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Published: August 23rd 2014
AUSTRALIAN BEER...My First Jury Trial. With every beer comes a good story. Grab a beer and I'll tell you a story that makes John Grisham's seem like child's play...this one scary and true.
I first met his wife...charged with jumping on the back of and punching a policeman who with other police was beating up her husband. Spat through the cell window in the face of another...must have been really pissed off.
Wife-Two counts of Assault Police...Plea of NOT GUILTY.
Then I was asked to represent her husband...he was really in trouble.
Husband-Two counts of Attempt to Stab Police...Plea of NOT GUILTY.
When I heard their story and spoke to witnesses I thought I could get them both off...yep...get them both off.
Lengthy jail term or freedom?
That was my brief...that was my challenge...impossible or what?
******
The Facts (Police short version) The Defendant (Pat) had stabbed the bar at the hotel with a long bladed knife and then kicked the glass door which smashed. Police were called that a man had gone beserk in the hotel with a knife and on arrival chased the Defendant for
BLUETONGUE PREMIUM LAGER
Modelled by Rachael (RJT)...New South Walesabout 200 metres whereby he turned around and attempted to stab the two Police officers with the knife. They feared for their lives. Other police arrived and overpowered the Defendant who was arrested and charged.
While the Police were overpowering the Defendant, his wife (Pam) arrived and punched one of the Police officers. She was arrested and put in the cells at the Police station where she spat in the face of a Police Officer through the cell window who was checking on her welfare.
******
The Facts (Defendant's version) They'd been on a fishing holiday and on the way home decided to drop into their favourite watering hole for a beer.
Pat (not his real name) parked his old model Mercedes in the hotel carpark...got his fishing knife and put it in the back of his pants...for protection...as you do...and entered the hotel.
Pam (not her real name) went to the beer garden as she had her young son with her...while Pat went to the bar.
The barman was familiar...and Pat wanted to have a go at him...bit of a winge you might say.
"Why didn't you help me when that
7 SHEDS KENTISH ALE
Modelled by Dave Kentish...Tasmania Tongan tried to stab me with the scissors two weeks ago?" he asked.
"I wasn't going to do anything for you 'cause you were swearing at me" he said.
"You bastard. I could have been killed."
"Well don't swear at me then."
This made Pat mad.
He whipped his fishing knife out from the back of his pants. But as the knife was sheathed between the cheeks of his buttocks...he sliced his buttocks as he pulled it out. And that made him...REALLY MAD. "You...you"...bang.
He stabbed the knife into the wooden bar...point imbedded.
Hotel patrons buzzing..."There's a madman loose in the bar with a knife...call the Police."
Pat realising it was time to go... kicked the wooden frame of the bottom of the glass door as he walked out.
You guessed it...the glass shattered.
Pat then realised his missus had the car keys so went back inside...got them...telling Pam t'was time to go.
But she was in no hurry...chatting to friends..."see you at home".
So Pat walked into the carpark with the knife still in his hand...to his car.
Then he saw it.
ONE FIFTY LASHES
Modelled by Tom Rooney for James Squire...New South Wales A police car was screaming around the corner and into the pub carpark which was on the intersection of two roads.
So Pat...holding the knife...decided to run.
And two young police with batons drawn...chased him.
He ran across the road towards the Salvation Army Hall...running...threw the knife away...stopped and went back for the knife...Police closer...running...turned left behind the hall...reached the main road.
Ran across the main road and down a lane between sets of home unit blocks.
Now Pat had a beer belly and was not very fit...by this time pretty knackered...so he decided to give up.
He threw the knife under a tree outside one of the units...turned around and raised his hands in surrender.
The two Police then caught up and started beating him with their batons.
A paddy wagon then turned into the lane and out jumped four Police who joined in and pulled his pants down to his ankles so he couldn't escape.
Then Pam arrived with their son...horrified...jumped on the sergeant's back screaming for him to stop.
This was witnessed by a Korean schoolgirl who was watching with her mother at their kitchen window.
