Brothel Gate Day 15 Am

1MR DEVRIES:

If Your Honour pleases, last time we were in court

2

there was mention made of two documents that Mr Johnson

3

wanted to bring before the court, and I indicated I'd

4

endeavour to get those Your Honour.

5HIS HONOUR:

Yes.

6MR DEVRIES:

I have copies of both Ms Love's report, and having

7

read it I have no objection to it being tendered, even at

8

this late stage.

9HIS HONOUR:

Yes, thanks Mr Devries.

10MR DEVRIES:

I have multiple copies Your Honour.

11HIS HONOUR:

I'm grateful to you for that.

12MR DEVRIES:

While the tipstaff is here Your Honour I can hand

13

up a copy of the - with Your Honour's leave, a copy of

14

the orders of the Federal Magistrates' Court of 9

15

September.

16

relevance of those I have no objection to those being

17

tendered.

18

their being tendered.

19HIS HONOUR: 20

Again I - whilst I'm not considering the

It would be a lot quicker just to consent to

Well I understand that, and I'm grateful to you

for your assistance Mr Devries.

21MR DEVRIES:

May it please Your Honour.

22HIS HONOUR:

Thanks.

Mr Johnson you were concerned last

23

occasion that Ms Love's report, which has been referred

24

to in the voir dire wasn't before me.

25

tender it - reopen your case now to tender that in any

26

evidence on your behalf in this trial?

Do you wish to

27MR JOHNSON:

If that's the process, yes, Your Honour.

28HIS HONOUR:

Yes.

29#EXHIBIT 65 30

Copy psychological report by Ms Marianne Love

dated 07/12/07.

31MR JOHNSON:

Forgive me Your Honour, what was the number of

1.LL:NS 13/02/09 2Cressy

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64

DISCUSSION EXHIBIT 65

1

that exhibit please?

2HIS HONOUR:

Sixty five I make it.

3MR JOHNSON:

Sixty five, thank you Your Honour.

4HIS HONOUR:

I take it you wish to also tender the order of

5

Federal Magistrate O'Dwyer of 9 September 2008?

6MR JOHNSON:

Yes, thank you Your Honour.

7HIS HONOUR:

Yes.

8#EXHIBIT 66 9 10

Copy interim order of Federal Magistrate O'Dwyer

dated 09/09/08 in proceedings in the Federal Magistrates' Court of Australia MLC10308 of 2007.

11MR JOHNSON:

Excuse me Your Honour, I'm just wondering whether

12

that should be tendered as my exhibit or Mr Devries'

13

exhibit.

14HIS HONOUR: 15

Well I don't think it's really - that's academic,

you'll - - -

16MR JOHNSON:

There might be three year's jail time swinging on

17

whether I'm using Federal Magistrates' Court documents

18

rather than Mr Devries Your Honour.

19HIS HONOUR:

I doubt it.

I'll receive it as Exhibit 66.

20MR JOHNSON:

Thank you Your Honour.

May I - while we're

21

looking at exhibits I had two things I wanted to raise.

22

Firstly once again Exhibit 58, Mr Devries did say, and

23

it's recorded in transcript, that I should be providing

24

not just a complete copy of that letter but also the

25

attachments.

26

attachments which I have in my hand here Your Honour,

27

which was the one of substance.

28HIS HONOUR: 29

I thought that that was Exhibit 58A of the

complete copy - - -

30MR JOHNSON: 31

So I'm again submitting one of the

That was just the two page - originally Exhibit 58

has only got the first page, not the second.

1.LL:NS 13/02/09 2Cressy

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65

DISCUSSION EXHIBIT 65

1HIS HONOUR:

Yes, but then later, on the next day, Exhibit 58A,

2

the description of that exhibit is a complete filed copy

3

of the - or filed copy it should be, of a letter of the

4

defendant to Mr Turnbull, is that - - -

5MR JOHNSON: 6

Yes, that's the first page and the second page,

but - - -

7HIS HONOUR:

I see, so there's more still.

8MR JOHNSON:

- - - it's not - there's a substantial - - -

9HIS HONOUR:

All right, well can you just show that to

10

Mr Devries?

11MR DEVRIES:

Your Honour's already ruled on this, and Your

12

Honour will recall ruling that this is the backdoor way

13

of getting into evidence matters that he couldn't get in

14

through the front door.

15HIS HONOUR: 16

tender.

Yes, you're quite right.

Yes, I reject the

Yes, thanks for reminding me Mr Devries.

17MR DEVRIES:

May it please Your Honour.

18MR JOHNSON:

The other item I wanted to mention Your Honour is

19

one of the exhibits has been mislabelled - one of the

20

plaintiff's exhibits - which one was that, Exhibit J Your

21

Honour.

22

for a moment please?

23HIS HONOUR:

If Your Honour could have a look at that exhibit

Yes, could I have Exhibit J please Mr Richards?

24

Yes, it's actually a letter purporting to be signed by

25

Andrew Hawking isn't it?

26MR JOHNSON: 27

It's simply not signed by Mr Johnson, so it's - it

should just be - - -

28HIS HONOUR:

I follow that.

29MR JOHNSON:

- - - letter on the lawyer's letterhead to

30

Mr Antonos Ioannou.

31HIS HONOUR:

All right.

1.LL:NS 13/02/09 2Cressy

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66

DISCUSSION EXHIBIT 65

1MR DEVRIES:

Your Honour Mr Johnson gave evidence - - -

2HIS HONOUR:

That he signed it.

3MR DEVRIES:

That he had signed it Your Honour.

4HIS HONOUR:

I agree with that.

5MR DEVRIES:

I would not have given that evidence, because I

6

did not sign it.

7HIS HONOUR:

Would you just mind not interrupting while I'm

8

talking.

I agree with that Mr Devries, I'm aware of the

9

evidence, but simply to save time, which Mr Johnson will

10

do - make his best endeavours to waste, I will delete

11

from the description of Exhibit J the words "signed by

12

Mr Johnson".

I will however refer to the transcription

13 in relation to that letter. 14 15#EXHIBIT J Letter on Sutton Lawyers letterhead to Mr 16 Antonos Ioannou dated Friday 30 November 17 2007. 18MR DEVRIES:

May it please Your Honour.

19Thanks Mr Richards. 20MR JOHNSON:

We'll now proceed to final address.

Your Honour, may I just mention please before I

21

resume, there is an issue because I do not recall giving

22

any evidence to the affect that I signed that letter

23

Exhibit J.

24HIS HONOUR:

Well I - - -

25MR JOHNSON:

I did not sign it - - -

26HIS HONOUR:

- - - I'll be reading the transcript of that, and

27

I'm not going to get into an argument with you now.

28

will read that part of the transcript again, you may be

29

right, you may be wrong.

