BILL HOSKING QC with JOHN SUTER LINTON Justice Denied. Reviewed by Tom Kelly
True stories from the courts of the 1970s and 1980s: police verbals, complacent judges, and a rich cast of characters.
The word ‘legend’ is grossly overused thanks to sporting commentators, but not in respect of Bill Hosking QC — at least not among criminal lawyers, judges, police, forensic psychiatrists and crime reporters of his era.
Hosking was a leading criminal defence lawyer in the 1970s and 1980s prior to his appointment as a District Court judge. He appeared for the accused in some of the most famous, interesting, difficult and significant trials and appeals of that period, a good number of which he describes and analyses here.
This book is a significant contribution to the history of criminal law in New South Wales and provides an easily understandable appreciation of criminal trial processes for laypersons, lawyers and law students. It is a clearly written and entertaining insider’s account, which is probably due to Hosking’s extraordinary oratorical skills and the collaboration of his co-author, who is an experienced writer. The result is also a vivid description of the drama that regularly takes place in the courtroom.
He is often generous in his praise of his colleagues and some of the bench. However, some judges are not spared well-deserved criticism. He is very properly critical of the state’s judiciary in general, and some members in particular, for their regular complacency about and at times strong support for the corrupt practice of police verballing.
Working as a criminal defence lawyer in Bill’s era was not for the faint-hearted. As Judge Stephen Norrish states in his Foreword:
… common practices of the period were ‘the verbal’ – the unsigned record of interview; flawed processes of out of court identification; reliance on unreliable and later discredited science and scientific investigation; the use of police informers.
A significant proportion of the judiciary then behaved with the courtesy and objectivity of 2GB shock jocks.
This book shows Hosking’s passionate concern about miscarriages of justice and details some notorious examples (hence the title).
Hosking was also an unusual barrister, being one of the 20 or so talented and dedicated Public Defenders, salaried members of the New South Wales Bar who were briefed by the solicitors from the office of the New South Wales Public Solicitor. Several of the cases he describes occurred while I held that statutory office.
He certainly would have made a lot more money had he stayed at the private bar, from where he was appointed to the office of Public Defender, but he states quite emphatically that his 14 years as a Public Defender were the high point of his professional career, eclipsing his subsequent 13 years as a judge.
Justice Denied ignores his time as a judge and restricts his recollections to his time as a Public Defender — perhaps a result of the constraints of judicial office.
Hosking played a very important role in the litigation that wound back and ultimately saw the end of the common practice of police verbals. His chapter on the historic Driscoll case gives a detailed description of how one New South Wales Supreme Court trial judge and three New South Wales Supreme Court appeal judges refused to allow the presentation of evidence that would have cast considerable doubt on the authenticity of the unsigned record of interview purported to have been conducted by Detective Roger Rogerson. Driscoll ultimately appealed to the High Court, which said that enough was enough and finally opened the door to the end of this disgraceful practice.
There are several famous cases in the book dealing with wives who were charged with murdering their husbands.
In 1973, the death of Colleen Dawson’s husband by a gunshot wound to the head was treated as suicide, mainly due to the incompetence of an Inverell GP who was also an occasional government pathologist. Mrs Dawson was not charged with murder until after the her seven-year-old daughter, responding to a teacher’s invitation to the class to comment on interesting things that had happened at home, announced that ‘Mummy shot Daddy’. This case study describes the dishonesty of the police who induced a confession by telling the accused that the girl said she saw her mother shoot her father; it also contains an interesting analysis of complex issues regarding plea bargaining and details an extraordinary forensic misjudgment by the experienced Crown Prosecutor.
Loraine Price’s husband was also shot. Her murder conviction was set aside on appeal because the prosecution falsely and unfairly suggested that she had been having a affair. A second trial and conviction was followed by a judicial enquiry. This enquiry had to consider a newly introduced and fascinating defence that could have come from a Peter Corris crime novel.
The chapter ‘The Tragic Mum’ tells the story of Michelle Crawford, a battered wife who fatally stabbed her husband. It contains a detailed description of plea-bargaining a charge of murder down to manslaughter, as well as Hosking’s agonising over the advice he gave about this.
Then there are the armed robbers. Carl Synnerdahl was a schoolteacher turned bank robber who scarpered to Hong Kong while on bail. Upon his extradition to Sydney he successfully feigned blindness. I made an unsuccessful bail application for him before Hosking appeared at his sentencing hearing. An excellent and fairly accurate movie called Hoodwinked was later made starring that fine actor, the late John Hargreaves. Synnerdahl certainly had some luck but not quite as much as portrayed in the movie, where his character has a sexual relationship with the delightful Wendy Hughes.
