal Appeal.

Justice is an elusive end, and not always achieved. Hence the title Justice Denied.

***

Whenever I drive past a gaol I feel a sense of sadness and fear. Going inside the forbidding walls and hearing the inevitable clanging of gates is worse. The Victorian-era East Maitland Gaol, Parramatta Gaol, Goulburn Gaol and the sprawling Long Bay complex are the worst. Thankfully, the first two are now closed.

Imagine entering the prison, handcuffed, from the back of a stuffy, windowless prison van. Being stripped naked, washing in the communal shower, and then being handed the drab prison green garb. Each stage of the ‘welcoming’ is designed to destroy your self-respect. This is the start of days, months and years of personal danger and torment.

This is the fate of some of the worst villains who falsely claim membership of the human race. As this book tells, it is also, sadly, the fate of too many innocent people.

How many is too many? One is too many.

From time to time, innocent people are convicted. That is the flaw in our system of justice. There can be no greater injustice than a person being convicted of a crime they did not commit. Justice is not infallible and sometimes it is denied. When it is denied, we are all somehow diminished. Traditionally, the mythical goddess Justice is depicted blindfolded, which is said to portray even-handedness and impartiality. The great English advocate Sir Edward Marshall Hall KC told juries the blindfold was to shield her look of infinite pity from public gaze. When an innocent person is sent to gaol, justice truly is denied, and there have been far too many instances of that in Australia.

On 29 October 1982, a pregnant Mrs Alice Lynne Chamberlain received the mandatory life sentence for the murder of her baby, Azaria, and was sent to gaol. Her appeal to the Federal Court of Australia was dismissed. By majority, her appeal to the High Court of Australia was also dismissed. Years later, she was exonerated by a royal commission and paid some money and released. Scientific evidence had proved she was innocent. No crime had been committed by anyone.

The system had well and truly failed her. Mrs Chamberlain is not a lone figure. On 27 May 2008, in an Australian first, the Victorian government pardoned Mr Colin Campbell Ross. Scientific evidence proved he also was innocent of murder. It was too late to pay any money to Mr Ross. In a brief but solemn ceremony, he had been hanged by the neck until dead at Melbourne Gaol in 1922. He was thirty years of age when his life was ended. The system had well and truly failed him.

For a murder committed in 1936, in central western New South Wales, a trial was held at Bathurst eleven years later. The death sentence was passed upon Mr Frederick Lincoln McDermott. The Court of Criminal Appeal dismissed his appeal and so did the High Court of Australia. Fortunately, the death sentence was not carried out. In 1952, after a royal commission, Mr McDermott was cleared. He was given the princely sum, in today’s money, of $1000 as compensation after serving more than five years in prison. He died a broken man in 1977.

In 2013, DNA evidence confirmed Mr McDermott’s innocence. The Court of Criminal Appeal not only quashed the murder conviction but, even though McDermott was dead, found him not guilty. This is the only time in Australian history this has ever happened. Sadly, in Mr McDermott’s lifetime, the system had failed him.

All three of these trials took place in the twentieth century. Two resulted in the death sentence. In all three cases, the jury verdicts were later proved to be wrong. The appellate courts, all the way up to and including the High Court, also got it wrong. In each case, years later, the government sought, in vain, to make amends with a pittance.

Two other monumental jury miscarriages of justice involved Alexander McLeod-Lindsay in 1964 and Ziggy Pohl in 1973. Mr McLeod-Lindsay was convicted for the attempted murder of his wife, even though she tried to exculpate him at his trial. Likewise, Mr Pohl, a humble and gentle migrant, had been the victim of circumstantial evidence, and convicted of the murder of his wife. He too had served more than a decade in gaol.

