Well, first of all I'd like to thank (Justice) Frank Vincent very much for his kind words. It's a matter of regret that the organisers limited his time. I am deeply humbled for the honour the Criminal Bar Association has done me tonight in holding this function. I'll always treasure the friendship of those of you who've been my colleagues at the Criminal Bar.
I'm also very grateful for this event because I've been feeling a bit paranoid and depressed. I recently received a letter from the Assistant Honorary Secretary of the Bar Council stating that the Council had "resolved that your name be transferred from Division B11 (Judges) to Division C1, (Retired Judges and Other Judicial Officers) as from the 29th February 2008".
Now, I found this a tad disconcerting since I didn't retire until the 4th of April 2008. I would be the first to admit that my post-February judgements were not very substantial. But that's not really a satisfactory reason because the same could be said for my judgements that preceded that date.
There is a temptation on occasions such as this to reminisce. Unfortunately, I have succumbed to it.
The start of my career at the Bar was not auspicious. My first encounter with a police witness was not in a Magistrates' court, but on the way to it. I was running late for the Footscray Magistrates' Court and I drove through a red light. Having been intercepted, I duly informed the policeman that I was a barrister on my way to court. At that time, in Owen Dixon folklore, this was supposed to have a beneficial effect. On this occasion, however, the grizzled senior constable reached for his pen with the comment, "Well, this will be another court appearance for you".
I did about five years almost exclusively in the Magistrates' Court. It was a wonderful venue to develop your capacity to cross-examine. It also had the virtue of multi-skilling. I could easily have got a job as a Melbourne taxi driver, orientating myself by the various Courts of Petty Sessions.
At this time, Frank Vincent and I lived in Oak Park - in separate dwellings. It is hard to describe Oak Park, but I like to think of Toorak as being the Oak Park of the South. Across the road was the less desirable suburb of Glenroy. Come to think of it, there were no oaks in Oak Park and not much parkland either. But if you liked Scotch thistles, this was the place to be!
On one occasion, we were both driving our cars down Pascoe Vale Road. We each had the windows wound down because that was the only form of air conditioning we could afford. When the vehicles stopped side by side at the traffic lights, Frank called out, "Are you in court today?" After I replied in the negative, he said, "How would you like to do an assault occasioning at Port Melbourne?" When I said, "Very much", he tossed me the brief through the open car window before driving off. I was thrilled, particularly as he only wanted a modest commission!
In those days, there were a number of magistrates who espoused the legal philosophy that defendants should not only be done, they should appear to be done and if they didn't appear, they should be done in their absence. On reporting one perceived injustice to my master Kevin Coleman, I was met with the sensitive response, "Son, there's so much injustice in the world, a little more doesn't make any difference".
I commenced spasmodic appearances in the County Court in fraud summonses. Initially, I appeared before Judge Trevor Rapke, Jeremy Rapke's father, who - I had been told - had never made an order on a fraud summons in his whole judicial career. Nonetheless I launched into cross-examination of the hapless debtor, suggesting that he give up such luxuries as food and beverages in order to do the decent, just, and compassionate thing by the Readyloan Finance Company. At the end of my cross examination, His Honour asked, "Do you really want me to make an order?" On being informed, in effect, that at this moment in my life, this was my principal desire, His Honour retorted, "Those who live by the sword die by the sword", promptly found a technical defect in the process, and struck it out.
After three weeks of this sort of thing, I determined that if the Bar offered nothing better, I would leave it. My Clerk, obviously aware of my discomfort, thereafter arranged, with a certain lack of sensitivity, for me to be briefed in a number of ejectment applications.
Eventually I was entrusted with jury trials, but usually as the junior. As junior to Phil Opas QC in a manslaughter trial, I vigorously cross-examined the police witnesses. On leaving the court, Phil slapped me on the shoulder and remarked, "Well done - it just goes to show, in these courts, the bludgeon is just as effective as the rapier". (I took this as a compliment).
