Louise Milligan reads from Witness

Prologue

You don’t sleep the night before that first day in court.

You spend it tossing and turning, bathed in a slick sweat you had never felt before, glistening like a pallid chicken about to be shoved into the oven and roasted.

You vomit. Your heart feels so close to the palm of the hand that’s clasped to your chest that it might jump on out and tumble off the bed, still pulsing in the moonlight.

Your mind spins, processing and reprocessing questions you might be asked, retorts you might deliver, then remorse that those retorts might sound too much. ‘Don’t be an angry ant,’ one of the lawyers had said. ‘That’s what he wants. Angry ants are always the worst witnesses.’

You think of the others who are also about to give their evidence. How tormented they must be. Of their poor families, struggling to know how to make it okay for them. And you think of those in their premature graves.

You cry.

You get up stupidly early as there is no point lying in that stupid bed. As the shower water pelts down, you will it to wash away the fear and the signs of insomnia. And then you get out, blow-dry your hair within an inch of its life and look in the mirror.

And somehow, at that moment, a deathly calm descends over the room like an opium cloud, your heart slows down to a dull thrum.

‘This man is not going to fuck with me.’

And that is your mantra, your prayer, as you make your way to the Melbourne Magistrates’ Court that March morning.

‘This man is not going to fuck with me.’

*

My experience as a witness was illuminating, traumatic and, ultimately, politicising. This book recounts that experience but it is not about me. It is about and for the people I have come to know who wanted to tell their story about men, some in the highest echelons of power, only to be met with a paternalistic, disappointing and bruising system that often made them regret their decision to come forward.

A system where, even if they received what is considered to be justice, they came away from the experience worse than when they went into it.

It’s about those who made it, and those who never got there in the first place.

It’s about people who died because they were afraid, because they were traumatised by what happened to them, because they were traumatised by the criminal justice process itself.

It is about the disservice we have done them and others across the country, every day.

I Am That Girl

One week after my day in the witness box at Melbourne Magistrates’ Court, I flew to Sydney to meet a source for a story. The young woman I was flying to meet had also been a witness in a trial.

Saxon Mullins still called herself a girl. Her curial ordeal had been far more profound than mine. It had been going, at that stage, for four years. She was twenty-two. I met her in the back corner of a dark and nondescript bar in Sydney’s CBD.

For the public, to that point, Saxon’s name and her face had been hidden, but her story had not. Until that time, the narrative had been dominated by the young man who had changed her life in ways most of us would struggle to comprehend.

His name was Luke Lazarus. His story is complicated – from being convicted by a jury, to being acquitted by a judge, to having that judge’s decision questioned by an appeal court, to legal limbo.

But back when the case first began, as Lazarus jostled past news crews and reporters jabbing microphones at him – ‘Luke! Do you have anything to say?’ – the indeterminate spectre of Saxon floated, faceless and nameless, above the chases to the car, the camera flashes, the bold-type tabloid headlines.

‘Sydney man jailed for rape of 18-year-old girl in an alleyway behind his father’s nightclub.’

‘Alleged rapist kept trophy list of women.’

‘Rapist says his life was destroyed by conviction after alleyway assault.’

The only picture I had seen of Saxon before I met her that May afternoon was one which, at that time, like her name, could not be published.

In it, her blonde hair was straightened, she was dressed in a strappy crop top to go clubbing, her head thrown back in a wide smile.

That was Saxon’s Facebook photo. As with so many of these things, the profile photo was not really the girl.

The person sitting across from me on a dark bentwood chair was a modestly dressed paralegal. She’d come from a coastal town to work with her big sister in the litigation department of a large city law firm. She was unfailingly polite.

Saxon Mullins had luminous pale skin, unruly dark-blonde curls framing a still babyish face, brown eyes that crinkled up at the edges when she broke into a slightly lopsided smile. Her initially shy, at times halting, demeanour belied a kooky sense of humour and a courage in her convictions. Tattooed on her wrist was an hourglass and, on the back of her neck, L.I.F.E.G.O.E.S.O.N. She sometimes signed her text messages with a saxophone emoji. Saxon could have been anyone’s kid sister, any girl’s best friend.

