Cut-Throat Defence

By Mark Dryden

Second in the Brad Norton Series. Young Sydney defence barrister Brad Norton is desperate to appear in a high-profile murder trial. Lightning strikes twice. His first client is a woman charged with murdering a famous television star; the second, an outlaw bikie charged with killing a bikie chieftain. Saving his clients will require good advocacy and cunning detective work in the courtroom.

• Language: English
• Publisher: Mark Dryden
• Release date: Nov 29, 2018
• ISBN: 9780463780367

Mark Dryden

‘Mark Dryden’ is the pen name of Peter Menadue who was a non-prizewinning journalist before studying law at the University of Sydney and Oxford University. He has worked as a barrister in Sydney for more than 20 years. He has written numerous non-legal novels under his own name.

Book preview

CHAPTER ONE

Justice Robert Benson was one of the worst judges I had the misfortune to appear before. He had the right pedigree for judicial office. He belonged to the third generation of an illustrious legal dynasty that had produced two High Court judges, a Federal Attorney General and several prominent silk. However, while he inherited the noble foreheads, solid jaws and rampant arrogance of his forefathers, he received only a squirt of their ability. When he was conceived, the sparkle had left the Benson seed.

Despite that, he became a barrister at a ridiculously young age and hit the ground running. His fabulous surname opened plenty of doors. Solicitors assumed that a Benson knew what he was doing and showered him with work. It took them a long time to realise that he didn’t and stop briefing him. His income dried up. A couple of nasty divorces further depleted his assets and a bank started breathing down his neck.

However, in his hour of need, powerful family friends sprang to his rescue and persuaded the Attorney-General to appoint him to the Supreme Court bench. That gave him a solid salary, the prospect of a generous pension and protection from the bank, which would not bankrupt a sitting judge.

When he was appointed, five years ago, a few of my colleagues predicted he might grow into the job. He did not. He started badly and flat-lined after that. He was lazy and had a shaky grasp of the law. But what really annoyed me were his peevish manner and firm conviction that all defendants were guilty until proven innocent. He was more interested in removing riff-raff from the street than dispensing justice. He would have leaped for joy if capital punishment was re-introduced. That made him the natural enemy of a defence barrister like me.

His surly presence darkened several trials in which I appeared. However, I controlled my tongue until the trial of a client called Lenny Osborne, accused of manufacturing crystal meth for sale. Then Justice Benson and I went for each other’s throats.

Lenny was a veteran drug-trafficker who lived on a large property in a semi-rural area, just outside Sydney. At the bottom of his garden was a tin shed. One Saturday afternoon, the peace and quiet of this idyllic setting were torn asunder by a large explosion that blew the roof off the shed and engulfed it in flames. Lenny staggered out of the maelstrom, clothes and hair alight, and rolled around on the grass.

Startled neighbours phoned Emergencies Services. An ambulance was dispatched. The two ambulance officers found a semi-charred Lenny screaming in pain. They shipped him off to a hospital where he was treated for severe lacerations, perforated eardrums and third-degree burns to 40 percent of his body.

The good news for Lenny was that the inferno destroyed any incriminating chemicals inside the shed. However, unfortunately, a piece of paper with the recipe for crystal meth, written in his fair hand, caught an updraft, then a downdraft and then a puff of breeze. It miraculously wafted out of the shed and landed safely on the lawn.

The police alleged that piece of paper, some burnt-out laboratory equipment and the explosion itself proved that Lenny was a meth cook and the shed was his lab. While in hospital, Lenny foolishly spoke to some detectives and denied the allegations. He claimed that he had some bags of fertiliser in the shed, which must have exploded, and the note was an intellectual exercise. He could not explain why he needed so much fertiliser or when his intellectual cravings began.

The prosecution case was very strong. I advised Lenny to plead guilty and seek a reduced sentence. However, a man dumb enough to blow himself up does not take sensible advice I hear what you say, but I don't plead guilty - ever.

Since he had been tried and convicted three times for drug trafficking, that was a bold approach. I shrugged. A matter for you.

His trial was held in the Downing Centre Court Complex, situated in the Harbour-less part of the city centre. Justice Benson gave me a hard time from the start. He let the prosecution introduce inadmissible evidence, heckled me while I cross-examined and looked like he was stoically chewing glass when I made submissions. The jurors enjoyed our testy exchanges more than the trial itself. I had decided not to put Lenny in the witness box and let him scuttle his case. The Judge's behavior confirmed that decision.