DRY DOCK
Western Australia ******
But life is full of curve balls...curve balls I never dreamed of. ******
Pam's trial The two Police officers who chased Pat agreed they had chased Pat down the lane whereby he turned around and faced them.
I had them in evidence positioned outside the kitchen window of my surprise witness, so feeling good.
They denied he had thrown the knife away...denied he had surrendered...denied they then beat him up helped by other Police.
Both told the same story that he came at them with the knife and they feared for their lives.
They denied Pam had been arrested for no reason.
Now for my trump card...the 15 year old Korean schoolgirl. Gave her evidence clearly. She had been helping her mother wash dishes in the sink at the kitchen window when she saw a man outside turn around with his arms raised and then two Police jumped on him and beat him with their batons. A paddy wagon then arrived and four more Police helped beat him up. She was shocked they pulled the man's pants down. The man's wife arrived with a small boy
MOUNTAIN GOAT STEAM ALE
Modelled by Scott of Shelley and Scott...Victoria and attempted to pull one of the Police away. She said Pam did not punch anyone.
She said
the man was not holding a knife when she first saw him and at no time did she see a knife.
She said she did not take her eyes off what was occurring in the lane only a few metres from their large kitchen window and saw everything that happened.
The learned Magistrate said in his judgment:
"The schoolgirl said she saw everything. Nobody sees everything. I reject her evidence in its entirety." ******
Pat's Jury Trial The commital hearing was a formality as on the Police facts there was a case to answer so we went straight to trial in the District Court before a Judge and Jury.
Surely a Jury would take notice of our eye witness!
I had never run a Jury Trial before but Pat had no choice but to put his life in my hands...agreed on my fee which was reduced due to his circumstances...so I prepared for trial.
I had run many cases as counsel in various jurisdictions...always doing them my way...applying passion to
LITTLE CREATURES ROGERS BEER
Modelled by Shelley of Shelley and Scott...Western Australia purpose...good record of success.
But as I planned my preparation and approach...
subpoenaed the schoolgirl to give evidence and obtained a transcript of her previous evidence...I had no idea what surprises were awaiting me.
******
The trial ran for four days.
Pretty early on I realised the judge did not like my client...and even worse...he didn't like me. And he didn't like my suggestions in my opening address that the police version was maybe...come on say it..."was fabricated".
The Jury swear in was pretty easy. Not like John Grisham books where investigators give reviews of jurors.
If you don't like the look of one just say "Object" so you look as if you know what you are doing.
So twelve honest citizens of both sexes and various ages got the nod.
The surprises started early.
The First Cop's Evidence The first of the young police for the prosecution...good looking...clean cut...telling his story..."He ran behind the Church hall to the main road...we were just behind him...started crossing the road. When he got to the middle of the road he swung around and started lunging at us with the knife."
Yeeka...he's moved the scene of the event to avoid our eye-witness down the lane...yeeka.
Think fast...how can I trick him to admit he ran down the lane?
So in my cross-examination...I took him on a run.
"You received a call a man had gone beserk with a knife in the pub...pulling into the carpark saw him holding a knife...he started running...you started chasing...who was leading? You or your partner? puff puff (puffing sounds from me between phrases). How long have you been in the force? What hand was your baton in? ...puff puff... Did you see him drop the knife? Were you catching up to him?...puff puff... Did he stop and go back for the knife? What hand was your baton in? ...puff puff... How close were you then?
I was on a roll.
Then I fell over a chair.
The judge went off at me "Stop moving around. Stop the theatrics. You are not on TV."
"He got to the main road...puff puff...how close were you then? What hand was your baton in? ...puff puff... Where was your partner?...puff puff... He ran across the road...puff puff...What did he do then?"
TOOHEYS EXTRA DRY
Modelled by Bob of Home & Away and Moi...New South Wales "He turned around and started lunging at us with the knife."
"I put it to you he ran down the lane."
"No he didn't"...and no amount of badgering by me would make him change his evidence.
"You said in another Court"..."No I didn't".
