Recent headshots of Avery (on Mike Willesee’s TV show) and the prisoner-for-life Martin Bryant.
by Mary W Maxwell, LLB
They say Martin had an IQ of 66 when he was young. (I’d hate to think what it might be at the moment!) But I have never quite believed that he was very lacking in intelligence. In the police interview of July 4, 1996 he seems to have good vocabulary and common sense.
We also have a transcript of Martin’s interview with his solicitor John Avery, dated October 3, 1996. It is very enlightening – it shows how Bryant ended up changing his plea from guilty to not guilty. The solicitor used tricks. I think any person, even of normal intelligence, would have fallen prey to this lawyer’s ruse. (Note: Avery has since been imprisoned on other matters, and is disbarred from practicing law.)
The Proper Way To Defend Your Client
Put succinctly: if you are assigned to be the defense attorney for an accused criminal, even one who is reputed to be a monster, you first seek to find out what happened. You need facts. You want his side of the story.
Second, you give him some idea of how you and he might counteract any false or confused witness reports (perhaps by showing that they lack credibility).
Third, you and he set up some sort of strategy for winning an acquittal. Show him how he might win and then say, if appropriate, “But your chances are not good.”
(There are also times when it is proper to point out to him that confessing – if he is willing to confess – could have some advantages.)
What if you think he is lying? You should tell him so, outright. “Hey, Buddy, what you have just said is physically impossible.” Or “Oh, come on, that’s the worst excuse I have heard since ‘the dog ate my homework.’”
But if he says he is not lying, you should defend his position. The lawyer takes instructions from the client. The lawyer is not the judge. The defense lawyer is not the prosecutor!
Below I show how Avery did his dirty deed of causing Martin to plead guilty. It is clear to me that Avery was acting in cahoots with the prosecutor.
On September 30, 1996, despite having been in solitary confinement for 5 months, Martin Bryant had pleaded NOT GUILTY, in court, to the 72 charges against him.
The government did not want that to happen, I claim, and did not want there to be a trial — as this may have resulted in the real Port Arthur killers of April 28, 1996 being identified.
Avery’s Ten Deadly Sins
I have to give Avery credit for cleverness, albeit of a malicious kind. He did these ten things (among others!):
- He led Martin to believe that Martin was not allowed to claim his innocence in court. In particular, Martin was not supposed to try to say that he was in a different location on the fateful afternoon.
- He lumped the “evidence against Martin” into one big pile, and did not show him any specific things (such as “Mary Smith says you had stolen a violin from her,” or whatever). Avery thus caused Martin to think the mere quantity of evidence was something that would defeat him in court.
- When Martin mentions that two persons at the prison are trying to brainwash him into pleading guilty, Avery doesn’t tell him that is criminal, much less does he offer to deal with it.
- He doesn’t take his client’s side on the important issue (mentioned by Martin) that Martin did not have a lawyer present at the police interview.. (Similarly Avery did not complain about the guardian’s lack of intervention.)
- When Martin raises doubt that it was his own voice on the McCarthy negotiator tape, Avery says “I don’t want you saying “Oh, I’m not sure about that [in court]” – thus giving his client the impression that there would be something wrong with an accused showing “uncertainty.”
- He lied to Martin by saying there was a photo of him “walking around shooting people.”
- He implied that the community had a right to hear a guilty plea from Martin.
- He emphasized the danger of Martin’s situation in the prison where someone might want to kill monstrous Martin – obviously said to increase Martin’s vulnerability and dependence on his “only friend” – Avery.
- Avery suggested that a previous lawyer was made to quit because of some ethics issue, caused by Martin pleading innocent. (And the consequence of this is that Martin had better do exactly as Avery advises.)
- When Martin – who has shown a good memory in nearly every respect – says he does not recall saying on the video that the person responsible for the murders was “me”, Avery not only does not elicit more comment about that crucial matter, he tells Martin it was “a total confession.”
Flowers under a memorial cross at the Port Arthur site of 1996 massacre.
The Lawyer-Client Interview of October 3, 1996
The following six pages are from a longer interview, cropped by me, between John W Avery and “MB” (Martin Bryant) at Risdon Prison.
Avery: Okay, let’s just talk about what I am here for, right. I have reviewed your case since we spoke last Tuesday and I now know as much as I need to know about it…. I have formed the view that I am prepared to act for you subject to a few limits, or a few conditions, right. …
First thing is that I think if you want me to act we’ve got to be frank with each other. I won’t bullshit you but equally there are no games that I want you to play, right. Understand that?
