This is The Fear. It’s the thing you feel as you rise, step between that one in the dock and the 12 of the jury, and begin to talk. It is the churning in your stomach and the turmoil in your mind. Most of all, worst of all, it’s the weight on your shoulders.
The Fear drives John Smallwood. It’s what motivates and debilitates him. It makes him dry retch in the shower on the mornings of a trial, kills his appetite and destroys sleep. It’s the always whispering reminder of why he does what he does.
Other criminal barristers might know it by another name but they all have it, or at least all the good ones. In the end, he says, it’s like your robes stink. With him, it’s nerves, nicotine and spilt beers after a loss: the smell of The Fear.
It’s what fires you and what wears you down, both your enemy and your friend. It’s the adrenalin and it’s got to do with terror and with excitement. It’s about the enormity of what you’re doing.
But most of all, it’s about the consequences.
He remembers great Australian judge Cairns Villeneuve-Smith telling him this: ‘Those who criticise our justice system have never put on the robes and stood between an accused man and his ruin.’
Wednesday, 31 January 2001: The pre-trial conference There is no argument that Gabriel Chang killed Dianne Psaila. He did and he admits it. But did he murder her? There’s a difference and it hangs on intent. Under the strict definition of The Law, the question is this:
Did he mean to kill her or cause her really serious injury?
No, he tells John Smallwood, the same as he told the police over and over. He never meant to hurt her at all.
They are in the QC’s small chambers, sitting opposite each other on a pair of green couches, surrounded by the photos of 14 Collingwood premiership teams; seven cover-driving cricketers; a thespian grandfather doing Shylock; a plaster saint and the old crim Archie Butterly’s first mug shot. Smallwood, in shirtsleeves and bushranger beard, takes notes on one of four spiral binders. Both burn cigarettes in endless rotation.
Chang is dark, his Chilean ancestry in his aquiline, Incan features. Less than 48 hours from trial, he is nervous, almost defeated. Once more though, he says this is what happened:
Dianne was a friend with a heroin habit. He’d been lending her money, but this time he told her no more. She lost her temper and lit into him, slapping with both hands. He fended her off, throwing out an open right hand he thinks might have hit her under the chin. He remembers her falling back, spinning and hitting the left side of her forehead on the wooden arm of a sofa.
When she hit the floor she just lay there. At first he thought she was joking, but she wasn’t breathing and he couldn’t find a pulse. She was dead.
And then? ‘I was panicking,’ he says. ‘Shittin’ meself, to be honest. I didn’t know how I’d got myself into this. It was like, this can’t be real, it just can’t be.’
And that’s when he did all the dumb things. Not just hiding the body in her car boot or burgling her father’s place, probably for running money, or even trying to bury her four days later on the south coast of Victoria, near Lorne and assaulting the copper who discovered him there. But the thing with the meat tenderiser. He doesn’t understand quite why, but to see if she was really dead, he hit her with a small aluminium meat tenderiser. Not hard. Just taps, he says, demonstrating with little forward prods.
‘I don’t think a jury’s gunna wear that,’ says Smallwood. ‘I think they’ll find it very hard to accept the contact with the meat tenderiser was as gentle as you say. I find it difficult to accept myself.’
Yet while it was a very, very odd thing to do, it didn’t kill her. If Chang believed she was already dead, and it did happen by accident, no matter how bizarre the actions that followed, they don’t make it murder. He doesn’t even think it’s manslaughter.
But Chang is staring at 13 or 15 years jail, and wavering. Maybe they ought to offer to plead to the lesser charge and cop three or four. ‘The truth of the matter is I’d rather do a bit of time than take the risk and do a lot of time. I don’t mind doing a bit, but I want to have it where I can come home and be there for me kids before they’re married.’
‘I understand that, Gabe,’ says Smallwood, ‘and this is where we part company. As a lawyer I can’t advise you to plead guilty on this scenario. But it’s not me that’s going to be doing the time.’
Chang says he’ll think about it. ‘But, you know, the way I feel inside,’ he says softly, ‘I do feel guilty for what I’ve done. I feel in myself that I need to do some time for what I’ve done.’
Smallwood watches him go. ‘It’s funny, first impressions aren’t good, but you talk to this bloke for a couple of hours and it makes a sort of sense. There’s an irrational explanation for all this.’
