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Australian Story -

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Take No Prisoners - Transcript

PROGRAM TRANSCRIPT: Monday, 7 March , 2011

GRAEME BLUNDELL, PRESENTER: G'day I'm Graeme Blundell. A couple of decades ago I appeared as a
prosecutor called Nicholas Cowdery in the famous telemovie Joh's Jury, the account of the trial of
Joh Bjelke-Petersen. Today Mr Cowdery occupies a very different spotlight as the longest serving
Director of Public Prosecutions in Australia. Lawyers love him, politicians hate him. Tonight, on
the eve of his retirement, Mr Cowdery provides some exclusive insights into his time on the job and
the dramatic incidents that occurred during his reign. This is his story.

ALAN JONES, RADIO PRESENTER: Yesterday I raised at this time the appalling position we find
ourselves in this state in relation to fair dinkum justice. The whole justice system now pitches
and tosses on a Director of Public Prosecutions who's accountable to no one, and invested with
seemingly unchallengeable authority.

RAY HADLEY, RADIO PRESENTER: Look, I don't like the fellow - I think he's a very ordinary DPP. I
just don't like him at all. I hate the way he...

NICHOLAS COWDERY, DPP NSW: I'm somebody who goes to work every day knowing that most of the
decisions that I make that day are going to make somebody unhappy. What a way to start the working
day!

RAY HADLEY, RADIO PRESENTER: The Attorney-General John Hatzistergos is on the phone. Minister, Good
morning. A $1.5 million cut in the budget to the DPP...

GREG SMITH, FMR DEPUTY DIRECTOR OFFICE OF DPP: He's very brave. He's also stubborn.

RAY HADLEY RADIO PRESENTER, : Wouldn't you love to be able to get rid of him? Wouldn't you just
love to have the power to get rid of him?

GREG SMITH, FMR DEPUTY DIRECTOR OFFICE OF DPP: And that's a dangerous combination for politicians
when they're trying to get on top of him.

NICHOLAS COWDERY, DPP NSW: I'm a very peaceful sort of person but I accept that there are just some
situations where I am going to be in conflict with others. I'm not prepared to suck up to some
other bureaucrat or to smooch with some minister in order to curry favour and get something done. I
would much prefer that all the cards be on the table which are there for everybody to examine. I've
been the Director of Public Prosecutions for New South Wales for 16.5 years. The DPP is responsible
for prosecuting serious criminal offences. We deal with murder, the full range of sexual offences
against both juvenile and adults, we deal with all the serious thefts, armed robberies, and it
really is an insight into how appalling ordinary citizens can be towards each other.

MARGARET CUNNEEN SC, CROWN PROSECUTOR: Nick's a calm, temperate, measured person. If there is a
crisis, he very, very calmly seems to consult some file of experience in his mind and say with
great certainty, this is how we will approach this catastrophe.

MARK TEDESCHI QC, CROWN PROSECUTOR: Nick maintains a detachment in the office. I don't think most
people in the office would have the faintest idea whether he personally likes them or not because
it's irrelevant. In terms of any attack from the media, in terms of politicians, he bears the brunt
of that and allows us to get on with doing our jobs.

MARGARET CUNNEEN SC, CROWN PROSECUTOR: Our work is nasty. It concerns the most awful things that
have happened to people in their lives.

NICHOLAS COWDERY, DPP NSW: We've dealt with some pretty significant cases over the 16 years that
I've been here that have involved very difficult decision making processes.

MARK TEDESCHI QC, CROWN PROSECUTOR: On those major decisions about prosecutions, the director makes
the ultimate decision himself.

NICHOLAS COWDERY, DPP NSW: Political considerations have no place in that process, nor does the cry
of the public, through the media or individually.

NEWSREADER: Is it art or is it pornography? Police say it' likely they'll lay charges...

NICHOLAS COWDERY, DPP NSW: Bill Henson's photographs were taken from the gallery and there was an
immediate fuss in the media. And politicians waded in. Well please! It is true that I did not
regard the photographs as indecent myself but that's not the standard for prosecution. I don't
assess things by reference to my own values, my own judgement, my own taste. On a proper analysis
the photographs did not amount to child pornography because they did not display the children in a
sexual context.

POLICE OFFICER: The advice that we've received is that there will be no reasonable prospect of
conviction.

