The Dying Swan

I hadn’t realised until now just how many crims are keen ballet fans. Bravura performances of the Dying Swan are now more common among gangsters (not to mention white collar crims) than imitations of Al Pacino in The Godfather a few years ago.

Bernard Slattery, for instance, has a post about a Kiwi crim named Darryl Leigh Sorby:

This judicial joke yesterday allowed one of Australia’s most notorious drug barons to escape a New Zealand prison sentence because a 12-year-stint at Melbourne’s Pentridge Prison had caused him to develop post-traumatic stress disorder and had contributed to him bashing a man during a pub brawl.
Darryl Leigh Sorby, once the head of the notorious Mr Asia crime syndicate in Australia and known in criminal circles as Mr Midnight, was recently convicted in an Auckland court of trying to launder $NZ400,00 ($A350,000) earned through the sale of ecstasy and of the vicious assault of Donald Hunan at a New Zealand hotel six years ago.
Sorby is a horrible piece of work who ran the heroin industry in Victoria in the 1970s and can take a great deal of responsibility for the overdose deaths of scores of users, the corruption and subsequent disbandment of the Victoria Police Drug Squad and an unparallelled crime wave that accompanied the introduction of large scale supplies of the drug.
In 1984, Sorby, a former merchant navy officer, was sentenced to a then record 23 years in prison by the Victorian Supreme Court for conspiracy to traffic $10 million of heroin.

Another Kiwi, never-convicted serial pedophile Colin Fearon, was the “star” of last night’s 7.30 Report story mentioned in the post immediately below. Fearon managed to convince judicial officers in both New Zealand and Australia that he was too ill ever to stand trial, despite multiple alleged instances of very serious child sex abuse that left his victims gravely traumatised for life.

Then there’s the farce of Rene Rivkin, who has so far served just a single day of his 9 month weekend detention insider trading sentence, after he initially did a dying swan act and claimed to be suffering mental illness, only to be later diagnosed by celebrity neurosurgeon Charlie Teo with benign brain tumours requiring instant surgery (well, after he recovers from a leisurely bout of flu/pneumonia, anyway). The first time Rivkin was operated on for a benign tumour in 1987, he was back trading on the Sydney Stock Exchange floor within weeks of the operation. This time his media spokesperson says it will be at least 3 months until he’s fit to start attending at Silverwater Prison again (by which time Rene’s no doubt hoping his appeal will have been heard and decided in his favour).

Of course, who could ever forget the Dying Swan to end all dying swans (except that it didn’t): Christopher Skase. He took over a decade to cark it in modest luxury in Majorca, vailantly staving off every effort to extradite hom to Australia. Then there’s Aussie Bob Trimboli, who managed to stave off extradition from Ireland to face charges over the Griffith Drug Conspiracy after claiming to have cancer, only to cark it a short time later in Spain. Rumours that his last words were “See, I bloody was sick” cant be confirmed.

In fact the only crim I can recall whose dying swan act failed was Bondie. He unsuccessfully sought release from prison based on claims to be suffering serious brain damage and massive memory loss, prompting Paul Barry’s immortal “Oh you do remember me, then” street interview. Fortunately for Bondie, his lawyers had more than one shot in the locker, and he was released not long after anyway on a legal technicality.

In the non-criminal sphere as well, recourse to compliant medical opinion is hardly rare. When acting as Associate Dean of NTU Law School a couple of years ago, I was amazed at how many students (invariably the lazy, mediocre plodders) managed to develop sudden non-specific medical conditions on exam day or when a major assignment was due. Almost all of their medical certificates were from just 2 GPs, one of whom is known throughout Darwin by the nickname “Dr Three Weeks” for the answer he always gives when asked by a patient (any patient) for a medical certificate: “How long you want, three weeks?” After consulting the Dean, we concluded that it would be ultra vires (and probably a denial of natural justice) to introduce a rule prohibiting student use of medical certificates from those 2 doctors. Pity.

In the criminal sphere the situation is quite different. There are clearly ways in which the law could be tightened to prevent offenders, at least within Australia, from making a joke of the criminal justice system by faking or exaggerating illness. For a start, the burden of proof of establishing the existence and extent of a claimed medical condition should be beyond reasonable doubt. Secondly, offenders should be required to submit to medical examination by a panel of doctors nominated by the State, not just present evidence from a practitioner they’ve privately employed for the purpose. I’m not suggesting that most doctors are crooks. As a class they’re no more or less honest than anyone else, which is precisely why their opinions should be treated sceptically.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
This entry was posted in Law. Bookmark the permalink.