30MR JOHNSON:

As an officer of the court I believe I'm right

31

Your Honour.

32

65.

33HIS HONOUR:

I

Yes.

1.LL:NS 13/02/09 2Cressy

I should refer to the Love report, Exhibit

I'm sorry, Mr Richards, could I trouble you FTR:1A

67

DISCUSSION EXHIBIT 65

1

for that thanks?

2MR JOHNSON:

Yes, thanks.

This is a report that Your Honour relied on

3

extensively on the – forgive me.

4

first day, on the voir dire.

5HIS HONOUR:

On 2 December 2008.

6MR JOHNSON:

Yes.

7

I'm thinking on the

The (indistinct) is your – the trial, Your

Honour.

8HIS HONOUR:

Two and a bit months ago.

9MR JOHNSON:

Yes.

I tender this because Your Honour obviously

10

placed great reliance on Miss Love's evidence and this

11

report at that voir dire on the first day.

12

of nice things about me.

13

articulate; speaks quickly, which I believe is recorded

14

in the transcript in these proceedings, reflecting a fast

15

thought processing ability.

16

distress about the well being, particularly (indistinct).

17

It says a lot

"Highly intelligent man;

Emotional concerns and

There's reference to an event where the children

18

told him that Pippin had become aggressive and violently

19

smashed walls and furniture.

Ended up reportedly in the

20

Werribee psychiatric ward".

There's evidence that one of

21

the witness, Miss Dek-Fabrikant gave concerning it but it

22

was heard as well, or her evidence was a little bit

23

truncated a difficult to extract, and I'm certainly no

24

wizard examining or cross-examining to get the finer

25

points of detail out, Your Honour.

26

Look at the third page.

27

"James reportedly experiences high levels of stress".

28

I apologise for that.

A current situation analysis.

I might just mention the date of this report which

29

is 7 December 2007.

30

prior to the release of Dr List's report, the other

31

report made available in that voir dire, and is an

1.LL:NS 13/02/09 2Cressy

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That's a think about ten or 12 days

68

DISCUSSION EXHIBIT 65

1

appendix to the pleadings in 9263 which Your Honour is

2

familiar with.

3

Mr Omar on the hearing which I believe is called another

4

voir dire.

5HIS HONOUR:

I handed those up in my response to

The hearing on Thursday.

Mr Johnson, what relevance does Ms Love's report

6

have to the issues between yourself and Ms Cressy, either

7

in relation to her Part 9 claim or her claim that you

8

hold the properties on constructive trust for her or to

9

the claims articulated and stated in your counterclaim?

10MR JOHNSON:

The report is relevant I think on – see just like

11

in Baumgartner v. Baumgartner the limited application

12

that that case has to this one is that the big issue in

13

this case is creditability of the parties, Your Honour.

14

The documentary evidence – you know, none of these

15

exhibits – I stand corrected but not a single one of

16

these exhibits is even listed in an affidavit of

17

documents - - -

18HIS HONOUR:

If you say this goes to credibility only then in

19

fact it's strictly not admissible.

You cannot tender

20

documents like that to support your own credibility - - -

21MR JOHNSON:

To also - - -

22HIS HONOUR:

I'm not going to be troubled too much about that

23

because I am anxious not to have you to have the

24

opportunity, which no doubt you will revel in, to waste

25

more time.

26

assist yourself.

27

this final address, as I tried to get you to do on

28

Wednesday.

Now, please address the issues in the case to Make sure you do yourself justice in

29MR JOHNSON:

Your Honour - - -

30HIS HONOUR:

It may assist you that it seemed to me the two

31

major points you made in a very long and otherwise

1.LL:NS 13/02/09 2Cressy

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69

DISCUSSION EXHIBIT 65

1

reasonably unhelpful or quite unhelpful final address on

2

Wednesday, were firstly you indicated that – and you

3

stressed that the plaintiff had not put forward any

4

supporting documentary evidence in support of her claim

5

under Part 9, and so that I'm reliant very much on her

6

viva voce evidence.

7

That's your first submission.

The second is that her credit in assessing her viva

8

voce evidence should be scrutinised carefully, given the

9

fact that you say that she took documents of yours and

10

circumstances reflect badly on her.

11

elevating your rather scrambled submissions into more

12

logical form, but they're the best two I could extract

13

from what you put to me on Wednesday in favour of you.

14

don't know if that assists but they seem to be the two

15

major points you were endeavouring to make to me on

16

Wednesday when you were actually trying to be at all

17

relevant.

18MR JOHNSON: 19

Now, I think that's

I

Your Honour, there are three levels to the

creditability.

20HIS HONOUR:

Yes.

21MR JOHNSON:

The first is the lack of hard written evidence and

22

lack of any exchange of hard written evidence between the

23

parties.

24

would've thought is extraordinary to have a Supreme Court

25

trial of this duration and complexity without relevant

26

documents.

27

plaintiff's affidavit of documents are even in the

28

evidence, Your Honour, except to the extent that I

29

tendered them to show that they're not relevant.

30

The plaintiff's - - -

31HIS HONOUR:

Not even affidavits of documents, which I

None of the documents listed in the

OK.

So the plaintiff did swear an affidavit of

1.LL:NS 13/02/09 2Cressy

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70

DISCUSSION EXHIBIT 65

1

documents?

2MR JOHNSON:

Yes, and for the life of me I don't understand

3

why, Your Honour.

4

were no orders made - - -

5HIS HONOUR: 6

There were no orders sought and there

There you are; you had discovery from the

plaintiff.

Anyway you say the lack of - - -

7MR JOHNSON:

Of documents - - -

8HIS HONOUR:

The more important issue that you're stating seems

9

to me that the plaintiff has not put forward any

10

documentation, particularly to support her claim that she

11

was earning a sizeable income from which she could make

12

any financial contribution to the properties.

13

the argument your - - -

Is that

14MR JOHNSON:

That's the second issue of the - - -

15HIS HONOUR:

Yes, yes.

16MR JOHNSON:

It also goes to the - - -

17HIS HONOUR:

I'll just write down that down.

18MR JOHNSON:

Thank you, Your Honour.

19HIS HONOUR:

Thank you.

20MR JOHNSON:

It also goes to who has the burden of proof in

21

this case.

22HIS HONOUR:

Yes.

23MR JOHNSON:

Mr Devries, in cross-examining me, tried to punch

24

holes in my documentation to establish that on my

25

evidence I haven't contributed 100 per cent to my own

26

assets.

27

but I don't believe he punched any holes at all in the

28

integrity of my documents in my hard written evidence.

29

And my oral testimony of course consistent with the

30

written documents.

