Speaking to a crowded room of invited guests in the middle of Sydney’s legal precinct, former Chamberlain lawyer Stuart Tipple said it’s a book that should be written, adding, “… the problem with our adversarial system is that it is not a system that pursues the truth”.
The launch was held at State Chambers in Martin Place, with Margaret Cunneen SC as a special guest, who made introductory remarks before Andrew L. Urban introduced guest of honour, Stuart Tipple. This is an edited extract from Tipple’s speech to the guests. (Tipple has written the foreword to the book.)
I just want, first of all to say thank you for the honour of launching this book, Andrew. And I just want to affirm you for you being the warrior that you are. This isn’t the first injustice that you’ve investigated and written about. And I think this is a really important one, that’s why I’ve taken the time to come and to help launch this book because it’s a book that should be written. Framed, a very provocative title. And Andrew explains why he actually was so provocative in choosing that title. And I must say before I read the book, I didn’t know much about the case, just what you see in the media.
presumption of innocence … totally destroyed
And from my experience, I know that’s not good enough. The thing that struck me straight away when I started reading this is that this case has what I call the terrible trifecta. You’ve got a terrible crime that the media go mad about. And so by the time there’s any arrest, any presumption of innocence has been totally destroyed. And you see this more and more. And I think it was something that really started with the Chamberlain case, and I think the police force have realised just how important it is to work with the media and to destroy that presumption, you’ve got to ask yourself why in any high profile arrest is there a TV crew there? It’s so important for them to be there to get the shot of the cuffs going on. And from that moment, you don’t have the presumption of innocence, everyone’s saying, ‘got him’.
And it’s then up to people like Margaret (Cunneen SC) these days to actually prove their innocence. The other thing, of course is that you’ve got a situation where this case is so circumstantial that it can be moulded and fashioned to fit whatever scenario the Crown want to make. And I think this is one of the problems with this case, that given the framework, they’ve worked out their scenario, they’ve got the dodgy experts that help them fit. And again, it’s just a disadvantage for an accused person. When I was acting for Lindy (Chamberlain), we faced exactly the same thing. We had the Crown witnesses who said one thing, I had to obviously get witnesses to contradict. And the thing that worried me more than anything was the phone calls that I would get from experts saying, what do you want me to say? I will say anything. I just want to be involved.
And let me tell you that when you get expert evidence in these cases, the high profile cases, treat it with real scepticism. Because my experience, and we’ve seen it in a number of cases now, where the experts are just there to get something on their CV. We also got the third leg of the trifecta where you had a police force under the hammer. You had a brutal, awful murder. Five people from a family that were murdered, a lot of pressure on the police. And you’ve got a police force that had so much pressure on it that once they came upon and decided on their scenario, they stopped being investigators. And once police stopped being investigators and stopped investigating all of the options, and particularly the case that an accused person puts up, you’ve got a recipe for disaster. I was at an injustice conference some years ago, and one of the speakers made the bold assertion that virtually every injustice starts with a bad police investigation.
improbable Crown case
But I think what’s really fascinating about this case is that not only did he have the terrible trifecta, but thrown into that mix, he had the prison snitch. He had not just one trial, not just two trial, not just three trials, four trials, but I just know that they would’ve just kept going. And if that’d been another hung jury, I’m sure there would have been a fifth trial. So what are we to do? I think that the best starting place always is when you get that book to read it, ask yourself how probable is the crown case? How probable is it that as the Crown asserts, that he attended that house alone and was able to murder five people moving through three bedrooms. I just right from start say that is just improbable. And I think that if you start with that and you start with that open mind, how probable is it when you actually read some of the points, and I think probably the best point, the kicker is, Andrew, the fullness of the bladders.
full bladders contradict Crown case
Because the crown had to allege that the murders took place after 2:00 AM The only way this could have happened was that if they were all asleep and he was able to move from bedroom to bedroom, even that I find highly improbable. But what you’ll find when you read the book is that three of the witnesses had very, very full bladders and so full that you would not have gone to bed and ended up with bladders that full. And I think the scenario that Andrew proposes is much more likely. You had, I think probably three events. You had Min arriving home and probably maybe the first one murdered, his wife Lily and Irene arrived at a different time. And then of course, the two boys were brought back much later in the night because why if they were asleep were not all of them even in night attire.