The crowning affront to justice was his summing up to the jury. The numerous facts detrimental to Lenny were polished and mounted for display, and every hole in the prosecution case was skipped over. Further, he only mentioned the facts favourable to Lenny in passing and undermined them with frowns, scowls and eye-rolls the transcript did not capture.

The Judge finished summing up and glanced mildly at the Crown Prosecutor, Bernard Phipps, and me. Are you gentlemen happy with how I have charged the jury? Is there anything you want me to correct?

Though my client had a ropey defence, he deserved a fairer trial than he had received so far. I’d had enough. Your Honour, I think we should discuss that issue in the absence of the jury.

A surprised look. Really?

Yes, your Honour.

The Judge shrugged and asked the jury to leave the courtroom. They looked annoyed as they filed out, aware they were going to miss the climactic round of my fight with the Judge.

When they were gone, the Judge turned to me. You disagree with my summing up?

Yes, your Honour.

A frozen stare. Why?

You basically told the jury to convict my client.

I did nothing of the kind. My summing up was most even-handed.

I spent ten minutes listing the flaws in his summing up and describing his contemptuous body language while he delivered it. He watched like a hawk about to stoop. I didn't scare him one bit. My arguments did not matter. He was refereeing this fight and, whatever happened, would award himself victory. Of course, the Court of Appeal might censor him later. But he didn't fear it either. It usually dished out staid criticism. Only Parliament could take his job.

He said: I reject your arguments and deny making the gestures you allege. The Judge looked at the Crown Prosecutor. What do you say, Mr Phipps?

The Judge expected the Prosecutor would side with him and was not disappointed. Nick Phipps had toadied to him for the whole trial and would not stop now. He rose to his feet and put on the ultra-serious expression he often wore when crawling to judges. I noticed nothing untoward, your Honour - nothing at all. I thought your summing up was eminently fair.

Thank you, Mr Phipps.

Nick sat down suffering from grovel rash.

I looked at the Judge. Does this mean that your Honour will not correct his summing up?

The Judge's eyes glinted. Yes, it does. There is nothing I need to correct.

If I asked him to discharge the jury on the basis of his bias, he would definitely refuse. But, if I wanted to argue on appeal that the trial miscarried, I had to make that application now. Then, I must ask your Honour to discharge the jury.

Instead of responding, the Judge carefully adjusted his yellowish wig - probably a family heirloom that once sat on much brighter heads than his - and re-arranged some pens and paper before looking up ominously. On what grounds?

Your Honour's rulings and behaviour have ensured that my client has not received a fair trial. Your summing up was merely the latest indication of your bias. Your conduct has tainted this trial.

A scowl showed that I had, at last, got under his skin. Mr Norton, I do not intend to abort this trial or revisit my summing up.

I always tried to work with judges rather than against them. I was not paid to have tantrums. But there are limits. I had always wondered where mine was. I now found out. White-hot anger surged through me. I knew I was about to say something I would regret and did not care. In other words, we have to continue with this farce until the Court of Appeal declares it was a farce.

That remark shocked both of us.

He went crimson. "How dare you. Withdraw that remark, now."

Pride grabbed my tongue. I refuse.

For a moment, I feared he would hold me in contempt and order that the Sheriff's Officers drag me off to the cells below. My legs shook.

A deep frown. Mr Norton, your conduct during this trial has brought great discredit to yourself. You have shown consistent rudeness and discourteously to the bench. I was not, of course, personally offended. However, you insulted the dignity of my office.

I was still too angry to back down. Your Honour, I merely tried to defend my client, to the best of my ability, in the face of great provocation.

His face reddened. You can't help yourself, can you? I probably should hold you in contempt, but won't. However, I may report you to the Bar Disciplinary Tribunal for unprofessional conduct. I will ponder that when the trial is over.

On what ground?

Flagrant discourtesy to the court.

He kept hoping I would drop a knee.

I shrugged instead. That is a matter for your Honour. I trust you will keep me informed.

Lightning flashed in his eyes. But he realised that I would not be cowed and arguing with me eroded his dignity. Have no fear on that score. Now, your application to discharge the jury is dismissed. He turned to the Court Officer. Please bring the jury back into court.