NICHOLAS COWDERY, DPP NSW: Gordon Wood was charged with the murder of his girlfriend by throwing
her over the gap. There were interesting personalities involved.

REPORTER: They've waited for this day for 13 years...

NICHOLAS COWDERY, DPP NSW: By the time it came to me it was a very difficult decision that had to
be made to put him on trial. Sometimes I just lock myself away in my office while I assemble all
that sort of material in my head and satisfy myself that it's pointing one way.

TONY BYRNE, FATHER OF VICTIM (Archival footage): I'll never forget the foreman when he said
guilty...

NICHOLAS COWDERY, DPP NSW: Of course sometimes we do get things wrong, sometimes I'm sure I make
mistakes and sometimes individual prosecutors make mistakes. But if we do, the best we can do is to
apologise for it and then to move on.

MARK TEDESCHI QC, CROWN PROSECUTOR: There have been times when I don't know how he's withstood the
pressure because there has been immense pressure on him.

NICHOLAS COWDERY, DPP NSW: I've been dealing with pressures of one sort or another right through my
life and I think it probably started at a very young age. I was born in Sydney. When I was about a
year old, I gather, my father left my mother and we didn't see him again. When I was six my mother
remarried and I acquired a stepfather but I've always called him dad. The relationship was perhaps
a little distant and it has probably remained that way through our lives. Fairly soon I had two
younger brothers and I think probably quite naturally his attention turned to them as his own
children, so I acquired at an early age, I think, a need to do things independently. My father had
always wanted me to go to Sydney Grammar School because there was a family tradition but we lived
in Wollongong and so I had to go as a boarder for the last two years of high school. I hated it, to
be honest. The boarding conditions were Dickensian, and that's putting it nicely, and the
separation from both family and friends was very keenly felt. In my final year at school I went to
see the careers master and at the end of it he said, well you're good at english, history and all
those sorts of things, I think the law is for you and probably a barrister. And that was the end of
that. While I was at university studying law I went to a party with a lot of friends, a lot of
people that I knew, and there was a young lady that I thought was particularly attractive and so I
invited her out.

JOY COWDERY, WIFE: My first impressions of Nick were that he was a bit aloof and I thought I didn't
really know him and I wondered why he sort of asked me out.

NICHOLAS COWDERY, DPP NSW: She demurred for a short time, no doubt seeking advice from elsewhere
and in due course said no. I once invited 16 girls to a formal. Got knocked back by all of them but
I knew 16 to ask (Laughs). Joy ended up marrying a good friend of mine, who was another law
student, and in due course they had three children and we remained very good friends.
Nineteen-seventy-one was the first year of legal practice, which I chose to do in Papua New Guinea.
It was also the year that I got married. That marriage didn't last and in 1972 my then wife decided
she didn't want to be married anymore and left Papua New Guinea and returned to Australia.

JOY COWDERY, WIFE: He was devastated. He didn't really want her to leave but she'd made up her
mind.

NICHOLAS COWDERY, DPP NSW: It was something that I had great difficulty understanding, and I was
very distressed by it and very upset by it. I think being confronted with what at the time are
unpleasant challenges is probably character-forming but I think what it does is to assist you to
bring some mental discipline to the way in which you approach life, to compartmentalise things.

EDWINA COWDERY, DAUGHTER: It's like a chamber in his mind that he can close and he'll move onto the
next thing. And I suspect that's one way of dealing with the range of difficult situations, or
working in criminal law, the kinds of casework that you'd be dealing with and I think that's then
permeated through his entire life.

NICHOLAS COWDERY, DPP NSW: I was in private practice as a barrister when the position of Director
of Public Prosecutions came up. I had always been fascinated by the position of DPP. I thought it
would be challenging so ultimately I accepted the position. When I started in the job, the prospect
I must say was a little daunting. I came from managing half a secretary to managing over 400 people
and it was a real shock. One of the very important areas of our work that I was completely
unequipped to deal with was dealing with victims of crime.

(Excerpt from archival footage, ABC TV, 1994)

RICHARD MORECROFT, PRESENTER: A teenage boy was shot dead overnight while working at a pizza
restaurant in Sydney's south. Police are still searching for a masked gunman...

(End of excerpt)

NICHOLAS COWDERY, DPP NSW: One of my earliest encounters with a family member of a deceased victim
of crime was the Marslew case. It was just a terrible case and we prosecuted the four people who
were eventually detected and arrested by police.