But he’ll offer the plea. He’s almost convinced he can win this one, but he won’t even try to persuade Gabe. ‘I’ve got to live with it,’ he says. ‘If I said “No, I can win this, mate”, and talked him into it, and then didn’t, I’d spend the last 10 years of his sentence thinking this bloke is in jail because of my ego. But he didn’t do it. You can smell it. After a while it gets so you can smell death on their hands, and I can’t smell it on him.’
There’s something sepia-toned about Smallwood. Imagine a faded tintype print cured by roll-your-own tobacco and gumleaf smoke, redolent of a simpler, straighter Australia. He is narrow as a split rail, with greyish eyes, long, curving nose on a face gullied in comfortable creases, and earth under his nails.
But it’s the beard you notice first and remember most. A wiry briar patch of greys and browns, a foot-long scrub (that ought only ever be mapped in imperial measure) tumbling down to hide his crinkled jabot and usually punctuated by the ember of a smouldering Winfield. A growth that always evokes the same descriptors: it’s a Ned Kelly/swagman/maybe Henry Parkes beard.
His wife, Liz Gaynor, also a criminal barrister, puts it best, laughing: ‘He’s such an Aussie. If you look at John, he’s a bit like you’d expect a tramp to be in the 1890s. He’d be the sort you’d sit down with, he’d boil a billy and tell you a few yarns. He’s like something out of the old Bulletin. He’s the greatest yarner of all time.’
Watch him in court some time, standing, his right foot on his chair, his elbow on his knee, leaning into the jury, just talking it through. ‘Um, Mr Tipstaff,’ he says in one case, ‘can you get us 13 beers please. It’s time we sat down at the bar and had a bit of a yarn about all this.’
‘Oh, sorry,’ he adds, ‘and a shandy for the prosecutor.’ The blokes love that one.
Yarning’s what got him into the game. Back at St Patrick’s College in Sale in the 1960s, the boarders would be expected to stand up and give a short speech every Sunday. He got to love it. ‘I like arguing,’ he says. ‘I like the logic of it, or lack of it, and I like the feeling. So I just said, yeah I’ll do law. All I knew was that it involved arguing, talking.’
Ask if there’s law in his background and watch it happen as he spins a long, entertaining genealogy. Yeah, there was his maternal great-grandfather, a police magistrate in Hobart, but he was the only one. His grandfather on that side had been a touring actor with JC Williamsons since he was 16, played League footy and was an accomplished painter. ‘But he became a chemist when he was about 40 and I’m told eventually his attraction to the white powder got a bit the better of him.’
On the other side, his grandfather was the bandleader in an outback circus. Smallwood’s dad was a radio announcer and met his mother when they were both radar operators in Queensland during the war. They married and moved back to her hometown, Foster, in South Gippsland, and he became a pharmacist.
Smallwood initially attended Melbourne’s Xavier College as a boarder. He hated it, but it provided one formative influence: he was briefly suspended after being wrongly accused of pinching a watch. ‘Ever since I was tiny, I’ve had this absolute hatred of being falsely accused. Mum reckons that when I was little, two or three or so, if she accused me of something I hadn’t done, I’d just become stricken.’ It’s an emotion, honed by the experience at Xavier, that he now taps into when defending someone. That feeling of unfairness and helpless desperation. It’s why he despises ‘give-ups’ – prison informants.
It was only a matter of time until he and the school ‘parted company’ and he moved to St Patrick’s – ‘a footy team with a couple of classrooms attached’. The team slept in the one dormitory, with the coach in charge and the beds virtually arranged by jumper number. They trained every day and played on Sundays. Smallwood revelled in it: ‘The team concept, the loyalty … it was just absolutely my element, mate.’
After school he did four years of articles, took a year off hitch-hiking in the United States with his first wife, then in the mid-70s, started working as a part-time solicitor in the Melbourne bayside suburb of Beaumaris, doing corporate and workers’ comp cases with a mate, Adrian McKay, who was chalk to his cheese: McKay smooth, Smallwood already with the beard and hair down to his waist. They took to running conferences out the back of the local bakery, with a flagon of red and steaks grilled by Ferdie, the baker. The clients loved it, but it couldn’t last.
About 1980 they both gave it away. Smallwood and his wife started a second-hand shop, Zucchini Sisters, in Richmond. ‘I did that for a few years but started to feel I was wasting my time,’ he says. ‘I was doing something I enjoyed, but the adrenalin wasn’t running. I thought I’d go to the bar and see what happened. But I decided I’d only do crime, because I’d never touched it before, never even cross-examined a witness. In my first 47 days at the bar I got one brief, and that was for my sister: a smash-and-bash, a bloke running a red light out in Broady [Broadmeadows]. And I won it and the feeling was sensational.’
