The Death of David Hookes and the Trial of Zdrarko Micevic, UNSW Press, Sydney, 2006, Pb, $32.95

Reviews 103 Michelle Schwarz, One Split Second: The Death of David Hookes and the Trial of Zdrarko Micevic, UNSW Press, Sydney, 2006, pb, $32.95. One of the most hackneyed axioms of the common law — dating from before the Magna Carta — is that a person accused of a crime is presumed innocent until proved guilty. The ‘adversary’ system is supposed to operate on this maxim. No less axiomatic is a text paraded as the justification of the jury system — the accused is entitled to be tried by lay persons of complete impartiality. With this in mind, the law permits would-be jury men and women to be challenged on grounds of partiality, religious or political biases and, most significantly, on their acquaintance with the facts which would be likely to lead them to prejudge a case. It is for these reasons that the press can be instructed not to publish prejudicial facts about a case which is sub judice (that is, the subject of a prosecution already instituted in a court). But these 104 VOLUME 25 no 2 NOVEMBER 2008 legal indicia of a fair trial conflict with the desire of journalists to obtain a sensational scoop. The Hookes case was an instance of a blatant clash of these ideals. It was headline news late on the very day after Hookes was felled by a bouncer. The press was unashamedly prejudiced in favour of the victim. So intemperate was their reportage that, in the eyes of reasonable readers, it appeared to be a foregone conclusion that the bouncer had slaughtered the cricketing hero. Nor did the reportage become more temperate as the facts became more known. The undoubted killer was a 21-year-old Serbian immigrant who, according to the media’s universal perception, had abused his power to assault an innocent, beloved hero. And, according to the press reports, this view was supported by those who witnessed the scene. On the face of it, it was impossible to choose an impartial jury. It was virtually unthinkable for any adult in the state of Victoria to have escaped reading facts that would prejudice him or her. Yet, in the end, a jury was found. And that jury acquitted the bouncer on the ground of self-defence. Such were the legal ramifications of this cause célèbre that a Melbourne lawyer/writer, who professed to know nothing about cricket, was moved to explore its ramifications in some detail. The book she has produced is noteworthy for many reasons. Firstly, it is a minute examination of the proceedings, demonstrating, as so often is the case, that newspaper reports on legal trials are at best incomplete, and at worst, misleading. No one who wishes to know the true circumstances of this case should fail to read this description of the trial. But Michelle Schwarz goes further. She has interviewed many of the characters involved in or affected by the case — the wife, the mistress of David Hookes, his cricketing companions, the solicitors and the barristers, the judge himself and, not least, the bouncer and his family. To cricket connoisseurs, David Hookes was a giant. For my part, I gauge Hookes and his fellow South Australian and friend, Darren Lehmann, as the most exciting of all Australian batsmen I have seen. And yet, neither of these scintillating batsmen truly succeeded in the ultimate contest — aptly called Test cricket. Neither is likely to enter the Australian Cricket Hall of Fame. The personalties of both Hookes and Lehmann are quite mercilessly explored by Schwarz. Lehmann was a principal witness in the trial. He was perhaps the most deeply affected of the cricketers who witnessed the death of Hookes and, indeed, was at the hospital when a decision was made to turn off Hookes’ life support. But Lehmann’s loyalty to his friend and mentor was severely attacked in a vigorous cross examination by counsel for the bouncer. And by inference, his evidence (and that of all the other cricketers who witnessed the incident) was found to be unsound by the court. Only one cricketing witness admitted that Hookes had provoked the attack on Reviews 105 him — Wayne Phillips, the South Australian coach, who was commended by counsel for his integrity and honesty. As for Hookes himself, the rigorous, dispassionate investigations by Schwarz reveal that he was a complex and insecure figure. An equivocal, but by no means wholly censorious judgement of him by his former Sheffield Shield colleague, Chris Harms, perfectly encapsulates the character of Hookes: ‘[He was] of the old school … drink hard and party hard, he always wanted to be a big star in a big town … he comes across as a real ocker … he knew how to rub shoulders’. By contrast, the accused, Zdravko Micevic, is portrayed as a gentle, much- loved son of a caring Serbian family. His performance in the witness-box was impressive. It