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The Cartel

Lawyers and Their Nine Magic Tricks

EVAN WHITT0N

26 - Magic Trick 8 - The Christie Discretion: Now to Conceal Virtually All Evidence

If there ever was such a thing as judicial corruption it might well reside in the expanding and almost inscrutable discretions which can after the whole course of a criminal inquiry.

 - Professor John Forbes, University of Queensland, 1992

To repeat: in ambiguity lies power. If the hearsay rule is "dark, gloomy, infernal", the Christie discretion (from a 1914 case in the English Court of Appeal) belongs perhaps to some even more "hellish" section of the common law's Stygian waters.

Probative means tending to prove (the charge). The Christie discretion gives a judge power to conceal evidence if, in his opinion it is factually only slightly probative, but it may cause great prejudice against the accused in the minds of jurors of allegedly feeble intelligence and sense of fairness. (How judges cope when sitting without a jury is a matter for speculation).

The Last Nail . The Christie discretion is the last nail in the truth coffin. The judge's opinion concerns fact, not law, and so cannot be the subject of appeal. It thus effectively gives judges a non-appealable power to conceal almost any relevant and probative evidence at all. As Dr Forbes suggests, this gives extraordinary power to corrupt judges, if such exist. Murray (The Camel) Humphreys would know how to use the discretion.

Stone and Wells say the "relevant facts" to be concealed by the discretion "must be of comparatively little probative weight [and] this slight relevance must be accompanied by a great potentiality for prejudice, such that 'the effect on the minds of the jury ... might seriously prejudice the fairness of the trial'," (as Lord Moulton said in R v Christie [1914]).

The Chaos Theory . "Slight" is the problem. How slight is slight? Can a person be slightly pregnant? Can evidence be slightly probative? Judge John Helman, chairman of the Queensland District Court, said there might be "chaos" if different judges used the discretion on the same probative evidence. Judge Boulton disclosed the "chaos" theory when he again appeared as judge in a case, R v Rooklyn, (1992) which he had aborted eight months earlier because a media report had allegedly prejudiced its fair hearing. He said that Judge Helman had taken the view "that once a judge had matters, particularly dealing with questions of admissibility of evidence, that there be some consistency rather than putting matters to different judges who, on discretionary matters and so forth, might presumably bring the whole system into chaos".

The Lottery Effect . This confirms the common law's lottery effect and the cost to the community of bringing charges that may have had no chance of succeeding: the Director of Public Prosecutions cannot know what relevant and admissible evidence a judge may conceal via the discretion.

Working the Wrong Way Round . As Stone and Wells note, judges are not supposed to even consider the possible prejudicial effect of a fact unless it is only slightly probative, but there is room for speculation that some judges, pressed by anxious care to be fair to the accused, may subconsciously work the other way round: they see that the fact is highly damaging, and decide it is more prejudicial than probative and wrongly conceal it that way.

Defence Lawyers . The Christie discretion is thus fertile ground for defence lawyers: they can claim that almost any relevant fact is only slightly probative but highly prejudicial. And, depending on the judge, they might get lucky with some of the evidence. At the least, they can keep the meter ticking over.

A Case Study. Sir Terence Lewis (b. 1928) was Police Commissioner of Queensland (pop. 1986: 2,675,300) from 1976 to 1987. He was corrupt at least from 1978, when a former Detective Sergeant, Jack Herbert, became Lewis's bagman (collector and distributor of bribes / extortion moneys from prostitution and illegal gambling). Herbert had been the force's bagman in the same lucrative areas from 1960 to 1974.

In 1987, the Hon Gerald Fitzgerald QC (he is now President of the Court of Appeal) began a commission of inquiry into police and political corruption in tropical and sub-tropical Queensland. His inquiry appeared to confirm the late Robert Haupt's theory that corruption increases as the square of the distance from the North or South Pole. The inquiry and Lewis's subsequent trial offer an informative case study of the difference between the evidence heard at an inquisitorial proceeding and a common law criminal trial, and of evidence that can be concealed via the Christie discretion.

Jack Herbert "rolled over" (as the police phrase had it) in return for immunity and gave evidence of the corruption of himself, Lewis and others. The inquiry thus exposed a mountain of evidence indicating that Lewis had reached level 5 (the highest) on Professor Alfred McCoy's scale of police corruption, i.e. organised crime being franchised by a small group of senior police, as it was in Hong Kong before an Independent Commission Against Corruption was set up there in the early 1970s.

Sir Terence was obliged to give evidence at the inquiry but he appeared to be troubled by a form of amnesia. It is said that an ounce of evidence is worth a pound of demeanour, but spectators can see when a witness is being evasive, probably because he cannot afford to tell the truth.