Forensic disasters tend to remain with you over the years. One of my worst experiences was before Mr Justice McInerney. My client had been charged with the attempted murder - by stabbing - of an 80 year-old lady. The prosecutor, Alan Dixon QC (Jane's dad) was to call her to confirm the stabbing but that she had absolutely no idea who did it. A frail little woman was helped up the steps into the witness box in the Fourth court by her 50 year-old daughter with the encouraging words "You'll be alright, mum". Alan duly put to her that she was unable to identify her assailant whereupon she paused, pointed to my client, and said, "He did it, he did it" while making stabbing motions into her chest.
There was a dull thud as my jaw hit the bar table. In the course of the subsequent unprepared cross-examination, I believed that I had got the lady to admit that the information about the identity of the stabber had been suggested to her by her daughter. Mr Justice McInerney was not so sure. However, our discussion on this matter was interrupted by a crash as the lady collapsed in the witness box. The jury watched fascinated as several burly policemen gently carried her frail form into the Fourth court anteroom. It was at that point that Justice McInerney leant forward and uttered the then chilling words, "Mr Coldrey, perhaps you should consider your client's position. A year and a day haven't elapsed since the stabbing".
There was however a happy ending. The lady lived and justice was done- my client was convicted.
The Beach Inquiry was an important chapter in my legal career. In the past, I've mentioned it in connection with Cairns Villeneuve-Smith. One incident during that period is not so well-known. I was foolish enough to write a piece for the Bar News entitled, "Is Frankness and Honesty Desirable in a Court of Law?" It went like this.
Counsel: "Your Honour, you dead shit, my client instructs me that he has settled down and turned over a new leaf since this incident. In my view, he is still the same conniving little con-man that he always was. The only reason that I am making this plea for him is that the relatives have come up with a heap of dough and I've slugged them heavily for the privilege of having me serve up this load of crap."
"He was good to his mother up until the time he put her in a home ten years ago. He maintains three bastard children under an order from the Fitzroy Magistrates' Court. He's a member of the Royal Oak Hotel Darts Club and has always been on good terms with his pit- bull terrier. There is nothing more I can uselessly add."
His Honour: "I have partly listened to the arguments advanced by your counsel. They have not made the slightest difference as I made up my mind before coming in to court. "
"I would like to say that counsel has pleaded eloquently on your behalf, but in fact what he said was a load of ill-prepared drivel. It was half- baked, no doubt because of his irritating habit of court jumping. Furthermore, I am crooked on the fact that he's making three times as much coin as I am. So, I'm going to take it out on you by sentencing you to five years with a minimum of three."
"Now, I would be grateful if you two uniformed thugs calling yourselves prison officers would remove this little punk and counsel would rack off so I can get to the first at Flemington."
I still feel the chill of terror in recalling the day upon which David Byrne as editor of the Bar News and I were summoned to Villeneuve-Smith's chambers to be informed that a judge had read this "loosely written article" in that publication and considered himself defamed.
Villeneuve-Smith queried whether the Bar News had insurance to cover such an eventuality. Byrne thought not. Observing our ashen faces, Cairns promised that he would do all within his power to prevent the issue of a writ. Anxious weeks passed, during which we received bulletins detailing his progress in the pacification of the judicial personage. It was not until Cairns beamingly announced that he had settled the case:-"His Honour has agreed to accept $500 in used notes to be handed to me as intermediary"- that we realised we had been duped. I did, however, get partial revenge. I announced to Cairns that I had obtained the cash. His smile of anticipation melted away when I produced $500 in Monopoly money.
Another highlight in my career as a barrister was appearing in the Northern Territory. Here, I achieved a notable double. I lost the last murder trial in the historic old Alice Springs Supreme Court and I lost the first murder trial in the modern luxurious new Alice Springs Supreme Court.
