A Friend in Court
Reflections of Sean O'Reilly on the Tiger Ploughshare trial
which took place in the Rockhampton District Court,
19-22 August 2013
I will take away from our experience in Rockhampton some good memories and quite a few lessons. Personally there is something very special about travelling somewhere to witness or support a friend or friends going to trial. Being with folks who have taken the time out to make the journey. We were very fortunate to have the hospitality of Chris Hooper from Havachat. That space and its proximity to the court were instrumental in how well the week went. As a group we shared and worked together very effectively and harmoniously, bring a variety of skills to the table. From the shopping and cooking to the media, filming and leading in prayer to maintaining the witness outside the court whilst the trail proceeded inside.
On reviewing Graeme Dunstan's trial I would like to mention some things that stood out for me from my vantage point as the McKenzie friend. From the outset we were underprepared. Following Bryan's death in late March Graeme would be going to trial alone. I knew that Graeme had legal aid but we did not check in as that was proceeding and what approach would be taken. Then out of the blue legal aid was withdrawn about 6 weeks prior to the trial. The reason given was that Graeme wished to continue to plead not guilty although the record of interview (ROI) he had given on the day after the action provided a very clear and frank admission of the facts of the case. Why did this not arise earlier?
Legal Aid, understandingly I would say, felt that to persevere with a not guilty plea was a waste of their time and the limited resources of the Legal Aid Service. They would not have been seeing the case from the perspective of a strong moral argument but rather a perceived weak legal position. This raises a discussion we should have in the future about the pros and cons of providing a record of interview to police. I cannot see the argument for it and in this case it raised some problems at the trial of articulating a clear and consistent narrative. Was it symbolic? Or theatre? Was the action intended to take one of those killing machines out of action? Or was it a combination of two or more?
I only began to focus on preparation once Graeme and collected the brief from the lawyer on 19 July, one month before trial. As this was in the middle of Talisman Sabre 2013 there was little time to get down to preparation which only started properly 3 and ? weeks out from trial. It was a challenging time with Graeme in Rockhampton and me in Redcliffe and working fulltime. I also made the mistake of naively believing that I would be given a broader scope by the judge, figuring that we could put forward a plausible argument that given legal aid was withdrawn at such a late stage, the severity of the charges and possibility of a lengthy custodial sentence in the event of a guilty verdict.
So I arrived in Rockhampton on the evening of 17 August with substantial preparation but still lacking structure. It was only on the Sunday afternoon that I received an email from the prosecutor confirming what I had already begun to fear and that is that they would oppose my having a broader role than providing direct advice to Graeme. Still no need to panic and with the prosecutor going first we had some time to work our way into the trial and find our feet.
Graeme's argument did not make much impression with Judge Samios. We may have argued that point more effectively but the outcome would probably have been the same.
The jury selection process was interesting. Of the 55 or so candidates there was only one with a professional occupation and at least 80% fell within a narrow range of occupations-home duties, retired and unskilled positions. Challenge or not? There is less than 10 seconds once the name is called to form a snap opinion about the candidate and then challenge or not. And you only have 8 cahaleenges. We aimed for a cross-section of gender and age and in the end probably could not have ended up a significantly different jury.
I have learnt that you have to prepare for each segment of the case. The introduction and summary have to be structured. It is important to lay out the introduction of the case you intend to put forward, in a clear, concise and ordered way so that the jury has a broad idea where you are coming from and to get a positive impression of the defendant at the outset. We had failed to prepare adequately for this part. I had jotted down some points for Graeme but he chose a different pathway and subsequently the jury's first impressions were not positive.
The prosecution's case was made quite easy by virtue of the record of interview. There was very little by way of cross examination apart from questioning of the two soldiers involved in the detaining of Bryan as to their role and that of the Tiger RAH and Talisman Sabre exercises. The other witnesses were restricted to the police officer from the ROI, 2 officers in regard to the exhibits, WIN cameraman and Director of the Armed Renconnaissance Helicopter Unit to clarify that the government actually owns the helicopter.