So just on that point alone, I think the case needs to be re-examined. And I think the sad thing is that as Margaret has alluded to, when you start in this game, you’re bright eyed, bushy tailed, you really think that it’s never going to happen. And when I started my law career, we used to hear ad nauseum, the golden thread, how much better it is for 10 guilty people to walk than for one innocent person to be condemned. And yet you don’t hear that anymore. You don’t hear of it anymore because there’s no votes in it. And this is why I commend you, Andrew, that what you’re doing here isn’t going to make you popular. As soon as you criticize the system, you regard it as being divisive rather than saying, well, hold on, let’s have a look at our system. What can we do?
Can we make it a better system? Because the sad thing about this is that now with the media involvement, it’s just so weighted against an accused person from the moment that they’re arrested, they have to prove their innocence. And the problem with our adversarial system is that it is not a system that pursues the truth. It’s a gladiatorial system. It’s a fight, and it’s a fight now that is so weighted against the accused, I mean, look at all of our jury challenges now down to three. And in our system, you don’t really know who’s going to get on the jury, whereas you compare that to the US system where the jury selection often takes longer than the trial. Also look at how long the trials go. Well, I know the third trial went for over nine months. No one, no one, unless you’re a Kerry Packer, a billionaire, can afford to properly defend these trials that go as long as this.
And so what is the answer? The answer for me is there has to be some changes. I think it’s absolutely ridiculous that experts can still get into the box and give evidence that sends someone away for life easier than for writing an article in a medical journal. All you have to do to be accepted as an expert is get into the box, give your CV and be qualified, and then you actually give your opinion. If that same expert was writing for a medical journal, that journal would not publish that article until it’d been peer review. And this is the thing that really struck me, that when I was preparing for the Royal Commission and I travelled particularly through Scandinavia, they would look at our system and they kept saying to me, how did this evidence get in? Where was the peer review? I said, well, we don’t have a peer review.
a Royal Commission
If you’re an expert, you can just get in there and you can say what you like. And you’ve got people obviously that just want to say whatever suits the party that they’re appearing for. So what is the best system? The reality is, if you want truth, our system isn’t going to be the right system when you actually want truth. And what you really need to find out what happened in this case is to actually have a royal commission to actually have the inquisitorial system. And as soon as that Royal Commission was called in the Chamberlain case, I couldn’t have any secrets. I had to disclose all of what I had, and I was happy to because I had absolute confidence that my clients were innocent, which of course ultimately proved to be the case. So Andrew, I really like your challenge in the book, justice will not be served until those who are not affected are as outraged as those who are.
I’ve met people here that have worked and served on juries, and I’ve met other people that have suffered miscarriages. And I think one of the things that most people don’t understand is how important justice is and just what a cancer injustice is. Injustice is throwing the proverbial pebble into the mill pond. It doesn’t just affect the immediate family. It doesn’t just affect the person who’s convicted or their family. Let me tell you what really struck me from my personal experience was how many people were affected by the Chamberlain injustice. We had witnesses that ended up suffering chronic depression because they thought we’ve let the system down. If they believe me, Lindy would’ve got off. We had jurors who came forward and had made very concise notes about what happened. And so we know really that whatever the judge tells the jury is totally ignored.
I mean, they do their own tests, they bring in their own experiences. They completely ignore the directions that you’ve got to concentrate on what you hear in the jury room. And so I just wanted probably to close by emphasizing just how important justice is and how I’m so supportive of what Andrew’s doing
If you really want the best system, then you will start by reading these books. And when people say, well, the system is the best we’ve got, I’m sorry, our system has failed us. And when people say to me, the Chamberlain case, the system got it right in the end … absolute rubbish. The Chamberlain’s had a great advantage of having so many dedicated people that really went into bat for ’em, and people that wrote letters and just the little man in the street. And so what can you do?
You can start writing letters. You can start telling people what you believe, what you think they should read. Because with the media, you’re not getting the full story and you’re playing into the hands of what now is a very sad and imperfect system. So ladies and gentlemen, again, I just applaud Andrew for writing this book. I know that it’s something you won’t be thanked for. It’s hard to get political support. There’s certainly no votes in it. But again, I thank you, applaud you and ladies and gentlemen, thank you for your support here with Andrew and keep the fight going.
photos by David Miller from the launch