To be frank, as a journalist, when you meet someone like Saxon, you wonder ‘Where’s the catch?’ because she seems, as a protagonist, too good to be true. But Saxon was that good and she was that true. Not because she was perfect. Because she was normal.

To think of her, on her hands and knees in gravel in a dark alleyway out the back of a stupid nightclub, anally penetrated as her first sexual experience … To think of her, enduring that, just minutes after meeting the man who didn’t pause to ask her if it was okay – a man who later admitted he knew she was a virgin … It was confounding to compute this girl before me and that awful night.

I tried not to fumble my words as I told her what I had planned for our story on Four Corners. I could only say what I knew to be true: ‘All I can say is, I promise I’ll look after you.’

She nodded, chewed her lip a bit and said, ‘Okay.’

Not long before I met Saxon, she posted on her personal Facebook page:

There’s something I need to get off my chest. I’ve spent far too long feeling embarrassed and ashamed.

The 18-year-old in the story is me. Those awful things happened to me. I am that girl …

… Two years ago I told my story to a jury of 12 people who believed me. But for legal reasons I don’t really understand some judges decided I had to go through it all again. So, back I came to relive everything that happened to me that night. This time, another judge sitting without a jury wasn’t convinced by what I said.

The person found guilty by a jury has been found not guilty by a judge. His criminal conviction is erased. He is free to move on with his life.

I feel let down and confused.

I lost something that night all those years ago and I’ve been searching for it ever since. I’ll let you know how it goes.

The reality is this doesn’t get to be over for me. I don’t get to know who I would be today had this not happened to me, and I mourn for that person. She seemed like she was on her way to being great.

There are two people who know the truth about that night and one of us has thought about it every single day since; about what happened to me in that alley and the fear I felt all the while it was happening. I wonder, in years to come if he has a family, if he’ll feel that same fear when his children go out for the first

time; whether he’ll warn them about people who prey on and hurt others. Perhaps, then, maybe he’ll understand.

I don’t wish harm or upset on anyone. I don’t want anyone to suffer, that would never bring me joy. All I’ve wanted since that night was to hear the words: ‘I was wrong’ and ‘I’m sorry’. An apology for what was done to me is all I was ever after.

As horrible as the details of what happened to Saxon Mullins in an alleyway out the back of a nightclub in Sydney’s Kings Cross were, they lasted for only a few minutes.

Saxon’s legal case lasted five years. Her case raised serious questions about what consent to sex actually is. Her story, as told to our program, led to changes in the law. But the criminal process was, for Saxon, deeply unsatisfying. It provided no finality.

‘The criminal law is a blunt and brutal method of social education,’ the-then head of the NSW Criminal Bar Association, Stephen Odgers SC, would tell me about the sticky notion of using criminal proceedings to educate about consent. ‘Yes, we want to educate our community to engage and to behave in a civilised way, but you shouldn’t rely on the criminal law as the key mechanism for doing that.’

Seven years down the track, I ask Saxon to reflect on her own experience of the criminal justice system.

‘My experience of the criminal justice system from the view of the survivor was so awful,’ Saxon says. ‘People have asked me if I’d recommend going to trial or not, I don’t know the answer. I have no idea of the answer. Because it’s such a horrible event.’

She adds that when ‘someone says it has to be blunt and brutal, I kind of laugh with tears in my eyes.

‘Because I think to myself, “You really don’t know what blunt and brutal is.”’

*

Sydney’s rape trials are held in a once-glamorous, now-shabby ex-department store, then called Mark Foy’s, now known as the Downing Centre.

It’s a strange sort of place, an awkward antipodean nod to Le Bon Marché in Paris. Ground-floor windows peopled with the ghosts of Mark Foy’s mannequins. Interwar white brick architecture, trimmed with buttercup yellow faience sills, square turrets, and, inside, dirty seats you flinch before sitting on.

