ORAL HISTORIES INTERVIEW
Mr Kevin Borick QC
By Lindy McNamara on 11 March 2016
This is an interview with Kevin Borick QC by Lindy McNamara. The date is the 11th of March 2016. Kevin, can we start with your full name and date of birth?
Kevin Vincent Borick. I was born the 7th of August 1937.
Where were you born?
I was born in a hotel at the end of Gouger Street Adelaide which was called the Angel Inn, now called The Directors Hotel.
And your parents’ names?
My father’s name is Duji Borich. He was from Croatia and my mother’s background was Irish.
And her name?
Mabel. They died a long time ago.
What are your memories of your childhood? Were you brought up in the inner city?
I was basically brought up in hotels. My uncle came from Croatia; same side of the family. He had the Globe Hotel in Glenelg, now the Holdfast, and I lived in pubs.
That would have been a different sort of upbringing; it wouldn’t have been the normal ‘mum and dad working nine to five’.
It wasn’t normal.
Where did you go to school?
I went to St Cecilia’s Primary School which is by St Aloysius. I probably would have started from kindergarten there. Then I went to Rostrevor College.
Why did you decide to study law?
When I finished with leaving honours I was selected to go to Duntroon. When I went to Duntroon I lasted one night. I came home and I didn’t know what I wanted to do. I got a job in Bagot’s Executor Trustee company and I didn’t like that but I was going in on the train one day, and there was a guy sitting next to me, I think he was a lecturer at the law school, and he was telling me about it, how to get into law school, you’ve got a chance to go to law school. I came home and told my mum and dad and that was it.
Was that at the University of Adelaide?
Did you enjoy university days?
Yes. There were only 17 of us in our year so we’re all close together. Law School was a very small place in those days.
So you finished law school and you were admitted in 1960?
That sounds right to me.
You did articles with Howard Zelling?
Howard Zelling, yes.
What sort of impact did he have on you at such a young age?
He had a very great impact because he gave me a chance to get started. He was sort of like a father figure to me.
Did you find during your career that you’d often go back and seek his advice about things?
No because the ground shifted and he became a judge. He became pretty isolated.
How long did you stay at Howard Zelling?
I was there for, by my recollection, approximately three or four years and then I got a job with the crown solicitor’s office as an assistant crown prosecutor under a guy called E. B. Scarfe QC.
Compared to your later career when you were on the other side of the table, how did you enjoy prosecuting?
I was a prosecutor for three years and nine months. I was released on parole. It wasn’t really my forte.
So when you left there you decided to go to the independent bar?
Yes. I practised on my own basically ever since.
You joined Pam Cleland in Chambers?
No. Pam Cleland had her office on Waterfall Gully Road, at the end of Waterfall Gully Road, and there was an office there which became my office. Apart from my friendship with Pam Cleland there’s no business relationship.
So you had your own chambers?
Oh yes, I was by myself, yes.
What did you enjoy about being a criminal defence lawyer and barrister? What part of that work did you perhaps not enjoy but how did that fit you better than being a prosecutor?
It’s just what I am.
Yes, it’s basically. I am what I am.
So you worked independently all your life?
All my life.
Why did you choose that path? Why did you prefer to work independently than to perhaps join a firm?
Well, at the beginning there weren’t such things as barristers’ chambers. It was all quite different and so I practised on my own. In later times I did join a bar group for a while but I didn’t enjoy it and went back to doing what I do. Working on my own.
You were doing criminal work the whole time?
Fundamentally criminal work but I also defended medical and dental practitioners and became involved in problems with professional practice standards.
I assume back in the early days you would’ve known just about everyone working in the profession?
Yes. I think everybody knew everybody.
That would’ve been one of the big changes that you’ve witnessed?
I know you’ve been involved in a lot of high profile cases. Are there some that spring to mind that you look back on and think about?