Unscientific scientific evidence was the forensic rock on which Mr Alexander McLeod-Lindsay perished. That happened at his trial, on appeal, and at a specially set up judicial inquiry in 1969. It was the so-called expert, but wrong, explanation of his wife’s bloodstains on his clothes that convicted him. The police, court and jury all disbelieved his wife when she claimed it wasn’t her husband who had bashed her and their four-year-old son. Mr McLeod-Lindsay was cleared, but not before he had served his entire long sentence. He never gave up. It took a second judicial inquiry in 1991 to eventually clear him. But it was not until 26 July 1994 that the Court of Criminal Appeal finally quashed the conviction. Mr McLeod-Lindsay passed away in 2009.

The denial of justice to Mr Pohl, which was not finally recognised by the Court of Criminal Appeal until 17 December 1993, was almost as complete as Mr Ross’s tragic and wrongful death by hanging. At all times Mr Pohl had protested his innocence, but in vain. He received a life sentence. His case was simply closed until, years later, the actual killer came forward, confessed and was sentenced. Otherwise, the injustice would have remained unrecognised to this day.

***

Miscarriages of justice do not recognise national or state boundaries.

On 22 August 2014, a full bench of the Australian Capital Territory Supreme Court quashed the murder conviction and life sentence of David Eastman. At that stage, Mr Eastman had served nineteen long years of his life sentence. The decision followed a top-level judicial inquiry, which found there had not been a fair trial and the conviction was a miscarriage of justice. It must be said, any blemish in the Eastman trial was not through any shortage of talent at the bar table. For the Crown was Michael Adams QC, soon after to be a Justice, and for Mr Eastman, the future leader of the New South Wales criminal bar, Winston ‘The Hat’ Terracini SC.

The Crown did not hoist the white flag of surrender. Instead, it exercised its right to require Mr Eastman, after all those years, to stand trial again. Not surprisingly, Mr Eastman and a procession of lawyers provided for him by legal aid resisted this decision. A distinguished and experienced trial judge from New South Wales was objected to and eventually stood aside. Senior counsel for Mr Eastman were dismissed. One silk became seriously ill. At the time of writing this book, the prolonged, unresolved, unhappy Eastman saga continues to occupy the Supreme Court of the nation’s capital. Justice again denied and heavily delayed.

Mr Eastman was not a once-in-a-generation aberration. On 22 December 2014, the South Australian Court of Criminal Appeal quashed the murder conviction and life sentence of Henry Keogh, who had served, like Mr Eastman, a shade less than twenty years in gaol. The Crown elected to put Mr Keogh on trial for a third time. Bravely, Mr Keogh elected to set aside a jury trial and be tried by a judge. The Crown rejected this challenge and discontinued the prosecution in November 2015. Keogh’s defence was an unusual but not an unprecedented one. He argued there had never even been a murder, as the deceased had died of natural causes.

Roseanne Beckett, formerly Catt, was convicted by a jury in the Supreme Court in 1991 for attempting to kill her husband. She was sentenced to twelve years gaol with a non-parole period of ten years and three months. Her appeal was dismissed. Ten years after going to gaol, she was released on bail when evidence came to light that she had been framed. It was a hollow victory. Her non-parole period was weeks away from expiry and, thus, she was due for release anyway. A new trial was ordered, but this time the DPP hoisted the white flag.

Roseanne Beckett sued the government for malicious prosecution. She won. In 2015, the Supreme Court awarded her $2.3 million plus costs, which will exceed $1 million. Over $3 million for all those wrongful years in gaol. Adequate compensation? No. Ten times that amount and more would not be enough for what she suffered.

As Justice Harrison so succinctly and eloquently put it, there is no way of knowing what Ms Beckett’s life would have been had she not been charged. That applies to all those unfortunates to whom justice has been denied, with Colin Campbell Ross the ultimate, tragic victim.

It was the famous jurist Sir William Blackstone who wrote in the eighteenth century: ‘It is better that ten guilty escape than one innocent suffer.’ It must be remembered that this presumption in favour of the innocent is never absolute.


We hope you enjoyed this sample of Justice Denied - coming March 2017!

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