Barristers in our adversarial legal system
Friday, 31 July 2015
This is an immensely moving and difficult story to read - it's also brilliantly researched and written by Natasha Wallace.
It involves a barrister you'll recognise and I know many of us have written glowingly of the barrister's performances at the TURC. Barristers are paid advocates who should adopt the "next cab off the rank" approach to appearances - i.e. they should accept the briefs that come their way from instructing solicitors. That said there must be some lines that are uncrossable in adversarial justice.
I hope this story makes you think.
You can find the 2005 original here.
The brothers grim
Manipulating the law did not save four brothers from being convicted of violent gang rapes. But trial delays increased the suffering of their victims. Natasha Wallace reports.
The four brothers hunted girls like a pack of wild dogs. For six months in 2002, they targeted young, vulnerable girls, lured them to their home in Ashfield, and raped them. They would video their victims, typically baby-faced teenagers, semi-conscious after being plied with alcohol, as they committed grossly degrading acts.
Many of the girls on the videotapes, perhaps a dozen, could not be identified by the police. Of those who could, only six agreed to testify at trial and only three of them did. That they went ahead at all is remarkable - they had to endure countless delays over two years because the brothers persuaded the courts their trials could not proceed as juries might have been prejudiced by publicity about the crimes.
Until now the media has been forbidden from publishing anything about the trials or why they were delayed. Now they are over, the Herald can reveal the full extent of the crimes of MSK, 26, MAK, 25, MRK, 20, and MMK, 19 - but still cannot name them because two were juveniles at the time.
Their attacks followed a pattern - MMK, then 16, would befriend a girl, meet her several times, and build up her trust. Eventually, he would invite her to the Ashfield house for "a party", encouraging her to bring a friend or two. He and MAK would pick them up from home or a train station, while the other men waited at the house. They would then spend hours getting the girls to drink alcohol before they pounced.
The brothers, Muslims from Pakistan, targeted mostly Anglo-Saxon Australian girls whom they would later call "sluts" as they attacked them.
"Their pastime was to go out and pick up as many girls as they could and if they didn't consent they would basically force it on them," said the officer in charge of the investigation, Detective Leading Senior Constable Tony Adams.
"They were like a pack of animals. The videos reminded me of a pack of hyenas around a carcass," he said. "They targeted girls who were vulnerable, they were young, they were naive, and they were susceptible to being told they were beautiful. They … got their trust and moved in for the kill."
Some of the attacks were extremely violent - girls were held at knifepoint and told they would be killed if they went to police. After another girl was assaulted, MRK allegedly threw her against a wall and said: "If a Leb wants to f--- you, you f--- them."
The "Leb" seems to be a reference to the phrase used in the infamous Skaf gang rapes - "I'm going to f--- you Leb-style".
The brothers came to Australia from Pakistan around 2001 with other members of their family, brought over by their father. The eldest, MSK, is married with a six-year-old son.
MSK and MAK were licensed security guards on Sydney trains. They also worked at a Surry Hills convenience store. MAK also worked for a CBD food outlet, handing out leaflets in the city.
One victim, who was 14 when she was raped by MSK and MAK, mutilated herself from frustration - her legs still bear the scars - having waited 18 months for the trial to begin. When it finished, she had just four weeks until her school exams.
"I was worried about my HSC. It just felt like it was never going to end. But it was more the fact that they had control again. I wanted the control back … whether it be physically or mentally … I wanted to regain some power but I couldn't do anything about it, I could only just sit by and watch," she told the Herald. "This is worse than murder, at least with murder it's over."
One mother is still attending court more than three years after her daughter was raped because of continuing appeals. She says "the whole system sometimes is just laughable".
"The delays - that is the biggest joke. I don't care how but that's got to stop … they've definitely milked the system," she said. "You psych yourself up, and your children, and then you go to court and then you're told there's yet another delay. How are the girls supposed to move on? The victims are still forgotten when they hit the justice system."