The high point for us was indeed the putting in front of the jury the evidence from Graeme, Simon Moyle and Donna Mulhearn, and the Collateral Murder video. I did learn from the first day that it would be important to organize our arguments and actually write it down. That was further brought home for me following a telephone conversation with Terry Fisher (criminal defense lawyer) on that Monday night. On day 2 Graeme went into the witness box and we later mounted a case for the showing of the Collateral Murder video and our two other witnesses, Simon and Donna. There was opposition from the prosecutor but not so compelling nor so forcefully argued that Judge Samios had difficulty making a ruling in our favour.
It is worth mentioning that in this case where the prosecution appeared to have a rather easy legal hurdle that it seems that it is better to defend oneself. It could be argued that with a reasonable judge and that described Judge Samios, there is greater latitude and assistance given to the defendant. It may also be that this situation avoids the natural professional competitiveness and adversarial environment that would have occurred should a lawyer be dealing with prosecutor and judge.
The showing of the Collateral Murder video was quite probably (almost certainly) the first time that it had been shown in a trial anywhere in the world. It appeared to have strong impact on the judge and some of the jurors and how could it not do so? It encapsulated for me the reason Bryan Law was inspired this action and the reason Graeme came forward in support, enabling Bryan to accomplish this act of disarmament. And the reason we were all in that courtroom. Those 17 minutes. The Tiger RAH's were part of the Talisman Sabre 2011 exercise and it was clear at that time they were intended for deployment to Afghanistan.
The viewing almost did not happen when the DVD refused to work. Judge Samios suggested that we continue with Graeme's testimony and tack the video at the end when we had located copy. I did not like that idea as it would be more effective placing the film within Graeme's evidence. Samios agreed to my suggestion that instead we broke early for lunch. We then had the curious sight of the assistant prosecutor helping us for about 10-15 minutes trying to get the video to work through his laptop. That is a very memorable moment.
Simon and Donna provided strong testimony regarding their experiences in Afghanistan and Iraq respectively. I had asked them to provide me with questions to help lead them through their testimony. It was important to include the link between their experiences and particularly what they had learnt about the role of the attack helicopters and the Australian military's role, and that they had conveyed these experiences to Bryan and Graeme prior to July, 2011. At one point when it appeared that I had not clearly enough made that link in evidence that Simon and Donna had communicated their experiences in Afghanistan prior to July, 20011, Judge Samios came to the rescue and advised me so.
Day 3 commenced with each side presenting their summary. I had provided notes for Graeme but he chose not to follow them. On the evening of day 2 we had a lengthy discussion regarding the summary and agreed (I thought) that Graeme would focus on the period from the invasion of Afghanistan in October, 2011. I had been advised by Terry Fisher that the summary should be no longer than 20 minutes. I saw this as an opportunity, unimpeded by objections from the prosecutor, to close our case by focusing the jury's attention on the strong arguments of our case. I had stayed up late and rose early the next morning to prepare points for Graeme to follow. However as on the previous mornings Graeme did not arrive at Haveachat until it was almost time to leave for court. There was inadequate time to run through the points. At times during Graeme's summary I wanted to stop him. It lacked structure and I was losing attention so I can only imagine how some of the jurors were feeling. In the end Graeme spoke for 40-45 minutes and it was not how we discussed.
The prosecutions closing remarks were very brief and merely directed the jury to the evidence of the ROI.
The judge provided his instruction to the jury and the jurors retired at about 11.45am. It was a surprise then to be informed by the bailiff that the jury wished to review the ROI again and also the WIN television film of the action. The jurors also requested transcript of the ROI. It remains unclear as to the reason(s) for these requests. The defense had to provide permission for the transcripts to be provided. My initial reaction was that this could be a negative without knowing why and it was only after some advice and encouragement from the judge that we agreed to the request for copies of the transcripts.
Following the second viewing of the ROI and WIN footage, the jury retired again only to return again 90 minutes later with further questions of clarification. There were now only 2 jurors holding out from returning a guilty verdict. There were four questions and 3 of them were addressed to Graeme. The fourth related to clarification of the parameters of the charge. They seemed to be questioning his character and/or decision making. Why did he not join Bryan in the disarmament? Why did he leave Bryan behind? Why did he notify the media? Samios sent the jury away again and it was only at 5.45pm that he concluded the day's proceedings. The prosecution and defense were given the 4 question and asked to provide responses on the following morning. We were instructed not to reveal the questions to anyone else.