I suppose to answer that question I ought to start at the beginning. The case of Victor Randall Grant with Elliott Johnston QC who was also my mentor. Grant was convicted of murder, without going into the details of it, but he was sentenced to death. He was due to be hung on a Monday morning and about 5.00pm on the Friday preceding that we went before Justice Chamberlain and we got a stay of execution. Elliott and I then arranged to meet on Monday morning to go to the jail to tell Victor Grant what was happening and on the way, I picked him up at about 8:00am just by the Newmarket Hotel. Elliott said to me “Did you serve the order on the Sheriff?” and I said “What order?” He said “The order for the stay of execution,” and I said “Was I supposed to?” He said “I think so.” And we drove the rest of the way to the jail in silence.
We got to the jail and there was a big crowd there. Elliott went to the prison gate door, they knew him, and said “I want to speak to Victor Randall Grant.” and the guy said “Just a minute.” I was standing next to Elliott. We waited a few minutes and the chief warden came out and said “Hi Elliott, you want to talk to Victor Grant?” and he said “Yes.” and he said “I heard on the wireless on Saturday morning you got a stay of execution so if it’s any use to you, I didn’t hang him.”
I guess that would’ve been a time you would’ve loved to have a mobile phone, you could’ve rung ahead?
They didn’t exist then. It was so close.
Could’ve ended up terribly differently?
Yes, I wouldn’t be here today.
What are some of the other major cases?
Then I suppose the case of Moffa that went to the High Court. My first appearance in the High Court and it dealt with the law of provocation. Sir Garfield Barwick was the Chief Justice at the time. When I finished he called me up to his chambers and he said “Good job and you’re going to get up but remember to try and keep your argument as direct as possible for what the head note will eventually say in this case as to what was held.
Was that good advice for you?
Very much so. I use it all the time.
In the case of Cheatle - without going into details - that case decided that in Federal Court cases the verdict of the jury must be unanimous. It got rid of the majority of verdicts. Prasad which is a case which again is a bit of an unusual case but the end result was that it gave judges power to take some sort of control over prosecution cases which have very little merit.
Then the Erika Kontinnen case where it was developed for the first time ‘battered women’s syndrome’ which explained why women who are battered - it’s not a defence but they can’t leave because they’re under some sort of control. The interesting aspect of that was I knew Erika Kontinnen well and I knew that Hall, the man who battered her, was a very violent man. I got a call, I was at home, at 3:00am in the morning and it was from Erika and she said “Mr Borick it’s Erika here.” She said “I’ve just shot Hilly.” I said “Is he dead?” She said “I don’t know.” Well, at that point all the conventional bits of advice were irrelevant. My advice was “Get an ambulance.”
So her first call was to you?
Yes. That case went on for a long time but eventually the concept of why women cannot leave men who are battering them came into full force.
That was a ground-breaking case then?
It was. It still remains that way.
Then the Drummond case which dealt with the proper collection and analysis of DNA evidence in the case. We won where we showed that the forensic scientists did not properly understand, assess and present the results of contact DNA mixtures which they collected. So that again is extremely important.
Forensic evidence would have been an area that you saw significant changes over the time that you were a barrister?
Yes, that was definitely fundamentally one of those dealing with forensic science. Actually Drummond was the first case to be appealed under new legislation which allowed for a further appeal, rather than trying to get a case returned to a Court via the Petition process. This was ground-breaking legislation. What happened was that in 2011 there was a parliamentary committee looking at whether there should be a Criminal Cases Review Commission set up to look at possible miscarriages of justice. Together with another lawyer, Philip Scales AM, and Dr Harry Harding, a forensic scientist I have known since the Van Beelen trials, we put a submission to the committee that an alternative way to go could be to amend the Criminal Law Consolidation Act to give people a right of a further appeal if fresh and compelling evidence appears even years after the event. The committee recommended that the change be made and the new legislation was introduced in 2013. It dealt with, and got rid of, the principle of finality. Drummond was the first case to get it over the road and the second case to get it over the road under the new legislation that got set up was the Henry Keogh case. I’ve been involved in Henry Keogh for a very long time but I was not involved in Keogh’s trials, and I had an understanding of the pathologist Doctor Colin Manock who conducted the autopsy. He was very much part of my life and I started looking back at the Van Beelen case. That’s where I started with him and he’s been a part of my life ever since.
Just going onto the Keogh case - you were involved putting together petitions to have the case sent back to the Full Court?
