Anita Cobby murder: 'Everyone in the car that dreadful night had a passport to doom'
Law (Australia)Thirty years after the trial of five men for the shocking attack on a Sydney nurse, then public defender Bill Hosking reflects on his part in it
The tragedy that would shock the whole of Australia began just before 10pm on 2 February 1986. A registered nurse, 26-year-old Anita Cobby, had been having dinner with friends after finishing her shift at Sydney hospital on Macquarie Street, next to state Parliament House in the city.
She caught the 9.12pm train to Blacktown in outer-western Sydney to her parents’ home, where she was living after recently separating from her husband. On arrival at Blacktown station just before 10, she went to find a phone to call her father. The usual routine was for Cobby to phone her father, Gary Lynch, to collect her by car. This was well before mobile phones and the public phone at the station had been vandalised, so Cobby decided to walk home.
The atmosphere in the community after the arrest of Cobby’s alleged killers was one of brooding malevolenceAs she did, an HT Holden Kingswood slowed beside her and stopped. Two of the five male occupants jumped out and grabbed her, pulling her into the car as she screamed. Cobby was then robbed, bashed, raped and tortured before having her throat cut. So severe was the cut, it almost left her decapitated. Her bloodied, naked body was left in a secluded cow paddock at Prospect, not far from Blacktown, and was not discovered for two days.
Everyone in the car that dreadful night had a passport to doom. None more so than poor Cobby.
When Cobby’s body was found, the New South Wales government posted a $50,000 reward for any information leading to an arrest. In the hope of jogging memories, a police officer dressed as Cobby travelled on the 9.12 pm train to Blacktown while her colleagues interviewed passengers. Cobby’s murder was front-page news. Gruesome details of the offences and the harrowing atrocity gradually unfolded.
Understandably, the community, indeed the whole of Australia, was outraged. Even the police involved in the investigation were deeply affected. Led by Detective Sergeant Ian Kennedy, a top detective of his day, it took police just under three weeks to track down, arrest and charge five men with the murder.
They were 19-year-olds John Travers and Michael Murdoch, and the Murphy brothers, 33-year-old Michael, 28-year-old Gary and 22-year-old Leslie. The five were hated and reviled by the community. They all came from deprived backgrounds and were of below-average intelligence. They were petty criminals accused of a major crime. I was briefed to appear for Michael Murphy.
Given the dreadful nature of the crime, the atmosphere in the community after the arrest of Cobby’s alleged killers was one of brooding malevolence. It manifested at the first formal court appearance of the five accused at the tiny Westmead coroner’s court.
Opened in 1984, Westmead coroner’s court was brand new and located inside the grounds of the huge Westmead hospital complex. Uniformed police were present in large numbers in case of trouble. Ominously, a dummy dangled from a noose tied to a tree branch. A large crowd had gathered. Some held up placards calling for the restoration of the death penalty. Showing solidarity with Cobby, uniformed nurses were prominent. The magistrate was the city coroner, Derrick Hand. Formalities were short and Hand promptly fixed the committal proceedings for the more secure surroundings of the coroner’s court on Parramatta Road at Glebe.
As the prison van edged out of the Westmead hospital, the crowd surged forwards. They banged on the sides of the van and booed and catcalled. It was clear the chances of finding a sympathetic jury in the Sydney metropolitan area – or the world – were zero, and chances of finding a cool and impartial one were slight.
Before the advent of the public solicitor and legal aid, the unrepresented accused standing trial was at a tremendous disadvantage. The role of counsel for the accused in any criminal trial can be controversial, particularly where there has been a grave crime. Defence counsel has a duty to act for his or her client with vigour, but also with ethical propriety.
There is a popular misconception that a true defence counsel must believe in the client’s innocence. Nothing can be further from the truth. A competent and vigorous defence is essential to a fair trial. The personal belief of counsel is irrelevant. The lawyers’ duty is to argue, firmly, the case of their clients and not to express a personal opinion.
