A Fictional Lawsuit – Carleen Bryant “Suing” John Avery

by Mary W Maxwell, LLB 

Carleen Bryant is the mother of 51-year-old Martin Bryant, the older of her two children. He has been in prison in Tasmania since April 29, 1996 for the Port Arthur massacre. Below I suggest how Carleen could sue her son’s lawyer, John Avery for the suffering caused to her. Instead of “lecturing” about how one might do that, I have constructed a fictional case.

Three months ago I published, at Gumshoe, a similarly fictional lawsuit, in which Martin himself sued a policeman, “John Doe” — in his personal capacity – for having started a fire in which Martin got burned.

The purpose of my outlining such “cases” is to show that all methods of seeking redress aren’t blocked just because a government has participated in the crime. You can, and should, get into court by a side door.

By the way, a group of citizens in the US, calling themselves Lawyers for 9-11 Truth, have recently gone to court in regard to that famous event. Too bad it took them 16 years. Actually, they aren’t fully in court yet but they have made a demand of a Federal grand jury.

It is well known that the lack of a trial for Martin Bryant is very unfair, and of course it protected the real criminals. I consider it a major scandal that barristers and judges in Australia have sat idly by in regard to this matter. When I ran a “Moot Court Trial” for Bryant – the only “trial” he has ever had — on stage in Adelaide, I found it was ridiculously easy to prove that he did not kill anyone on April 28, 1996.

The real victim of such a legal travesty is the nation.

Why a Lawsuit?

Any dispute in society can get resolved by a court – we all know that. Thanks to “equality before the law,” the weaker party can start an action against the stronger. There are two kinds of action. One is the prosecution of a criminal by the state (including where the criminal is a government person). That is known as public law.  The other is a civil action in which one person or organization sues another person or organization. That’s known as private law.

For the present exercise in private law I show Mrs Carleen Bryant as the plaintiff. There were many persons or organizations that she could sue for what was done to her son if it also harmed her. I believe she could sue the media for false statements made about the Bryant’s family life.

Here I choose Martin’s defense attorney, John Avery, as the defendant. Avery already underwent prosecution for another matter — stealing from his client. Indeed, he was convicted and served a prison sentence. But that is not relevant here. The point here is that he harmed Carleen Bryant. Or at least I surmise that he did.

I want to show young Australians that there is such a thing as law and it has every provision you could want in regard to making injustice yield to justice.

You Have To Bother

A law maxim to keep in mind is Lex semper dabit remedium. “The law will always furnish a remedy.” But law’s furnishing of a remedy does not jump out of a law book and right the wrongs on its own. You have to go to court and plead for justice.

Note: the case that I am about to outline could only materialize if Mrs Bryant could be contacted. My sense is that when people write to her and get replies, these don’t really come from Carleen but from her “minder.”

Since I have no contact with “the plaintiff”, the words I have put in her mouth are derived from statements she herself made on television or radio. In one instance, regarding Avery’s advising her to tell Martin to plead guilty, my source was the autobiography of Carleen Bryant, My Story, published by Michael Ludeke in Hobart.

As for what John Avery said to Martin, that is uncontestable. I have taken it from his own transcripts, and will print these below. That said, I aver that this lawsuit is fictional.

(Note: If Mrs Bryant contacts Gumshoe that would be most pleasing.)

Sketch of a Potential Lawsuit

For the Hobart Magistrate’s Court

Carleen Bryant, plaintiff

v John Avery, defendant

Civil Case number: _________

The Parties

1 – The Plaintiff — P — is Carleen Bryant, widow, resident of Tasmania.

2 – The Defendant — D — is John Avery, a barrister in Tasmania at the material time, now disbarred.

Statute of Limitations

3 – The malpractice complaint described here has to do with D’s behaviour in 1996.

4 – P seeks an extension of the statute of limitations deadline based on the fact that she assumed “the case was closed” in every way, owing to her son Martin’s conviction.

5 – Also, P has been socially isolated.

6 -The national media of Australia has spread the word that P is “deluded” for believing her son is innocent of the massacre at Port Arthur.

III. The Status of Guardianship

7 – P does not know if her son Martin Bryant currently has a guardian. If she should learn that she herself if the guardian, she will additionally file a separate suit on Martin’s behalf.

