Lawyers are trained in the arts of linguistic combat; persuasion – casuistry, sophistry and eristic logic, to win at all costs. Specious and spurious arguments trump truth and reality. Manipulation of evidence can lead to perception management.
"—You and I both do the same thing, he would chide me, “sleight of hand - making things appear to be what they’re not. " *** Dershowitz, Alan M.* US defence lawyer, writing of his son, a professional magician, 1991.
Originally defence lawyers were essentially there to protect the rights of the accused; today some appear only interested in winning at all costs to establish reputations to command higher fees. *”… you really feel you’ve done something when you get the guilty off." *Stuart Littlemore, QC, 1995
What level of oppressive and aggressive cross-examination is acceptable in court systems? One assumes a Judge should be capable of perceiving when it is used to test contested narratives and when it is used merely to confuse and intimidate witnesses. Family Courts especially are expected to be part of a courteous environment that runs on broadly agreed community values and rules of personal dignity and respect. Offensive, insulting and denigrating interrogations in cross – examination demonstrates a lack of sensitivity for the physical and psychological needs of vulnerable witnesses or victims in any court room situation. Court rooms should not be Star Chambers or gladitorial contests. Cases should not become a blood sport.
Judges should be in a position to distinguish, between robust, questioning and abusive badgering of timid victims and enforce mutual respect.
Reputable defence lawyers, like Stuart Littlemore or Robert Richter, who began as socially progressive, can easily become seduced by a Faustian pact for a more luxurious life style.
Geoffrey Robertson advises legal/judicial professionals, who just want to make money, should become real estate salesmen or work in financial institutions. The courts are there to make the world a better place for all of us.
According to Tim Elliot in the Good Weekend, Richter is, an atheist with a social conscience, but appears to have sold out.
He began as an outsider working for the Fitzroy Legal Service, the first free non-aboriginal one in Australia. His involvement with abortionists and corrupt police was a harrowing experience but he assisted other Judges in bringing the abuses of power to the attention of the State Government which under Robert Hamer, in 1974, held the first of a series of inquiries, The Beach Inquiry, into Police Corruption on the East coast.
I believe that David Williamson’s play, The Removalists, assisted by raising public awareness of widespread endemic police corruption providing the climate for these investigations over the next 30 years.
Originally under trial by combat, an armed champion could stand in for accuser and accused. Nowadays in a verbal stouch, you hire the best advocate to argue your case. Some lawyers develop a gladiatorial mindset turning the cross-examination into a blood sport.
In one alarming case, Carol Stingel, who won a case of being pack-raped by Aboriginal leader, Geoff Clark was subjected to four days of grueling demeaning, degrading and gut-wrenching assault, attempting to find cracks in her story. This left her psychologically devastated. Evan Whitton describes rape victims vomiting on the stand.
John Desmond, a respected defence lawyer, suggests a cap of two hours in cross-examinations in rape cases.
Acknowledged as Australia’s foremost defense counsel, Robert Richter’s brutal and ruthless skewering of fragile witnesses on the stand is, in my view, unconscionable. However, when he attacks pillars of society, with selective or inexplicable amnesia, it can be justified. Richter claims *“being brutal with witnesses is necessary sometimes to expose perjury”. *
Robert Richter became adept at cross-examination. Aggressive and withering interrogation can wear down the most hardened victims. His reputation is one to instill fear; to gut and fillet victims. His objective is to “annihilate the credibility” of people on the stand.
**Albert Camus in ****The Outsider (The Stranger) **has an Algerian man, Meursault, on trial for murder - he killed an Arab for the simple reason it was hot. At his trial, his mistress, Marie, is bullied during the cross-examination into giving the opposite evidence she intended.
Richter has successfully defended some of Australia’s most notorious underworld crime figures including Jason Knight of the Hoddle Street massacre, Mick Gatto, as well as convicted paedophiles.
Cardinal George Pell, the world’s third ranked Catholic retains him as his counsel. This is significant because for 900 years, the two great institutions, the Law and the Church ruled the world in tandem. Until about the turn of the second millennium all church officials had total immunity and could only be tried under Canon Law. Pell’s first investigation in 2002, was conducted by the Catholic Church under its Canon Law. The Catholic court failed to find conclusively either way. Pell claimed it as a victory.
I was privileged to watch Richter for three days in action in a recent hearing to decide whether Cardinal George Pell should stand trial on serious historical sex abuse allegations. Richter is an incredible performer and I am now not quite so sure about how I see him. Initially ambivalent, I felt a bit ghoulishly voyeuristic, watching such a powerful man subjected to humiliating interrogation. I remain ambivalent, knowing how historical sexual abuse allegations can seldom be proven or disproven.
What astounds me is the number of people who presume Cardinal Pell to be guilty, simply because he was a ruthless autocrat. To his credit, Pell voluntarily returned to Australia from the sanctuary of the Vatican to defend his name. Once branded, you carry it for life.
