Julian Burnside QC’s View

This is an edited transcript of the address that Julian Burnside QC gave at the Palfreeman Forum in Melbourne on 27 October 2013

                                       

  I was grateful to have the chance to read Belinda Hawkins’s book, Every Parent’s Nightmare. Let me start by saying it’s a really good book. It’s terrifically well researched and written; it really is a page turner even though it’s about a real event. If it had been a work of fiction I would’ve criticised it, saying it’s not possible for a trial to be so demonstrably unfair.

For those of you who don’t know the essential facts of the case, here’s the thing. On the 27^th of December 2007, at about 1.20 in the morning at St Nedelya Square in Sofia there were about 15 or 20 young men who had come onto the square from a metro underpass. On one version they’re shouting, throwing their fists in the air and being generally boisterous, carrying on like a group of football hooligans. Amongst their number were Andrei Monov and Antoan Zahariev. Minutes later Monov was dead, Zahariev had been stabbed but not fatally, and Palfreeman had been arrested, dragged off by police and later charged with murder with hooliganism- hooliganism, whatever the hell that is.

Jock’s version of events was that he had seen a young Roma man being attacked by this mob of football hooligans. He went to defend the Roma and the hooligans then turned on him. To defend himself he had a knife and Monov ends up dead and Zahariev injured.

The witness statements which were taken on the night by the police were all over the place, as witness statements tend to be – people are very bad observers of what is going on. But one thing that is apparent is that police that night were told that there had been an attack on some Roma people and that someone had come to defend them and that that person had ended up being charged.

Inconsistencies between witnesses’ accounts on the night travelled the range you would expect. In an Australian trial those inconsistencies would have eventually created a reasonable doubt about what had occurred.   It is certainly the case that some of them saw rocks being thrown at Jock Palfreeman; it is certainly the case that some of them said they saw an attack on Roma people.

The question ultimately in this case was this: Was Jock there defending some unpopular members of an unpopular minority or was he there on a murderous assault on young men who were just coming home soberly and quietly.

There are some curious hints about which way the facts should have been found, not least the statements taken by police on the night. The police who arrived first at St Nedelya Square were not called as witnesses; they weren’t even identified. The only police who gave evidence at the trial were police who later took over the investigation and who had not taken any of the statements.

The second curious fact about the case was that the young men who came along to the trial and gave evidence did not give evidence consistent with the statements which they had given on the night.

In an Australian court, in an Australian trial, if a person gives a statement to police and then they come along and give evidence which differs significantly from the statement they gave, then you can put to them the statement they gave earlier as a prior inconsistent statement.  The fact that they said A on day one and X on Day Two can be used to undermine their credit– it’s a natural way of attacking a person’s reliability.  In this case the witnesses, who had originally said there had been an attack on Roma and that Jock had gone to defend them, were not allowed to be asked about their prior inconsistent statement. The prior inconsistent statements were not received as evidence, so the attack on the witnesses was ineffective.

Belinda’s book is brilliantly researched, brilliantly reasoned and, unless it is a work of fiction, I would say with some confidence that in an Australian court Jock would have been acquitted.  A jury could not possibly have been satisfied beyond reasonable doubt of his guilt. That point comes through clearly in this book. My only knowledge of the case comes from this book, but there is so much doubt about what happened that a conviction would not have happened in an Australian court.

In addition I think it’s fair to say that facts which are indisputable can be found here. On page 22 Belinda speaks about what a young man called Emil told police on the night:

‘As they crossed the square the youths had broken up into smaller groups, walking at    different speeds. Emil said he was one of the slower ones. He was about ten metres from the pedestrian lights near the intersection of Maria Louisa and Stamboliyski boulevards when he became aware that something was happening behind him, at the northern end of the square.

“Emil told the investigator that there was some kind of altercation in front of Bulbank but that he could not follow between whom it was taking place. He continued: “At precisely that moment a man of around 25 years, who was about 180 centimetres tall with closely cropped hair on the side and more hair on top of the head, he crossed Stamboliyski running towards us.”

“Emil did not explain how he was at the southern end of the square one minute and at the northern end the next. He went on: “He started shouting in broken but understandable Bulgarian, with an English accent, Ne ataka! Mahai se! [Don’t attack! Go away!] and stuff like that. It wasn’t’ clear exactly to whom he was shouting.’

And then we have testimony from Asen Stoychev (page 198):

‘He recalled that Lindsay’ – who was one of Jock’s friends- ‘was behaving “inadequately”’- that seems to be a euphemistic expression they have for behaving badly- ‘ and seemed to be in shock. But under questioning, Stoychev went much further than in his original statement. Now he said that at the scene he had picked up two very different versions of what had transpired.

‘One version came from the friend holding Andrei’s head who told him that they had been “walking” when suddenly someone with a knife had “come at them”. Other group members told Stoychev that the group had had an “altercation” with people from “the minority” and the defendant had tried to stop it, after which they attacked him and he had “defended himself”. The officer added that passers-by and security guards from the Sheraton had told him the same thing.’

Now the security guards at the Sheraton were stationed very close to where this all happened; they had no skin in the game- they weren’t part of the mob or with Jock. They were just simply seeing what was going on immediately adjacent their post.  They were independent.

It goes on.

‘One after another, officers Viktor Lyubenov, Petar Katsarov and Krassimira Stoyadinova, pledged to tell the truth. One after another, they said the injured boys’ friends had told them there had been some sort of altercation and the foreigner pulled a knife, stabbing two boys. Originally these officers had told the investigator that when they arrived at the scene, colleagues told them boys had been fighting with Gypsies and a foreigner had intervened to help the Roma, but each time the defence tried to bring them back to their earlier account, they said didn’t know why Jock had run into the group.