(Excerpt from archival footage, ABC TV, 1995)

REPORTER: Justice Dowd sentenced Piller to 18 years imprisonment with a minimum of 13 years to be
served. Outside court emotions ran high. The victim's father was outraged at the sentence.

KEN MARSLEW, VICTIM'S FATHER (To press): What was Michael's life worth?

(End of excerpt)

KEN MARSLEW: As a father who was full of anger and grief I was thrown into this system and I was
expecting support from the system and that's not what I got.

NICHOLAS COWDERY, DPP NSW: Ken Marslew was very angry.

(Excerpt from archival footage, ABC TV, 1995)

KEN MARSLEW (To press): A wonderful young kid cut down cold bloodedly...

(End of excerpt)

KEN MARSLEW: There were a range of issues that I had difficulty with the DPP with and one of them
was the issue of plea bargaining. When the charges were dropped to manslaughter, I absolutely went
off my head.

NICHOLAS COWDERY, DPP NSW: And in due course I invited him in to meet and to discuss the matter.

KEN MARSLEW: When I had that meeting with Nick, I got to tell you, the more I spoke to the guy, the
more aggravated I became, the more aggressive I became because the man dug his heels in, wouldn't
move.

NICHOLAS COWDERY, DPP NSW: I was unmoving because I had no room to move.

KEN MARSLEW: I came home and I got two of the largest kalamata olives I got and I said, I'm going
to have Nick's balls. These will do in the interim. The word hate I don't use often these days, but
the reality is I hated this bloke for his dogmatic, arrogant attitude towards myself.

(Exerpt from archive footage)

JOHN FAHEY, FMR NSW LIBERAL PREMIER: It is three strikes and you are in - that is in jail and in
jail to stay.

BOB CARR, FMR NSW ALP PREMIER: For the people who commit a horrific crime, there should be no
second chance.

JOHN BROGDEN, FMR NSW LIBERAL OPPOSITION LEADER: We say compulsory minimum sentencing, we mean
compulsory minimum sentencing.

KEN MARSLEW: We've tolerated too much for too long and it is now time to do something about it.

(End of excerpt)

NICHOLAS COWDERY, DPP NSW: I've been through four law and order elections.

(Excerpt from archival footage)

NICHOLAS COWDERY: They seem to be trying to outbid each other on some sort of scale of toughness.

MORRIS IEMMA, FMR NSW ALP PREMIER: So what? Nicholas Cowdery makes that comment. So what?

(End of excerpt)

NICHOLAS COWDERY: Law and order campaigns are generally based on the proposition that if you make
the laws more restrictive and the punishments more severe, it will reduce criminal offending. Well
I'm sorry but those propositions are just wrong.

(Excerpt from archival footage, ABC TV)

REPORTER: Mr Cowdery believes the mandatory life sentences bill will not reduce crime.

NICHOLAS COWDERY (In Parliament): Mr Chairman it is my view that all of my evidence should be given
in the public interest.

(End of excerpt)

NICHOLAS COWDERY, DPP NSW: The most obvious consequence of these policies is that we increase the
prison population, and for what benefit? Prison population's gone up 40 per cent in the last 10
years and 40 per cent of them when they walk out of prison will be back in there within two years.
We need to have smarter laws not tougher laws. We are in a state election campaign at the moment.
So far there isn't any sign of this one developing in the same way.

MARK TEDESCHI QC, CROWN PROSECUTOR: I don't think that as a crown prosecutor or even as a director
that one should become involved in controversial issues, particularly around election time, about
sentencing or things like that.

One might have the thought that if one offends one's political masters that sometimes there are
repercussions, and those repercussions can sometimes have budgetary consequences.

NICHOLAS COWDERY, DPP NSW: We have had funding cuts, but I don't think that they have been
connected with any position that I've taken or anything that I have said publicly. A few years
after my wife had left I heard news that Joy's husband died suddenly.

JOY COWDERY, WIFE: Nick wrote the usual condolence letter and he came to Sydney and we went out for
dinner.

NICHOLAS COWDERY, DPP NSW: One thing led to another and on one of my visits I popped the question.
Well, she said yes and we've been together ever since.

