Commonwealth coat of arms at the High Court
by Mary W Maxwell, PhD, LLB
Martin Bryant was convicted of the 1996 Port Arthur massacre, and given a life sentence. At age 48 he is still in prison. It is time to ask: was the conviction correct? Was Bryant the man who actually murdered 35 people at Port Arthur? Fortunately there are grounds to re-open the case.
How Did We Proceed in Normal Times?
Every person admitted to the Bar in Australia was educated in a way that took a certain working of the justice system for granted. It was simply expected that a court is a place where adversaries can bring their pleadings and have the matter resolved properly and fairly by a judge or jury.
In a civil action, the two parties may have very different levels of power, but in a criminal matter “the law” helps level the playing field. Since an accused person automatically has less power than his adversary, “the Leviathan”, it is well established that he should be given extra help.
The development of court-justice is based on reasoning, on established principle, on what society has agreed to, and on impartiality. The rules are publically known. This has been a major source of personal security, and it is also an inspiring part of our heritage.
The Structure Remains Intact
The world has changed. There now seems to be a world government. Its agents are able to control legislators and judges, whether by bribery, intimidation, or some other means.
Still, all activities of the legal profession look the same as they did before. Court procedure is the same. The book of precedents is the same. Principles do get whittled down a bit — most practitioners will no longer stick up noisily for the old understandings. But they don’t enunciate new principles — they don’t say “I hate justice.”
In regard to the matter at hand – how to get Martin Bryant’s case re-opened or dealt with in some way — we can look eagerly to the normal way of doing things. A person who is wrongly convicted gets a chance to appeal, including up to the level of the High Court.
Does Bryant Qualify for a Reopening of His Case?
Martin Bryant did not appeal his conviction. It is said that he has a very low IQ and that he had, and maybe still has, a guardian. The guardian did not appeal.
However in 2015 the Parliament of Tasmania enacted legislation (by amending the Criminal Code Act of 1924) to permit a person with “fresh and compelling evidence” to ask for a re-opening of his/her case – even 20 or more years later.
Section 402(a)(3) of Tasmania’s Criminal Code Act says:
“A convicted person may apply to a single judge for leave to lodge a second or subsequent appeal against the conviction on the ground that there is fresh and compelling evidence.” (Emphasis added)
Silence Is Operating Here
In the old days, it was considered very sporting, in the legal profession, to try to help a wrongly convicted person. No matter how obnoxious the person, defending him or her was seen as an admirable, ethical thing to do. Today, there is silence, possibly because people are afraid to challenge the powerful.
We do not see anyone, at the moment, making noise, legally, on behalf of this convict. No barrister or law professor has – so far — advocated that someone help Martin Bryant take advantage of the new legislation. (There are dozens of Youtube videos proclaiming his innocence but these are generally categorized as “conspiracy theories.”)
Let Us Picture a Re-opening of the Case
It will be wise to avoid making “conspiracy” a part of the case. Even if one thinks there are ‘suspects,’ it would be better to pretend that there are no clues as to who the murderers were.
Anyway, persons wanting to help Bryant get his conviction overturned do not have to make any showing at all as to who did commit the 35 murders. That is never required of a defendant in a prosecution.
And recall: no person has to “prove” he is innocent. Rather, the state has to come up with evidence sufficient to cause a jury to find the person guilty beyond a reasonable doubt.
Bryant can now show that the evidence assembled and presented to the judge of the Supreme Court of Tasmania, Chief Justice William Cox, by Damian Bugg, Director of Public Prosecutions of Tasmania, was incomplete and, in some parts, wrong.
(Note: we don’t actually know which materials Cox saw. There does not appear to be a file on the case, just the lengthy description of Bryant’s crimes in the sentencing document dated November 22, 1996.)
From May to October 1996, Bryant had insisted on his innocence, including at a hearing on September 30, 1996. Then when his new lawyer, John Avery, came aboard, Bryant changed his plea to guilty. Note: in murder cases, even when the accused pleads guilty, it is customary to hold a trial. But Bryant had no trial, just a sentencing!
Exculpatory Evidence – from Witness Jim Laycock
It is a requirement throughout Australia that if a prosecutor has in his possession any exculpatory evidence – for example testimony by a witness that provides an alibi – he or she must make it known to the defendant. Did the prosecutor possess such evidence and not reveal it, he or she would commit a malfeasant act, and this makes for a mistrial.
There appear to be many pieces of exculpatory evidence for Bryant; only five will be attended to here. One is the statement given officially to police by Jim Laycock. Jim had known Martin Bryant for many years and would be able to recognize him. He was near enough to see two of the killings (at the General Store and the tollgate) and said that the person doing the shooting was not Martin Bryant.
