Retired judge off the leash

Former Supremo Anthony Whealy had lunch with The Sydney Morning Herald and on the record said he has doubts about Keli Lane's murder conviction … Appeal pending … One rule for Margaret Cunneen … Another for a retired judge 

Whealy: nightmares

IT'S intriguing to see a judge come out of retirement and open a vein in public about life on the bench. 

So it was with Anthony Whealy's lunchtime interview published recently in The Sydney Morning Herald, with the headline, "I still have nightmares". 

Even without a lubricating drink Whealy, who is now chairing a review of Commonwealth-State anti-terror laws, was in expansive mood as he sat down with reporter Deborah Snow. 

He says he was worn-down by exhausting criminal trials, so much so that Spiggsy Spigelman arranged for him to move to the appeals bench. 

Having done virtually no criminal work as a barrister, he found himself running a raft of celebrated trials: Rene Rivkin for insider trading, Ida Rosen for tax evasion, and the two year Elomar terrorism trial at Parramatta. 

"I thought there was no trial that could ever throw me after the [Elomar] trial. But as it turned out, there was. The Keli Lane trial was such an emotional, harrowing trial, that I really felt at the end I could do no more." 

In December 2010 a jury found Lane guilty of the murder in 1996 of her daughter Tegan. 

She had numerous pregnancies, but hid them from her family and friends.

She had two terminations, another two were adopted and there was Tegan, who simply disappeared. 

Keli said she had given the baby to an Andrew Morris or Norris, but he could not be found. 

The crown case was that the accused had adopted a "permanent solution" to these five unwanted pregnancies. 

In the interview, Whealy said the trial was "very emotional" and that he had doubts about the prosecution case. 

"I have to be careful because it's on appeal ... [but] the baby has never been found, so I felt that this was a difficult case for the crown to prove. 

Mark Tedeschi was the crown prosecutor, and he is a very thorough, capable fellow who really presented a powerful case. 

But it wasn't without its gaps, as I saw it. I wasn't, you know, for myself convinced that the crown had proved its case. It wasn't my call, it was the jury's call, so my task was to try and make sure that the jury gave the woman a fair trial."

He said he found himself looking at Keli Lane, wondering: "If you did this, why was it so?" 

"It didn't make sense to me for a mother to do that." 

Normally judges, retired or otherwise, don't publicly declare their scepticism about jury verdicts. 

It could lead to trouble. 

Prosecutor Margaret Cunneen got into strife for her University of Newcastle speech in March 2005. 

She talked about a sexual assault case she was prosecuting in which one of the accused, MG, was facing a retrial. 

She said a whole pile of things about this case, adding: 

"If justice, in the criminal jurisdiction, means that the innocent are acquitted and the guilty are convicted, the adversarial system may seem routinely to achieve the former but rather often to fail at the latter." 

[snip]

"There seems to be a fashion, among some in the criminal justice system, for a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction. I was recently walking past some defence barristers at Darlinghurst Court and they were waiting for the return of a jury. I knew nothing of the case but could surmise, from the location, that it was a murder trial and it was obvious that the gentlemen were representing co-accused. Wishing to greet them with a pleasantry I said to them: 'may justice be done'. 'Oh, we don’t want that!' was the mirthful reply." 

John Marsden and Chris Murphy, two of the profession's adornments, took exception to this speech and complained to various authorities: the Bar Association, the Legal Services Commissioner (woof!) and the DPP. 

Marsden said she had brought the legal profession into disrepute and Murphy maintained that prosecutors ought never to make comments to the media about trials (that is the exclusive prerogative of defence lawyers). 

The LSC found Cunneen breached the bar rule, but dismissed the complaint as "being a technical contravention of a complex rule" (bar rule 59). 

The rule says:

A barrister must not publish, or take steps towards the publication of, any material concerning current proceedings in which the barrister is appearing or has appeared, unless: 

(a) the barrister is merely supplying, with the consent of the instructing solicitor or the client, as the case may be ... etc. 

An application to have her removed from prosecuting at the retrial of MG came before the CCA. 

The court upheld the application, basically because she inferred in her Newcastle speech that she thought the accused was guilty - an incredible attitude for a prosecutor to have. 

The CCA said: 

"By speaking publicly as she did Ms Cunneen revealed her considerable sympathy for the complainant in her ordeal. That Ms Cunneen, or any person, should hold those views is understandable. However, by publicly expressing them, and at the same time mounting an argument that the criminal justice system was both weighted inappropriately in favour of accused persons and imposed unacceptable burdens on complainants, Ms Cunneen discarded the prosecutor's obligation of detachment." 

The court also didn't think much of the Woof Commission's ruling: 

"It is not for this court to review the decision of the commissioner. However, in our opinion the [bar] rule and [the DPP's] guideline which Ms Cunneen breached are not complex. Her obligations were clear. She was to refrain from publishing material concerning the appellant’s trial, appeal or retrial." 

If Anthony Whealy was a member of the bar, which he is not, he too would be in breach of the no-speakies rule and have to be spanked in some way, particularly as the appeal is pending.   

*   *   *

Keli Lane: "permanent solution"

THE prosecution by no means had an easy trot in the Kelly Lane trial. At day 28 there was this telling exchange, in the absence of the jury, when Tedeschi was endeavouring to outline to the judge his "permanent solution" theory. 

His argument was that Lane, one way or another, sought to get rid of five children permanently, either by adoption, abortion or death. 

This might explain why the was unconvinced then and remains so now: 

HH: I don't know about permanently. I don't know if you have had experience of adoptions. I certainly have in my family. In every case the adopted child has come home when they are grown up. 

Crown Prosecutor: But it is within her power to decide whether that happens or not. 

HH: Not really. In reality I think that is not what happens. In this day and age it particularly doesn't happen because the adoption agencies and the governments push children into finding out and contacting their birth parents. That is the way it is in my experience. Doesn't always work, I agree. Sometimes it leads to a very renewal of a loving relationship and other times it leads to hostility and bitterness and so on, but I think in truth it is not permanent, that's all. Not as permanent as death." 

This was the gap he saw in the prosecution case, and which no doubt will return to contention in the forthcoming retrial. 

The judge gave Lane a 13/18 year sentence.  

Unlike the unhappy experience for Cunneen, there has been no indignant outcry about Whealy's extra-mural musings. 

Funny that.