Bryant’s Anniversary Series, Part 8: Freeing Martin by Using the Law

Port Arthur Historic Site

by Mary W Maxwell, PhD, LLB

Let’s assume that any human mistake is able to be corrected, and ask How can the Port Arthur problem be turned around this year? There are two possible frames of reference — 1. the wrongful incarceration of Martin Bryant and 2. the planning of the massacre by persons related to government.

You could choose either one to deal with, and if successful the other one would inadvertently get resolved. Today we’ll deal with the first one, Martin Bryant’s wrongful conviction. So the issue is: how to obtain his freedom? I see four legal means.

Four Ways To “Free” Martin Bryant

The first means is a pardon. Purists may not like that but it’s much better than nothing. It does not alter the conviction. It is more like forgiveness. It is called “the royal prerogative of mercy.”

In South Australia that power was relocated, by statute, to the Attorney General, but for Tasmanians it requires making a petition to the Governor, who then approaches Her Majesty the Queen. On April 10 of this year, 2016, I wrote to Governor Professor Kate Warner with a petition for a pardon for Martin Bryant but have not received a reply.

The second means, that I see, is for Martin to go to court as the plaintiff in a civil action. For example, he could sue journalist Sarah Blake for libel based on what she wrote about him last September in the Murdoch press. I don’t mean she accused Martin of being a mass murderer; she is within her rights to do so, as he is a convicted criminal. It was other personal things she said.

Then, once in court, with people speaking under oath, various things might be able to get aired. Conceivably that would result in freedom for Martin. It’s not a good method; I’m just canvassing all possibilities.

The third means is for Martin to petition for a very old fashioned form of relief called a writ of error coram nobis – let’s discuss that in the next article. It’s a method that works well in America under common law. I petitioned the Supreme Court of Tasmania on on March 22, 2016, on Martin’s behalf as regards a writ of error coram nobis.

The fourth means for undoing his conviction is for Martin to seek an appeal in the Tasmanian Supreme Court by using new legislation. I am referring to an amendment enacted by state Parliament last September – 2015.  It allows a convicted criminal to get an appeal, no matter how many years have gone by, if he can show “fresh and compelling” evidence.

The Criminal Code Act in Tasmania is from 1924. This recent amendment is reflected in Section 402(a)(3) of that act. It 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.”

I note that there is a problem there insofar as Martin Bryant never had a first appeal, and this legislation is talking about a second appeal.  I think, based on legislative intent, that this handicap would not stand in the way. (We shall see.)

In that same amendment, Section 402(8)(a) says that it is open to the Court to make an order of acquittal if that’s what is called for. The judges can call for a re-trial but they also have the authority under this section to simply give Martin his walking papers.

That Fourth Method Is Cause for Hope

When it says the Court can acquit, it must mean the Full Court. I did mention a single judge above, but that was in the phrase

“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.”

So it’s a two-stage process. The first judge can deny the request altogether (if, for example, the proffered evidence is not “fresh”) or can send it to the Full Court. It is at that point, I believe, that the Tasmanian Court can decide to make an order of acquittal.

Of course all of this must occur if the man is still alive. If Martin dies, there could be a posthumous pardon but no lawsuit for damages against the press, and no appeal of the conviction.

Would it be possible to employ the writ of error coram nobis posthumously? I think so, as the purpose of that writ is not so much to help the individual but to force the court to correct an error it made. My book, Fraud Upon the Court, is about that subject. In a famous case in 1984, Fred Korematsu got his 1942 US Supreme Court conviction set aside on the grounds that the prosecutor had failed to hand over exculpatory evidence.

Fresh and Compelling Evidence

But I have not finished discussing the bringing of fresh and compelling evidence. Let me note that only one other state has this mechanism for a second appeal, namely South Australia, dating to 2013 legislation. The Tasmanian legislature expressly imitated the South Australian enactment!

And luckily South Australia has already completed one case, R v Keogh. The Full Court of the Supreme Court set aside Mr Keogh’s conviction for murder. That case helps us, even though a ruling in South Australia does not set a precedent for the other states. In Tasmania, courts are bound only by rulings of the Tasmanian Supreme Court and the High Court of Australia.