Often, this is forgotten by the public. The so-called “cab rank” principle simply restates the rule that barristers do not choose their clients. If it were the other way around, despised causes and hated accused would be denied an experienced, professional voice. Fearless independence for barristers is fundamental. Even more so where there is a public defender involved who holds that independent statutory office with all its privileges and its responsibilities.
In seeking the convictions of the five men, the crown relied upon the legal doctrine of common purpose. To explain common purpose, judges use an example of two would-be bank robbers. One drives the getaway car, while the other enters the bank and demands cash of the teller using a replica pistol. The teller refuses and is then shot. It turns out the pistol was not a replica. Both men are charged with murder although the driver has never left the car. There follow disputed questions of fact and law. First of all, was there an agreement to use a replica and not a real pistol? The answer could be decisive in determining the driver’s level of criminal responsibility. Likewise, did the driver know his accomplice well enough to reasonably expect him to bring a real pistol and use it? In other words, you can still be guilty of murder if you have never set eyes on the victim let alone wanted them to be killed.
The concept of legal aid itself seemed to be on trialThe defence of each of the accused in the Anita Cobby case was that Travers alone had the knife. Travers alone stabbed Cobby. He alone was to blame for her death. The crown case was, irrespective of what each actually did that night, all were equally responsible for her death and each was guilty of murder. Because each knew what Travers was likely to do, therefore all were equally culpable under common purpose. For the crown, this was true as a matter of law and, equally compellingly, as a matter of fact and common sense. Even so, questions remained as to the extent of each accused’s personal involvement. In that respect, their signed confessions were the crown’s trump cards.
The defence claimed the confessions were obtained improperly and by force. To present the client’s case, those allegations had to be put. They were all denied by the police. Mere presence that night in the car, then the cow paddock, leaving aside what each offender himself did, was a matter of the gravest wickedness. The law, through the courts, had the task of determining the degree of culpability using rules that have evolved over centuries and long before 1788 and the arrival of the First Fleet, carrying with it the invisible cargo of the common law.
The line of defence that emerged was, even accepting the crown case, the worst that could be sheeted home to Murdoch and the Murphys for the death, in terms of legal liability, was the crime of manslaughter. That line of reasoning was barely intellectually respectable but, nonetheless, required a competent presentation to the jury. Was only Travers accountable for murder and one or more of the remaining four only guilty of manslaughter? This had to be considered calmly and unemotionally and, I have to tell you, on these facts it was not an easy task, even for an experienced defence counsel like me. That initial question was limited, of course, to the homicide, not the rape and sexual brutality. My difficult role was to seek to protect the interests of Michael Murphy.
On 16 March 1987 when the trial began in historic No 5 court at Darlinghurst, the central criminal court, the bar table was crowded with five, sometimes six, robed barristers and their instructing solicitors for what the press soon described as the “trial of the century”.
Closest to the judge, with his own lectern, was the grim, unsmiling crown prosecutor, Alan “Slipper” Saunders, QC. The origin of the soubriquet Slipper is lost in the mists of time. It was definitely not derived from being a soft and comfortable opponent. The crown had no better or more able advocate. He dominated the bar table with his reputation, experience and sheer forensic skill. We had been regular opponents over the years. I didn’t like him. He didn’t like me.
The day’s proceedings always began with what became a ritual loud knock on the large oak door leading from the judge’s private chambers. Preceded by his tipstaff wearing a black frock coat and carrying a white staff topped with an elaborate gold crown, in came the judge. Not a tall man, he was resplendent, wearing the royal scarlet robes of a supreme court judge sitting in the court’s criminal jurisdiction. Justice Maxwell was the epitome of duty, courtesy and dignity.
The usually solemn atmosphere at Darlinghurst was absent the morning the trial began. A huge number of potential jurors milled around in front of the sandstone pillars, spilling over on to the lawns fronting Taylor Square and Oxford Street. Television crews seemed everywhere, as were radio network reporters. The press had their usual, reserved, prime seats on the judge’s left, facing the jury.
