The responsibilities of trial judges

Trial judges have a very tough job. That’s especially true with lengthy trial, such as the 2002 of ex-psychiatrist Jean Gassy for the murder of Adelaide doctor Margaret Tobin, where 163 witnesses were called. Justice Ann Vanstone, alas, blew the whole trial, once (arguably) weeks before the jury was sworn in and again (definitely, according to today’s 3-2 High Court decision,  Gassy v R [2008] HCA 18) half an hour before they brought in their guilty verdict. Her errors are closely tied to two rights in Victoria’s Charter:

24(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (d) …to defend himself or herself personally or through legal assistance chosen by him or her….

There are three awesome things about Gassy’s case.

First, it’s a fascinating example of a circumstantial case. Gassy had a motive to kill Dr Tobin – she was instrumental in his deregistration as a psychiatrist and, indeed, her name was on a list of those involved found at Gassy’s house – the means – pistols of the sort used to shoot her – and the opportunity – he lived in Sydney but rented a car that weekend that was returned with 3110km on its speedo. But he said that the pistols and car use were just training for his planned new career as a PI. There were no witneses to the shooting itself; even Dr Tobin – who knew Gassy – didn’t identify him in her dying words. Rather, the prosecution relied on a web of more distant evidence – a trail of hotel registrations and gun purchases with licence plates and phone numbers similar to Gassy’s, and people who picked him out of photo books – linking Gassy to both the Adelaide trip and an earlier trip to Brisbane that coincided with a conference attended by Dr Tobin and a man acting suspiciously ‘furtive’.

Second, Gassy represented himself, not only at his bail hearing and the entire trial, but also in his application for leave to appeal to the SA Court of Criminal Appeal, the appeal itself, his special leave application before the High Court and the High Court appeal itself. He wasn’t poor, but simply had his own reasons to want to represent himself. (He declined pro bono legal assistance at the High Court appeal.) I can’t help but think that his weird willingness to do this didn’t really help him on the factual question of whether he was the kind of guy who would kill someone. Moreover, as Kirby J pointed out to him in the High Court, his defence may actually be used in his re-prosecution!:

KIRBY J: Now, we have reached now a point where I think it is fair to say to you that one of the disadvantages you have in not having a lawyer speaking for you is that you are there, and if you were to succeed and a retrial was ordered, anything that you say now before us might be used in that retrial. Do you understand that?

MR GASSY: Yes, your Honour. Thank you.

KIRBY J: So you have just to be a little careful in your own interest in the way in which you advance these matters now before us. It is one of the reasons why courts like to have lawyers present. As I understand it, you would have been given the opportunity to have a lawyer represent you here and you have elected to speak for yourself, as is your right, but it does carry certain risks for you and you must be aware of those.

I’d like to think that a court would act to bar a prosecutor from using a defendant’s exercise of his right to defend himself against himself, but I have to admit that the argument – the fairness discretion perhaps – is hardly a lock.

Third, Gassy did really well defending himself. Some evidence was thrown out at his initial trial. The Court of Criminal Appeal unanimously agreed that the search warrant the police executed on his Sydney home was invalid on several grounds. One judge in the CCA would have allowed his trial on some grounds. He got leave in the High Court (although the court focussed exclusively on the grounds raised by the judge, whereas Gassy focussed on the search warrant, foolishly assuming that the ‘public policy discretion’ is ever applied to exclude significant evidence in a serious trials. He’s obviously read too many High Court judgments and not enough empirical research.) And, of course, he won today in the High Court in a 3-2 decision. If he succeeds in his second trial in Adelaide, then maybe he should get a job with Legal Aid!

Alas, the case also illuminates how little the Charter will affect Victorian trials, due to a major gap in the Charter:

4(1) For the purposes of this Charter a public authority… does not include… (j) a court or tribunal except when it is acting in an administrative capacity.

As I argue elsewhere, this provision – exempting judicial decision-making from the conduct mandate – reduces

the resulting legal effect of the Charter on the conduct of court proceedings [to] a pastiche of weak restraints, waxing and waning as courts drift between their administrative and non-administrative capacities, proceedings pass in and out of the purview of suitably malleable statutory provisions and public authorities enter and leave the courtroom.

The two grounds on which Gassy went to the High Court are cases in point.