On the one hand Richter’s approaching style, mannerisms and demeanor appear gentle, tactful and respectful, but at times he can flare up and become scathingly aggressive.
Basically he attempts to confuse, baffle or confound people on the stand with minor tedious details, which they have either not noticed or forgotten and then gently mocks them with a soft dismissive laugh –*“ oh, so you didn’t notice that or so you don’t remember that”. * This can undermine their confidence and unnerve vulnerable witnesses creating a perception of unreliability.
He can also pour on the charm to soften the victim before pouncing.
His overall strategy of casting doubt to discredit witnesses is further accomplished by open scorn of professional witnesses having another agenda, and of slack official forensic procedures, suggesting they were not thorough enough; that they were partisan or overreacting to public and political pressure.
Other institutions on trial in this case include the Media, the Police and the Justice System.
Louise Milligan - Journalist and author
In often heated exchanges, during an explosive committal hearing at Melbourne Magistrates Court, journalist Louise Milligan was accused of omitting information that would question the “credibility” of one of the accusers in the case.
Robert Richter QC was scathing about “trial by media”. He questioned their motives and the quality of their forensic skills, claiming Ms Milligan failed to inform the public that one accuser she interviewed had told her details about alleged abuse by the Cardinal, now 76, which did not appear in his previous police statement.
She was also accused of leaving out the fact that the complainant had suffered mental health problems in the past.
Ms Milligan told Mr Richter that accusers of clergy abuse often later turn to drugs and drink and run into trouble with the law.
She told Mr Richter that people often then get “torn apart” by “people like you” because they have a criminal past.
“Evidence from the royal commission showed that people who have a trajectory of drug abuse and alcoholism was precisely because they were abused.”
Mr Richter accused Ms Milligan of “trying to pervert the course of justice” by not treating Cardinal Pell as if he were innocent until proven guilty.
Ms Milligan responded: “I absolutely reject that.”
At one point magistrate Belinda Wallington stepped in to stop the pair arguing in court, saying: *“Respect and dignity come to mind.” *
Richter immediately turned that to his advantage by theatrically claiming *“Respect and dignity indeed! T**hese are serious charges and my *client is entitled to the Respect and dignity of the presumption of innocence”.
Mr Richter and Ms Milligan clashed again when he accused her of using “charm” and being flirtatious with an accuser.
“There was a very charming, if not flirtatious, exchange of emails,” Mr Richter said.
“I find that insulting … I think that’s sexist,” she replied.
On several occasions during her evidence, Ms Milligan invoked a law regarding “journalist’s privilege” in regards to questions about her confidential sources.
“I cannot reveal my sources, and I will not reveal my sources,” she said.
Frequently raising his voice, Mr Richter slammed the ABC 7.30 report which aired allegations about the Cardinal in July 2016 and a subsequent book by the reporter titled Cardinal: The rise and fall of George Pell.
The reporter won Walkley awards for both the documentary and the book.
* “Your honour, this witness went on to try and win prizes with these things,”* Mr Richter said.
“She distorted what went to the public and distorted it even more so in her book, so as to poison the public’s mind.”
His most damning criticism turned on why the book’s publication date came forward by two months, because they knew charges were about to be laid. You deliberately attempted to put profits before public duty.
Peter Craven’s assessment seems apt: “*She is the diametrical opposite of Helen Garner in her famous trial books: instead of presenting herself as an unreliable narrator – full of doubts and flaws – she (*Milligan) is a writer of flaming convictions and sensationalist prose who backs her intuitions in the face of any notion of evidence or scruple”.
Cross examination of the Police
The Victorian Police do not have a sound track record in prosecuting child abuse allegations, especially when perpetrated by officials of the Catholic Church. Blind eyes have been turned over the years. Denis Ryan waited 46 years for his efforts to hold the Church to account as Senior Officers of the Victorian Police department have a long history of collusion with “the Catholic Mafia”. Denis Ryan, a former Victorian Police officer, forced out of the force in 1972,, due to his relentless pursuit of clerical sex abusers, was finally awarded An Order of Australia award in 2018.
Many active clerical paedophiles like Monsignor John Day, active from the early 1950’s, and Gerald Ridsdale, from the early 1970’s considered Australia’s most brazen child sex offenders, understood they could rape children with impunity and the police would not act. Sexually assaulting hundreds of children. Risdale was finally jailed in 1993 for abusing numerous children and remains in prison today. Day was never convicted.
Now, after public pressure. it appears the Police are overly compensating or merely putting on the appearance of acting, but not in a convincing manner.
Again Richter’s initial approach was mild and ingratiating, telling Paul Sheridan, head of serious crime division, Crime Command, that “I have known you for a long time in many decent investigations, but the seriousness of these allegations made it critical for higher procedural standards of verification and corroboration in determining the facts and establishing the evidence. His meticulous demands for dates, chronology and time lines were seldom met.