The police had done their duty. The magistrate, Hand, his. Next, the crown prosecutor and his instructing solicitors were ready. The judge and the jury were now in place. Also present, in almost reviled solitude, were the lawyers all funded on the modest legal aid rates, except me, on the salary of a public defender. The others would only receive the extremely nominal legal aid fees of the time in accepting these briefs. Far from helping the four other barristers’ careers, or bank balances, appearing in this trial was a positively negative factor. There are no lawyers made rich on the meagre fees paid for by legal aid cases. It is done as a noble service by the profession.
I lost count of the number of friends and strangers who asked me, ‘Why on earth would you accept a case like this?’The concept of legal aid itself seemed to be on trial. Legal aid is effectively the postwar creation of the NSW McKell Labor government, ensuring the honest battler is not subsumed by the power of the state. I lost count of the number of friends and strangers who asked me, ‘Why on earth would you accept a case like this?’ or, ‘Do you enjoy it?’ There is a simple answer, apart from duty. There are many, many occupations and professions which are not only more unpleasant but some are also very dangerous. There is the challenge of appearing in what you know is a losing brief for a particularly despised client. Particularly, where there is no real issue as to identity, and the crime is so harrowing and has such cruelty, there will be not a scintilla of public sympathy for your client. This was such a case. During it and afterwards I received considerable personal criticism for accepting the brief. Even my son, James, who was still at school, was criticised by other boys. They wanted to know why his father would appear in such a terrible case.
This trial clearly raised the question, does the community want symbolic or real representation for major criminals? Under our system the accused is not guilty until our grand, but still imperfect, system has run its full course. The spectacular miscarriages of justice staining our history highlights the still inherent dangers which arise through human fallibility. A major safeguard is that all court proceedings – with the rarest of exceptions – are open to the public and, perhaps more importantly, open to and subject to intense scrutiny by the media. There was certainly no absence of that for this trial.
In such a case, where there is justifiable community anger, counsel has at least two options. One can merely go through the motions to ensure it appears the formalities of a fair trial were observed. Alternatively, counsel does what he or she should do in every case. That is, to do one’s professional best for a client who would not have a clue what that involves.
Opening the crown case to the jury, Alan Saunders QC lived up to his reputation, describing in detail the callousness Anita Cobby suffered. He described Cobby’s ordeal as “sustained degradation, brutal, unbridled lust culminating in one of the most savage brutal murders the state has ever known”. Any wonder the media called it the trial of the century.
The first witness set an atmosphere of indescribable sadness: Cobby’s father, Gary Lynch. He was a tall, dignified figure. He gave brief, formal identification evidence relating to his late daughter. While he did so the silence in the courtroom was deafening. He then joined his wife at the back of the court where they remained for the duration of the trial. Gary and Grace Lynch attended the trial each day. They showed great dignity. Because of police fears, security was tight and gallery and lawyers alike were searched after each adjournment. In the process, Cobby’s parents often had to stand in a line with their daughter’s killers’ lawyers. Never once did they show anything other than class. Propriety and protocol prevented us from exchanging a single word.
There were no eyewitnesses to Cobby’s ordeal, and the principal evidence was the individual confessions. It must be said, the account of one in the others’ confessions could not legally be used against another. This means the confession can be used to prove the guilt of its author but not prove guilt against any co-accused mentioned in it. This is a safe and fair way to view confessions, because the confessor may want to shift the blame to their co-accused. It should be for a jury, hearing evidence, to determine the accountability of each accused.
The exception to this rule is where the co-accused agrees with another’s confession. More astute police try this stratagem, to get offenders to agree with each other’s confessions, even in part, thereby implicating themselves. While not unlawful, the strategy is discouraged. Accepting the confessor’s account only against the person making it is a technical but important rule. The crown had the powerful advantage of not having to ask the jury to rely on circumstantial evidence alone but on the words out of each accused’s own mouth.
At the outset, sadly, there could be no argument about the fact poor Anita Cobby had been murdered. The trial was all about, 1. the involvement of all or any of the accused; 2. if that issue were resolved adversely, the extent of involvement; and 3. having decided the extent of legal liability, whether the particular accused is guilty of murder or manslaughter.