On the morning of Day 4 Judge Samios reported that the jurors had reached a unanimous verdict and our responses would not be required. Had Graeme's appearance in front of the news cameras on the afternoon of Day 3 be seen by any of the jurors or related to them? And did it have any effect? The jury was then brought back into the courtroom and stood in a line in front of the jury box. They were all asked for their verdict and responded guilty before being dismissed by Samios. One juror was observed to be crying as she left the courtroom.
It was remarkable that given the apparent obvious outcome in a narrow legal sense that the jury deliberated for as long as they did and this spoke to the power of the case put forward. There is much to take away from this.
We were to return to court at 2.30pm and I prepared notes to challenging the figure of $162,000 in damages. I prepared points at which to attack the price. The expert witness, Worsley, was questioned by telephone. It was obvious that major questions arose out of the charges for repairs but we could not make any headway without our own expert witness to provide information by which to counter. Graeme effectively raised some important questions but Judge Samios repeatedly favoured the line that Worsely was giving.
Sentencing remarks were quite generous to both Bryan and Graeme ‘I accept that you are genuine about how you feel. Peace should be the primary way we live rather than be consumed with war. There is no doubt that if the views you expressed about the film that was shown to the jury called Collateral Murder that there is no doubt people would be moved by the thought that those people died the way we did I take the view…that it is understandable because of your convictions…to see peace in the world…'
In regards to the trial even with the shortage of preparation time I feel that we could have been better prepared. It hit me too late that I would most likely not be given the latitude we hoped for in regards to my role during the trial. Nevertheless there were opportunities to be effective during the trial but that required preparation. More time would have been beneficial as I learnt in preparing one inevitably goes down some dead ends before back tracking and finding a better path. The thing is to prepare for those opportunities you can control
Opening statement-an opportunity missed. I had anticipated that I would be allowed to deliver the opening statement and realized too late on the previous night that this would not be happening. Graeme's opening statement with very long and missed the mark.
The ROI probably meant that the prosecutor did not have to produce in court any witnesses from the military to provide evidence regarding the actual arrest and therefore an opportunity missed to question military personnel more fully.
Graeme's evidence again was long on his personal history and I had to attempt to bring his focus back to period from 2001.
Argument for allowing Simon and Donna to give evidence and for the inclusion of Collateral Murder video was reasonable.
Evidence from Simon and Donna was very strong and very moving.
Should have introduced into evidence in a more structured way Australia's breaking of its own laws in relation to war crimes and international conventions including the United Nations Charter as the invasion was illegal under international laws as was the invasion of Iraq.
Closing statement much too long, lacked focus and Graeme declined to use my prepared dot points. Opportunity missed.
With more time may have been able to find witnesses to speak directly as either victims of helicopter attacks or from the military. This would have taken a considerable time to identify these people and develop the relationships sufficiently.(if in fact such witnesses are there to be found)
Ciaron's suggestion of broadening the approach to attack helicopters generally and the inclusion of the Collateral Murder video were helpful. Also Ciaron's work in improving the profile of the case overseas and other things such as the you tube video by Sean Bedlam. However Ciaron's pressure to continue attempting to find relevant witnesses despite our best efforts became quite overbearing and was ultimately a negative impact going into trial.
In conclusion the Rocky Ploughshares action stood on its own regardless of the trial outcome. Bryan is to be commended for his vision and commitment to undertaking such an act of disarmament. It spoke directly to Australia's ongoing involvement in this permanent war and struck directly at our nation's ongoing involvement in the occupation of Afghanistan. Bryan was very much looking forward to having his day in court to speak to his action. Graeme rose to the occasion in providing that support for Bryan which enabled Bryan to achieve his goal. If not for Graeme this act of disarmament would not have happened.
Graeme Dunstan 0407 951 688
16 September 2013