I was never part of the trials. He was convicted in 1994/1995. I came in about 2000 and then spent ten years working through arguments before the Medical Board, exposing both Dr Manock and Dr James who worked with him. Had lots of petitions. It took a very long time. All of that now comes to a head now we act in Van Beelen and a new case called Bromley which I’m also involved in where we’re basically arguing that Manock should never ever have been allowed to give evidence, because was not properly qualified. He didn’t understand the proper ethics and he didn’t understand normal practice of a pathologist.
Do you fear there are other cases that might be affected?
There probably are many others but these are the two that are now before the Court. There are some interesting complicated features about it
With the Keogh case was it a frustrating process for you? I know there were several petitions.
It was extraordinarily frustrating because we had all the evidence about Manock’s performance and then what’s called ‘the third petition’ was before the then solicitor general, Mr Kourakis QC as he was then, now the Chief Justice. He spent three years looking at that and then advised the government that it should be rejected. Then came the fourth petition before Solicitor General Martin Hinton, now Justice Hinton. That took four years and nothing ever happened. The only way we got it back before the Court was under the new legislation. The key feature of the involvement of the current Chief Justice is that when he conducted his investigation he received a report from a Professor Vernon-Roberts who at one time was in effect Dr Manock’s boss. Vernon- Roberts in his report said that Manock’s work was incompetent and suggested other tests should be carried out. As the Court of Criminal Appeal in Keogh, found, Mr Kourakis did not disclose he had that report and no explanation has been given. As we now come to reopen the Van Beelen case Chief Justice Justice Kourakis has refused to recuse himself.
When Henry Keogh’s conviction was quashed and he was released, did you make contact with him or have you spoken with him?
At the end of this whole period he wanted Marie Shaw to represent him and that happened and Marie Shaw refused to allow him to speak to me. I don’t understand why but that’s what happened.
It must have been a nice feeling for you after over a decade of petitioning to finally see justice being served?
Yes. Obviously there should’ve been an order of acquittal going down. The Director of Public Prosecutions kept saying there would be a retrial and they’ve called Dr Manock but there was never any possibility that Dr Manock could give evidence. So that again is a feature of what’s happening over the next few weeks in my life as we’re saying that Dr Manock should never have been allowed to give evidence. I think in the future he won’t because he’s apparently very sick.
There’s one other case which is on at the moment, the case of Spilios where I’m working in conjunction with Felicity Gerry who is a Queen’s Counsel from London and was lead counsel in a recent London decision or UK decision which has changed totally the law of joint participation where people jointly participated in crimes. Under the law in England and here for 50 years if you participate in a crime committed by somebody but in a group and you’re guilty you might have foreseen what the other person would do. That law has changed in England and is now going before the High Court in Australia. It may change it, I believe it will succeed but it’s up to the High Court.
You’re involved in that too?
I’m just so lucky to be able to work with Felicity. You’d really like her, she’s a good fun lady.
So obviously as you get older you’re not slowing down with your involvement in big cases?
I didn’t mean to. It’s the way it happened. Then I was asked if I would defend Wei Li, the Chinese boy. He had done his own homework on me. He looked at the Kontinnen case and he saw himself as a battered child. He just became intrigued with me. I didn’t mean it but I did so I defended him and he’s been acquitted of murder but convicted of manslaughter. He was sentenced to 9 years. We are appealing that sentence. We’ll be nervous to wait to see what happens to him.
Do you find when you’re involved in a major case that it absorbs your whole life?
You eat, sleep and breathe it?
Yes, you’re totally in the grip of the case. Indeed, yes. Nothing else matters.
What sort of hours would you put in?
Fundamentally between 24 and [inaudible] you know, writing, you’re thinking about what you’re going to say.
Do you love appearing in court?
That’s my life.
That’s what you were born to do?
Yes. Not sure about that.
Maybe acting would’ve been another profession?