31HIS HONOUR:

Now, forgive me, I believe I'm right on this,

So are you saying that your documentation supports

1.LL:NS 13/02/09 2Cressy

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71

DISCUSSION EXHIBIT 65

1

your viva voce evidence that it was you who made the

2

principal, if not sole, contribution - - -

3MR JOHNSON: 4

I contributed everything to my assets.

But

I - - -

5HIS HONOUR:

But is that the submission you're making?

6MR JOHNSON:

Yes, Your Honour.

7HIS HONOUR:

Thank you.

8MR JOHNSON:

Being a commercial lawyer, I put it the other way,

9

I'll just write that down.

I'd say that my viva voce evidence supports my hard

10

written documentation, most of it involving exchanges of

11

information and verification by banks approving loan

12

documents, builders doing things, etcetera, etcetera.

13

All third party endorsed, if you like.

14

evidence supports that.

And my viva voce

15

But – and I'm straying a little bit from the

16

credibility issue here except not looking so much to the

17

plaintiff's lack of credibility, but my inherent

18

credibility, OK.

19

well, you know, I'm a solicitor of 18 and a half years'

20

good standing, she's a prostitute of all almost seven

21

years' good standing.

22

age, Your Honour, and she's barely 30 years old.

23

even playing that card at all, I'm not suggesting that

24

there's something inherently more truthful in a solicitor

25

of 18 years' good standing, even one with the

26

reputation - - -

27HIS HONOUR: 28

And I'm not even playing the card of

Close to, you know, half of her I'm not

If you made that argument it would fall on deaf

ears with me.

29MR JOHNSON:

Thank you, I think, Your Honour.

30HIS HONOUR:

I find there's nothing by way of Ms Cressy's

31

former occupation which would assist or otherwise me in

1.LL:NS 13/02/09 2Cressy

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72

DISCUSSION EXHIBIT 65

1

assessing her credibility on oath in this case.

2MR JOHNSON:

Your Honour, there's even a question I gather

3

whether it's a former occupation and that goes to

4

credibility of that evidence if it's not supported in

5

writing or any other evidence for or against because how

6

would you get such evidence easily.

7

that, and this is on the burden of proof issue, that even

8

if Mr Devries had succeeded and punched a hole in my

9

written documentation or my viva voce evidence so that

10

maybe he showed that there was a gap that I could only

11

account for 90 per cent of the body of evidence in court

12

of the contributions to my property, he can't reverse the

13

burden of proof and say, u huh therefore that other

14

10 per cent must have come from Ms Cressy who's got no

15

tax returns, no bank statements, no payslips, et cetera,

16

et cetera.

17

He's failed.

But I would just say

He can punch a gap, but he's got to

18

gap fill it with positive evidence as part of the

19

plaintiff's case.

20

quite clearly there isn't, I might say – now, I'm not

21

sure what this exhibit is, but it was – no, I can give

22

you the exhibit number, Exhibit L, Your Honour.

23HIS HONOUR: 24

Now, if there was such a gap and I say

Just a moment, I just want to make a note of your

submission.

25MR JOHNSON:

Yes.

I think it's very – I think it's crucial, I

26

think the whole case turns on it, Your Honour.

27

my counterclaim, if allowed the time or the opportunity

28

to amend it, turns on that as well.

29

of proof issue, Your Honour.

It's a simple burden

30HIS HONOUR:

Now, you want me to go to Exhibit L?

31MR JOHNSON:

Exhibit L, please.

1.LL:NS 13/02/09 2Cressy

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73

As indeed

DISCUSSION EXHIBIT 65

1HIS HONOUR:

Just a second, thanks, Mr Johnson.

2MR JOHNSON:

If there was a 10 or 20 per cent gap between the

3

contributions I needed to make for my assets and the

4

contributions accounted for in my hard evidence or my

5

viva voce evidence or the evidence of my other witnesses,

6

including in particular Mr Rianou, that 20 per cent could

7

have come from other sources.

8

businesses, Your Honour.

9

the racetrack.

10

I could have other

I could have had a lucky win at

This is as (indistinct) as it gets, but members of

11

my family have racehorses, Your Honour, it's not

12

impossible.

13

media communications company business.

14

two of them, Your Honour.

15

advisory firm, I have one of those.

16

the evidence, Your Honour.

17

I may have other companies.

I may have a In fact, I have

I may have a corporate None of those are in

I may have other businesses entirely.

As the chief

18

executive of the One Law Foundation, I may be on a

19

substantial salary, whether it's in the right timeframe.

20

But the simple fact is I may have other sources of

21

income.

22

have come into a large inheritance, Your Honour, OK.

23

mere fact if there was a gap in my evidence of my

24

contributions to my assets, you can't just jump and

25

assume automatically because that's requiring me to prove

26

my innocence, Your Honour, and that's a big no no.

27HIS HONOUR: 28

An old uncle of mine might have died and I might The

Well I doubt it's requiring you to prove your

innocence, but I understand your point.

29MR JOHNSON:

The plaintiff must still be able to demonstrate

30

contributions and all she's got is viva voce.

31

viva voce, why the reason.

1.LL:NS 13/02/09 2Cressy

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74

And why

If a dingo stole her DISCUSSION EXHIBIT 65

1

evidence, why didn't she go back to get copies of tax

2

returns from the Tax Office, bank statements from banks,

3

payslips from employers.

4

brothels from 2002 or 1997 or 2004, that's really

5

confusing in her evidence as to what those dates were.

6

The exhibits put it, you know, she was working at Geelong

7

in the brothel Natine's.

8

extent that they have been partially decriminalised, or

9

mostly decriminalised, I don't know what the answer

10

Now, if she's working in

Surely those business, to the

is - - -

11HIS HONOUR:

If you lose your – you'll probably know the answer

12

to this, if you lose your tax returns, can you get copies

13

of them off the Tax Office?

14MR JOHNSON:

I believe so.

Even under the old 1988 Privacy

15

Act, basically it was privacy relations between you and

16

government agencies.

17HIS HONOUR: 18

Now, tell me this, you've taken me to Exhibit L,

have you distracted yourself from that or what's - - -

19MR JOHNSON:

No, not at all, Your Honour.

20HIS HONOUR:

What's the point you make off Exhibit L?

21MR JOHNSON:

I'm sprinting on several levels at once so we'll

22

get through this more quickly.

23

Mr Devries put to me the suggestion that – now, I'll put

24

it in the way that I interpret it, that I was a pimp

25

daddy, Pippin was my wife, or one of my, I guess, my only

26

working girl.

27

believe – I believe it's a crime to live off the earnings

28

of a prostitute, Your Honour, so I'm accused of something

29

rather nasty there.

30

industry has been decriminalised.

31

in to buy properties.