‘The Downing Centre is a grub of a courthouse,’ one criminal barrister who has many sex cases there tells me. ‘It’s a horrible fucking place.’

In my days as a young newspaper reporter in Sydney, my courts- round ‘work husband’ – a TV reporter who adopted pitch-perfect sonorous judicial tones and insisted on being addressed at all times as ‘M’Lord’ – would let out a groan with me whenever we had to make our way down from the uptown Supreme Court to what we termed, eyes rolling, ‘the lower jurisdictions’.

We’d scarper down the road, elbow our way through the teeming masses, and I’d try not to think too hard on the human misery, taken down in my scrappy Pitman’s shorthand. We’d dictate our notes back to each other, lest we missed a vital word.

I still have a mental image of an act of sexual abuse upon a child described in a particularly grim incest case, which I have never been quite able to scrub from my brain. I won’t have thought of it in years and then I’ll drive past the Downing Centre and there it is again, flashing through my brain like a grainy silent film.

The steps outside the Downing Centre were peopled with angry dads and toothless smokers, barristers in crumpled gowns, paralegals in synthetic suits and bored camera operators pacing for hours like caged lions, waiting for women with blonde hair and red jackets and men wearing lurid ties and a thin film of MAC pressed powder to send the text: ‘dark hair, goatee, blue shirt, mid- thirties, coming out NOW!’.

Then, the chase. It lasted sometimes a block or two down the street, the fugitive’s eyes darting as he looked for somewhere, anywhere, to get away. ‘Do you owe your victim an apology?’ ‘What do you say to all of the people you have hurt?’ ‘Are you ashamed?’

On other days, out would file the victim. Crews would feign dignified patience, pretending not to scramble as, for instance, a wizened woman with sad eyes and thin lips creased around the memory of a thousand cigarettes, would say, flatly, ‘He got ten years, I got life. There is no justice, none at all.’

The women with the blonde hair and red jackets would nod sagely, lip-gloss glinting.

Then they’d wait. Give her time to disappear around the block.

Now, RUN! Back to the office to tap, tap, tap.

Cue, next morning, shock jock: ‘Now I don’t know about you, but I think that what happened yesterday in the District Court of New South Wales was a bloody disgrace!’

It was at this wretched carnival that nineteen-year-old Saxon

Mullins found herself on Wednesday, 28 January 2015. Saxon was jet-lagged, having just arrived home from Ireland, to where she’d run away to escape her trauma. She had travelled by train to the Downing Centre with her mother, sister, brother-in-law, and two friends who were to give evidence.

They were ushered into a room full of other witnesses who were to be sliced and diced by defence barristers.

‘It’s kind of like a dentist’s office,’ Saxon would later tell me.

She and her family found dark mirth in the fact that the distraction provided to ease witnesses’ boredom was the murder mystery board game Cluedo.

‘That was a moment of absurd hilarity,’ she says. ‘And then we kept getting updates from the court, and more updates, and more updates. And the more updates we heard, the less funny Cluedo seemed to be. It became a lot more sombre.

‘We just waited and waited there. For hours and hours. I think it’s the most anxious waiting area in the world.’

As it happened, they waited all day. The legal argument stalled, and the court wouldn’t be ready for Saxon until the following day.

She arrived on the Thursday wearing a pinkish red polka dot dress with a sash around the middle.

‘I bought that new dress for court and, as soon as I put it on, I thought, “Fuck, it’s going to happen,”’ she remembers.

The trial was heard before Judge Sarah Huggett.

Like all complainants of sexual offences, Saxon Mullins was described as a ‘witness’. That meant that, like any other witnesses in a criminal proceeding, she was required to stay out of the court when she was not giving evidence. Unlike the accused, she did not have legal representation in court. She did not have the right to remain silent.