The Queen v Lewis (I) . Herbert's evidence included assertions that he and Lewis extorted monthly bribes from an organised criminal, Jack Rooklyn, from 1978 to 1987. In July 1989, Lewis was charged on 15 counts of corruption, including that he corruptly agreed to accept bribes from Herbert from 1978 to 1987, and that between 25 May and 31 December 1980 he corruptly agreed to accept a bribe of $25,000 from Rooklyn for a particular purpose.

The Crown retained the leader of the criminal bar, Bob Mulholland QC, to prosecute; John Jerrard appeared for Lewis; Judge Anthony Healy presided in the District Court. Herbert was to be the major witness. It is accepted that witnesses like Herbert may have a motive to lie; the law says jurors can convict on the evidence of an accomplice alone, if they believe him, but it would clearly be better if he was corroborated (supported) by independent evidence.

Lewis began on May 14, 1990 with legal argument without a jury being empanelled. There had been a lot of publicity about Lewis; Judge Healy seemed determined to make sure no one could say he did not get a fair trial. After a fortnight of legal argument, Judge Healy detailed the material he would not allow the jury to hear. Without the full background it may be largely unintelligible, but a sample is included to indicate the volume of evidence a jury does not hear at a common law trial. It can first be noted that:

 - The material does not include relevant evidence already concealed by the prosecution because it would be ruled inadmissible on the ground that it was hearsay, similar fact evidence, or character evidence.

 - If Judge Healy were sitting without a jury he would have to hear the evidence before concealing it on the ground that it might prejudice him. This either means that such evidence cannot prejudice a judge, in which case he should admit it, or that it can prejudice him, in which case, having concealed the evidence, he should hand the trial over to another judge. The process may thus seem another product of the malady.

 - Sir Terence did not propose to give the trial jury an opportunity to see him attempting to answer Mulholland's questions; he intended to utilise Magic Trick Number 4, the right of silence. He instructed Jerrard to tell the jury that Herbert was an informant, not an accomplice.

 - A legal system that conceals this much evidence may be trying to be fair, but it is not trying to find the truth; as Judge Rothwax says: suppressing evidence is suppressing truth.

Evidence Generally Excluded . Listed below is some of the evidence excluded on the ground of Judge Healy's opinion that it was not relevant, not probative, or that it contravened the rules for concealing evidence. If the assertion was that Sir Terence Lewis was an organised criminal, and if Australia had RICO legislation, some of would have been admitted as showing a pattern. The excluded material included:

 - Conversations in which Herbert told another person that Lewis was corrupt.

 - A list of numbers and names [of illegal bookmakers] in Herbert's handwriting found among the possessions of an admittedly corrupt Assistant Commissioner, Graeme Parker (irrelevant).

 - Noel Kelly, an admittedly corrupt officer, gave Herbert a message from Parker that Herbert should go overseas when the Fitzgerald inquiry was announced (irrelevant).

 - Herbert's evidence that Parker told him Lewis wanted him to go overseas.

 - Illegal bookmakers' belief that Lewis was corrupt.

 - Herbert's dealings with Bulger (an admittedly corrupt officer).

 - Taped evidence concerning a conversation between Kelly and Herbert's son, John.

 - A letter Herbert's daughter wrote to Lady Lewis and her reply.

 - A code Herbert gave his son John and Bulger.

 - A code shared with Bulger.

 - The way Herbert contacted Geraldo Bellino (an illegal casino operator) from England because he wanted to learn Bulger's version of events, and the document containing answers to questions from Herbert to Bulger.

 - The evidence of Herbert's wife, Peggy, except about money paid directly to her by Lady Lewis.

 - The entire evidence of Herbert's son and daughter.

Herbert asserted that back in the 1960s he gave Lewis small sums at the request of another policeman. Judge Healy's reason for excluding some of that evidence was: "The evidence does not appear to be probative of corrupt conduct on the part of the accused at that time as it is not even alleged by Herbert that the accused was doing anything which could be called corrupt in exchange for the money that he was allegedly receiving from Herbert."

On the other hand, a juror might think that Lewis would know the money came from bribes / extortions; that by accepting it he was compromised in Herbert's eyes; and that this gave Herbert the confidence to approach him with an extortion scheme after Lewis became Commissioner. In fact, when Lewis's trial finally got under way more than a year later, it inadvertently emerged, as a result of a question from Jerrard, that Herbert's motive for paying him the small sums in the 1960s was that he knew Lewis was close to the corrupt Commissioner, Frank Bischof.

Evidence Excluded via the Christie Discretion. Judge Healy said: "I turn now to the evidence which is said to be corroborative of Jack Herbert's evidence. Much of that evidence is capable of corroborating Jack Herbert and is therefore probative. However, some of the evidence identified by Mr Mulholland as corroborative appears to me to be of little probative value but of the kind that would be highly prejudicial to the accused if I admit it."