The first ground was Vanstone J’s opposition to Gassy’s request to bring in a barrister to make submissions in the pre-trial voir dires on the admissibility of evidence, but not in the trial itself. Justice Vanstone – presumably frustrated by Gassy’s whole self-represenation plan – strongly suggested that such a course would be unethical and unworkable. She eventually relented, but only after a number of days had passed in the hearing, during which time Gassy failed to cross-examine some key witnesses. One such witness was  Ms Durrington, who was the sole ID witness placing Gassy in the building where Tobin was shot (albeit hours before the shooting.) Alas, there was a big problem with her evidence:

On 11 November 2002 [Ms Durrington] was presented with the series of photographic images. Taking quite some time over the procedure, she deliberated between photographs numbered 3 and 5 (Gassy). She seemed to settle on number 5 but at the last moment changed to number 3. The procedure was then brought to an end. During the ensuing 20 minutes or so when she was waiting to be driven back to work the officer who conducted the procedure questioned her as to why she had chosen number 3. Soon after that she asked whether she could undergo the procedure again. This time she chose the image of the accused. In a statement provided during the pre-trial argument and prepared specifically at my request, Ms Durrington indicated that her request to repeat the procedure was motivated not by the police officer’s question but rather by a conviction that she had erred in her selection.

It may shock some readers to learn that this transparently bad ID process is not grounds for automatically excluding such evidence. Alas, the High Court, in a 2001 decision, ignored decades of experience of miscarriages of justice arising from bad IDs by declaring that problems of reliability won’t typically affect admissibility. Nevertheless, it is possible tha that Durrington’s evidence would have been excluded – if, say, a cross-examination had shaken her claim about the conversation with the police officer – had Gassy’s lawyer been able to ask questions at that point.

The CCA and High Court unanimously agreed that Vanstone J was wrong to stop Gassy from using a lawyer for just the voir dires. The CCA and at least two judges in the HCA relied on this statutory provision in SA:

A person charged with an offence may be represented by counsel.

Clearly, if a similar provision was present in Victoria, it would be sufficiently malleable to ensure that Charter s. 25(d) played a big role in its interpretation here if a similar issue arose. But the problem is that Victoria’s provision is different:

Every accused person shall be admitted after the close of the case for the prosecution to make full answer and defence thereto by his or her legal practitioner.

It’s hard to see how this provision can be read to somehow cover what happens before the prosecution opens its case. The result is that the question of legal representation will instead be dealt with by the common law by the judge exercising her non-administrative functions. It may well be that the result will be the same. But what is clear is that Charter s. 25(d) – which supposedly gives defendants the right to a choice on how to defend themselves – will not be able to play ANY role in determining this issue. What a joke.

The same goes even more clearly for the other issue, which is the one that a majority of the High Court backed Gassy on.  When the jury started deliberating it became clear – presumably to everyone’s surprise – that they were having a lot of trouble reaching a verdict. There’s a standard procedure that applies: the judge has to give the jury a direction suggesting ways to resolve the impasse. Alas, Vanstone J’s direction was more like a road map to reaching a guilty verdict and ignored Gassy’s arguments in defence. The prosecution certainly thought this was a problem, requesting a further direction making it clear that the jury had to make its own mind up.  Alas, the resulting redirection was too little, too late.  You can bet that the prosecution and judge were less than delighted when the jury walked back in thirty minutes later with a guilty verdict. It is a shame that it took six years for Australia’s courts to realise that the trial was flawed.

The problems are made quite obvious by Charter s24(1), which requires that any court deciding criminal or civil matters be both impartial (i.e. officials need to be balanced and keep any prejudgment to themselves) and independent (i.e. jurors need to be free of influence from anyone else, especially officials.) In the US, these requirements are taken so seriously that judges are often forbidden from mentioning any facts at all to jurors. Alas, neither in SA nor Victoria is the judge’s summing up regulated by statute. (A provision on ‘summing up’ only covers prosecutors, not judges.) Instead, it is, once again, the product of a court’s non-administrative functions. And, hence, it’s as if the Charter was never passed.

Ultimately, it’s a lucky thing that Tobin wasn’t shot this year in a conference in Melbourne, as Gassy would undoutedly be quite confused about how a Charter that purports to set out his rights to particular trial procedures would have no role to play in his trial.

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