"You are moving the scene out of the lane because you know I have an eye witness sitting outside the Courtroom".
"No it happened in the middle of the main road."
I looked at the Jury.
Looked at the Judge...if looks could kill.
******
The Second Cop's Evidence The second policeman gave the same story to the Crown Prosecutor as the first...close to word perfect.
But there was one difference...he was no longer in the Police Force...had come back just to give his evidence in this case.
Mmmm...I wonder if maybe he hasn't learnt his statement as diligently as the other cop...mmmm.
So in my cross-examination...I took him on a run.
"You received a call a man had gone beserk with a knife in the pub"...took him on the same run...probably making puffing sounds more pronounced...Judge looking as if he wanted to clobber
CAT'S SHANK KOLSCH
Rocco's favourite..Sail & Anchor...Western Australia. me.
"He got to the main road...puff puff...how close were you then? What hand was your baton in? ...puff puff... Where was your partner?...puff puff... He ran across the road...puff puff...What'd he do then?"
"He ran down the lane." It was like a light went on.
Only problem...I was the only one that noticed it.
And then the second cop realised his slip-up and brought his evidence in line with the first...
"He stood in the middle of the main road and was lunging at us with the knife."
******
The sergeant and three other police gave evidence. Just about an arrest of Pat who was lunging at two police with a knife.
Denied it was down the lane...denied beating up the Defendant...denied he didn't have a knife.
The Knife The Crown Prosecutor tendered the knife...Exhibit "X".
Reminded me of Crocodile Dundee 2...when our hero got mugged by some hoods in New York with a flick-knife...demanding his wallet .
You know the scene..."Give him your wallet Mick. He's got a knife"...Mick Dundee pulls out his own knife, laughs, says
"Why? That's not a knife...this is a knife."
Yep...Pat's fishing knife was a Crocodile Dundee knife...yep...a bloody big knife! "That's the case for the Prosecution Your Honour".
Now its my turn.
******
The Case for the Defence Pat gave evidence.
I led him through his evidence and it just flowed. Sounded sincere and honest to me.
Ran down the lane...threw away the knife...hands up in surrender...the police beat me up with batons...initially two then four more joined in.
The Crown Prosecutor did not break down his testimony.
Then Pam gave her evidence of what happened when she arrived in the lane with their young son.
The Eye-Witness The Korean schoolgirl now aged 17 turned up at Court with her mother.
She only came because she had been served with a Subpoena...only came for fear of being arrested if she did not attend.
Sat outside the courtroom for three days.
Made her position clear to me from Day 1...and everytime I asked after that.
She refused to give evidence and nothing I could say would budge her from her resolve. She had sat at the back
TOOHEYS DRAUGHT
New South Wales of the courtroom after telling what she saw in Pam's case...was shocked when the Magistrate said:
"The schoolgirl said she saw everything. Nobody sees everything. I reject her evidence in its entirety." Was sick with disbelief he had disbelieved her..."He called me a liar" she said...had missed a week of school after that.
No way was she going through that again...no way.
She was our only independent corroberation that the incident happened down the lane and Pat had not attempted to stab anyone...without her Pat risked jail or liberty. So I called her to the witness box anyway.
The police watching were decidedly fidgetty...they knew the stakes...they knew what she had said when giving evidence before.
She took an oath to tell the truth...gave her name and address.
Then every answer after that was "I don't remember." "You gave evidence in previous proceedings?"
"I don't remember."
I had the transcript of her previous evidence.
In an attempt to refresh her memory I showed her the transcript...made it clear to her in front of the jury what it was...that she had previously given evidence of what she saw outside
BOAG'S WIZARD SMITH
A favourite...Tasmania her kitchen window "down the lane".
"I don't remember."
Sought leave from the Judge to cross-examine her as a hostile witness.
I knew what I was doing. I had sought advice overnight from a Senior Barrister...I knew what I was doing...and so did the Judge.
He had the jury removed from the Court...argued with me he would not allow me to refer to it...I even showed him the transcript.