The jurors reassembled in the jury box and the Judge gave them some final instructions on how to reach a verdict. As he did, I simmered quietly and fantasised about forcing him to eat his shabby wig.

The Judge sent the jury away to consider its verdict and remanded my client in custody. After giving me a baleful stare, he disappeared off the bench.

I turned to Nick Phipps and raised an eyebrow. "Eminently fair?"

He had the decency to wince. You think I went a bit over the top?

Way over the top.

A shrug. Sorry, I try not to suck up to judges, but I just can’t help myself.

I had to laugh. That’s obvious.

I turned and looked at my instructing solicitor, Clint Andersen from the Legal Aid Office. I was a little nervous he might think that my attack on Justice Benson went too far. I need not have worried. Clint was one of the laziest lawyers I had ever met. He was now snoozing away in his chair.

I turned towards Lenny Osborne, standing in the dock. His thin face beamed with excitement and gold earrings jiggled. Great work. You showed the miserable prick, you really did. He’s the worst judge I’ve ever had - easily.

I sighed inwardly. Clients love seeing their counsel rough up a judge or witness, no matter how counter-productive it may be. I said: I'm glad you enjoyed it. But your situation is still very grim.

A frown. You really think I'm stuffed?

Yes, I warned you about that.

I know, but I thought you were just covering your arse.

I was telling the truth.

He almost looked philosophical. Well, my mum always said my life was gonna be a fuckin’ disaster. She was right, of course.

A couple of Sheriff's Officers hustled him through the door behind the dock and Clint Andersen appeared at my shoulder, blinking like he’d just emerged from a cave. What was that about?

Oh, I asked Benson to disqualify himself for bias.

A blank stare. You did. What did he do?

Told me to get lost.

Not surprised. Good move, though. You obviously made the client happy. Let's go and have a coffee.

CHAPTER TWO

Clint and I only had time to down a couple of cups of coffee each, in a local café, before the Judge's Associate phoned him to say the jury had reached a verdict. We scurried back to the courtroom and listened to the Foreperson announce that Lenny was very damn guilty. The Judge smiled slightly and remanded him in custody, pending a sentencing hearing. Then he adjourned the trial and, after giving me a frosty stare, disappeared off the bench.

Clint and I descended to the holding cells to confer with Lenny before a prison van whisked him away. He didn't seem upset. There is something truly noble about a veteran criminal who accepts that going to prison is an occupational hazard. You rarely see that sort of professionalism anywhere else.

He said: Can I appeal?

I said: Of course. You did not get a fair trial. But, if you win the appeal, the Court of Appeal will order a retrial. Then you'll probably get a fair trial and still get convicted.

A frown. Well, I want to appeal.

Clint said: If you want Legal Aid to fund an appeal, you'll have to apply for another grant.

A frown. Shit. More paperwork.

That's how it goes, I'm afraid.

We left Lenny and went upstairs. As we descended the front steps of the court complex, Clint said: "Don't blame yourself for losing that one. It was a stupid defence. But, to make up for it, I may be able to offer you a murder brief. You interested?"

I wasn't surprised that he raised that possibility, despite my lack of experience. He had briefed me to appear in my one and only murder trial, which I won handsomely. Absolutely.

Good. But I warn you, it won't be easy. Our client is going to run a 'cut-throat defence'.

That meant the trial would involve two defendants, both charged with murder, who would blame each other to save themselves. Prosecutors loved that sort of defence. The defendants usually destroyed each other.

I said: That defence rarely work.

I know. There's more chance of me hurdling the bar table. Do you still want the brief?

I was paid per-day, not per-victory. Of course.

"Good. But it may be a while before I send it to you. I have to get the approval of my boss and his boss."

Because I'm so junior?

Yup. The rules have changed since I sent you the other murder brief.

No problem. I can wait.

I farewelled Clint and walked back to chambers through Hyde Park, bar bag over my shoulder. It was a blistering hot day and I hugged the shade of the Morton Bay fig trees while mentally reviewing my performance during the trial.

The only other time I asked a judge to abort a trial for bias was when I was a baby barrister. I thought the judge was yelling at me in an unfair manner. On reflection, he was rightly angry at my incompetence. This time, I was on firmer ground. Justice Benson richly deserved an upper-cut, though I probably should not have called the trial a ‘farce’. He was unlikely to report me to the Bar Disciplinary Tribunal. But, if he did, the Tribunal would go easy on me. I had a spotless record, so far, and a barrister can commit far worse sins than defending his client with too much enthusiasm.

