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Evan Whitton
14 November, 2005  
Frank Galbally - a reasonable doubt for a reasonable price

Melbourne legend Frank Galbally might well have frequently run the polar bear defence, such was his success as a criminal defence advocate. Probably he was more successful then the official record holder, Sir Lionel Luckhoo

imageThe legendary Melbourne advocate, F. Eugene Galbally (1922-2005), was given a giant send-off by The Age’s distinguished disclosure reporter, Mr Andrew Rule, on October 13. The Sydney Morning Herald repeated the obit on October 29.

The write-off for the Age piece said: “To some, Frank Galbally was a publicity-seeking showman.”

As it happens, I can supply a minor footnote. In my time at Melbourne Truth in the later 60s, the legend, or myth, was that Frank built his reputation on the firmest of foundations: he would pull up outside 402 La Trobe Street, grab a reporter, and head for the sticks. If a soupcon of spice were needed, the reptile would send him a note:

“Ask her if she had sex with the Shah of Iran.”

Mr Rule noted: “Of some 300 people he represented on murder charges, most were acquitted.”

Frank, rather than Lionel Luckhoo (1914-97), of Guyana, may thus be entitled to the title World’s Most Successful Barrister awarded by The Guinness Book of Records: Lionel got off a mere 245 murder clients in a row. He was knighted, presumably for services to perverting justice, in 1966, and appointed himself Ambassador for God, or Mammon, in 1980.

The alarmingly candid Alan Dershowitz, criminal lawyer and professor at Harvard’s anti-moral law school, noted, perhaps inadvertently, a tiny problem with that sort of success in The Best Defense (Vintage, 1982). The first two of his 13 Rules of the Justice Game are:

Rule I: Almost all criminal defendants are, in fact, guilty.

Rule II: All criminal defense lawyers, prosecutors and judges understand and believe Rule I.

Barrister Brett Dawson says “almost all” means 99 per cent, and there is any amount of evidence to show that the conviction rate in big cases is as low as 30 per cent, but IT (intellectual torpor), or self-interest, stifles the question: “Some mistake, surely?”

imageFrank and Sir Lionel presumably shared Professor Dershowitz’s (pic) attitude:

“I want to win. I will try, by every fair and legal means, to get my client off – without regard to the consequences. I do not apologize for (or feel guilty about) helping to let a murderer go free – even though I realize that someday one of my clients may go out and kill again.”

Happily, the Dershman’s client, Mr O.J. Simpson, has not gone out and killed again, so far as we know. Nor do we know how many, if any, of Frank’s 250-odd murderers became repeat offenders.

Starving barristers naturally prefer rich criminals to believe they got off through herpetoidal cunning, but much of the opprobrium actually goes to the adversary system’s monstrous regiment of rules and devices for deep-sixing the truth. Mr Rule noted:

“It is said he [Galbally] used to scrawl notes on his clients’ briefs a reminder that their instructions – their version of events – should be ‘a reasonable story that fits the facts’.”

That sounds at least within shouting distance of that hoary device, the theory of the case: if it wasn’t our guy, it must have been some other person or thing, there must be a reasonable doubt.

The Makybe Diva of legal ethicists, Professor David Luban, of Georgetown University, explained in Lawyers and Justice: An Ethical Study (Princeton University Press, 1988):

“The adversarial lawyer reasons backward to what the facts must be, dignifies this fantasy by labelling it the ‘theory of the case’, and then cobbles together whatever evidence can be offered to support this ‘theory’.”

Professor Luban gave the example of a ‘large, reputable law firm’ defending an insurance company against a claim concerning a woman who drowned in her swimming pool:

“The lawyers decided that if the death was a suicide, their client wouldn’t have to pay … Suicide became their ‘theory of the case’ ... to the consternation of their bewildered and appalled adversaries.”

A Sydney lawyer, John Dobies, who invented the game Courtroom, is similarly derisive. His example, the Polar Bear Defence, might just work in Frank’s Bleak City.

If there were scratches on a murder victim’s body, the murderer’s lawyers could argue that a polar bear might have done it. That would require expert evidence on the surprising incidence of polar bears in downtown Melbourne, and witnesses who saw a polar bear that day, even if it was only the one in the Bundaberg Rum advertisement.