was no doubt in the expectation that Micevic would conduct himself well that his counsel had advised him to give evidence (Schwarz correctly points out that it is not compulsory for a defendant to do so, although I am not sure that it is as rare as she suggests). Within this book are several chapters speculating on issues of general interest. There is for instance, speculation on the culture of Australian sport — the adulation, the hanging on of besotted women, the prevalence of alcoholism, the uninhibited post-match camaradie, and the sense of deflation that occurs on retirement. A high degree of depression among cricketers has been well documented. Here specific examples are given — with a clear insinuation that Hookes himself was on the verge of a mid-life crisis. Two particularly significant issues of concern to lawyers are the merit of the ‘adversary’ system of trial (as opposed to the ‘inquisitorial’ process preferred in continental European systems), and the merits and demerits of juries of lay persons (in particular, whether the trial process is capable of attaining its avowed object, the ascertainment of truth). Indeed, on this latter point, there is much speculation on whether any trial can ever achieve perfect truth — all that is desired of it is to determine on the evidence which is the more likely story. This is a major issue, perhaps best treated by Dostoevsky in the final part of Brothers Karamazoz. In 1864 Russia had recently adopted the common law’s adversarial process. For several reasons, Dostoevsky demonstrates the imperfection of the new law’s aims, the end result being a miscarriage of justice. In an article published in the University of Tasmania Law Review, I analysed the factors Dostoevsky details as potentially liable to cause an injustice, and they bear some comparison with the Hookes case. Some of the factors are: • Unequal legal representation (In the Hookes trial, both prosecution and defence were represented by eminent QCs of the criminal bar, albeit at crippling cost to the Micevic family and supportive Serbian friends). 106 VOLUME 25 no 2 NOVEMBER 2008 • T he influence of the judge (in the Hookes trial the judge, Mr Justice Cummins, revealed himself to be not merely scrupulously fair, but very clear in his directions to the jury). • The fallibility of the jury (Dostoevsky makes much play of this: ‘Can such a delicate, complex and psychological case be submitted for decision to petty officers and even peasants?’). Schwarz is, on the other hand, manifestly in favour of jury trials — the rationale being that they constitute the ordinary conscience of society, as opposed to lawyers/ judges who may be technically-minded and remote. • The inadmissibility of oral evidence, for instance, hearsay (it is the role of the judge to disallow such evidence, a role which Justice Cummins admirably fulfilled). • The artificiality of the trial setting (Dostoevsky suggests that a court is so intimidating that non-legal people might behave in an uncharacteristic way). Schwarz criticises the old-fashioned Victorian architecture of the Supreme Court of Victoria, but praises the judge (though not counsel) for not wearing a wig. But she emphasises the fear and trembling of several of the witnesses — especially the cricketers who admitted that they would rather face hostile bowling than appear in a court! There is little doubt that some witnesses (as in the trial of Dmitry Karamazov) behaved in a way that was out of character. • The impossibility of reconstructing the truth (this is the key query raised by Dostoevsky which, indeed, can be said to be the motif of the novel itself. Is the court trial an appropriate method of ascertaining ‘truth’ in the transcendental sense that the first three parts of his great novel adumbrate?). It is a query well taken up by Schwarz. With so many contradictory voices, how was it possible for a jury to arrive at a perfect enactment of the scenario, and the motives and justifications of the conduct of the protagonists? In the end, the burden of proof in a criminal trial — ‘guilty beyond all reasonable doubt’ — was not satisfied and prima facie the jury’s decision must be commended for reaching the verdict. But the book concludes rather prematurely with the judge’s summing up, and regrettably the reader is not able to gauge what did permeate the jury’s thinking. Was it a unanimous decision? How long did the deliberations take? We are not told. Prying into a juryperson’s thinking is not considered appropriate in the real world of common law. For that, the reader is referred to the admirable film, Twelve Angry Men, or perhaps Agatha Christie’s Witness for the Prosecution, both of which are profound analyses of the issues raised by Brothers Karamazov and Regina v.

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