The Director of Public Prosecutions, Nicholas Cowdery, told the Herald the "extraordinary lengths" gone to by MSK and MAK to delay and interrupt their trials meant the girls' suffering was prolonged.
"I sympathise enormously with the plight of victims. They become victims for a second time by involvement in … extraordinary proceedings of this kind," Cowdery said. "If innocent victims are put through this degree of suffering as a consequence of any shortcomings in the system then they will be deterred from coming forward … great harm would be done to the community generally if that occurs."
The brothers tested the tolerance of the court system to its limits by their strategies. They insisted they were victims of an anti-Muslim conspiracy and police set-up, and that they had to be represent themselves because all barristers thought Muslims were rapists. They wanted six Muslim jurors.
The case has thrown into sharp relief the difficulty of balancing the rights of the accused and those of the victims. It has also highlighted grey areas in the laws on sexual assault.
The first rape trial in 2003 attracted attention due to the brutality of the crimes and a controversial new law that stopped the brothers from personally cross-examining their victims. Separate trials were ordered, meaning the victims had to give evidence twice. Juries found the brothers and a friend, RS, 25, guilty of gang rape of two girls.
MSK, MAK, MRK, and MMK were sentenced to between 10 and 22 years in jail in April last year. RS hanged himself in his cell a week before the sentencing.
In prison, MSK and MAK had time to burn in their shared cell - they pored over legal texts and plotted how to delay the planned five trials ahead.
MSK, who was arrested in August 2002 boarding a flight to Pakistan, had been hoping the delays would cause the victims to give up their fight, Adams said. "He's a smart man. He's so cunning it's dangerous."
The next trials were due to start in the NSW Supreme Court in October last year, but Justice Carolyn Simpson granted a stay.
MSK and MAK had argued that during Ramadan they would be too tired and hungry to take part. They also argued media publicity on their appeal against the earlier conviction (in which they were not named) would prejudice their trial.
They had conducted their first trial, self-represented, during Ramadan.
In November, Justice Graham Barr granted them another stay, again due to potential prejudice flowing from earlier media reports.
In March, MSK and MAK argued for another stay, saying a lecture given by Crown Prosecutor Margaret Cunneen - who prosecuted their first trials - was potentially prejudicial. This was refused. They appealed. The Court of Criminal Appeal dismissed it.
Cunneen had said: "Justice isn't achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses. Perhaps it is time for us to consider whether public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person."
Cunneen, who was forced to share the bar table with MSK and MAK as they represented themselves, recently told the Herald that while their legal knowledge was "outstanding", they used it to hinder the trial.
When trials were finally due to begin in mid-March, MSK claimed he was suffering mental illness, forcing a one-week hearing on his fitness to plead. The fitness hearing was comical - the day it began MSK sacked his barrister, Malcolm Ramage, QC, saying he was an ASIO spy who would put him in Guantanamo Bay. He threw himself about the dock, lay down on the floor and called Justice Rod Howie "Father Pope".
Dr Stephen Allnutt, a psychiatrist, said he had never seen anything like it, remarking that MSK was "extremely insightful about legal matters".
Despite his behaviour, MSK competently questioned his wife and his father on the stand. His father, a GP registered in Sydney, told the court MSK had schizophrenia. MSK's wife told the court he was insane because he talked to the air-conditioner or Shatharn (the devil). Police are considering asking the Director of Public Prosecutions to lay perjury charges against the two.
A jury found MSK was not mentally ill. When his trial finally started, it turned into even more of a circus.
MSK sacked so many barristers that Legal Aid twice refused him more. He appealed twice, won, and then both times sacked his barristers.
His victim later told the Herald: "The court system is f---ed. I don't understand how legally they kept dishing out new barristers."
MSK refused to come to court, insisting he was mentally ill, despite two psychiatrists saying otherwise. Even his barrister, Adam Morison, said he was probably "bunging it on".
Justice Hidden said he was "troubled" by whether he could continue in the absence of the defendant.
The conundrum worsened when MSK sacked Morison, passing the judge a note that read in part: "I sacked Mr Morison today because I had been advised from Allah that I have become Angel Gabriel again."