In those days, many murder trials were settled for manslaughter pleas. One such case involved Diamond Turner, who had killed his wife with a tomahawk. I first met him on the bed of the Todd River where he was scooping handfuls of spam from a tin. The setting sun, catching the fat globules in his beard, which was even more magnificent than that of John Smallwood, transformed it into a sparkling fairyland. Perhaps that was why he was called Diamond.
I thought that my plea before Justice Gallop was progressing well and I turned towards the dock to see if Diamond was appreciating this flow of eloquence. Unfortunately he wasn't there. His brother had answered to the name Turner when it was called outside the court and duly pleaded guilty. A truly wonderful example of brotherly love!
In the Northern Territory, police investigations and interrogations involving Aboriginal suspects are subject to the judicially created Anunga Rules. One rule required the presence at interrogations of a "prisoner's friend"- being someone who knows or is known to the suspect and whom the suspect has apparent confidence and by whom he or she will feel supported. I was appearing for an Aboriginal accused in a rape- murder trial who instructed me that the police had threatened to "cut his cock off" if he failed to tell the truth. This informal surgical procedure was to be performed without benefit of anaesthetic using an office guillotine. His brother, who was the prisoner's friend, gave evidence that the police had treated the accused well. Nonetheless he agreed in cross-examination that the threat of summary amputation had been made. "How can you say that the police treated your brother well?" I queried. He gave me a look of part-exasperation, part-pity, before responding: "Because they didn't do it".
On this day, 29 years ago, the trial of the Huckitta Five took place in Alice Springs. Frank Vincent has mentioned that. I'd like to finish by talking about it because it involved some of the icons of the Criminal Bar. The facts are fully stated in Collins & Ors v. R (31ALR257) - you might like to jot that down on your serviettes. As will become apparent, not all the facts I will refer to appear in the report.
Three Aboriginal children, Mark Collins, 12, Kevin Stewart 13, Joylene Williams, 14, together with two Aboriginal women, Josephine Woods (who had the mental capacity of a child) and Janice Edwards, stole a panel van and items including a Winchester .22 rifle and ammunition from the Amoonguna settlement near Alice Springs. On New Year's Eve 1978, they drove the panel van 175 miles to the Huckitta cattle station, which was operated by the elderly Quentin Webb. He was one of three brothers, the others being Kilmot and Bennett, who held vast pastoral releases in the Northern Territory and Queensland
On arrival, the panel van had two flat tyres and Quentin Webb radioed for a replacement tube. It would not arrive until evening so the group had to wait.
At about 1.00pm, Janice Edwards went with the only other person on the property, a station hand, to a nearby dam to check some baits. On their return, some 45 minutes later, they found Quentin Webb dead. His death had been caused by a single shot from a Winchester rifle, which had penetrated his chest as he sat reading on a tank stand. By this time the other members of the party had already fled the scene in the station Toyota. They were eventually intercepted by police, in possession of the Winchester rifle, which had fired the fatal shot.
Ultimately, the crown case was that 12 year-old Mark Collins had fired the fatal shot, having been persuaded to do so by his companions. The role of Janice Edwards, so it was alleged, had been to lure the station hand away from the scene of the shooting. If this was so, her companions had callously deserted her. Evidence of the circumstances of the shooting could only be gleaned from the suspects themselves. This was in the form of records of interview and photograph re-enactments. The admissibility of this material was challenged by the defence in a voir dire, which occupied 6 weeks.
The solicitor of the Central Aboriginal Legal Aid Service, Pam Ditton briefed Frank Vincent for 14 year-old Joylene, myself for 13 year-old Kevin, Dyson Hore-Lacey for Josephine and John Dee for Janice- the lady of the dam. Mark Collins, the alleged shooter was to be represented by a South Australian barrister named Peter Waye.
Our fee was $1400 per week. Pam Ditton informed us that Peter Waye had agreed to that fee, although he was normally an $800 a day man; $800 a day for a criminal barrister in 1979 constituted riches beyond belief. On receipt of this news, we immediately christened Peter Waye "the Golden Larynx". This was a touch unfortunate as, unbeknown to us, he had a slight speech impediment. Given this circumstance, he could be excused for referring to us thereafter as "the Melbourne Mafia".