Each time Dinko Kanchev’, the lawyer for Jock, ‘asked to have the relevant section of their statements read aloud. Each time, the judge accepted the prosecutor’s and civil claimants’ objection’ and the original statements didn’t get a look in. It is so blindingly clear that there were at least two versions of events on the night, two versions coming from the group of boys who were central to the action. There’s a load of reasonable doubt.

In addition there were forensic curiosities about it. Maria Grozeva was the forensic doctor who carried out medical examinations of Jock and of Zahariev. She did not perform the autopsy but read the autopsy report to assist with those examinations, which in part were designed to take measurements that related to where Palfreeman’s right arm and hand (and thus the knife) was in relation to the wounds on Monov and Zahariev.  She did not find any blood on Jock’s clothes. Now, the stabbing of Monov produced a fatal cut in his heart. He bled profusely and Grozeva would have expected to see some blood splatters on Jock’s clothes, especially on the cuff of his right hand. But there was none.

In addition she noticed that the two ribs, between which the knife had passed, both had nicks on them caused by the knife. But it was a single edged blade.  How would they account for both ribs being cut? It did not add up. She found none of Jock’s DNA on the handle of the knife, which was surprising to her because he had allegedly been holding it for some time. The police did not search any of the boys who were involved in the group, didn’t search any of them for weapons. They did not seal the crime scene so as to enable a proper investigation to be carried out. They did not retain relevant closed circuit TV footage which would have shown in a neutral way what had been happening in different parts of the square on the night.

The way the investigation was carried out was dismal. The way the trial ran was utterly inconsistent with the way an Australian trial would run. And there was no investigation as to whether or not there had been Roma in the square at the relevant time.

It looks very much as though the story as it was told by the boys (who had their own things to answer for) was the one embraced by police. The police never questioned that story, and they never explored alternative theories. That is a recipe for a bad outcome.

Another curiosity about the trial is that, according to Bulgarian legal procedure, it is possible for a civil claim to be heard along with a criminal trial.  So Monov’s parents – his father was highly placed politically and knows how things work – and Antoan Zahariev – the guy who was injured – they participated in the criminal trial, they participated as civil claimants seeking damages. They were allowed to call witnesses; they were allowed to vet evidence being tendered. Their participation seriously skewed the way the trial ran and, importantly for today’s purposes, those people ultimately obtained a judgement for damages for the equivalent of hundreds of thousands of Australian dollars because of the loss of their son (on the part of the Monovs) and because of physical injury (on the part of Zahariev).

A minor thing, but perhaps important, is that all the boys said that Monov, the guy who died, had not been drinking to any significant extent and was not affected by alcohol. But when the autopsy was performed he was found to have a blood alcohol level of 0.29, which is close to fatal.  Most people can’t stand up when they’re 0.29 and of course that leaves open the very real possibility that he fell onto Jock’s knife, no matter how. It is clearly possible that a person with that level of alcohol could have fallen on the knife instead of being the victim of an attack.

Curiously, the court accepted evidence that the stabbing had happened with great force and reasoned that it must therefore have been wilful and deliberate. But it surpasses understanding how anyone could say whether the knife had moved swiftly or Monov had stumbled heavily: either could be the explanation for the apparent force with which the knife entered the body.

Now the involvement of Jock’s father Simon has been quite remarkable. He’s been over there I think 30 something times. The trial extended over more than a year with 19 hearings, some of them aborted because witnesses didn’t turn up.  One hearing was aborted because a member of the judicial panel was on holidays. Simon had to go over there and then see there’s nothing happening on that day and then come back.

People criticise our legal system.  Boy, they should see the system there.

It has obviously been profoundly distressing for Simon and his family on every possible level including the amount it’s cost him to keep going back and forth, quite apart from paying the compensation.  And the reason for us coming together today is to try and help the family deal with the cost that has been incurred in defending him as well as the very real desire to bring him back to Australia.

Jock was sentenced to 20 years.  The civil claimants, who were allowed to make submissions about penalty, wanted him to get life without parole. They were allowed to sit there and make that submission.  It was a curious submission when you think about it, because they were also seeking damages. If he had got life without parole, the prospect of them getting any damages from him would look pretty low because he can’t earn an income whilst he’s in prison. In any event, he got 20 years and a huge award of civil damages against him.

Not surprisingly, Jock’s family want him brought back to Australia under the Transfer of Prisoners Treaty that we have with various countries including Bulgaria.  The request for transfer was finally considered and refused in July this year. The Palfreemans and the Australian government are now appealing that decision. It is open for the Bulgarian Prosecutor General, who is charged with making the decision, to decide that Jock can now be transferred. However, before transfer can happen, if it is finally agreed to, the prisoner must pay court costs and compensation costs as directed at trial.  The one thing all of us can do to try and help get Jock back to Australia, to serve his sentence here rather than in a godforsaken, dilapidated prison in Sofia, the one thing we can do is help the family pay the civil damages award so that the government of Bulgaria will then consider the claim for a transfer to have him serve his sentence in Australia. It may need a bit of gutsy representation on Australia’s behalf from the Foreign Minister. Luckily it’s no longer Bob Carr, so who knows, there might be an outcome.

Reading this book brought powerfully to mind the observation made in King Lear – ‘As flies to wanton boys are we to the gods. They kill us for their sport.’

Jock could not have had a worse run of luck.  On my assessment of the evidence brought together in this book, [Every Parent’s Nightmare], I believe that Roma were attacked, that [Jock] felt very powerfully supportive of any minority group being picked on, he went to their aid and immediately found himself embroiled in a fight with the very people who had been attacking the Roma. He was doing the right thing. They attacked him. He defended himself.