Another [inaudible] wonderful time in my life because it deals with the concept of proof beyond reasonable doubt and I was appearing in a case that I’m pretty sure was in doubt and the judge was a John Nader, a good friend of mine. A guy was charged with being involved in a robbery. It came to jury selection time and the jury panel were there and we were about to ask if anyone wanted to be excused and up went this guy’s hand. He said “I want to be excused.” and then said “Why?” He said “Because I hate all judges and I hate lawyers, I hate the legal world, I hate everything to do with the justice system.” The judge said “You’ve got to come and give some evidence about it.” So into the witness box he went and told his story about why he hated all of us and eventually John Nader said to him “You’re exactly the sort of person we’d want sitting on a jury.” Next thing I know his name is first out of the hat and he’s sitting there. We come to trial and he’s the foreman and it’s a not guilty verdict. I was outside and this guy came up to me and he said “I’ve changed my mind. I like the judge. I thought you lawyers did a great job. I really am impressed by what I saw” and I said “Well I’m pleased about that.” He said “But I’d like you to do me one favour.” I said “What’s that?” and he said “Would you tell your client from me never to do it again?” I always think that’s a wonderful example of the concept of what is meant by proof beyond reasonable doubt.
No matter what your gut might say you’ve got to be able to prove it?
Prove it, yes. But just the way he did it.
Going back to when you’re waiting for a verdict to come in - how nervous do you get as the person acting for them?
It’s your whole life, nothing else matters, you know. I smoke cigarettes and you never know how long it’s going to take. It might take ten minutes, it might take two or three days and there’s nothing you can do. Absolutely nothing but wait.
Do you have a theory; if it’s a short timeframe do you usually think that’s a..?
In my long experience, it doesn’t matter.
There’s no patterns there?
There’s no pattern, none.
Are there any other cases that you would like to talk about?
I just suppose on the topic of our business, you know, when you do our job you’ve got to get paid. When I was prosecuting a case up in Port Augusta. In the chambers which I go to was defence counsel, Bill Beerworth. The accused or the prisoner was standing there. He did not have any shoes or socks on. Eventually they said to him “Where’s your shoes and socks?” He said “Mr Beerworth’s got them and he says he won’t give them back until I pay him.” <laughs>
He was going to get paid right or wrong? <laughs>
<laughs> Yes. Of course when it was Australian and New Zealand Criminal Lawyers Association which I basically started with Philip Scales as well as other lawyers from my area of the profession.
What was the reasoning to get that underway?
Because there was no organisation or group which gave defence lawyers a chance to do anything. We were always up against professional prosecutors. We had no organisation as such. We saw each other in Court but it was lawyers up against prosecutors. Eventually a few of us started talking and that’s when we put together the association which really grew and developed into a position where we were all across Australia and New Zealand and elsewhere, then became America. We found strength together. It still works.
Is it a means that you can get together and discuss issues that face you as a defence lawyer?
Yes, and understand each other and draw strengths from each other. The answer to your question; that’s why it started.
Do you think you’re a different breed? Does it take a certain quality to be a defence lawyer?
I suspect so. For example, my wife is a family lawyer and that’s a different breed too, I think. If you’re an estate lawyer I suppose that’s--I don’t know. I think basically we are a different breed.
Because you couldn’t see yourself doing family law?
I’ve done a bit of that but it’s not really my field, I’ve discovered.
It must be interesting conversations around the dinner table when your wife is a lawyer as well?
Not really. <laughs>
Have you had children?
Oh yes, I have two children and that’s a pretty important part of my life. That’s two children and six grandchildren now.
Our eldest daughter Sophia suffered meningitis when she was about three months old and Sophia has been profoundly deaf all her life. We’ve been very much involved in deaf education and with the help of people at Pembroke College we set up the first situation where deaf kids could get a secondary education. There was no chance of them getting a tertiary education. Sophia was lucky enough, we got her into Rochester University in the United States because under Reagan they introduced the law saying that all people disabled have got to be given the right to tertiary education. They couldn’t do it in every state so Rochester in New York State became the centre of tertiary deaf education.
What did she study?
She studied medical photography.
Your second child is a boy or girl?
Emily is a girl. She’s in Sydney and she has four children.
So neither of them followed their parents into the law?
Yes Emily’s the lawyer. She got a degree from Bond University. With four kids she’s…
Pretty busy? <laughs>
<laughs> Yes. Busy time, yes.
I guess part of your career wasn’t just about performing in front the judge, you actually have made quite a concerted effort to have some laws changed haven’t you?