The Judge told the jury to disregard all mention of it.
I was spewing with frustration...rage...desperation...fear for my client's liberty.
Did I say desperation.
So I called for Exhibit "X"...did not say what it was...made sure the witness sitting in the witness box could not see it.
Told her to shut her eyes.
"Hold your hands out in front of you...do not open your eyes until I tell you to." Exhibit "X"...the knife was handed to me.
It was bigger than I remembered...much heavier than I'd imagined...really heavy.
Ping...brain engaged.
I held it over the girl's hands and said "Have you ever seen this before?"
Dropped it into her hands as she opened her eyes.
BLING INDIA PALE ALE
Brewers Road Brewery Beechworth, Victoria She gasped in shock...dropped it onto the bench in front of her...and screamed "NOoooo." "Have you seen this before?" "NO." "That's the case for the Defence. I have no further witnesses."
******
The Summing Up The Crown prosecutor was particularly savage in his assessment of Pat and the evidence...pressed the jury should have no difficuly finding "beyond serious doubt" that Pat had attempted to stab the two young police.
Now it's my turn.
I explained the first cop's evidence to the Jury...then that the second had muffed his lines by admitting Pat ran down the lane...muffed his lines because no longer being in the Police Force, he had said to my questioning he had only refreshed his memory by reading his Statement when he turned up at Court to give his evidence.
I explained Pat's evidence...how he had thrown away the knife under the kitchen window of the eye-witness...
explained why she had not seen it. How on Pat's evidence two cops were beating him up with batons...then four more arrived and joined in beating him up.
"Why would the Sergeant and the other three join in if Pat did not have a knife?" I asked.
"I reckon the Sergeant asked the two young cops what happened...they wouldn't have said "Oh we are just beating him up." "No...they probably said..."He came at us with a knife Sarge." That explains why the others joined in." I had put this to the Sergeant and he had denied it.
******
After my summing up the Judge had the Jury removed from the courtroom...then went off at me big-time.
"I am not interested in what you think. The Jury can only consider the evidence. I am thinking of aborting the trial. I will think about it overnight." Freak out...I reckon I'm right...but...Freak out.
******
I rang my senior barrister friend..."Stick to your guns David...remain strong...apologise profusely to the Judge, say you are inexperienced, cost to the public of another trial etc...but remain strong...you can win this trial."
Good advice.
The Judge accepted my apology.
He then summed up to the Jury...directed them on the law...and the evidence.
He was particularly scathing of the Defendant's case.
"If you are to believe Mr Hooper's client...you must find...THAT POLICE ARE MURRAY'S PUNCH & JUDY'S ALE
New South Wales...this beer I do not like...tiny bubbles overwhelming the flavour. when you want to give a beer to someone you don't like! BASHERS"...the last words growled with force and inflection...made me wince...words I will never forget.
******
The Jury It is often said the longer a Jury is out considering their verdict...the less likely of a unanimous decision.
It had to be 12 to Nil one way or the other or the trial would be aborted.
I was understandably nervous.
After about three hours a message came that the Jury had a question.
In they filed...sat in their usual positions in two rows.
Then I saw it.
Ten of the Jurors were leaning to their right...and the two women in the front row left side...were leaning left.
I hear it can get pretty heated in the Jury Room.
Does that mean it's 10 to 2 one way or another? I remember thinking.
******
The Jury Foreman stood up.
"The Jury wants to hear the Cross-Examination of the second police officer again." The tape was pulled out...loudspeakers set up...me leading a run...heavy puffing between questions...pretty funny hearing it played back...if it wasn't so serious.
"He got to the main road...puff puff...how close were you then?
BOAG'S XXX ALE
Modelled by RENnDREW...Tasmania What hand was your baton in? ...puff puff... Where was your partner?...puff puff...He ran across the road...puff puff...What'd he do then?"
"He ran down the lane." I looked expressionless at the Jury...on my best behaviour...they looking directly at me...
"told you so" in my eyes...looked at the Judge...he looked surprised...looked at the Jury...special moment.