It was Judge Healy's opinion that the evidence he excluded only slightly tended to prove Lewis's guilt, but, as Judge Boulton said, different judges might have different views. So might jurors, who are supposed to bring their common sense to bear on the evidence. Some of the evidence excluded on the basis that Judge Healy thought it was only slightly probative was:

 - Lewis's diary entries, which Mulholland said he could prove were false, purporting to show that he was a successful punter in a period, 1979 to 1987, when it was alleged that he was corrupt.

 - Analysis of his financial records from 1982 to 1987 showing that he had unexplained cash of more than $30,000 plus what he would have paid over six years for living expenses, including food and clothing for himself, Lady Lewis, and one son.

 - His false sworn denial in 1980 that he had ever had anything to do with Jack Rooklyn.

 - His transfer to Lady Lewis of his half interest in their mansion immediately after he became aware that Parker was confessing his corruption.

 - His false sworn explanation for putting his house entirely in Lady Lewis's name, i.e. to protect the house from his creditors, but he had no difficulties with creditors at the time.

Court of Criminal Appeal . Mulholland had the proceedings stopped in order to test in the Court of Criminal Appeal (CCA) whether Judge Healy was right to exclude the evidence. He told the CCA that Judge Healy had excluded "almost all" the evidence from Lewis's own actions that would corroborate Herbert, and that some of it was "incapable of being categorised as of slight or trifling weight".

In August 1990, the CCA, consisting of Chief Justice John Murtagh Macrossan and Justices Jack Kelly and Peter Connolly were persuaded by David Jackson QC, for Lewis, that even if Judge Healy was wrong, there was nothing they could do about it: his errors, if any, were errors of fact, not of law, and they could only deal with questions of law.

The implication is that a common law trial judge can never be wrong on a question of fact. This is clearly unreasonable; European courts of appeal accept that the trial judge can be wrong on fact.

The Queen v Lewis (II) . The Lewis matter started again on 18 March 1991. Judge Healy again presided. Technically, it was the first Lewis trial because a jury had not been empanelled the last time, and Jerrard and Mulholland went round the legal argument all over again. Dickens was not wrong.

Judge Healy said he was not going to depart from his previous rulings to exclude evidence via the Christie discretion. In addition, he now ruled out a 1980 tape of Herbert's phone calls to Barry MacNamara, an accomplice of Herbert and Lewis in their extortions from Rooklyn. On the tape, which was contemporaneous with the event, Herbert and McNamara discuss Lewis's vile behaviour in giving them only $9000 instead of the agreed $10,000 of Rooklyn's $25,000 bribe. Apart from bitter denunciation of Lewis for trousering $1000 of their end of the bribe, Herbert says: "Terry loves this stuff".

In the real world inhabited by jurors, the tape might seem to corroborate Herbert's contention that Lewis was a crook, that Herbert negotiated the bribe with Rooklyn, that Lewis gave him the $9000 at the Mayfair Crest Hotel at a certain time. It might also seem to corroborate the evidence of waiter, Serge Pregliasco, who placed Lewis and Rooklyn in a room in the hotel about that time.

But the common law can be some place other than the real world; the jurors never heard the tape. After lengthy argument, the Judge decided to exclude it on two grounds. He told Jerrard on April 4: "...I have come to the conclusion that this tape is not capable of corroborating Herbert because it is not independent of him. I do not think that the taped conversation between Herbert and MacNamara involves acts which could be said to be in furtherance of any corrupt agreement between them and I do not think it is part of the res gestae [the material facts of a case as opposed to hearsay]. Therefore I exclude it.

"But if I am wrong about that, the conversation tends to suggest, and this is Herbert's evidence, that your client is a person who is capable of ratting on his friends. That's not part of the indictment either. It would be very prejudicial to him to let it in, so I am excluding it."

Judge Healy had admitted items from Lewis's notebooks which were codes for people, including Rooklyn, that Lewis and Herbert discussed on the telephone, and also for places where, Herbert said, they met for Lewis to receive his share of the bribe money from prostitution and illegal gambling. At the earlier inquiry Fitzgerald QC seemed to think that, along with Herbert's evidence, the codes were the smoking gun that proved Lewis was corrupt. So did Mulholland; he said the codes were "like a fingerprint on a gun in a homicide case".

Jerrard, addressing the jury after Mulholland, suggested that Lewis made the codes in response to an offer from Herbert to inform on the people in the list. Had Lewis given evidence, Mulholland could have asked him what action he took on the information; the answer would have had to be, none. Jerrard said Lewis's only crime was to be a loyal friend to Herbert, who betrayed him and used his name to build an empire of corruption.