But it helped put an end to his marriage. His wife was from the country too, and wanted to go back. He didn’t. ‘But I agreed when I shouldn’t have, bought a place down Bairnsdale, and eventually it fell apart.
‘I just couldn’t leave this. I’d found something that satisfied a whole lot of stuff in me.’
Wednesday 7 February: The final address
‘I’m scared,’ says Smallwood, pacing and burning a chain of smokes. ‘Not as scared as Gabe, but bloody scared.’
In the end it comes to this. The DPP has refused their offer to plead to manslaughter and a stink of circumstance has hung in the hot, closed courtroom all week. Now he is forced to confront the seven men and five women with it head on.
Remember a night in the middle of November 1999, he tells them. The evening news shows dramatic footage from a helicopter of a man being arrested in the bush near Lorne. There’s a half-dug grave, a body in a car boot. ‘Undoubtedly some of you saw that, sitting at home having your tea and a beer, and when you saw it what were your thoughts?’
He answers for them. ‘This bloke’s been caught red-handed.’
This is The Fear. That the jury will work backwards, rewinding from the prime time visuals of the capture through the bizarre behaviour of the previous days, with its burglary and meat tenderiser; until it comes to that moment of the killing with its mind made up: if he did all the dumb things, he did the murder.
That’s been the premise of the prosecution, he says, indicating his opposite number Ray Elston. But that’s not evidence, it’s just creating a feeling, and you cannot conduct a trial as a sneering match. ‘You can’t convict somebody of a crime because he feels guilty. You just can’t do it. It’s wrong.’
This is the first time he’s been on his feet for any length of time in the three days of the trial.
Ninety-five per cent of the facts aren’t in dispute, so there’s no point doing hard cross-examinations.
A murder trial is like a bushfire, he says later. The central allegation is the great wall of flame coming at you. Fight that and don’t start little spotfires over inconsequential matters. But it’s meant he hasn’t been able to build a relationship with the jury.
All that’s left are admissions and an admonishment. Gabriel Chang has behaved abominably; the grief he has caused is reprehensible; he has stolen and lied; he has done stupid, inexplicable things; and yes, on his own admission he is guilty of killing his friend.
But not of murder.
‘You are not appointed as avenging angels, you are not appointed to get revenge,’ he reminds them. They may not like it, it may stick in their craw, but ‘despite the horrible, nasty, bizarre surroundings to this, if you are not satisfied beyond reasonable doubt … you have got to acquit him’.
And, he might add, me too.
Talk to Smallwood about his cases and it’s ‘we’ this or ‘my boy’ that: he doesn’t just defend clients, he adopts them. Makes it personal. ‘People such as myself do it so personally we put ourselves on trial and say to a jury, “Hey, convict me. Not him, because he couldn’t string three words together. C’mon, convict me”.’
A judge, who admires Smallwood’s approach, says all counsel ‘constitute a bridge between the dock and the jury and engage in a psychological linking process’. But turning that link into a relationship extracts a cost. ‘Whether you are successful or not, in an emotional sense you receive a belting.’
Smallwood knows that too well. ‘That’s the way I run them, but the danger is when you get convicted, it’s you too, not just the client. They reject you personally – or it feels like it.’
You win a couple and you fancy yourself sensational. Lose one and it’s like it’s never happened before. It comes as a massive shock. What he does then is sit outside the court, under its brooding, ancient sandstone walls, and imagine a hundred years of broken prisoners being led past, so he doesn’t feel one out. It rarely works.
‘Every trial John’s ever done, he’s done hard,’ says Liz Gaynor. ‘I guess most barristers do, but John seems to put the whole load on his shoulders and trudge along with it.’
Gaynor and Smallwood met in 1985 when she started a reader’s course after a few years in journalism. She jokes about how she walked in with a friend, surveyed the room and said, ‘Well, Jools, no talent here.’ But she liked the bloke with the beard’s energy and supportiveness. They became friends and married in 1989. A person of large enthusiasm herself, she loved his kindness and humour and passion for his work.
Increasingly, she worries about that passion’s toll, though, typically, she hides her concern behind a gentle dig: ‘John’s the sort of person you feel sorry for because he didn’t get to be an old digger at Gallipoli and then live sadly through the Depression. It’s almost like sometimes he welcomes adversity.’