The judge expressed "grave doubts" as to MSK's sincerity and his resolve to continue. But when he asked MSK if he wanted to cross-examine a detective, he shouted at the jury: "Yes, I would like to say something. We three … brothers are convicted rapists … sexual assault in company and you know that."
Everyone sat in shock. A defendant's previous convictions are kept secret from jury members to ensure a fair trial. Surely the trial would now have to be aborted.
As the jury was ushered out to allow legal discussions, he bellowed: "When are you f---ing people just going to sit down there and listen to me, you f---ing racist dogs."
Crown Prosecutor Ken McKay, whom MSK had called a "f---ing dickhead", said: "This is a deliberate choice to carry on in this way and it falls in his own hands. It seems deliberately calculated … to try and have this trial abort altogether." The trial was almost over, and the victim had gone through days of gruelling evidence.
But there was no doubt the jury would now be prejudiced. Also, it was clear MSK would continue with his outbursts. Justice Hidden ordered a retrial for the other two co-accused, MAK and MMK, but not for MSK.
MAK later pleaded guilty to one count of aggravated sexual assault (he had faced four charges). MMK - the only brother without damning DNA evidence against him, was found not guilty in a judge-alone retrial. The victim fled the courtroom, and slumped to the floor outside, inconsolable.
Justice Hidden made it clear to MSK that his trial would continue.
"Who cares … I don't give a f---," he replied. "I simply say at this stage if I take [kill] Mr [crown prosecutor Ken] McKay, how much sentence will I take?"
Justice Hidden persevered: "If you behave in a way which is prejudicial to yourself, I'm afraid that you will bring that upon yourself. You will suffer the consequences."
MSK stood up in the dock and hurled two pears which hit the wall just above the jury, causing its members to scream. (He could not be handcuffed, as that was deemed prejudicial). Soon after, he passed a note to the Crown asking that the trial be aborted. It was ignored.
So he again shouted at the jury: "I have been convicted for gang rape, all right, and I'm doing 22 years' sentence, all right. There's no need for you to write anything."
After four days of MSK's behaviour, barrister Ronald Driels appeared for him, arguing for another fitness hearing and for the jury to be discharged because the trial was "flawed" and "prejudiced". The prosecution's case had just finished.
It was like Groundhog Day. The trial was delayed again for more psychiatric evidence.
When Justice Peter Hidden later dismissed the application, MSK grabbed a glass and carafe from the bar table, smashed the top off the carafe and held it up to the prosecution solicitor, Sheridan Goodwin. She ducked under the bar table and he threw it at two complainants' mothers, missing them, then threw the glass at the bench, saturating the stenographer. McKay had to restrain him.
MSK was found guilty of all four counts of aggravated sexual assault. He is yet to be sentenced.
The victim said the worst part of the trial for her was Morison's cross-examination - he caused jaws to drop when he accused her of offering "to do it 69-style" with MSK.
"It's always going to be terrible. In your mind you relive the experience over and over again. A smell will set it off or a word … but nothing was as hard as retelling the whole story in depth and in detail while being accused of being a liar," she said.
Meanwhile, as the brothers' appeals against the first convictions continue, the girls are unable to restart their lives.
Recently, the Court of Criminal Appeal said the credibility of MSK and MAK "seems to be of a very low order". The court noted, however, that
"with all these matters, a balance must be struck" and granted their application for more time to obtain psychology reports. Their appeal against sentencing was put off for another four months.
A psychology report as far back as their first trial stated MSK had no psychosis. It noted "personality traits of narcissism, grandiosity and callousness … aggressive and sadistic tendencies", and called him "cunning".
The victims got no sympathy from the brothers' family.
After the first conviction in 2003, the boys' father said: "What do they expect to happen to them? Girls from Pakistan don't go out at night."
Contacted in Sydney last month by the Herald he said: "You are the enemy. You are the enemy of the Muslim. You white people help only the white people … they are not rapists."