Yes, certainly. As I mentioned about getting rid of the principle of finality because as time goes by you learn so much more about science in particular. So the two fundamental propositions in my life which I’ve held for a long time and adhere to now but virtually practice the law, in fact in every area of life: first of all, proper science should be used, and secondly that science should be used properly, which is a different concept. Now that’s really in a way what we all fight about with Keogh and Drummond and other cases. Those are concepts that were put into my head by Professor Bevan when I was defending Van Beelen in the ‘70s. They are my life, that’s what I believe in.
I’ve seen the people talking about education of high school children. I believe those two concepts should be brought into play; proper science and use science properly and bring it into our law schools.
Obviously science can work in your favour at times, it can obviously be a very useful tool when you’re a lawyer, but if it’s used improperly then it can have a devastating effect on the client.
That’s right. It’s a big mess. How do you assess proper science as a lawyer? We as a profession have got so much more to learn about how we can properly teach law students; right from the beginning it might be to understand those two concepts I’ve just put to you.
Do lawyers rely too heavily on the science that is presented sometimes?
There are so many cases now dealing with DNA evidence which has changed everything, but the crime scene is a very delicate place so that if you’re looking for hair samples or paint samples or toenail, blood samples there’s so much. Collecting that is a specialist job. Storing it is specialist; taking [inaudible] place where it’s to be properly stored and tested and then getting the right result. It’s step by step by step. It is a very intense job and there are so many lawyers, prosecuting and defence lawyers, that just don’t understand that.
And there’s so many processes that could be tainted along the way?
So that would be one of your big pushes - or a legacy even - if that could then become more of the education?
That’s what I want.
You’d love that to be a legacy?
That’s what I’ve been about for so long, since I started really.
You’ve been a lawyer for a long time. In the early days what was seen as being some of the cutting edge science that might be put into evidence as opposed to what is now?
At the beginning there was no real concept of science in the collection or in the investigation of a crime scene. That was done by what they called at the time experienced police officers who could go out and investigate the scene of a crime. They had no idea what they were doing. None.
It’s taken a long time to get the police to understand, and other people to understand, that it is a very scientific business. I’m not sure if it’s even fully understood today. You can’t get the sort of training and experience that you need just by being a police officer and going to different crime scenes. It’s not going to work. You see it so often on television. You see big yellow things put up and away they go and the pathologist comes in and people go around picking up stuff and putting it in plastic bags. Half the time by the time they’ve picked them up and got them, the DNA samples are mixed up anyway.
I think media has tainted people’s view on how science is collected too. They’ve glamorised it and made it look very appealing, you know, it’s very easy to do and you can solve a case in 60 minutes of television but that’s not quite the case.
Not quite, no.
Do you watch those shows on TV?
Yes, some that are really good. There’s a lot of journalists who are not fully trained in understanding all this business.
How difficult is it for a member of the jury to be able to understand some of the scientific evidence that is presented to them?
It sounds like a politician but that’s a very good question. They always say that. I talked about using proper science and using science properly. Now the explaining of it is another critical feature of it and it’s incredibly important, you know. You have to assume each member of the jury is at least an ordinary reasonable person. They’ve got to have it put to them in a sensible, logical, understandable way and that doesn’t happen very often.
It’d be very difficult I would imagine to be able to put it at a level that most people could understand?
That’s where you need an awful lot of experience with the lawyer and you need to prosecute it and be very experienced to, and the judge in that chair because it’s not happening in a lot of cases.
Do you fear that sometimes innocent people are being convicted?
There’s no question about that is there. In the United Kingdom, in America there is just so many cases. Sally Clark for example. Have you heard of the Sally Clark case?
She was a lawyer in England convicted of the murder of her two children and that was a long trial. The expert witnesses, their evidence against Sally was absolute rubbish. They just didn’t understand the concept of sudden infant death syndrome. Eventually Sally was shown to have suffered a serious miscarriage of justice and acquitted. She died about 18 months after that. She never recovered. She’d been two years in jail. Everything went wrong for her.
She was broken?
She was broken. That’s a classic case of misuse of science.
Away from science, what’s some of the things that you’ve enjoyed about being part of the legal profession in South Australia?