But since taking silk in late 1999, he’s had what she calls ‘the really heavy, hopeless brutal cases’, and they’re starting to drain him. Smallwood says half a dozen of his murder trials last year were ‘doomed’ from the start. ‘But once the ball’s bounced and he says “Not guilty”, as The Villain says, the only thing between that man and ruin is you. And the consequences are extraordinary. And you’ve got to do it.’
Not that he’s any romantic about his clients. ‘I’m extremely cynical. To protect myself as much as anything, I assume they’re guilty. What that does is make me very careful and very objective.
‘I don’t believe my client until 30 seconds before I give my final address. But by the time I’ve stood up, pushed that chair in and faced the jury, I believe everything. Because I can’t convey it otherwise. Doesn’t matter what side of the fence you’re on, if you haven’t got that personal conviction the jury knows straight away. And it’s not method acting, that person is totally dependent on you.
‘You might fail and you’re bitterly hurt when you do, but you personally can do something very effective in a situation you very strongly believe in. And that is this: everyone has the right to be represented and you cannot have an innocent person in jail.’
Thursday, 8 February: The verdict
‘Guilty.’ The jury foreman’s single word is a clear, crisply enunciated blow. Smallwood, sitting at the bar table, looking straight ahead, takes it like a jolt to the head, his jaw dropping, flinching despite himself.
As someone among Dianne Psaila’s relatives hisses ‘Yesss!’ and Chang’s wife Veronica blanches and begins to cry, he sucks in air and his eyes slowly slide shut. He shakes his head almost imperceptibly, mutters something to himself.
The jury went out at 11.30. Barely past 4, the word comes back that they are returning with a verdict. Smallwood, waiting in the courtyard, doesn’t know what to make of it. ‘It’s hard to believe they can pot him for murder that quickly,’ he says.
But they do. ‘Indecent haste, Shakespeare called it,’ he will growl later, ‘indecent haste.’
But now he cannot even watch as Gabriel is hustled out, looking suddenly anaesthetised.
He sits with his head in his hands, the balls of his thumbs kneading circles into his temples.
A long time later, well after the court has emptied, he is still there, bent forward in his seat, lost deep inside himself. Then something very unusual and very decent happens.
Justice Frank Vincent returns to his court and pulls up a chair beside him. ‘How’re you going?’ he says softly.
The doors close and they talk for 20 minutes or more. About what, Smallwood won’t tell. ‘Just a bit of parental care,’ he says.
Murder can kill you. It obsesses you, starts to own you. It gets so you talk it and dream it and neglect your children for it. Do murder, and you’ll be lucky if you’ve got a 10-year lifespan.
We’ve all got a homicide in us, he argues. Very few murders, but a hell of a lot of manslaughters. It’s why he specialises in it. It’s his gift to be able to explain to a jury those infantile acts, those moments of rage and passion and their unforeseen consequences.
‘But I think I’ve just about had enough,’ he says now, sipping Melbourne Bitter under a pear tree in his Thornbury backyard. About two years ago he found he was starting to hit the wall and said he’d put a limit on it. He’s never really added them up, probably scare him to do it, but he’d average between eight and 15 a year.
‘And every one of them takes something out of you,’ he says. ‘You leave some part of yourself behind, because of the stakes you’re playing for, the intensity of it. Win, lose or draw, eventually you are weakened by leaving those pieces behind.’
Liz has watched it starting to wear him out. He sleeps badly, doesn’t eat much until he comes out of the end of a trial looking like a skull. ‘He’s getting tired and, I think, it’s becoming almost joyless for him. It’s like dragging great sacks of stones uphill at the moment.
‘It’s not just us, most of the barristers I know treat their work that way. It’s huge and it does take years off their life, particularly the good ones. My experience of criminal barristers is so un-stereotypical. They’re very angst-ridden, anxious people whose guts are hanging out on the table all the time and who care enormously about what they do.’
The history of murder barristers is ‘a pretty chequered one’, says Smallwood, reeling off examples of upper-level mortality rates, alcoholism, cancer, ‘the early-death rate, the burn-out rate’. He talks about old hand Bill Lennon doing 25 murder trials in a row, with the death penalty hanging over every one. ‘He went about it the same way I do – put your heart and soul on the line – and it broke Bill.’
This is The Fear. You do crime and it will do you. He remembers criminal barrister Freddy James worn out and dying and telling a friend: ‘Crime’s been my mistress and she’s murdered me.’