Cross-Examination in the Gunner-Cubillo Cases
"The recent spectacle of members of the stolen generations being subjected to hostile cross-examination during the Gunner-Cubillo case was a disgrace to any civilised government. " Sir Ronald Wilson Q.C., submission to Senate Inquiry into the Stolen Generation, 4 September 2000, as reported in "The Age", 5 September 2000. (Cross-examination of witnesses has long been regarded as a universal requirement under the Common Law, to enable evidence to be tested and to uncover inaccuracies and falsehoods.)
Reminiscent of the poem, there was "movement at the station" at the far end of the first floor vestibule of the Supreme Court at Darwin. At the mid-morning break one could sense that something had ruffled the usual calm of the groups that gathered outside the courtroom there. It was as though the breeze stirring the palm tops outside had penetrated the vestibule.
In that courtroom O'Loughlin J. was hearing the Federal Court claims again the Commonwealth by Mrs. Lorna Cubillo and Mr. Peter Gunner. Claiming to be members of a "stolen generation", they sought damages for wrongful imprisonment and breaches of duty. In 1948 and 1956, when aged eight and seven respectively, Mrs.Cubillo and Mr. Gunner had been placed in missionary hostels and remained there, attending local State schools, until their mid to late teens.
Also as in the poem, the word got around the courthouse that there had been a furore in court earlier that morning. On the previous afternoon, in evidence in chief, the applicant, Mr. Peter Gunner, had identified from a photograph the missionary he alleged to have been a childhood physical and sexual tormentor at the hostel. The evening television news and the morning press showed the identified missionary's face from the photograph, describing him as the alleged molester.
On the next morning, the morning I noticed stirring outside the court, Mr. Gunner, still in evidence in chief, informed the court that he had identified the wrong man in his evidence of the previous day. The man he had identified was innocent. The alleged molester was somebody else.
Struck by the apparent absence of remedy for the wrongly identified man, it seemed to me that it might be interesting, if there was a break in my own case, to drop in to see, for the first time, what was going on at the other end of the vestibule in the Cubillo-Gunner courtroom.
A day or so later a chance arose. As I walked along the vestibule towards the courtroom, I did not realise that I was about to witness "a spectacle" that Sir Ronald Wilson would describe to a Senate Inquiry as "a disgrace to any civilised government".
My impression as a result of my visit was different from Sir Ronald's. This is what I saw and heard.
Cross-examination of Mr. Gunner had begun. Elizabeth Hollingworth, a junior counsel for the Commonwealth, was on her feet, and beside her was a Bar table stand on which her notebook lay open. Mr. Gunner was seated at a witness table. The white shirts (no coats in the Darwin fashion) of O'Loughlin J. and the male counsel gleamed under the courtroom lights.
As I took my seat, Elizabeth Hollingworth asked an open-ended question of Mr. Gunner and then wrote in her notebook.
As though he was not aware that a question had been asked, Mr. Gunner, head inclined, continued to gaze down at the table ahead of him. Elizabeth Hollingworth waited quietly, looking at the witness. The silence went on too long to expect that something had gone amiss. I looked around the court. The judge, the other counsel, and the spectators all sat waiting but without any sign of surprise. Time seemed to have stopped.
It is hard to say precisely how long it was before a response came. The court waited for at least one minute, but more probably for closer to two minutes, before Mr. Gunner gave his short answer.
Showing no sign of impatience, Elizabeth Hollingworth enunciated another open-ended question and wrote again in her notebook.
Again, the people in the courtroom sat motionless for a similar period of time until Mr. Gunner gave his next short answer.
I suspected that when Elizabeth Hollingworth wrote in her book, it was to record the question, in case by the time the answer came, she had forgotten the precise terms.
On that occasion, I sat in the courtroom for twenty minutes or so. The tempo and form of the questions and answers did not change. Another spectator told me that this had been the pattern throughout the cross-examination to date. When counsel had raised the length of time an answer had taken, the judge had decided not to interfere.
During the time I was in the courtroom, the manner of cross-examination of Mr. Gunner, far from being "hostile" and a "disgrace to civilised government", could hardly have been more benign consistent with asking any questions at all.
I cannot speak of what happened in other parts of the case but my impression was that the Commonwealth counsel was taking pains to avoid leaving room for criticism of the type made by Sir Ronald. The reasons for judgment, which reflect the trial judge's sensitivity and his expressed sympathy for the applicants, contain no hint of criticism of conduct of the defendant's counsel.
There are two other comments to be made in the light of Sir Ronald's criticism of counsel's cross-examination.
Sir Ronald Wilson's submission to the Senate enquiry referred to "the spectacle" of the conduct he criticised. Sir Ronald was not a spectator in the court room when I was there during Mr. Gunner's cross-examination. If he visited the court at all in that eight days or so that I was around the Supreme Court building at Darwin, I did not see him or hear of it.
One of the criticisms of the Wilson report "Bringing Them Home" is that it failed to investigate the circumstances in which persons claiming to have been "stolen" were actually taken into care and custody. In his reasons for judgment in deciding the Cubillo-Gunner cases, O'Loughlin J. made the point that in every case it was necessary to question why was the child institutionalised. Who was responsible? And was it necessary or desirable in the interests of the child? O'Loughlin J. also commented that the claimants called eight witnesses who claimed to be members of the so-called "stolen generation". Of those eight, four actually admitted in cross-examination that they had been placed in an institution by their parents.
Reports of the Senate Inquiry do not disclose whether it was aware of some material circumstances. First, the applicants' cases included allegations of violent cruelty and sexual molestation, occurring decades before the trial. The allegations, made late, were against persons who were not parties. One alleged perpetrator gave evidence and was cross-examined. Secondly, in his reasons for judgment, O'Loughlin J. expressed reservations about the credibility of parts of the evidence of each of the applicants, Mr. Gunner and Mrs.Cubillo. He concluded that, on one issue, Mrs. Cubillo deliberately attempted to mislead the court.
David Bennett Q.C.
National Observer No. 47 - Summer 2001