I practiced a lot particularly through the years with the Australian and New Zealand Criminal Lawyers. We knew everybody, practiced a lot interstate in every state.
Based always here in South Australia then?
Based here, but I practiced in all states.
What have you enjoyed about the profession?
I don’t know. The people involved.
You share your experience, a sharing that usually takes place in a convivial arena. <laughs>
Have you tried to mentor younger people coming through in the profession? Is that something that you’ve tried to be part of?
Oh yes, that’s been part of my life. Of course.
Because you were saying Elliott Johnston was your mentor?
My mentor and friend. And then as I’ve got older there are just some people I desire to work with.
Are you surprised by how popular law has become? There’s so many graduates coming out of the universities now.
I’m very disappointed with what I’m hearing because there’s just no jobs going around particularly in the criminal law. There’s so little money around to pay people [inaudible] concept of professional prosecutors or [inaudible] they should be as part of the profession and then we’d be running into each other all the time instead of us against them.
What other things have you enjoyed about the profession, besides getting together with the other defence lawyers? You’ve been involved with the Law Society, I believe that you were a member soon after you were admitted and you’re still a member?
Yes, but I’ve had very little to do with the Law Society as such.
I did notice that you’d given a paper at some point to one of the GDLP courses.
I’ve given papers a various times, yes.
The last one I did with the conference, the paper was “The right to a Fair Trial is a Basic Human Right.” What does a fair trial mean?
That’s an interesting concept.
It is. That’s where the proper use of science comes into it. You take someone like Sally Clark; she never had a chance.
There’s one individual, 12 years he’s been trying to get a lawyer to act for him and appeal his conviction for murder. It’s a very interesting case but he was denied the fundamental right and that is the right to a lawyer, because he said “You haven’t got enough money for it.” That’s the particular case that’s coming before the Courts at the moment.
Obviously lawyers need to be paid but do you think sometimes that stands in the way of people receiving the justice they deserve?
Oh yes. With such limited funds it’s incredibly difficult in so many cases.
And there’s also a big backlog in the courts too, isn’t there?
That’s so. There’s a big mess going on at the moment but there always was in my opinion.
How often are you in Court nowadays? Are you still appearing quite regularly?
No. I’m doing these appeal cases Van Beelen and I’ve got the Bromley case and Spilios in the High Court and I have just done Wei Li but no I’m not…
You’re not retired though?
No, I’m not.
Do you think you’ll ever retire?
I don’t think so.
Don’t think your brain will ever allow you to?
No, I don’t think so. [inaudible] giving notice, I’m tired. A week later I’m acting for Wei Li. It took me nearly three months to get my certificate back because I didn’t have my points up.
So you had to do a few courses?
You’d be one of the older practicing lawyers at the moment I would imagine?
I suspect the oldest. I can’t think of anyone older.
What do you do when you’re not working and consumed with a case, it’s probably is very rare but do you have some hobbies and some interests?
Yes, I do, I have two. I’m very keen on petanque. It’s my sport now, because I can’t engage in any other sport, and I got into bridge which I’m very sorry about.
Keeps your brain ticking over?
Yes. It is the greatest cheating game. Have you ever played it?
No, but I had a grandmother who did and she swore by that game.
I’ve been playing all this morning. I play on Friday mornings. I play with a guy called Bruce Davey a retired surgeon. We’re referred to as the silk and the surgeon and we have our own way of interpreting the rules.
So you might be the ones that are cheating, not everyone else?
No, we don’t cheat. <laughs>
Even though you’re semi-retired do you keep in contact with lawyers still? Do you have a group that you might get together for lunch regularly?
Yes, all my life I’ve had lunch on Friday with other lawyers.
Any in particular that you’re quite close with?
I’ve mentioned Philip Scales, Angus Redford and lots of others that come and go in and out of my life.
Who were some of the best lawyers that you saw in action in Adelaide?
Frank Moran in South Australia…
Or even nationally? You’ve probably come across..?
Nationally I’ve seen many… Colin Lovitt. The names are just not coming in at the moment there’s so many.
When you see a young lawyer appearing can you tell pretty quickly whether they’ve got it or they haven’t got it? Can you see people that are outstanding in the courtroom and pick that really quickly? Is there some quality that some lawyers have over others and I’m assuming you’ve probably got that quality as well?