JOY COWDERY, WIFE: I think we were both probably lonely and I think he said, well we've both got a
second chance. Nick asked me if he could adopt the children, so he said, I want to participate in
their upbringing. I don't want to sit back and observe, I want to be a hands-on father.

EDWINA COWDERY,DAUGHTER My sense of him taking us on, the three children, was he did feel some
sense of responsibility to my father, whom he knew, and I think he was also in a kind of - this is
an adult perspective - looking for looking for a family himself. I think there's a softness
underneath that tough exterior that you see, but you don't get to see it very often.

NICHOLAS COWDERY, DPP NSW: In the old days victims were just witnesses - nothing more. When I had
people like Ken Marslew coming in, those encounters taught me lessons and taught me that more
needed to be done, and it has persuaded me to bring whatever pressure I can bear onto our systems
to make them more accommodating of victims.

KEN MARSLEW: My view of Nick has changed over the years. I just saw the guy, the intelligent guy,
who can be stubborn, but has a reason to be that way because he's very independent.

HOST, ENOUGH IS ENOUGH: Please welcome New South Director of Public Prosecutions...

KEN MARSLEW: I also think that he could be more open to the information he takes on board.

NICK COWDERY (Speaking at Enough is Enough): Thank you to Enough is Enough for the invitation...

KEN MARSLEW, 'ENOUGH IS ENOUGH': Society has an opinion and some of Nick's stands don't necessarily
fit in what everyone else thinks.

NICK COWDERY (Speaking at Enough is Enough): We now treat victims of crime very differently from
when I was first appointed.

KEN MARSLEW: But he's good at what he does. Could he be better? Like all of us he could be better.

(Excerpt from archival footage, ABC TV, 2006)

REPORTER: One of most experienced prosecutors in New South Wales, Dr Patrick Power, is to face
court later this month charged with child pornography offences.

(End of excerpt)

NICHOLAS COWDERY, DPP NSW: One of the most testing experiences in my time in offence was the time
when one of the senior prosecutors was found to have child pornography on his computer.

GREG SMITH, FMR DEPUTY DIRECTOR OFFICE OF DPP: Well I had a phone call from the head of personnel
saying that Patrick had brought a computer in to be looked at and that when they were transferring
information from that computer onto another hard drive, the officer found child pornography, and
there was a whole lot of it. And I got onto Nick on the phone who was in Brisbane and discussed it
with him.

NICHOLAS COWDERY, DPP NSW: On the telephone with Greg we determined that Patrick Power should be
called in to Greg's chambers. And I felt that it was important that the allegation should at least
be put to him for whatever response he might choose to make.

GREG SMITH, FMR DEPUTY DIRECTOR OFFICE OF DPP: Anyhow we called him in and he said, oh I can see
there's a prima facie case of possession of child pornography. He left and I rang Nick and then I
rang the police.

(Excerpt from archival footage, ABC TV, 2006)

SIMON SANTOW, REPORTER: Police were called in after an explicit video recording was allegedly found
on Dr Power's personal computer.

NICHOLAS COWDERY: I'm shocked; I'm dismayed at the turn of events.

(End of excerpt)

NICHOLAS COWDERY, DPP NSW: I felt, as did many other people in the office, completely betrayed by
Patrick Power. For him to be engaged in this kind of conduct, which he clearly knew was illegal and
immoral, was a betrayal of everything that he had worked for and everything that we had expected of
him.

(Excerpt from archival footage, ABC TV, 2006)

PETER DEBNAM, FMR LIBERAL LEADER: I'm very pleased to announce that Greg Smith will be our
candidate in the seat of Epping.

(End of excerpt)

GREG SMITH, SHADOW ATTORNEY-GENERAL NSW: For some time after Patrick was suspended, the government
were defending the DPP office, but within two months I was preselected as a Liberal candidate and
suddenly I became the target.

(Excerpt from archival footage, Parliament, 2006)

CARL SCULLY, NSW POLICE MINISTER: There is no justification from forming a person of interest in
relation to offences prior to the police being informed.

(End of excerpt)

MICHAEL TIDBALL, LAW SOCIETY OF NSW: The view expressed in the NSW Parliament was that Mr Power
should have heard about the matter first from the police rather than from his employer.

(Excerpt from Archival footage, Parliament, 2006)

DAVID CAMPBELL, FMR MINISTER FOR POLICE: Power was tipped off!