1.LL:NS 13/02/09 2Cressy

In cross-examination

I was taking the cash off her, which I

FTR:1A

I don't think that aspect of that And I was pumping it

I was masquerading perhaps that 75

DISCUSSION EXHIBIT 65

1

the cash flow was coming from masquerading as a

2

solicitor, Your Honour.

3HIS HONOUR:

No, that's not the point that the plaintiff's

4

made.

My understanding of the plaintiff's case is a

5

little different to that.

6

accepted that apart from her evidence that she made some

7

contribution

8 9

Ms Cressy conceded and

To the deposits on some of the property, she's – just a minute, she's accepted that it was you who bore

10

the burden on all the mortgages.

11

given evidence, that she paid for some of the

12

improvements, but my understanding is she's really

13

acknowledged that you bore the principle burden on

14

particularly the mortgages loans.

15

She has stated that, or

But her argument – her evidence was that she devoted

16

her income to the household expenses to supporting that,

17

so it just further to all the normal expenses in running

18

the house.

19

relationship worked.

That was how the finances of their

20MR JOHNSON:

Your Honour - - -

21HIS HONOUR:

I don't think she's really being saying she put

22

much money into these properties.

23

me in due course, sorry.

24MR JOHNSON:

Mr Devries may correct

No, I'm grateful for the way you've summarised the

25

plaintiff's allegations, because it all rises and falls

26

on credibility and burden of proof.

27

relationship.

28

She has to prove some cash in somewhere, not even pay

29

slips, bank statements.

She has to prove a

She has to prove as part of the household.

30

Your Honour, the suggestion was that I was – I had

31

cash flow deficiencies in my business, and I was relying

1.LL:NS 13/02/09 2Cressy

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76

DISCUSSION EXHIBIT 65

1

on Ms Cressy's cash from her nocturnal activities, I

2

assume they were nocturnal, I'm afraid I don't – diurnal

3

perhaps.

4

telling me – it, it's all just really, really strange,

5

but I got into financial difficulties when she and I no

6

longer saw eye to eye in whatever our relationship was.

7

You know she was somehow hiding from me,

Now we cease to see eye to eye around, she says May

8

2007, but I know it was Easter 2007.

9

after Easter 2007 when I realised that she was doing a

10

whole lot of the stuff that under our agreement she was

11

not to do, and that was the agreement in which I appeared

12

a substantial benefactor for her household, me not even

13

being a part of it, Your Honour.

14

she's on the right track, she's back at study, she's

15

putting time with the kids.

16

It was the weekend

Me thinking that, look

What she told me I appalled, that being the first

17

person and the third person, and realised that she'd

18

probably been up to her old tricks all the time I knew

19

her, but just hiding them from me for a number of years.

20

Now that letter dated 21 January 2008 - - -

21HIS HONOUR:

That's Exhibit L.

22MR JOHNSON:

Exhibit L, shows that I was able to meet all of my

23

mortgage obligations up to that point, including a little

24

bit of arrears that I had.

25

in arrears for a month or two at that point.

26

strategy for splitting my tainted assets, the ones that

27

were affected with the vexatious caveats, just leaving

28

them there, and what cash I did have, because my cash, my

29

earnings were impacted as Marianne Love said in her lab

30

report, "By all of the stress, all of the concerns".

31

Some of the properties were I had had a

The shock-horror of reading Dr List's report, all

1.LL:NS 13/02/09 2Cressy

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77

DISCUSSION EXHIBIT 65

1

these allegations made against me.

2

everything, as I said on the first day of the hearing,

3

Your Honour.

4

cannibalism, vampirism, and extraterrestrialism, they're

5

about the only things I can think of that haven't been

6

thrown at me.

7

par for the course when you get a nasty lengthy time

8

limit dispute, custody access dispute, and (indistinct)

9

especially when you have to over a poor sweet little

10 11

I'm accused of

I'm accused of everything except

I guess they're the only three that aren't

eight year old girl. Now that again aptly is nice corroborative evidence,

12

the fact that my cash flow alone is sufficient for me to

13

make 100 per cent of my contributions to 100 per cent of

14

assets.

15

don't know to what extend that this is in the evidence,

16

but it's been discussed, part of the fishing exercise

17

that the plaintiff's legal team did, they went and

18

subpoenaed all my banks for documents, OK.

19

There's also the fact that in December, now I

I guess that that was an alternative to orders for

20

discovery and preparation of affidavit and documents, a

21

highly irregular and discreditable process for bringing a

22

matter on for trial, Your Honour, for very experienced

23

litigation practitioners.

24

over ten years experience as an accredited Family Law

25

specialist, Your Honour.

26

Each of these people claims

What that fishing trip showed up is that in December

27

2007 I was approved for about $2m worth of Commonwealth

28

Bank loans, refinancing my property at Gibson Street,

29

Caulfield, converting my leasehold at Torquay to a

30

freehold, and also approved for two off the plan units in

31

Breezy Street in Brunswick.

1.LL:NS 13/02/09 2Cressy

FTR:1A

78

Now all of that loan DISCUSSION EXHIBIT 65

1

application documentation's based entirely on my

2

financial documents.

3

all these documents are prepared, your loan applications

4

are based on your last available tax return.

5

It emphasises the fact that when

Now my 2007/2008 tax return wasn't available til

6

half a year and a bit later.

So it was going off the

7

2006/2007 which was a good year, and the 2005/2006 tax

8

return, also a good year.

9

shape or form any single penny of contribution, and in

I did not need in any way,

10

fact by cutting my benefaction well in excess of $1000 a

11

week for most of the latter period when I was living in

12

my first street apartment, and Ms Cressy was living with

13

her household at Point Cook or Altona, by cutting those

14

benefactions I could easily have had 12 properties,

15

Your Honour.

16

I just want to put Mr Devries on notice that it's

17

not enough just to say, "Oh, Mr Johnson can't prove that

18

he put all his own money into all his assets".

19

doesn't prove she put a penny in.

20

Your Honour, but there's no documentation even that she

21

even earned a penny.

22

your employer for pay slips.

23

back to your bank.

24

That

It's very shaky,

It's not difficult to go back to It's not difficult to go

The dingo may have stolen your evidence, but the

25

dingo won't have stolen the Tax Office evidence, the

26

bank's evidence, your employer's evidence, people who did

27

repairs on the house's evidence.

28

amazing dingo to be able to achieve all that, huge

29

credibility and burden of proof issues, Your Honour.

That would be a pretty

30

Then my position is vindicated even further by this

31

Exhibit L over which I'm attacked even further by the $2m

1.LL:NS 13/02/09 2Cressy

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79

DISCUSSION EXHIBIT 65

1

that the Commonwealth Bank lent me in December 2007.

2

I wrote letters regarding the caveat removal demanding it

3

be removed, demonstrating that I under-contributed to

4

those – the purchase monies to the Gibson Street

5

apartment by taking on mortgage obligations, and I

6

actually got $11,000 I think it was cash back on the top

7

because of various delays in that settlement process.