Yes, it is quickly apparent if an individual has got what it takes in my view.
What about Elliott Johnston, what sort of quality did he have besides not telling you to serve that order? <laughs>
<laughs> He did not tell me, I was supposed to do it. Elliott [inaudible] and that was his process.
Did that rub off on you?
I’m not meticulous like he was. Frank Moran had his own style altogether which [inaudible] he did have his own style. There was a case where he was defending a guy; he called his client to give evidence and Eb Scarfe was prosecuting. Eb Scarfe said to the witness “You called the victim in this case a fucking idiot didn’t you?” and the witness said “I’ve never used that expression in my life. In fact I don’t even know what it means.” So Eb went on with his cross-examination. I was his junior counsel so when Frank gets up to address the jury he gets to this and he said “Well no doubt ladies and gentlemen you appreciate you’ll understand that my client just did not know what a fucking idiot was until he met Mr Scarfe.” <laughs>
Very nicely worded <laughs>.
How would you describe your style then? It’s obviously been a good style, it’s worked well for you. What qualities have you got?
I think my ability to get to a point very early. My analytical skills were taught really come to a point. With Wei Li, the prosecutor addressed the jury for hours and hours, went on and on and on. I defended Wei Li and presented his case in 20 minutes. (NB: That approach goes back to Sir Garfield Barwick’s advice.) No one ever knows, no one will ever know what happened between Wei Li and his mother. His mother’s dead of course but then Wei Li runs off [inaudible]. The biggest problem with Wei Li, he wouldn’t accept the fact that when he was giving his interviews, he was just stupid. Rather than spend that sort of length of time the prosecutor took, I took 20 minutes. I gave it a lot of thought what I was going to tell him and I spoke at length and eventually somebody presented “I want you, the members of the jury, to imagine that your mother is here.” You’ve heard her son being cross-examined. I said “I’d just like to ask her 12 questions.” instead of asking the jury to imagine that she was there. “When he was born how long did he stay with you for?” She’d have to say three months. “What did you do with him?” “What did you do with him?” “I sent him off to [inaudible] for the next ten years.” “Is that because he was in your way, you wanted to make money out of your businesses?” She’d have to say “Yes.” because that’s what she did.
For the other side to..?
It didn’t take her long. So I think that was [inaudible]
Quite succinct by the sounds of it?
And the more and more I’ve practised law, I’ve worked on that.
In preparing for when you’re addressing the jury, to prepare for that, how many drafts do you go through?
I spent the whole case because I knew it had to come. The whole case thinking about it and I’d talk to my friends about it. I was going to put the word in, the last question I put in “Did you love your mother?” and a friend of mine said “No, I think a better way to express it is put in what did she mean to you?” so that’s what I put and that was my last question to his mother too and that was my whole address, what they meant to each other. Only those two will ever know he didn’t kill her she didn’t want to happen to him what has happened to him nor would she want him to be [inaudible]
Do you have sleepless nights thinking about, not in that case in particular, but I wonder if they did it?
I wouldn’t call them sleepless nights but I will certainly wake up at 3:00am and 4:00am in the morning and I’ll go and sit outside [inaudible]. All my life I’ve done that.
Do you use a computer?
So everything’s handwritten?
Yes. I can’t even use a [inaudible]
It’s been lovely to chat with you. Is there anything in closing that we should cover that we haven’t? You sound like you’ve had an interesting life in the law.
I think I have. Do you know Susan at all, my wife?
No, I haven’t met your wife. Is she still practising or not?
No. She had a bit of a cancer problem, she’s over that now. I was talking to her about [inaudible] she had a couple of ideas of cases I’ve been involved in. She’s had to put up with it for a long time.
She’s a very understanding wife. I guess she knows what the profession is like as well? It may be very difficult to be married to someone that wasn’t.
Susan’s a very good family lawyer, very practical, very good at her job. Neither of us ever wanted to become judges or anything like that. Both of us could’ve if we wanted to.
So that was an option at some point?
All these years and I never wanted, just never, I wouldn’t like it, I know.
I think the defence criminal system’s been very fortunate to have you. Thank you very much for your time.