Statement of Claim

8 – P claims that D’s behaviour, which caused terrible things to happen to her son, Martin, has thereby brought immense grief to her. P points in particular to “the deal” defined in paragraph below, which is wholly illegal and which, she believes, turned the case against her son. She therefore sues for damages.

Facts

9 – There was a terrible massacre at Port Arthur on April 28, 1996.

10 – The next day, Martin Bryant, age 28, was arrested for it.

11 – He was eventually charged with 70 crimes.

12 – At his committal hearing at the Magistrate’s Court, Martin Bryant pleaded Not Guilty, so the case was sent for trial at the Tasmanian Supreme Court.

13 – At the Supreme Court on September 7, Bryant answered Not Guilty to every one of the charges.

14 – At that time, September 7, 1996, Bryant’s lawyer was David Gunson.

15 – On November 7, with D — John Avery — as his lawyer, Bryant pleaded Guilty.

16 – From the period before 1996 until well after the date of sentencing, November 22, 1996, Martin’s guardian was Perpetual Trustees in Hobart.

17 – In the role of guardian, Perpetual Trustees should have advised Martin about his plea, but made no contact with him.

18 – None of the lawyers or police alerted Martin, or his mother, P, to the procedure for a guardian’s involvement.

19 – P alleges that the change to a Guilty plea was engineered by D despite D being Martin’s defense lawyer.

20 – As P reports, in her autobiography, D told her to tell Martin that if he did not plead guilty he would not be allowed to see his mother or sister again (“the deal”).

21 – P states that D came to her house to give her a ride to the prison that day (the day of telling Martin “the deal”) and that on that occasion there was a mob of newspersons outside her house.

22 – P believes the newspersons must have been tipped off regarding paragraph 20.

23 – P calls attention to the unethical behaviour of D in regard to paragraphs 19, 20, 21, and 22.

24 – P believes that her own participation in “the deal” (consisting of telling him he would have no more family vivits if he continued to plead Not Guilty) is what resulted in his Guilty plea. It therefore also resulted in Martin’s being convicted of crime without benefit of a trial.

25 – P’s participation in “the deal” is therefore a horrible burden for a mother to bear.

26 – In 2006, D published, or allowed someone to publish, in a magazine known as The Bulletin, a transcript of three interviews he had with Martin in Risdon Prison.

27 – It was of course a breach of professional ethics for D to reveal anything his client said to him in confidence.

28 – Despite the revelations having breached ethics, they did have the benefit to P of learning about the unconscionable behaviour of D.

29 – The communication between D and Martin in Risdon should have been in the nature of consultations in which the lawyer both gives advice and takes instructions from the client.

30 – Instead, it consisted of D tricking Martin into thinking there was no hope. This is detailed in the next eight paragraphs (numbered 29 through 37).

31 – D indicated that Martin was not “allowed” to claim his innocence in court.

32 – In particular, D told Martin not to claim that he was in a different location from Broad Arrow Café at the time the massacre was going on.

33 – When Martin mentioned that two persons at the prison are currently trying to brainwash him into pleading guilty, D didn’t tell him that that is criminal, much less did he offer to deal with it. He ignored it!

34 – D lied to Martin by saying there was a photo of him walking around shooting people. There is no such photo.

35 – D emphasized the danger of Martin’s situation in the prison – even saying “someone might slit your throat.”

36 – P presumes the remark about throat-slitting was said to increase Martin’s vulnerability and dependence on his “only friend” – D said to Martin “I’m probably the only friend you’ve got in the world.”

37 – D suggested that a previous lawyer, David Gunson, was made to quit because of an ethics issue, caused by Martin’s pleading innocent.

38 – When Martin – who has a good memory – says he does not recall saying on the video that the person responsible for the murders was “me,” D did not elicit more comment about that crucial matter. P wants to see what may have been edited out of the tape just before that remark.

39 – Worst of all, D told Martin that that remark – which Martin probably made as an attempt to be funny – was “a total confession.”

40 – P assesses D’s statements to Martin as manipulation of the prisoner.

Prayer for Relief

P asks for a small amount of damages such as  $5,000 for each of the last 22 years, without interest.