And finally, I don’t want you to have any false expectations and I won’t give you any, right….
MB: Okay, will there still be a case. I mean will there still be a trial?
Avery: Well, we’ll talk about a trial or what we’re going to do in a moment, right. Now for the next thing is do you understand legally why Mr. Gunson can’t act for you anymore?
MB: I think because there’s no defence.
Avery: Well, it’s not really that. Let me just explain something to you in simple terms, right. If someone is charged with assaulting someone. Let’s use a simple example. There’s a fight in a pub and someone punches another person and he is charged with assault of that person.
If that person goes to a Lawyer and says yes, I punched him but I’m going to go to Court and say I didn’t do it, it puts the Lawyer in a position of conflict because he can’t allow his client to go to Court and lie.
MB: Oh yes
Avery: Right, now David Gunson I gather has found himself in an ethical problem because of what you have told him and what you want to do now, right. …I just want you to be aware of why if sometimes Lawyers get in an ethical problem that is how it happens. Generally it’s because the client tells them something and then wants to do something different, right. So that’s just explaining that to you. Now, having said that, if you want me to act I will do so …..
MB: Oh good
Avery: Now are there any parts of the evidence or anything like that that you haven’t seen or you want to see again. Let me just give you examples. There’s a video interview when you were interviewed in July that seemed to go all afternoon, remember that, it went forever.
MB: Oh yes. I was hoping my Lawyer was going to be there. The Police said that he was informed and there wasn’t any reason for him to be there.
Avery: Now, have you seen that interview?
MB: No, I haven’t.
Avery: Right, well I think I should at some stage show you that interview, I am not going to spend 3 hours, it would just be like watching TV for 3 hours, but some parts of it I think you should see, right.
MB: I think I know the part … the part where I pointed to myself.
Avery: The part when you pointed to yourself and said “Me” right.
MB: That’s not going to help me.
Avery: Not going to help me – it is going to put you right under. But all I’m saying is if you want to, I can arrange in due course for you to see that….
Avery: Right, have you heard the negotiating tapes when you were on the phone?
MB: Yes. I couldn’t recall that that was my voice.
Avery: Well if you like I can bring them over sometime …
I don’t want you saying Oh, I’m not sure about that.
MB: Have you been in touch with Perpetual Trustees?
Avery: Yes, they’ve squared things off. They are content for me to act.
MB: Oh good.
Avery: So there is no problem with that. I have said to them that I will. Well, I’ve said that I will form a view on your case in the next couple of days …I mean let’s turn to your case. It’s pretty obvious that it all points to you being guilty, doesn’t it?
Avery: I mean let’s be frank, we can’t invent stories that you weren’t there or anything like that.
If you follow the evidence through and you have read those statements, they have you at Seascape, they have you, it would appear, killing the Martins, leaving and going down to Port Arthur etc etc. Now all that seems to have come out, doesn’t it. I can’t magically say none of that happened. I can’t magically find a defence that you were in Hong Kong or somewhere else.
MB: Mm, that’s right.…..
Avery: And I repeat we’re going to look each other in the eye and I don’t want any stories or bullshit, right, because the time for that is over.
MB: Will it be a long, long time for someone what’s done
Avery: You’re not going to ever leave here mate I don’t think…
Avery: And we’ll talk next week about whether you’re going to go trial or whether you’re going to plead guilty.
Avery: We don’t have to do that today. I’m not interested in that at the moment and I am not here to make you plead guilty, right.
MB: Uh uh
Avery: But I’m not here also to say we’re going to run a long trial just for the sake of a long trial, it doesn’t do you any good and it doesn’t do the broader community any good right. You’ve got to come out of this now with some respectability, right.
Avery: I’m probably the only friend you’ve got in the world so we’ve got to try and help each other.
MB: Is it true what David said that not many Lawyers will represent me?
Avery: Well I dunno, I don’t know about that but….. But I repeat, I will do what I can to assist you but you’ve got to help me. Now are we clear on that? Can we strike a deal on that basis?
MB: Yes ….. I just want to hear all the evidence and what other people have got to say about me.
Avery: Oh we’ll talk that through. You’ve got the statements and we’ll go through that and…
MB: No, I mean in Court
Avery: Well, we’ll talk about that later and but I repeat if your defence is going to be that you weren’t there, then we are not going to run a trial on that if the overwhelming weight of evidence….