The late Jim Laycock
Although DPP Bugg had Laycock’s police statement, he did not present it to the Court. This alone should suffice to exonerate Bryant. There is nothing ambiguous in the statement (which was taken by Sergeant IF Jones from Laycock on May 10, 1996):
“On this Sunday the 28th April 1996, I did not recognize the male as Martin BRYANT. The person I saw shooting appeared to be in then low twenties, about 5’10” tall, it was impossible to determine his build, (the coat was shapeless). His hair stood out it was blonde, I thought it was bleached blonde and possibly a female. His hair was shoulder length. His walking appeared to be mannish. The youths in the red car returned from the bush and they left the scene. The blonde headed person I saw at the tollgate is definitely the same … person I saw shoot the woman in the white car at the General Store.”
Exculpatory Evidence – The Tray, Drink Can, Etc.
There was no inability on the part of law enforcement to obtain physical evidence from the crime scenes. The major two crime scenes were the Broad Arrow Café within the Port Arthur Historic Site, and later, the Seascape cottage.
The gunman had bought lunch at the counter of Broad Arrow Café and taken it outside, on a tray. He ate this lunch on the balcony. It is undisputed that the tray had on it cutlery and a yellow drink can, the drink being a “Solo.” A photo of the tray, near a blue sports bag, later came to light in a leaked “police Eyes Only” training video.
As he was not wearing gloves the suspect must have left his fingerprints on the cutlery and the drink can, and on the tray itself. Naturally this would provide the state with a way to determine who the person was that, minutes later, shot many people in the café.
The Police have announced that they did procure DNA evidence from the blue sports bag. Even more would we logically expect them to take fingerprints and DNA from the actual tray that the killer ate from. The tray would be more probative to the actual identity of the killer than anything in the bag.
Questions Not Allowed To Be Asked
It appears that there was a concerted effort to hide exculpatory evidence. Ian McNiven attended a presentation by one of the leading forensic investigators into the Port Arthur killings at Queensland University on November 21, 2002. It was a meeting of the Australian and New Zealand Forensic Science Society, open to the public. McNiven bought a ticket.
During the 5-minute question time, he asked: “Was any solid empirical forensic evidence such as finger prints or DNA found that links Martin Bryant to the shootings in the café?” The speaker skirted the subject by talking about ballistic evidence.
McNiven then asked a second question: “Did you find Bryant’s fingerprints on the bullet cases or any of Bryant’s DNA at the café?” The speaker said he would answer during the break. He did not do so, however.
After the break McNiven was not allowed back in. “One of the burly gentlemen stood in my way and told me if I went in I would disrupt the meeting and University Security would be called, they would call the Police and ‘people may be arrested ….’
“I was being threatened with arrest for doing nothing more than asking a simple forensic question.”
Mc Niven wrote in a 30 October 2007 article,
“As I was a bit like a possum surrounded by a pack of dingos, in the end discretion triumphed and I went home.”
For all we know the police may have tested for fingerprints and failed to find Bryant’s prints on the aforementioned objects. If that happened, there was, of course, malfeasance and a mistrial results. To repeat: exculpatory evidence must be handed over to the defendant by the prosecutor.
Exculpatory Evidence – The Leaked Seascape Tapes
There is a ‘leaked’ tape of telephone conversations going on at the Seascape cottage in which Martin Bryant’s voice is heard, speaking in a calm tone, hours after the massacre occurred at the Broad Arrow Café.
While Bryant tells the Police negotiator about making sandwiches for everyone, a gunshot is heard on the tape. The gunshot is from another room, upstairs where someone was shooting out the window. There was only one phone in the house and it was downstairs.
It can’t be Bryant who is responsible for that gunshot, as he does not skip a beat in his conversation with the negotiator. In fact there are over 20 shots heard on the tape with the negotiator, while Bryant continues to talk in an undisturbed tone of voice. Officials refer to the sound of the 20 shots as 20 “coughs.”
Clearly this tape is exculpatory evidence regarding the charge against Bryant that he was holding hostages at Seascape, since at least one additional armed person was in the cottage.
There is a second tape. The source of it is the TV show “A Current Affair.” In 1998, Tasmania’s Police Commissioner Richard McCreadie allowed negotiator Terry McCarthy to be interviewed by Mike Munro for “A Current Affair” in connection with a different hostage case. That is how we have been able to hear the tape from Seascape, on the night of April 28, 1996.
In this tape Bryant actually says “You’re about to shoot your main man.” Who is the “your”? From that conversation, some investigators have deduced that Bryant was working under instructions. Indeed, the police negotiator — Terry McCarthy — has said that it sounded as though Bryant were reading from a script. If so, it could hardly be more exculpatory!
There Is More, Such as the Gun Issue
There are dozens of peculiarities in the case, many of which indicate that someone is hiding the truth. For instance, there is controversy as to who owned the guns used in the massacre. Terry Shulze, a retired barrister, has published exculpatory evidence on this issue. A retired cop from Victoria, Andrew MacGregor, has studied the guns in detail, as did Stewart Beattie, author of “A Gunsmith’s Notebook.”
Also, in numerous articles and Youtube videos, MacGregor specifies the ways in which the authorities’ handling of the Bryant case deviated from police protocol. (That is quite the understatement.)