8 9

Now

It took nine months more than it should have, and the property price up went up nicely, the land value

10

ratio was great, so I ended up borrowing every penny that

11

I needed including mortgage insurance, stamp duty and got

12

$11000 cash back.

13

for the period February through to June pre settlement.

14

So real credibility issues - real burden of proof issues,

15

I don't have to even prove a hundred per cent

16

contributions, but I assure you (indistinct) certainly

17

have.

18

document titled "Home loan Investment home loan

19

application".

I also got the rent from the tenant

That's Exhibit M by the way Your Honour, the

20HIS HONOUR:

M?

21MR JOHNSON:

M - M for Mary Your Honour.

22HIS HONOUR:

Thank you.

23MR JOHNSON:

Exhibit N Your Honour I believe will have all of

24

my financials attached.

25

bank statements showing huge amounts of money paid to me

26

by my two clients, Barwon Regional Water Corporation

27

(indistinct) corporation.

28

More than enough to meet the $12000 a month mortgage

29

servicing costs.

30

was needing more than double that when you take into

31

account salaries for my staff, child support for

1.LL:NS 13/02/09 2Cressy

FTR:1A

What they will show basically is

Substantial amounts of money.

I was needing more than that again, I

80

DISCUSSION EXHIBIT 65

1

Mrs Johnson, and the benefaction I was giving Miss

2

Cressy.

3

bothering to enquire in fact whether the youngest of the

4

three children was in fact biologically mine.

5

loving guy recklessly generous Your Honour.

6

sucker is born every day is fact.

7

a few lines on my summary page Your Honour.

8

proof and evidentiary issues, I was talking about living

9

together issues.

Being recklessly generous, I guess not even

A sweet I guess a

I've just gone through Burden of

Miss Cressy has to prove that we were

10

living together and part of the household.

11

to do this with a bit of (indistinct) evidence, and

12

there's some very, very weak circumstantial documentation

13

included in the exhibits - embarrassingly weak, not the

14

sort of thing you'd want to pin a caveat on if you had an

15

exposure for damages if there was a counterclaim claim

16

against you for putting on a vexatious caveat.

17

Sorry, let me just recap.

Now she tries

The dingo stole my

18

evidence says Miss Cressy, while Mr Johnson says well the

19

plaintiff stole my evidence.

20

to be determined by Your Honour, did she have a right to

21

be at the Point Cook house, were those documents joint

22

property?

23

answer the question Your Honour.

24

That is one of the issues

You're answering the question before you

I went to a lot of trouble to reconstitute my stolen

25

documents, and they are tendered in the exhibits -

26

Exhibits 1A to 1K, but basically in there - Exhibits 4 to

27

8 courtesy of Mr Ioannou, Exhibit 11 courtesy of the

28

Commonwealth Bank, Exhibit 8 courtesy of my landlord

29

(indistinct).

30

Exhibit 59, the green shopping bag, that aspect of the

31

recovered loot.

1.LL:NS 13/02/09 2Cressy

The originals of eight popped up in

Now Your Honour can easily look at

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81

DISCUSSION EXHIBIT 65

1

what's in the green shopping bag, does any of that look

2

like joint owned financial information?

3

easily look at the documents that were attached to the

4

plaintiff's affidavit of documents.

5

like joint owned property of a de facto relationship?

6

course not.

7

family law case?

8

like they're relevant to the claims in the Part 90

9

constructive trust?

Your Honour can

Do any of they look Of

Do they even look like they're relevant to a Of course not.

Do any of them look

Of course not Your Honour.

Now

10

Mr Devries on the afternoon of 11 December was putting me

11

on notice because there's five boxes of that stuff that

12

Miss Cressy took that night, well I and Illyana were

13

asleep in the house.

14

How brazen's that?

They're sitting under lock and key down at the

15

Federal Magistrates' Court.

Mr Devries says, "and I'm

16

going to ask Your Honour to draw negative inferences

17

about Mr Johnson, because he hasn't run down there and he

18

hasn't photocopied all these documents and brought them

19

into court".

20

a page Your Honour.

21

photocopying money - let alone three meals a day, are

22

luxuries I can't afford this week Your Honour.

23

it's this fallacy that the burden of proof is on me.

24

I don't have to prove a hundred per cent

25

contributions, 50 per cent - I don't have to prove a

26

single penny of contribution by myself to my assets Your

27

Honour.

28

contribution that she's claiming, whether in hard

29

financial documents and records, or organically through

30

this amazing claim that I was part of her household and

31

part of a defacto relationship.

Now every page of photocopies was 20 cents I've struggled this week because

Now again

The plaintiff has to prove the percentage of

1.LL:NS 13/02/09 2Cressy

FTR:1A

82

Burden of proof - so if DISCUSSION EXHIBIT 65

1

any inferences are to be drawn by the fact that none of

2

the loot with one exception Your Honour - none of the

3

loot from that burglary on 16 November 2007 has been used

4

in evidence in these proceedings.

5

loot that wasn't handed to the coppers, the bit of the

6

loot that was attached to an affidavit of documents sworn

7

by the plaintiff - surely the inferences have to be drawn

8

against the plaintiff's case?

9

point it's convenient to refer to the one who stole the

Even the bit of the

Now I might - at this

10

loot that was actually used in evidence.

11

Your Honour.

12HIS HONOUR: 13

Just a minute.

It's Exhibit O

It's the application to redirect

mail, is that right?

14MR JOHNSON:

Yes, Your Honour, and the day - - -

15HIS HONOUR:

Could I have (indistinct) please Mr Richards.

16MR JOHNSON:

- - - 19 September 2007.

Actually the tenth

17

birthday of my second oldest child.

That document was

18

not disclosed to me as part of the mandatory disclosure

19

under the - Order 29 or Order 30 Your Honour, affidavits

20

of documents.

21

produce an affidavit of documents, but I would have

22

thought given that she produced one - Your Honour, given

23

that once the party has produced an affidavit of

24

documents, whether by order of the court or not, surely

25

those continuous disclosure obligations kick in.

No, there was no order that the plaintiff

26HIS HONOUR:

Yes.

27MR JOHNSON:

So all of these documents in this A to Q - - -

28HIS HONOUR:

What's the date of that affidavit of documents?

29

If you don't have it at your fingertips - - -

30MR JOHNSON:

April, April, Your Honour.

31HIS HONOUR:

Two-thousand and - - -

1.LL:NS 13/02/09 2Cressy

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83

DISCUSSION EXHIBIT 65

1MR JOHNSON:

2008.