Let me diverge for a moment to mention a decision in the case of R v Mickelberg in case you have wondered why Australia’s High Court can’t get involved in the criminal conviction of Martin Bryant. Under the Australian Constitution, the High Court is indeed a court of appeal for criminal cases but it has only appellate, not original jurisdiction, over state cases.

In Mickelberg, the High Court saw the appellant trying to bring in fresh evidence during his appeal to the High Court. He had not used that evidence at his trial or at his state appeal. If the High Court were to deal with that evidence it would be exercising original jurisdiction. In short, the High Court won’t countenance fresh evidence in state cases.

Exculpation

What kind of fresh and compelling evidence is there, as to Bryant’s innocence? In the book Port Arthur: Enough Is Enough, by Dee McLachlan and myself, Chapter 29 lays out some exculpatory evidence that was in the possession of the DPP, Director of Public Prosecutions. Examples are:

1. A police statement by a man who knew Bryant, namely Jim Laycock. He witnessed the gunman shooting a woman named Zoe Hall at Port Arthur that day and says it was not Bryant.

2. The tape in which the negotiator Terry McCarthy speaks to “Jamie.” It has 20 noises that were transcribed as “coughs” but these are surely gunshots – by someone elsewhere in the house.

3. Fingerprints (of the real gunman) on the tray, drinking cup, and utensils used by that person at Broad Arrow Café. The court never acknowledged the existence of these items.

We did not mention, in the book, as I only recently learned of it when reading books by Stewart Beattie and Andrew Macgregor, that there was never any physical evidence of the handcuffs with which Martin Bryant allegedly tied up Glen Pears. Yet the DPP, Damian Bugg, had the unbelievable chutzpah to refer to these pieces of evidence, in the court file, as though they were real. (Personally I think this is enough to throw the whole case out, and maybe to start a new criminal case — against the DPP.)

Freshness

Recall there is a strict rule about evidence being fresh. I don’t know how that rule can be applied to Bryant’s case. In the fullness of time – twenty years – various researchers put together the story so completely that it became apparent, that the case was a travesty. How is that “fresh”?

The only barrister I know of who participated in trying to exonerate Bryant – around 1999 — is Terry Shulze. Without his legal advice the rest of the folks would not have caught on to the significance of say, the suppression of Jim Laycock’s eye-witness evidence. Laycock himself talked about it to people but this had no legal effect. So the fresh thing is the realization of government chicanery!

Looking at the Other Matter

I said at the beginning that one could either deal with the Bryant case, or go to the other matter – namely, the by-now-undeniable fact that the Port Arthur massacre was carried out by sharpshooters under the protection of officials. Most citizens find that fact so repulsive that they just won’t deal with it.

Yet it has a major effect on Bryant’s fate, doesn’t it? People’s reluctance to say boo to a goose is really what keeps this whole thing going.

The way to come on strong would be to get someone indicted — even just one of the baddies — for playing a role at Port Arthur. Or for playing a role beforehand in the planning, or afterward in accusing the patsy. As soon as a name were named, by a court, everyone would start to see that this is the normal way to proceed. Don’t just moan about Bryant’s innocence, scram about someone else’s guilt.

Is This Prisoner Better Off in Prison?

Finally, to a touchy subject.  Some say that Martin has settled down to a way of life in Risdon Prison. That he could not live on the outside. That his mother is too old, at 77, to take on the job of caring for her son.

One does indeed hear, occasionally, of a prisoner who prefers not to rejoin the world. And there could be all kinds of risks involve in letting Martin leave Risdon, not least of which could be that someone might kill him.

That said, I don’t think any of us have the right to say we know he is better off inside. We definitely do not know that, in so far as none of us has ever got so much as a glimpse of him. The only time we heard his voice was when his July 4, 1996 police interview was played on the Mike Willessee show, this year!

In that interview he seems to me to be of perfectly good intelligence. And that was after ten weeks of solitary confinement.

As far as we know, Martin has never had the therapeutic experience of having someone say to him “We have investigated so we know you did not go to Port Arthur that day.” He has never heard anyone say the extremely therapeutic words “You have and your family have been treated extremely unfairly and the nation apologizes to you.”

Maybe that would make life on the outside seem OK.

— Mary Maxwell can be reached at maryWmaxwell.com

Photo credit: Malcolm R Highes