Saxon later tells me that she thinks ‘witness’ is a ridiculous description of what she was.

‘I wasn’t a witness. I didn’t just hover over my own body while this was happening.

‘I was definitely there.’

*

Saxon was cross-examined that Thursday by Ian Lloyd QC – a loquacious veteran of the Sydney criminal bar known to everyone as ‘Lloydy’. Like many of his comrades at Sydney’s criminal bar, he could regularly be found at the nearby Courthouse Hotel.

Outside the court, Lloydy was enormously good fun and could be very kind. Inside it, too, he was charming and favoured the ‘you get more with sugar than vinegar’ style of advocacy.

But he could also, by his own admission, be, when he deemed it necessary, an ‘aggressive advocate’.

‘He was really smug, that’s how it seemed to me,’ Saxon says. ‘When he thought I wasn’t upset, or I wasn’t taking it seriously, he would then switch to being very serious.’

Despite her tender years, Lloyd addressed Saxon as ‘Madam’ twenty-eight times during the cross-examination.

‘Madam, I suggest to you, you will say whatever you think helps your story, whether it’s true or untrue.’

‘Madam, the truth is you consented to intercourse that night, didn’t you?’

‘You may laugh, Madam. Do you understand that this is a very serious situation for my client?’

‘What the hell was that?’ Saxon muses, years later, of the ‘Madam’ trope.

‘What other reason would you do that, other than to paint me as something I was not – an adult woman totally aware of all the things that she’s creating with this man?’

Ian Lloyd is not permitted to discuss this individual case, but he is completely upfront about his reasoning when referring to any young complainant as ‘Madam’: it’s not a case of chivalry or antiquated deference.

‘As a defence barrister in a sex trial, the last thing you want the complainant to come across as is some sort of young, naïve girl,’ Lloyd tells me. ‘You want to neutralise her as a human being. So you call her “Madam”. You want to put age on her. That’s a tactic we barristers adopt. If we call her by her name, that would be humanising her for the jury. We don’t want that.’

*

Saxon Mullins had been dehumanised before.

‘You have your trauma in this box where you keep it,’ Saxon says. ‘Mine is May 12, 2013.’

I’ve known Saxon for three years now, but the 12 May box is one I’ve only asked her to open once.

The twelfth of May was a continuation of the eleventh of May, the night when Saxon and her best friend, Brittany Watts, set off on a train from their home town on the New South Wales Central Coast for Saxon’s first big night out in Sydney. Saxon had just turned eighteen.

They snapped a ‘selfie’ that night. Their skin glows in the way it does when life’s all still a big adventure, their teenage brows yet to be furrowed by complications and disappointments.

‘We were still living at home with our parents,’ Brittany Watts remembers. ‘We were quite young-minded, to be honest, looking back at it – we were very sheltered. Growing up where we did – our coastal town was very small, and everyone knew everybody. So I don’t think we were very mature eighteen-year-olds.’

‘Just super-carefree, and kind of getting started,’ Saxon recalls. ‘Didn’t have any worries in the world and this was kind of like the beginning of “awesome”.’

Brittany had experience with boys, but says Saxon was less worldly. She was a bright but mostly unsophisticated teenager who hadn’t had her first kiss until she was seventeen. She’d had the same group of friends since she was fourteen, had only been out a handful of times. She’d never had sex.

‘Saxon, she never really had any boyfriend-type of figure at that point in her life, and definitely no sexual contact with anybody,’ Brittany says.

‘I was very young,’ Saxon remembers, ‘I didn’t think I was at the time. At eighteen, I thought, “God, I’m so old to be a virgin, this is ridiculous – borderline embarrassing.” But when I look back on it now, the biggest thing that stands out was I was just so young.

‘I feel like [that person] – she was a very different person, then. I feel like she was really let down by a system that wasn’t supportive, by people who knew that system and were even less supportive.’

Before she got to that system, she first had to go through that night.

– Louise Milligan, Witness (Hachette Australia)