Terry Shulze has pointed out that police apparently attempted to get rid of the “problem of the tray.” A witness who sat right next to the gunman in the café, Rebecca McKenna, mentioned the tray in her written statement. She said the gunman carried it back into the café. It appears she was told to revise that statement to say that he dropped the tray, but she corrected this, in the margin, to say that the tray tipped but he caught it.
Suddenly, via Mike Willesee, More Exculpation?
There is a video of Martin Bryant being interviewed by four policepersons (one or two at a time) on July 4, 1996, while he was still in hospital. For 20 years Australians were told that there was an audio recording but that the video had ‘failed.’ Suddenly bits of the video were broadcast on Sydney’s Channel 7 show, “Sunday Night,” on March 6, 2016.
On the same show, solicitor John Avery, being interviewed by TV host Mike Willessee, admitted — in a way that must have shocked every lawyer in the country — that he had teased Bryant into pleading guilty:
MIKE WILLESEE: Bryant was very sensitive to suggestions he had a low IQ, and Avery realised he might be able to use this sensitivity to encourage him to plead guilty. It was the killer’s Achilles heel.
JOHN AVERY: I said, “Mate, you’re gonna be made to look stupid. They’ll say ‘simple Martin’, ‘simple fellow’. “This is a nonsense running this type of trial, where you just want people to point to you and say, ‘Yes, this is the man who shot at us.’” You know, the next time I saw him, he’d changed his mind. He said “I’ll plead guilty to everything.”
On the same show, Avery sprung a pack of drawings that he claims were made by Bryant, of the murder scenes. Avery:
“He’s the figure in black [in the drawings], shooting, and the victims are those in red. It paints a pretty chilling version of events from which it’s impossible to escape the conclusion that he’s certainly admitting full responsibility for what happened.”
Not on your Nelly!
The most exculpatory evidence from “the Sunday Night” show may well be the aforementioned July 4, 1996 video of the police interview. Note, however, that the video looks to be a compilation of many “takes” – at times Bryant is sitting in front of a different color curtain.
This video constitutes the RECORD OF INTERVIEW, and thus is a VERY, VERY IMPORTANT part of the prosecution case. It is the words of the accused. If we could hear the whole thing we may well have proof of Bryant’s innocence.
Is the Evidence Sufficiently “Fresh”?
As mentioned, the new legislation, which consists of a 2015 amendment to Tasmania’s criminal code of 1924, provides that a convict may seek from a judge leave to appeal, if he or she has “fresh and compelling evidence.” It must be evidence that could not have been adduced at the time of the trial. Consider this:
- The Tray: It was not until 2004 that anyone other than police saw a “Police Eyes Only training tape” with gory scenes of the dead bodies in the café. It reveals a blue sports bag and next to it a tray with the Solo drink can on it. So, back in 1996, Bryant’s lawyers could not have demanded that the prosecution furnish fingerprint evidence from the tray.
- The Seascape Tapes: It was not until the 1998 broadcast of “A Current Affair” that anyone could have known that Bryant used the words “about to shoot your main man.”
- The Admission of Coercion by John Avery: It was not until 2016 that we learned, from the Mike Willesee show, that Bryant had been threatened with mockery if he pleaded not guilty. Note: even this story by Avery may be bogus, but the fact remains that someone, somehow, got the prisoner to change his mind. (Incidentally, Avery has been struck off the rolls for fraud with other clients.)
- The Video’d Record of Interview: This, too, is fresh evidence since we did not know of it until 2016. If it was cut-and-pasted, selectively, then it is fabricated evidence.
In sum, there is plenty of “fresh evidence” to qualify for an application for leave to a single judge.
- Jim Laycock’s Witness Statement That It Was Not Bryant
Can we count this item as fresh evidence? No, sensu stricto — officials had it since May 10, 1996. But the accused didn’t really have access to it, being of below-standard intelligence, and not having counsel that would help him make use of this exculpatory evidence. And his guardian seemed to be uninvolved in the case.
In this photo of Jim Laycock’s statement, we can see that it was held by the DPP:
The matter is simple. The goal today is to undo the injustice of the conviction and imprisonment of an Australian citizen. Such a thing should be easy enough for a court to handle. It will also be easy enough for Bryant’s fellow citizens to countenance and support, as it is absolutely NORMAL legal procedure.
According to the 2015 Tasmanian legislation mentioned above, if the fresh and compelling evidence is deemed worthy, it is open to the Court to make an order of acquittal. So says Section 402(8)(a).
When the Tasmanian premier Will Hodgman presented this amendment to the Criminal Code Act in state parliament, he said, in his second reading:
“The Bill provides a sensible and balanced approach to providing an avenue for genuine applications to be brought by convicted persons and the strong public interest in finality in criminal litigation.”
— Mary W Maxwell is the author of Fraud Upon the Court and co-author of Truth in Journalism. She is a graduate of Adelaide Law School.
Adapted photo of David Wrigley's woodcarving at High Court (L) and and getebookz.club (R) Laycock adapted photo Sydney Morning Herald