P asks the judge to treble that amount as exemplary damages.

P also respectfully petitions the Court to notice if facts presented in these pleadings constitute evidence of crime in the handling of her son’s case, and if so to refer the criminal(s) for prosecution.

---

Notice to Gumshoe Readers:

That is the end of my fictional lawsuit.

I am now going to show excerpts, unadulterated, from the October 1996 conversation between Martin Bryant and his lawyer John Avery, as published in The Bulletin in 2006. This material was not presented to Court in 1996. (Would it have mattered?)

Last week a writer from Europe asked me to send her the playscript of “Moot Court Trial for Martin Bryant,” as she and colleagues are comparing similar cases in other countries. Here I will print the transcript of the Avery consultation that we used in that Fringe play in 2017.

We had a make-believe lawyer, named Anna Blue, sitting off to the side of the stage watching what Avery was saying. Her emotional reactions are printed here in square brackets, as “stage directions.”

Avery walks in and shakes hands with prisoner Bryant.

[Martin should use louder voice where it’s underlined]

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 know as much as I need to know about it ….  [Anna: smirk of disgust]

First thing … 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, Understand that?

MB: Yes.  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. Now, 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’s use a simple example. There’s a fight in a pub and someone punches another person and he’s charged with assault.

If he goes to a Lawyer and says yes, I punched him but in Court I’m going to say I didn’t do it, this puts the Lawyer in a position of conflict — because he can’t allow his client to go to Court and lie.   [Anna looks down, shakes her head]

MB: Oh, yes.   Avery: Now are there any parts of the evidence or anything like that that you haven’t seen, or you want to see again? 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.  [Anna, big grimace]

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’m 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.    [Anna puts hand on forehead]

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! – It is going to put you right under. But all I’m saying is, if you want, I can arrange in due course for you to see that….. 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. … Let’s turn to your case. It’s pretty obvious that it all points to you being guilty, doesn’t it?

MB: Yes.      [Anna, minor jaw drop]

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 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.

I can’t magically say none of that happened. I can’t magically find a defence that you were in Hong Kong or somewhere.  [Anna screws up her face]

MB: Mmm, that’s right.   Avery: But I’m not here 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. You’ve got to come out of this now with some respectability….

MB: Yep.

Avery: I’m probably the only friend you’ve got in the world, so we’ve got to try and help each other. [Anna puts her hands over her face]  MB:  I just want to hear all the evidence and what other people have got to say about me.   [Anna smiles!]

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.  [Anna nods and smiles!]

Avery:  Well, we’ll talk about that later.

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….

MB: I did go surfing that day, I did mention to David….

On Sunday night the 28^th, a reporter just broke in and (took my photos)! What they’ll do!    Avery: Well, you’re a big story, mate, you’re really important now.

MB: Yeah, hmm.   Avery: I mean, Ivan Milat and these fellows are chicken feed.   [Anna looks at audience, like she tasted sour food]    MB: Yes, they’re tame aren’t they, compared to what I’ve alleged to have …..

Avery: What do you miss most of all?   [Anna looks startled that lawyer changed the subject] 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. 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.  [Anna hits her hit forehead with her hand].

MB: I don’t know if I can recall being down there. I can’t recall a lot of what occurred, but we can talk about that.  [Anna nods vigorously]

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.      Avery:  Yeah.

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. — I don’t recall pointing at myself. [Anna knits her brows]

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.   [Anna shakes her arms and opens her mouth]

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.

MB: No. If a person murders one person, I think they get about 21 years. …..   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.  [Anna drops jaw and looks inquisitively at audience]

Avery: Well, I am not going to try and brainwash you on anything. If you want to have a trial, we’ll have a trial. All I am saying is, we’ve got to look at the inevitability, at a trial, that you will be found guilty.    [Anna sucks her lips in]

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. They’ve even got a photograph of you off the video walking round with a gun at Port Arthur shooting everyone.  [Anna’s body more or less collapses]

MB: They probably think I am a monster now, I don’t know.

Avery:  I’m sure they do.

MB: An evil monster

Avery: 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.

Finis.

— Mary W Maxwell and Dee McLachlan are co-authors of Port Arthur: Enough Is Enough