John Dee had a fear of flying. Soon after we took off for Alice Springs, he ordered three cans of Fosters and three glasses. Frank and I protested that 9.40am was a bit early for us. "Not to worry", said Dee. He proceeded to pour miniscule amounts of beer into two of the glasses and then demolished the three cans. However, the flight was not long enough for him to make serious attempt on David Boon's record.
In Alice Springs, we were accommodated in a Legal Aid property. Vincent and Dee being the most senior had their own rooms. I had to share a bedroom with Dyson Hore-Lacey (though not the bed). Within a short time, Vincent and I began referring to our accommodation as Hepatitis House- but since you are all still eating and drinking, I won't, as equity lawyers would say, "condescend to details".
It was John Dee who was very keen to give us nicknames. I think Frank already had the nickname "Blue" but that was re-instated by John. Dyson Hore-Lacey was called "Wishbone", who apparently was a cook in some TV series. And for reasons that I find very hard to understand, he referred to me as "Short Arse". In turn we referred to him as "MTB" - Municipal Toilet Block.
All of us, apart from Dee, flew out to view the scene at Huckitta station. We were met by Kilmot and Bennett Webb. They were impressive men, both polite and gracious despite the fact that we were to defend the persons charged with murdering their brother.
Back at Hepatitis House, Dyson was drafted as cook. He was very adept at grilling steak, fish and chicken, but unfortunately his favourite vegetable was boiled, shredded cabbage. One night as a special treat, he prepared lobster mornay - that is, lobster mornay with boiled shredded cabbage.
As you all know, Dyson gives 110% for any client- and that's when he's not feeling well! One manifestation of this was his endless playing of the tapes of his client Josephine's record of interview as he lay in bed around midnight. "Listen to this, Coldrey," he would urge, "I think the coppers have stopped the tape". "Dyson, I couldn't give a stuff if they stopped the tape - I just want to get some sleep!"
Eventually Greg Levine, now a Victorian magistrate but then a Legal Aid lawyer in Alice Springs, lent me some Woody Allen tapes. With earplugs in, I was Dyson-proofed, and it looked as if I was listening to my client's interview- although it must have seemed odd to be chuckling at his damning admissions.
At that time, Frank Vincent was training for the Melbourne marathon and each Saturday would run about 22 kilometres west towards Standley Chasm. Rather selfishly, he declined to run back and we were rostered to pick him up. In the case of rosters, there's always the potential for human error and on one occasion, by the time I reached him, he was crouched under a spindly acacia tree practising the art of dehydration.
Dee on the other hand was vigilant to keep dehydration at bay. On one evening, having had one or two for the road and several to fortify himself against the cold of an August evening in Alice Springs, he became disorientated on the way home to Hepatitis House. Finding himself beside the Todd River, he decided to rest. The police located him propped up against the back wheels of a road train still nursing his briefcase. Politely, they dusted him down while warning him of the dangers inherent in his choice of resting place.
At this point, some confusion enters the account of events. Certainly the story circulating around Alice Springs the next day was that a barrister named Peter Waye had been found sleeping under a road train. Dee's explanation, which I accept unequivocally, was that the police must have understood him when he asked them "the way".
One of our challenges to the re-enactment was that the police had conducted a dress rehearsal of it prior to the arrival of the prisoner's friend in the afternoon. This they denied.
In the middle of the voir dire Peter Waye had the brilliant idea of flying out to Huckitta to revisit Kilmot Webb. He had been at Huckitta station on the relevant morning, and if any such rehearsal had occurred, he would have witnessed it.
Waye explained the situation to the old man. Shrewd as ever, Kilmot Webb asked him: "If that happened, it wouldn't be good for the Crown case, would it?" Waye admitted this was so. "Well," said Webb, "It did happen". Waye informed him that the defence would have to call him as a witness.