It was a misreading, I submit, of Berry

2

Family Lawyers of the orders that were made on the

3

application of their predecessors, Harwood Andrews

4

Limited, the rather unusual orders that Mr Justice Whelan

5

made on 12 March 2008 and there were orders for – orders

6

were sought for me to disclose documents in a particular

7

way in respect of four of my properties, not all six,

8

only four of them for starters, so that was denied.

9

The disclosure obligation was put on me in the

10

application.

11

Mr Johnson doesn't have to disclose anything, there's no

12

orders for discovery, get out of my practice court

13

jurisdiction, this is an abuse of process, Mr Ingleby and

14

Mr Hanlon.

15

discovery, interrogatories, pleadings, et cetera,

16

et cetera.

17

Mr Justice Whelan said, no, look,

Go and run your trial properly with proper

That was never done, that was never done.

I believe that, and this is the third – sorry,

18

actually the fourth level of credibility, there's a lack

19

of credibility in the way that the plaintiff's legal team

20

have run this case, Your Honour.

21

credibility in the process.

22

the time of, prior to or immediately possible afterwards

23

the lodging of the caveats.

24

And how reliable is that given there's a huge credibility

25

issue which Your Honour has to adjudicate on.

26

Huge.

Total lack of

No evidence was gathered at

He said viva voce evidence.

Much huger than the judge at first instance

27

in Baumgartner v. Baumgartner.

28

dispute that there was a, I think it was a married

29

relationship.

30

issue as there is at the very threshold.

31

were they living together, was there a domestic

1.LL:NS 13/02/09 2Cressy

There there was no

Mr and Mrs Baumgartner.

FTR:1A

84

So there was no Was there a -

DISCUSSION EXHIBIT 65

1

relationship.

2

the plaintiff has not put forward any documents.

3

what I'm saying now is that I should not have been

4

surprised by any of these exhibits and they should all

5

have been attached to a supplementary affidavit of

6

documents issued sometime after - - -

7HIS HONOUR: 8

But

Are you saying none of them were in the affidavit

of documents?

9MR JOHNSON: 10MR DEVRIES: 11

It's a huge credibility issue given that

Of course not, Your Honour, no. Perhaps if I could rise at this stage,

Your Honour?

12HIS HONOUR:

Yes.

13MR DEVRIES:

First of all, Mr Johnson is giving evidence from

14

the Bar table as to what happened.

15HIS HONOUR:

Yes.

16MR DEVRIES:

Now, if he is going to do that, he's got an

17

obligation to do so with honesty and candour.

18HIS HONOUR:

Yes.

19MR DEVRIES:

And to properly state what the reason for that

20

document was and that is in the orders of His Honour

21

Justice Whelan of - - -

22HIS HONOUR: 23

Well he made a limited - that's right, you're

right.

24MR DEVRIES:

Exactly, Your Honour.

25HIS HONOUR:

He made a limited discovery order, didn't he?

26MR DEVRIES:

He did, Order 1 on 12 March.

And it's not an

27

affidavit of discovery in the usual terms.

28

is affidavit of discovery of particular specified

29

documents for a particular reason, not an affidavit of

30

discovery generally.

31HIS HONOUR:

No, you're right.

1.LL:NS 13/02/09 2Cressy

FTR:1A

That document

It was that you each file 85

DISCUSSION EXHIBIT 65

1

documents falling within the categories of Paragraph 1 of

2

the summons of 13 February and that summons.

Yes - - -

3MR DEVRIES:

And whilst I'm on my feet - - -

4HIS HONOUR:

They really related to mortgages, rentals,

5

contracts of sale and the like.

Yes, I follow.

6MR DEVRIES:

Whilst I'm on my feet in respect to - - -

7HIS HONOUR:

In fact - yes, I follow, in relation to some of

8

the properties.

9MR DEVRIES:

And whilst I'm on my feet in respect to that

10

order, Your Honour, Mr Johnson has stated earlier in his

11

address that there were undertakings given by the

12

plaintiff's counsel on that day about certain things and

13

in other matters, Part A, Your Honour will see that no

14

such undertakings were given, it was just an advice as to

15

what would happen.

16HIS HONOUR:

Yes.

17MR DEVRIES:

And, in my respectful submission, that falls far

18

short of an undertaking to accuse counsel of giving an

19

undertaking which was breached when no undertaking was

20

given on the part of the solicitors inappropriate - - -

21HIS HONOUR:

Yes.

Thanks for that assistance, Mr Devries.

22MR DEVRIES:

May it please Your Honour.

23MR JOHNSON:

Shall I continue, Your Honour?

24HIS HONOUR:

Yes.

25MR JOHNSON:

Thank you.

I'm indebted to Mr Devries for raising

26

that order to your attention.

27

would have sent the - - -

On that day, Mr Whelan

28HIS HONOUR:

Justice Whelan only ordered limited discovery.

29MR JOHNSON:

Yes, Mr Justice Whelan would have sent them away

30

empty handed.

31

this problem because all my documents are in my shed at

1.LL:NS 13/02/09 2Cressy

But I said, well, Your Honour, I've got

FTR:1A

86

DISCUSSION EXHIBIT 65

1

the back of the property and I can't get access to them.

2

If you are kind enough to make those orders reciprocal on

3

both parties and assist arrangements for me to be able to

4

get my Documents 1 to 1K as it panned out in the scheme

5

of things from Ms Cressy I'll consent to those orders and

6

that's what's happened.

7

Now, in the event I actually did produce that

8

category of information, not just for the four properties

9

listed by the plaintiff's legal team, they couldn't even

10

remember to list all six, Your Honour.

11

answers for all six.

12

property handover?

13

– Exhibit No.1.

14

1K, lying under the rubbish in the garage, the mess left

15

behind by the plaintiff when she exited stage left on

16

Boxing Day 2008, OK.

17

the discovery process there.

18 19

I gave the

Now, what did I get out of the I submit accidentally I got document

And we all know how I got Exhibit 1A to

So there's several violations of

Now, in terms of what was said before Mr Justice Whelan, Mr Justice Whelan asked Dr Richard Ingleby - - -

20MR DEVRIES:

Your Honour - - -

21MR JOHNSON:

That isn't evidence - - -

22MR DEVRIES:

I have objected to evidence from the Bar table

23

over and over, now and on a previous occasion, and

24

Mr Johnson keeps giving evidence from the Bar table.

25

object.

26HIS HONOUR:

I

It is not - - I agree with that.

It's not really relevant to

27

any issues before me.

28

sought to attack the credit of the plaintiff and indeed

29

her advisers failing to make adequate discovery.

30

Mr Devries has drawn to your attention the fact the order

31

for discovery by Justice Whelan was a limited order and

1.LL:NS 13/02/09 2Cressy

FTR:1A

You had attacked the credit or

87

DISCUSSION EXHIBIT 65

1

that was why the affidavit was of limited form.