SPEAKER: Order! The Minister for Police will resume his seat.

(End of excerpt)

GREG SMITH, SHADOW ATTORNEY-GENERAL NSW: That's how people generally at that level are treated.
It's not as if he's charged with murder. It's not as if he's been caught with a smoking gun. The
fact was that natural justice required that it at least be put to him.

NICHOLAS COWDERY, DPP NSW: I still believe we took the right course with Patrick Power, but I do
admit there is room for another view. If a similar situation arose again in the future I might take
a different course, simply to avoid that grief. The resolution of the whole Patrick Power matter
took quite some time and during that time there was a raised level of tension between me and the
Attorney-General.

(Excerpt from archival footage, ABC RADIO, 2008)

REPORTER: The state's Auditor-General has handed down a critical report into the Office of the
Director of Public Prosecutions. The Attorney-General John Hatzistergos supports the idea of an
executive officer to oversee spending.

NICHOLAS COWDERY, DPP NSW: The Government in fact appointed a senior officer reporting to both me
and to Hatzistergos, the Attorney-General. I was concerned and I was very anxious.

GREG SMITH, SHADOW ATTORNEY-GENERAL NSW: He's supposed to be independent and to then put an officer
in there that's answerable to the politicians and that just undermines your independence.

MICHAEL TIDBALL: As the matter was out there in the public space he chose to deal with the matter
publicly.

(Excerpt from archival footage, ABC RADIO, 2008)

REPORTER: He's described the government's actions as ruthless and implied the premier as a puppet.

MORRIS IEMMA: His comments are bizarre.

(End of excerpt)

MICHAEL TIDBALL, LAW SOCIETY OF NSW: It is unprecedented for a DPP. It was an extraordinary thing
for Nick to do.

NICHOLAS COWDERY, DPP NSW: Looking back, I think that's the only occasion on which I've probably
gone over the top. I probably allowed my anger to overwhelm my better judgement.

GREG SMITH, SHADOW ATTORNEY-GENERAL NSW: It doesn't show him as a terribly political person because
politics is the art of compromise and he's not a compromiser.

NICK COWDERY, DPP NSW: It's busy today, it's a beautiful day. It's bringing everyone onto the
water.

JOY COWDERY, WIFE: Our weekender is Nick's escape. When we get in the boat his face changes and
it's like he's a free man.

(To Nicholas) You're looking a bit wild and woolly with your hair.

NICHOLAS COWDERY, DPP NSW: Having life tenure as DPP I could only be dismissed if I went mad or
bankrupt. But I discovered in more recent times that there is an anomaly in the legislation and it
requires that if I am to be entitled to the pension, which is my right, I have to retire before I
turn 65. I have attempted to persuade the Attorney-General to correct the anomaly. He has refused.
As I turn 65 this month, I have just given notice of my retirement. I won't be bitter about the way
it's ended; life's too short for that. I'll just get on with whatever my next life brings me.

MARK TEDESCHI QC, CROWN PROSECUTOR: Thank you very much for coming here to fete our Director
Nicholas Cowdery. You've done a remarkable job of being Director of Public Prosecutions, which must
be one of the most difficult jobs in Australia.

GREG SMITH, SHADOW ATTORNEY-GENERAL NSW: Well, his legacy is that he has stood up for independence.
He's done it very well, and has suffered many wounds trying to do it.

KEN MARSLEW: Maybe once what I saw as negative character traits - independent, touch of arrogance,
dogmatic, but sticks to his guns - you can actually now see them as really positive traits to carry
out the role that he has to carry out.

(Footage of Ken and Nicholas meeting at Nicholas's office)

NICHOLAS COWDERY: Welcome to the office.

KEN MARSLEW: Nick! How are you?

NICHOLAS COWDERY: Good to see you.

KEN MARSLEW: Likewise. As it comes to the end of your reign I've come to return something to you,
Nick. Do you recognise them at all? (Holds up jar with two olives) There they are.

NICHOLAS COWDERY: Well thanks for restoring my integrity.

(End of footage)

KEN MARSLEW: I've come to know the man and I think he deserves to keep his, because they must be
fairly large to do the job he's done.

CLOSING CAPTIONS: 'Australian Story' sought interviews with a number of current and former Labor
Premiers and Ministers but all declined. Patrick Power pleaded guilty to possession of child
pornography and spent 6 months in jail.