In part, Michael Murphy’s case, and that of his two brothers and Michael Murdoch, was that Travers inflicted the fatal wounds on Cobby with a knife and was acting on his own account. Travers had pleaded guilty to this. So far as the murder charge was concerned there was really no direct evidence to support a conviction of the others for murder on the basis they assisted or encouraged Travers to commit murder. Michael Murphy allegedly told the police, ‘I didn’t want her to be killed. [Travers is] a maniac. It’s his fault, I told him not to kill her … He’s a fucking lunatic. I just wanted to piss off … What I done I’m prepared to cop. It’s just that cunt, Travers … ”
In legal terms, it was the defendants’ case that they were neither party to a common purpose to commit murder, nor had they intentionally assisted or encouraged Travers to commit the murder. That was not technical legalistic jargon. It was fundamental. It must be conceded on the crown case there was evidence they, as Travers’ co-offenders, were criminally liable either as principals or accessories for the murder, as well as the other grave crimes alleged. They denied this.
Defence strategy in this trial was to seek to avoid confronting and emphasising prejudicial evidence and to direct the focus to more favourable features. That is easy to say, but the harsh reality of the situation was such favourable facts were thin on the ground. Michael Murphy’s defence was a legal nightmare. On his instructions, he was not guilty of any crime. The law provides being present when a crime is committed is not an offence. But to infer that co-accused John Travers, who pleaded guilty, committed the murder of his own volition, was to stretch reality beyond credible limits.
The reading [of the accused’s statements] was damaging stuff, but nothing compared with the police photographs of the scene and the postmortem details. Again, what was my client’s defence? “I wasn’t there,” and “If I was, it was for sex and not for murder.”
Merely stating those horrible alternatives underlines the gargantuan task facing the defence. Given the basis of the “Travers is a maniac” defence, this unanswerable question always loomed large: Why, then, ever be in his company?
I repeat, this was not an easy case.
The inscrutability and confidentiality of the jury room shields the tenor of their deliberations. They were instructed by the judge to banish prejudice and, to use the words of the juror’s oath, to “well and truly try and true deliverance make”. Pre-judgment and prejudice would have brought swift verdicts. The jury deliberated all day and were locked up in a secret location overnight to continue their deliberations. They were obviously conscientious and, from time to time, sought Justice Maxwell’s help. All communications were proper and in open court in the presence of the accused.
First thing the next morning, all accused were convicted on all counts.
The morning for the sentencing had arrived. At 10am there was a slight delay, as Anita Cobby’s parents were not in court. When they arrived, all that remained was the formal ritual of judgment. Everyone in court thought they knew the result: life. Even so, there still was the possibility that release one day would not be excluded. Personally, I wondered if a future government would ever be brave enough to give any of the five an opportunity for release, however deserving. It would be, I thought, decades away before such a decision would have to be made.
The judge entered and was seated. Then the five accused, together for the first time since the first day of the trial, were brought up into the dock. There were police everywhere. The atmosphere in the courtroom was one of unprecedented tension. So high was the emotion, at one stage, the experienced, calm and respected judge, Maxwell, was moved to tears.
The press recorded him stopping with tears in his eyes and drinking a glass of water before resuming his remarks. Defence counsel had faced a hopeless task in securing a calm, detached hearing from the jury, but I had never seen a judge so upset before. When Maxwell formally passed the sentences, “penal servitude for life”, the dignity of the central criminal court gave way to wild scenes, and uniformed sheriffs struggled perfunctorily to restore order. The court had momentarily descended into unseemly uproar. In addition Maxwell specified and passed upon each of the five the following sentences: kidnapping, 16 years; robbery with wounding, 17 years; maliciously inflict bodily harm with intent to have sexual intercourse, 12 years; and theft of a motor vehicle, five years. To put it bluntly, the long concurrent sentences imposed were purely academic gestures.
Maxwell concluded with these words: “The circumstances of these prisoners and the circumstances of the murder of Anita Lorraine Cobby prompt me to recommend that the official files of each prisoner should be clearly marked, ‘Never to be released’.”
This is an edited extract from Justice Denied by Bill Hosking QC and John Suter Linton (Harlequin, $32.99), in which Hosking looks back on his career as a criminal barrister and the cases he worked on.
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