2

said or what was not said in front of Justice Whelan save

3

as – and I don't think there has been any evidence to

4

that effect in front of me, is irrelevant.

5

What was

It is inadmissible and it's also – you are now

6

distracting yourself from the issues.

7

for some time been able to remain relevant to the issues,

8

and were making submissions on which you sought to rely.

9

It's in your own interests to try to remain relevant.

10

You actually had

You understand what's relevant.

11MR JOHNSON:

I - - -

12HIS HONOUR:

Ms Love I note had the same impression of your

13

intellect that I have.

14

have not only legal training but you have 20 years legal

15

experience, and you've told me in that capacity you have

16

worked for a very high ranking law firm.

17

very, very different, as I've already pointed out, to a

18

lot of unrepresented litigants.

19

capabilities than they do and you have also shown in this

20

case when you've wanted to, that you have been able to

21

direct yourself most relevantly to the issues.

22

not try to distract this case from them.

23

because anything irrelevant simply will not assist your

24

case.

25

it will not be assisting your case.

26

you do yourself justice.

27MR JOHNSON:

You have abundant intellect.

You

So that you are

You have far more

Now, do

Stay relevant

You may enjoy saying it but I can tell you this, It's important that

Your Honour, I'm pointing out the third level of

28

lack of credibility in the plaintiff's case, and that is

29

the way the case has been conducted by her legal

30

representatives.

31

Your Honour has said about me as an intellect, et cetera,

1.LL:NS 13/02/09 2Cressy

FTR:1A

I should also say that given all that

88

DISCUSSION EXHIBIT 65

1

and if so (indistinct) to say that.

It makes me

2

particularly disappointed that we wasted three hours of

3

the first day of the hearing.

4

court day, Your Honour, on a man who stands up – 18 years

5

and quite a prominent member of the Law Institute, a

6

member of the profession, to answer a suggestion that he

7

lacks mental capacity and therefore legal capacity - - -

That's two-thirds of the

8HIS HONOUR:

I rejected the application made on - - -

9MR JOHNSON:

But the - - -

10HIS HONOUR: 11

The suggestion made by the plaintiff.

Let's move

on.

12MR JOHNSON:

Your Honour's wisdom in rejecting that application

13

has been underscored a million times, and it does I

14

believe raise the impropriety of an Order 15 application

15

being made by counsel for the other side particularly on

16

the morning of a trial.

17HIS HONOUR:

I must say, Mr Johnson, that whilst you are not

18

under any disability, and your behaviour in court I think

19

has shown that, so it's regrettable that people like you

20

who deliberately misbehave throughout a trial and try to

21

derail it that I do not have the power to appoint someone

22

to run the case in your stead.

23

remark en passant.

24

concern to me that while you are under no disability and

25

you have a high intellect and you've got a lot of legal

26

training and a lot of natural ability, you are still at

27

this very stage in the trial deliberately wasting time.

28MR JOHNSON:

But I just make that

But it is I must say a matter of real

Your Honour, might I respond and defend myself,

29

please?

I am accused constantly of misbehaving and

30

wasting time but in terms of this third level of

31

credibility I am saying, no, the wasting of time, the

1.LL:NS 13/02/09 2Cressy

FTR:1A

89

DISCUSSION EXHIBIT 65

1

misbehaviour comes about by the way that this case by the

2

plaintiff has been written up and promoted.

3

evidence, Your Honour?

4

viva voce evidence?

5

these things are brought in to try to discredit me,

6

because that still doesn't prove her case?

7

totally discredited in my evidence, she's still got to

8

bring positive evidence to achieve the requisite case to

9

answer.

10

Show me the

Show me the creditability of the

That's all there is.

Show me why

Even if I'm

Now, if you take all of my evidence out of these

11

proceedings just hypothetically, Your Honour, take all of

12

it out.

13

evidence, all the witnesses I called as part of my case;

14

she still doesn't get anywhere near a case I have to

15

argue.

16

wise man and I know Your Honour is not going to make

17

serious findings of super credibility for the plaintiff,

18

which mean massive lack of credibility for me, Your

19

Honour based on the viva voce in the circumstances and

20

the disproportion of the hard evidence.

21

Take all the credibility, take all the hard

And Your Honour is a – unintended pun here, a

The lack of hard evidence from the plaintiff.

The

22

lack of proper discovery.

23

given to me.

24

documents process.

25

the day of the trial.

26

my first day as an advocate, never having been in the box

27

giving evidence-in-chief, except two minutes in the

28

Federal Magistrates' – sorry, State Magistrates' Court in

29

Geelong seeking intervention orders to protect me from

30

burglary and other complaints from the plaintiff.

31

the extent of my experience in the box, Your Honour.

1.LL:NS 13/02/09 2Cressy

These ADQs should've been

Exchanged to me under an affidavit of

FTR:1A

I should not have been surprised on I shouldn't have been surprised on

90

That's My

DISCUSSION EXHIBIT 65

1

experience of cross-examination, re-examination.

2

I'm confronted on the first of the trial with having to –

3

not only this presumption of guilt and I've got to prove

4

my innocence but I've got to prove my sanity first.

5

that's incredible misconduct by the plaintiff's legal

6

representatives - - -

7HIS HONOUR:

I disagree with that.

Now,

Now,

Mr Devries is seeking to

8

bring to my attention a matter of which he had some

9

notice.

That is the views of Mr List, notwithstanding

10

that matter that was put before me, and not in fact

11

withstanding some of your conduct on the first day, I

12

ruled that nonetheless you were not disabled.

13

certainly ruled that I would not be prepared to make an

14

order, appointing (indistinct) friend, when you opposed

15

it.

16

contrary to the view of Mr List.

17

an experienced psychologist - from the views of Ms Love,

18

who gave viva voce evidence in this case and attributed

19

some of your conduct that day to stress rather than any

20

form of disability.

And I

There is some support for that there which is

21

Mr List I must say is

I see nothing improper.

Indeed in my view the matters drawn to my attention

22

by counsel were perfectly proper, and I reject your

23

submission that there was anything improper in their

24

behaviour on that day.

25

to attack people rather gratuitously, let's see if you

26

can, as you have from time to time, make relevant

27

submissions which will assist me to do justice to you.

28

That's what's important.

29MR JOHNSON: 30

Now, let's try rather than trying

Your Honour, just to quick points I feel I must

make before I come back to - - -

31HIS HONOUR:

I - - -

1.LL:NS 13/02/09 2Cressy

FTR:1A

91

DISCUSSION EXHIBIT 65

1MR JOHNSON:

The first is that in that first morning, the first

2

time I cross-examined a witness as an embryonic advocate

3

I destroyed the credibility of the witness.