Summing up on Wednesday 31 July 1991, Judge Healy told the jury that Herbert's evidence was worthless: "the character of the accused has not been tarnished by it". The same applied to Peggy Herbert: "She has every reason to lie in order to save her husband and herself." And, he said, there was no evidence to support Herbert's evidence. He said it was "not fanciful" to consider that he was no more than an informer for Lewis. He said the lists were "not evidence from which you can draw an inference that the accused and Herbert were in a corrupt association ... I direct you as a matter of law that there is no evidence which is capable of corroborating ... Jack Herbert's evidence that the accused entered into the corrupt agreements in the indictment..."

Judge Healy was wrong about that; the Appeal Court later found that the codes did corroborate Herbert. He concluded: "You may convict on the uncorroborated evidence of the Herberts, but it would be dangerous to do so."

Rogerson. Jurors can go either way on that instruction; for example, a case concerning Roger Rogerson, the Sydney detective who shot Warren Lanfranchi dead in 1981. A heroin dealer, Alan David Wilhams, later claimed that in 1983 he procured Rogerson to bribe detective Michael Drury to get Williams off a heroin charge. The attempt failed; Wilhams claimed that in 1984 he procured Rogerson and a professional assassin, Christopher Dale Flannery, to murder Drury. That failed also, if barely. Flannery was murdered on or about May 9, 1985. Rogerson was tried in May and June 1985 on charges of attempting to bribe Drury on behalf of Wilhams. He was found not guilty.

Williams pleaded guilty in 1988 to conspiring with Rogerson and Flannery to murder Drury, and was sentenced to 14 years with a minimum of six. Rogerson was tried in 1989 on the same charges. Williams gave evidence against Rogerson but he could not speak of the earlier attempt to bribe Drury because Rogerson was officially innocent of that charge. This left motive and perhaps internal corroboration rather up in the air. Justice Colin Allen told the jury it would be "dangerous in the extreme" to find Rogerson guilty on the basis of Williams's evidence. They found him not guilty.

A couple of points can be made. Rogerson's activities had been heavily reported over the years so they were in the air if not in evidence. This suggests that jurors do focus on the evidence at the trial, and are not unfairly prejudiced by media reports of events that do not get into evidence.

Second, would the jury have convicted if all the available pattern evidence about Rogerson had been before them? As in the case of the acquittal of the Gambino family boss, John Gotti, it may have made no difference: in the end, jurors rightly insist that the prosecution has to prove the particular case regardless of what the pattern might suggest about the accused.

What the Jury Did Not Hear . After the Lewis jury retired, Mulholland said the judge had "usurped the role and function of the jury", and asked him to change his ruling that there was no evidence capable of corroborating Herbert. He declined to do so. The jury was out for five days. On Monday August 5, 1991, they found Lewis guilty on all 15 counts. Judge Healy said: "The verdicts speak for themselves", and sentenced Lewis to the maximum of 14 years on each charge.

Doney's Case. It has been said that the jury's verdict in the Lewis case shows that the system works. I'm not sure that's so. I suspect that Lewis would have been found not guilty if the trial had proceeded normally when it started in May 1990. At that time, Australian trial judges had the power to direct jurors to enter a verdict of not guilty if, in the judge's view, a verdict of guilty would be unsafe and unsatisfactory. On what Judge Healy later said, it seems possible that he might have directed the jury to find Lewis not guilty. But in December 1990, the High Court ruled in Doney that the judge should warn the jurors but generally the jurors should make the verdict. Judge Healy took the view that after Doney he could not direct an acquittal even if, as he said, "I felt that the corroborative evidence was very slight indeed and really not of much weight".

Gagliardi. The day after the verdict, the Brisbane Courier-Mail ran J.J. Gagliardi's account of some of the evidence excluded in May 1990 and again in March 1991. The editor, Desmond Houghton, instructed his court reporters that in future they were to make a note of evidence excluded from major trials and to report it when the trial was over.

Strippage. The Appeal Court confirmed Sir Terence Lewis's conviction and sentence in August 1992; the High Court refused leave to appeal; Her Majesty stripped him of his knighthood. The Governor-General, Bill Hayden, a former Queensland detective, had graciously acceded to my request to ask Her Majesty how often she and previous monarchs had been obliged to perform this melancholy duty. I was thus able to report that Sir Terence was the 14th person since the 14th century to be subjected to strippage, and that he had the consolation of knowing that anyone can get a knighthood, but that he had now joined an exclusive club consisting of the Earl of Carlisle, Sir Ralph Grey, Lord Scrope, the Duke of Buckingham, Lord D'Arcy, Sir Francis Mitchell, Lord Cochrane, Sir Roger Casement, Sir Joseph Jonas, Lord Kylsant, Sir Anthony Blunt, Sir Joe Kagan, and Sir Jack Lyons.

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