MB: I did go surfing that day, I did mention to David. …..
I think it was that night. Sunday night the 28th. A reporter just broke in and (took my photos) what, what they’ll do!
Avery: Well, you’re a big story, mate, you’re really important now.
MB: Yeah, mm.
Avery: I mean, Ivan Milat and these fellows are chicken feed.
MB: Yes, they’re tame aren’t they compared to what I’ve alleged to have …..
Avery: What do you miss most of all?
MB: I miss my girlfriend and my Mum.
Avery: Has your Mum been to see you much
MB: Yeah, she comes in about every 3 weeks. Apart from that there’s no-one. It will be good when I’m allowed to mix with the other prisoners but that will be a long time probably.
Avery: The problem is your safety, isn’t it.
Avery: See the other prisoners might want to
MB: Get to me
Avery: Slit your throat
MB: (laughter) Yes
Avery: You’re a wanted man, see…
Avery: We’ll have to arrange for you to have a haircut won’t we?
MB: Yes but I can’t have a hair cut until after the Court case
Avery: Who said that?
MB: I mentioned that to one of the officers…..
Avery: I’ll be back in a couple of days and we’ll have a couple of hours going through what happened, what you did, why you did it. Right and then we’ll talk about trials or what.
MB: Will that actually be a statement?
Avery: Well it will just be your instructions to me, right. I’m your Lawyer. I can’t pass it on to anyone. I won’t be saying what you said. It’s what you instruct me. Right. Lawyer’s discussions with clients are privileged right. They can’t go somewhere else and tell someone.
MB: I don’t know if I can recall (indecipherable) … or recall being down there. I can’t recall a lot of what occurred but we can talk about that.
Avery: Well we’ll see where we go alright but I mean the reality is you’ve certainly made lots of admissions to lots of people that it was you, “me”.
MB: Yeah, on the video. [Referring to the one and only moment in the July 4 interview when MB, attempting humor said “You will find out who’s responsible for all this: me.”] [Unless it was photoshopped?]
MB: That was when they left the room and came back. I must have said something like that, but I don’t recall, honestly I don’t, but I don’t recall pointing at myself
Avery: Well, you did. I’ve looked at the video.
MB: Well that’s strong evidence, that’s more or less….
Avery: Admitting it. That is a total confession, that’s what that’s called.
MB: Will that go to trial?….
Avery: If you have a trial, that’s the first bit of evidence they will put up and say here he is pointing to himself and saying “it’s me”.
MB: And then it would be over, would it, the trial?
Avery: Well it could be. I mean that’s the best bit of evidence they’ve got isn’t it, Martin Bryant pointing to himself and saying I’m the mass murderer. They don’t need much more.
Avery: Anyway, we don’t have to talk that through today. The purpose of today I repeat is to see whether you’re content with me as a Lawyer. To deal with it and that we are going to be frank with each other and not set any unreal expectations…..
MB: No fear. If a person murders one person, I think they get about 21 years. …..
MB: Because Mr. B, do you know Mr. B?
Avery: I know Mr. B, yes and Mr. D.
MB: Well, they are trying to brain wash me to not having a trial.
Avery: Well, I am not going to try and brain wash you on anything. If you want to have a trial we’ll have a trial. All I am saying, we have to look at what a trial is going to be about and we’ve got to look at the inevitability at a trial that you will be found guilty.
MB: Would I be found guilty if I wasn’t on that video screen?
Avery: I would have thought there was enough evidence to convict you without that. Heaps and heaps of people saying you’re it, you were there, they’ve even got a photograph of you off the video walking round with a gun at Port Arthur shooting everyone. [There is no such video, at least not a genuine one, or one with Bryant in it! — MM]
Avery: … by pleading guilty I suppose you are going to save a lot of people a lot of heartache and a lot of trauma, make your family feel you’ve done the right thing, make the community at least think you’re not a monster.
MB: A monster! They probably think I am now, I don’t know
Avery: I’m sure they do. I … you’re sort of
MB: An evil monster
Avery: …today wasn’t for that purpose and I repeat to see whether you’re comfortable with me …
I’ll shake your hand and I say I’ll do my best for you and you’ll say that you’re not going to bullshit me and we’ll work it through together.
MB: Yeah … that sounds cool. [All bolding added by Maxwell]
— Mary W Maxwell and Dee McLachlan are co-authors of Port Arthur: Enough Is Enough, which is a free download at GumshoeNews.com
Photo of Howard - www.examiner.com.au/