The Jury files out.
******
I thought they'd be straight back in with a "Not Guilty" but it was not to be.
After another hour the Judge called the Jury back in to enquire on their progress.
This time the leaning of the Jury was very noticeable.
But this time there were 11 leaning right...and the woman in the front row left corner was leaning left...with a transfixed scowl on her face.
Me thinking she probably can't believe the good looking cop is a liar.
The Judge suggesting they may need to come back tomorrow if they cannot make up their mind today.
The Jury filing out.
About half an hour later a message from the Jury..."We have reached a verdict"...filing back in.
The Foreman of the Jury standing.
"On the First Count
LITTLE CREATURES INDIA PALE ALE
Modelled by Iain...Western Australia of Attempt to Stab Police...How do you find the Defendant?"
"NOT GUILTY" "And on the Second Count...?"
"NOT GUILTY".
I looked at the Jury...couldn't help but smile...the beaming grin of victory...and relief.
I look at the Judge...a hard steely look back at me.
His words "If you are to believe Mr Hooper's client...you must find...THAT POLICE ARE BASHERS"...now so poignant.
The Jury stands...a number of them smiling at me...in their eyes I see recognition...recognition they have seen justice done.
My client hugging me...the Crown Prosecutor shaking my hand..."Well done" he saying.
******
The Epilogue My client had pleaded guilty to Malicious Damage to the bar and glass door before the trial started.
The juge fined him, put him on a Bond to be of Good Behaviour and ordered he pay compensation for the damage.
As we left the Court grounds some of the Jury were walking down a path.
My client called out "Thank you Jury, thank you".
They turned and waved...big smiles..."That's OK mate" or words to the effect.
My client promising "I'll bring the rest of your fee
THE CONSTABLE COPPER ALE
James Squire...New South Wales to you tomorrow. Thank you so much for what you have done."
He had paid me $500.00 on Day 1 with assurances he had the rest set aside.
******
But I never saw him again.
He did not pay the balance of my fee or any further...which was not insubstantial.
I know...I should have demanded the whole fee up front...refusing to turn up if he did not do so...any other lawyer would have done that.
But I am not any other lawyer.
My practice operates on trust...and most times I am rewarded.
I heard he had moved to Queensland...to address unknown.
I was disappointed...but not bitter.
I have never been money orientated...I guess that's another thing that makes me different.
******
I recently appeared in the Supreme Court of New South Wales...before the Chief Justice and two other judges.
"With your leave I move that my daughter Anna-Louise Vienna Hooper be admitted as a lawyer of this Honourable Court"
The Chief Justice says "That Anna-Louise Vienna Hooper be admitted as a lawyer of this Honourable Court".
A lawyer nudges me and whispers "How
wonderful you could move the admission of your daughter."
After taking their oaths the Chief Justice addresses the admittees.
He spoke of the necessity of unwavering courage...in taking on and persisting in arguing your cases to the best of your ability...even in the face of ridicule and defeat. He said that is how the law is moulded...how it moves with the times...is amended and strengthened...how justice is seemed to be done.
I remembered a young lawyer...who in his first jury trial fell over a chair...had a judge yell at him...tricked a cop into running down a lane (which the Police did not want him to admit he had done so)...the judge preventing him from using a transcript for a hostile eye-witness...who made her shut her eyes...dropping a heavy knife into her out-stretched hands...heard her scream...and against all odds heard the Jury say "Not Guilty."
Yep...I remembered a young lawyer who was courageous and determined...who would not take a backward step in pursuing what he believed was right.
I heard the words of the Chief Justice to my daughter...and smiled.
The smile of someone...who knows what he is talking about.
******
WINNERS ARE GRINNERS
Even better when a hard road is conquered Pull up a beer...many here to choose from...Australian beer...Best in the World in my reckoning.
Pull up a beer...then another...many here to choose from...
then...
Relax & Enjoy,
Dancing Dave.
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Roger Sutherland
non-member comment
I thoroughly enjoyed this blog.