As he was about to fly out, Kilmot Webb said to him "Haven't you forgotten something?" "What?" queried Waye. "You haven't got a signed statement from me". To his eternal credit, Waye replied, "I wouldn't insult a man of your honestly and integrity by asking you for a signed statement".
Kilmot Webb came to court, he gave his evidence and he was unshaken in cross-examination.
In the result, the trial judge refused to admit the records of interview, but curiously, allowed the re-enactments into evidence. At the time he gave no reasons for the latter ruling. Nonetheless, hundreds of pages later in the transcript, he referred to the reasons he had already given. It strikes me that this is a very clever judicial ploy which, if adopted, could save trial judges hours of additional work.
In the end, all of those present at the time of the shooting were convicted of murder. They each received a sentence of nine years, two months with a non-parole period of four years. John Dee's client, Janice, was acquitted. She should never have been charged.
On appeal to the Federal Court, Justice Brennan ruled that the re-enactments had not been shown to be voluntary and were therefore inadmissible. He pointed to the conduct of the police in taking the appellants back to Huckitta without their consent; leaving them at the scene for many hours without informing them of the reason for their presence there; providing a prisoner's friend who was unknown to them and who virtually acted as a police agent; and requiring them to perform re-enactments without any adequate caution. At no time were the children's parents notified of their predicament.
But Justice Brennan was in the minority. Subsequently, after a two day hearing, a High Court bench of five refused leave to appeal.
At a social event immediately following their decisions, Justice Lionel Murphy remarked to us: "That was a very courageous decision of Gerry Brennan. They were so obviously guilty". It struck me at that time that at least in this country, the expression by a judge of a legal opinion is not appropriately described as courageous; and further, that it is not enough that a person be guilty; his or her guilt needs to be determined according to law.
As Frank has said, in the course of the Federal Court appeal, he and I - filled with idealism and shiraz - prepared a criminal law credo which Frank duly delivered to the Court. I would like to conclude by quoting parts of it.
"A man has been killed. There is no suggestion in any of the material that there was any justification or even a sensible reason for his death. For practical purposes, the only evidence against the four people who are involved in some way in the events that led to that death is to be found in this confessional material, and that poses for the legal system, a very real challenge. On the one hand, it can be said that justice must be done, and that the perpetrator or perpetrators be convicted. On the other hand, justice must never be achieved at the cost of the integrity of the system upon which we all depend.
"Rules of voluntariness and principles of fairness underlying the exercise of discretion can be viewed as obstacles in the path of achieving what is seen to be justice in individual cases, to be removed or avoided by restrictive interpretation or sophisticated fact-finding processes. But I need hardly remind this Court that the common law has taken a long time in its development, and its wisdom and philosophy must be viewed in that same long range."
"It is simply a truism that part of the cost of living in a society where there is a fundamental right against self-incrimination is that there will be occasions when perpetrators will avoid the processes of law. But it must be remembered that it is law which they would avoid and not the exercise of arbitrary power."
"The Courts must never permit themselves to become a part of conspiracy which authorises and justifies such power because it suits the short term ends in a particular case. They must never combine with others whose duty it is to enforce the law to effectively deny fundamental rights and protections to members of this community.
The police agencies must never believe that the real cost will be a judicial reprimand in a generally unread page of a law report, and that they will be forgiven their un- lawful or unfair behaviour when the circumstances of the crime are serious enough. It is sufficient to say that the Courts must adhere to the professed ideals and values of the common law if that system is to retain any legitimacy…"..
"It is always easy to want to find in favour of the clearly innocent. It is always easy to want to find in favour of the beautiful. It is a far more difficult task, it requires a far higher degree of honesty at all levels in our system, to say, irrespective of what the situation appears to be in the short term, the wisdom of the common law requires that the fundamental relationships between people, and the society in which they live, be maintained."
We wrote and said more - we'd had rather a lot to drink - but we still regard those principles as vital to the operation of the criminal justice system.
I've said enough; thank you all very much for coming tonight.