Another important case was that of Gary Findlay, who was charged with the shooting murder of a bank teller during an armed robbery. The book describes some fascinating twists and turns to the case, including the common police practice of hiding material that could assist the defence. Findlay’s appeal resulted in the High Court putting an end to this practice and thereafter police have been required to disclose any material they have that might assist in creating a reasonable doubt.
Peter Schneidas, who had no previous history of violence, was given a three-year sentence for property offences. During his incarceration he made two separate and very serious assaults on prison officers, the second fatal. There is an excellent discussion of this prisoner’s evolution from thief to murderer in a prison setting and includes details of prison conditions, with especially telling descriptions of the then notoriously cruel Grafton Goal, the Long Bay OBS and infamous Katingal (the latter two have since been closed down).
There is an excellent discussion of psychiatric defences as well as legal principles of sentencing in cases such as those of killers Mallard and Veen.
Hosking played an important role in the saga of the three Ananda Marga members who were charged with conspiracy to murder. After two trials and seven years’ imprisonment, the three were cleared after a lengthy judicial inquiry. Hosking appeared in one of those trials and also at the inquiry. He provides a cogent history of the many bizarre twists of this travesty of justice. The three were essentially convicted on the evidence of fellow sect member, Richard Seary, as well as police verbals. One of the verballers was Roger Rogerson. Once again important evidence was withheld by the prosecution.
Hosking calls Seary ‘a narcissistic liar and fantasist’. Justice Wood, who conducted the inquiry, found that Seary had lied at least 5O times. Hosking laments that ‘the police did not come in for any criticism, which was well and truly open to the judge to make’. However, Wood did go on to grasp the nettle of police corruption 12 years later in his royal commission report into the New South Wales Police.
Hosking pays special tribute to the maverick Labor parliamentarian, George Petersen, whose strength and determination helped establish the enquiry into the Ananda Marga convictions. Petersen also agitated successfully for a royal commission into prisons and played a leading role in the decriminalisation of homosexual acts and the liberalising of abortion law in New South Wales.
In 1972, two Yugoslav businesses in Sydney’s George Street were bombed and six migrants who became known as the ‘Croatian Six’ were charged. They were convicted on the usual unsigned record of interview as well as the bias of the trial judge, Justice O’Brien. The actions of that judge resulted in the High Court ordering a retrial, which in contrast was very fairly presided over by Justice Yeldham, the judge who subsequently and tragically died at his own hand consequent to the revelation of his stupid activities around public lavatories.
Many will remember the tragic murder of Anita Cobby, who was raped by five young men and savagely killed by one of them. This was a most stressful and difficult case for the defence lawyers, given the public outrage at the crimes. Hosking’s appearance for one of the accused, Michael Murphy, caused his young son considerable difficulties at school.
The theatre of the court during the case is especially well described, including the lynch mobs outside the court when the defendants made their first appearances, as well the courage and dignity of Anita Cobby’s parents, who attended every day of the trial. Hosking gives an apt description of the Crown Prosecutor, Alan ‘Slipper’ Saunders QC:
The origin of the sobriquet is lost in the mists of time. It was definitely not derived from being a soft and comfortable opponent. The Crown had no better or more able advocate … We had been regular opponents over the years. I did not like him. He did not like me.
The Cobby chapter has a discussion of very interesting issues such as the impact of outrageously inaccurate newspaper reportage and possible contempt of court and whether a jury should be discharged; the defence of common purpose, where those who did not do the killing might be convicted of murder; records of interview that were claimed to have been signed as a result of police assaults; the legal differences between the crimes of murder and manslaughter; and remissions on sentence for good behaviour.
The author’s continued and understandable anger about the gross denial of justice in the sentencing of the Cobby five by the presiding judge and the New South Wales Court of Criminal Appeal is clearly evident.
These complicated issues on strategies and the applicable law are described in a clear and readily understandable manner. There is also an excellent discussion of the ethical and moral issues a lawyer faces in defending such unpopular clients, as well as the need for legal aid to be provided for this purpose.
Bill Hosking was a fine and persuasive orator and a clever tactician. There was also a hint of mischief and a sniff of danger about his style, which sometimes manifested itself in his brilliantly quick wit. When the going got tough, he was able to use his wit to get back on the front foot in court, especially when parrying with difficult judges. Several laugh-out-loud instances are included. For decades they have been retold in the bars where criminal lawyers drink and are now revealed to the public. I am not going to give them away here, so readers will have to buy the book (or at least pick it up in a bookshop and turn to Chapter 15).
Justice Denied is strongly recommended not only to lawyers but also to jurors past and future.
Bill Hosking QC with John Suter Linton Justice Denied Harlequin Mira 2017 PB 304pp $32.99
Tom Kelly was Public Solicitor of New South Wales and now sits on the Mental Health Review Tribunal.
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