Events need to be fixed in time and place.
His scathing attacks on the Victorian Police Investigation may have some credibility. During cross-examination of Sheridan, it was revealed that when Task Force Tethering was first launched in 2013, there were no official accusations against Cardinal Pell. Richter “pithily claimed: “it was an Investigation looking for a crime, looking for victims and looking for evidence.
The problem with seeking out people to make allegations is that many people will respond the way they feel investigators want them to. It is easy to coach victims into making false claims for a variety of motives.
Richter slammed the Police for failing to ask the right questions, failing to test oral evidence, not following up on inconsistent witness statements, an appalling lack of regard for searching and subpoenaing documentation and records. * *
*Did these not offend your sensibilities? It surprises me, does it not amaze you? You should be astonished by extraordinary methods – a gross neglect of proper procedures. How is this possible? *Utterly crucial evidence remains unexamined.
An oft repeated phrase was ”Ultimately we will get to the truth; perhaps not today”.
According to Melissa Davey of The Guardian, when Richter asked Snr Const David Rae for notes taken during initial conversations with complainants, the police officer replied that it was not his practice to take notes down in the first instance. It was an admission Richter described to the court as “appalling”. Richter also revealed that police had not executed search warrants for church archives that might have helped them to place Pell’s movements at the times the offences were alleged to have occurred. Detective Chris Reed told the court: “I didn’t know where the archives were.” Richter, forensic in his attention to detail, had found the information, and claims police should have obtained it themselves.
What impresses me is the restored faith, confidence and trust in the Courts. Melissa Davey believes Belinda Wallington is highly experienced in such matters – she is the supervising magistrate for sexual offences. She is unlikely to be swayed by descriptions by Richter of one witness as a “nutter” or of others as being unreliable because of time spent in psychiatric wards.
In an heated exchange, Ms Wallington warned Mr Richter for raising his voice, saying: “*Don’t shout at me Mr Richter.” *She was not willing to accept his evidence as established fact.
“I’m astonished your honour,”
Mr Richter then stood up to make a formal application to Ms Wallington to be removed from the case altogether.
* “I apply for your honour to be disqualified from further proceedings in this matter on the basis of biased view of the evidence.”*
Ms Wallington, who has overseen the case since last year, immediately rejected the application, telling Mr Richter: *“Your application is refused.” *
I was impressed by the controlled demeanor of both during this exchange. The Judge continued to smile throughout and Richter, calmly proceeded with his next challenge.
I could easily accept that this was a staged performance.
In subsequent hearings, Richter apologised, citing he lost his temper because of the seriousness of the charges.
On May 1, 2018, I was privileged to be present as Magistrate Belinda Wallington delivered her findings with judicial dignity, impartiality and gravity. It clear she was under severe strain due to the seriousness of the charges and the status of the Cardinal. At times her tremulous voice broke and she relied on tissues and a few drinks of water to keep her composure.
She dismissed many of the charges due to insufficient reliable and credible evidence, however determined that Cardinal Pell did have issues to answer to a jury on two cases. For the first time Pell pleaded “Not Guilty”.
The tensions in the court room were evident from the beginning. The front of the room was filled by Cardinal Pell’s supporters, the middle by neutral observers, while the back rows with supporters of victims. News reports claim the back rows applauded after the verdict was read. This is not so. There was a distinct dignified silence as the magistrate rose, the court stood. The applause, from the back of the court, significantly, did not begin until after the the magistrate had left the chambers.
In a spectacularly successful tactical move, Richter outmanoeuvred the Prosecution by demanding the two cases be separated. Ultimately his ploy succeeded. He had the more serious charge dealt with first, likely because it involved only one witness. The other charge at the swimming pool, had more credibility because of the sheer number of victims.
The trial was conducted in extreme secrecy, the verdict determined in December 2018, but not announced until early 2019. Cardinal Pell was convicted of by a jury of sexual assault. The Prosecution fell into the trap by dropping the second case.
An appeal upheld the verdict 2 - 1, but then an appeal to the High Court squashed the conviction; welcomed by some, outraging many, exposing the folly of the Director of Public Prosecutions.
Many see the overturning of a jury decision by seven members of the High Court as an act of bastardy against democracy. Aeschylus was putatively the first to put his faith into the wisdom of the common man. Any Judge holding the view that they know better than the people has a problem understanding how a democracy is meant to function.
The problem is that the issue is so polarised, neither side appears ready to give in. Unfortunately, it appears throughout the liberal democratic world, the upper echelons of the judiciary are staging a silent coup against the power of the people - “democratas”! The USA Supreme Court has little credibility left, as most of its decisions are aligned with the establishment - the amphibians still inhabiting the swamp. Australia and Canada appear to be heading in the same direction.