I wondered, though, whether I could have managed the Judge better during the course of the trial. Maybe, if I sucked up a bit more, he would have been less hostility. Probably not. He was a bully. He would have walked all over me and I would have lost the respect of my client.

After leaving Hyde Park, I passed through the shadow of the Supreme Court Building, which looked like a vertical bunker rather than a courthouse. Most Sydney barristers worked in a small legal village spread around the building. Their chambers usually contained 30 to 40 members. I belonged to Thomas Erskine Chambers, which occupied the entire fifth floor of a green-tiled building opposite the Supreme Court.

The reception area had mahogany walls lined with portraits of famous former members and a fleur-de-lis carpet. It projected permanence and tradition. I stepped from a lift and found our receptionist, Jill, chatting with a phone-pal about some clothes she bought. I darted past her and headed up a corridor towards my room.

Our Head of Chambers, Derek Hoogland, emerged from his room and headed in my direction. He was tall and spindly, with hollow eyes and papery skin. Alive, he looked slightly dead and, when dead, would look slightly alive. Despite the heat outside, he wore a three-piece suit with pinstripe trousers. I’m sure he would have worn a four-piece suit if he could buy one.

Hoogland was one of the top commercial barristers in Sydney and, therefore, Australia. He spent most of his time advising big-firm solicitors and corporate titans on how to torture the law until it confessed. Sometimes, he shuffled off to court to whisper politely to a judge or flog a witness with a wet lettuce. The hearings had no drama or human interest, no poetry or emotion. They were all prose.

The Bar in New South Wales was a museum of quaint customs. One required that barristers dress for work like time-travellers from the 18th century. Another was that the most senior silk in a set of chambers was appointed the Head of Chambers, no matter how unsuitable he might be.

Hoogland had benefited from that custom. He certainly would not have been appointed on merit. He had neither tact nor charm. Further, his reputation received a beating when our receptionist sued him for sexual harassment. The receptionist originally persuaded a floor colleague called Wayne Newman to represent her. When Wayne had a skiing accident, I replaced him and extracted a large settlement from Hoogland. I owed Hoogland no loyalty. I was a colleague, not a serf on his estate. But, for some stupid reason, he thought I acted disloyally and refused to talk to me after the case.

Now, as he approached, he gave me a piercing stare. Our shoulders almost touched as he went past.

I ducked into my small room. Barrister's rooms were once decorated with law reports that impressed clients and were rarely opened. No longer. Mine had blond-wood paneling and windowed onto Philip Street. It was the only real estate I owned; both a place of business and my sanctuary from the world.

I tossed my bar bag into a corner and prowled around my small domain, discharging my last anger towards Justice Benson while studying the ugly facade of the Supreme Court Building. I eventually reminded myself that I was a self-employed businessman with bills to pay. I was recently briefed to represent a high school teacher accused of raping a female student 20 years ago. I had waded through the prosecution brief several times, looking for flaws in the prosecution case, and was reluctant to repeat the exercise. But I forced myself to get started.

Ten minutes later, I sensed a presence and looked up. A guy with frizzy grey hair, chubby features and a portly build stood in the middle of my room. His eyes signaled that, somewhere inside, a fire raged out of control.

Wayne Newman excited my admiration and despair. He behaved in court like a lion with a tooth-ache, taunting opponents, berating judges and brawling with witnesses. When a judge recently praised the elegant submissions of his opponent, Wayne turned to his instructing solicitor and made a jerking-off motion. The judge yelled: I saw that Mr Newman!. Wayne claimed he was merely shaking his pen to free the ink and demanded his own apology. None was given and their relationship continued to spiral downward. If Wayne had appeared before Justice Benson, instead of me, there would have been mayhem. He might be standing in the courthouse car park, right now, waiting to confront the judge on his way home.

Not surprisingly, the Bar Disciplinary Tribunal had twice reprimanded him for discourtesy to the bench. If he got a third strike, it would probably rub him out. So, while I admired his bravery, I had serious misgivings about his judgement.

As usual, he looked very pleased to be himself. Afternoon digger. Where have you been? Can I buy you a cup of coffee?

I was wary about accepting invitations from colleagues to have coffee. Vast chunks of the day