4

evidence still shone through even though her evidence was

5

coloured by the confusion of all of these complicated

6

legal issues.

7

Miss Love's

Questions of the impact of the cribbing orders that

8

Federal Magistrate O'Dwyer made purporting to restrain

9

what evidence I can bring before you in this trial,

10

Your Honour.

11

demolished the credibility of Dr List.

12

All of that extraordinary stuff.

I totally

Marianne Love, on the other hand, her report and her

13

evidence would come through into Your Honour's eyes, and

14

I'm grateful to this and for her quality in those

15

circumstances.

16

of things as an embryonic advocate.

17

Indeed I think I did a pretty good list

Secondly, I wished we'd spent those three hours

18

considering instead my application that these proceedings

19

needed to be adjourned so that my application that was

20

supposed to be heard the previous day in Proceedings

21

9263, the two which are really the one, proceed hand in

22

hand together, with proper orders for discovery,

23

interrogatories, time for pleadings to - - -

24HIS HONOUR:

You not only made that application on that day,

25

which I rejected, you've renewed it on more times than I

26

can remember, and on each occasion I've explained to you

27

that I could not and would not combine the two

28

proceedings.

29MR JOHNSON: 30

Or, Your Honour, even allow me to amend my defence

and counterclaim - - -

31HIS HONOUR:

I didn't hear any application to amend, and my

1.LL:NS 13/02/09 2Cressy

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92

DISCUSSION EXHIBIT 65

1

understanding is you deliberately didn't do that because

2

you wished to keep your power to dry in relation to the

3

other claim.

4

that I have to decide, Mr Johnson.

5MR JOHNSON: 6

Let's proceed on the issues that we're –

I'll come back to that Exhibit if it pleases,

Your Honour.

7HIS HONOUR:

Yes, I've got - - -

8MR JOHNSON:

You may - - -

9HIS HONOUR:

I've still got it in front of me.

10MR JOHNSON:

That is the only bit of documentation that

11

suggests in any way, shape or form any connection between

12

me and 166 Queen Street residential, OK.

13

evidence to support the fact that I was played by

14

Ms Cressy, that I was living there as part of her

15

household, there's her viva voce evidence in that

16

(indistinct).

17

The only other

Now that document, 19 September 2007 was not put to

18

Ms – not only not disclosed to me prior to trial as it

19

should have been under rules and procedures for

20

discovery, it was not put to Ms Cressy in cross-

21

examination, so I had no basis of asking how she got that

22

document.

23

together until May of 2007.

24

document.

25

On her fantasy of the world, we were living This is a mid September 2007

How did she get it?

Quite clearly she got it unlawfully, unless she

26

proves on her burden of proof, she had a right to be at

27

the house at Point Cook on that night of 16 November.

28

That she had a right half-ownership of that document.

29

She had a right to take it.

30 31

The third thing she has to prove, Your Honour, as part of her case against me.

1.LL:NS 13/02/09 2Cressy

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93

If it comes down to DISCUSSION EXHIBIT 65

1

credibility, I win.

I win, even if you started a base

2

point of legal credibility.

3

position, my standing, my demeanour, the other evidence

4

supporting.

You then look at me, my

I go up in credibility.

5

You then look at her claims, her burglaries,

6

confusion about the dates we did or didn't live together

7

and move or move, or when she did or didn't work as a

8

prostitute, her lack of bank statements, tax returns, pay

9

slips, her credibility goes down, Your Honour.

I won't

10

say rock-bottom, I won't scorched shirt beyond zero, it

11

plums to the depths, to pretty low debts, and as her

12

credibility goes down, it's like a see-saw, my

13

credibility goes up with it, Your Honour.

14

For a barrister, now I don't know the rules on this,

15

but for a barrister of Mr Devries' experience to be

16

cross-examining me on a document that he hasn't put to

17

his client, and hasn't been disclosed under proper court

18

rules for discovery, that there are strong allegations,

19

stronger allegations when we look at the credibility of

20

the two parties, and bearing in mind that I wasn't given

21

an opportunity to cross-examine Ms Cressy on this

22

document, that document's a stolen good.

23

think of the implications of that, was Mr Devries

24

handling stolen goods in your court room that afternoon?

25

Now I hate to

Is it proper for a barrister to be cross-examining a

26

party with a stolen document that he ought to know?

27

not saying he actually knows, but he ought to know.

28

First question, "Oh, Ms Cressy, where did you get this

29

from?"

30 31

I'm

Surely, surely it's the first question.

Second question, thought but not asked, "Oh, is that a credible story?"

1.LL:NS 13/02/09 2Cressy

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Surely not. 94

It's embarrassing, and DISCUSSION EXHIBIT 65

1

again it goes to the third strand, sorry the fourth

2

strand, the credibility of the plaintiff having regard to

3

the way her legal representatives have run this case.

4

might say that the fourth strand is the credibility of

5

her mother.

6

that when I – at an appropriate point.

7

Her mother's testimony.

I

I will come back to

Exhibit Q, the final orders made on 6 February,

8

orders I would not have seen, except Mr Devries handed

9

them to me on the very afternoon that I was seeking to

10

subpoena from the very Family Law copies of the Federal

11

Court documents, because of my fear that there are

12

documents out there that I haven't seen.

13

that subpoena was chucked out on me, Your Honour, within

14

the hour here comes a Federal Court document that I

15

haven't seen.

16

Low and behold

Does that prove my case that the subpoena should

17

have stood?

18

sadly Your Honour.

19

of the plaintiff's case.

20

drafting orders, 95 per cent in those terms, which

21

Mr Devries should know as an accredited Family Law

22

specialist, he's asking Federal Magistrate O'Dwyer to

23

overrule s.121 of the Family Law Act, and to overrule it

24

in a biased way.

25

I guess that's an Appeal Court question, Now these again go to the credibility What is Mr Devries doing

The defendant can't get stuff out of a Federal Court

26

jurisdiction, but Oh, the plaintiff is sure going to make

27

hay with everything it found.

28

hay and then can dress it up as gold, and the defendant

29

can't challenge it, because if he challenges it, he's

30

using documents out of the federal jurisdiction.

31

be locked up for three years if he doesn't have the money

1.LL:NS 13/02/09 2Cressy

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95

The plaintiff can take the

He can

DISCUSSION EXHIBIT 65

1

or the legal client, or the time, or the resources to get

2

those orders changed (indistinct).

3

Is that a 66 this morning, Your Honour?

You've put

4

that down as my submission, prima facie, I'm in breach of

5

Exhibit Q.

6

years maximum jail time, a $20,000 fine simply for

7

requesting with Mr Devries to give you a copy of an order

8

that was hovelling me sir, and causing me great emotional

9

and intellectual distress at the start of this case.

Prima facie I'm looking I think it's three

I

10

don't even need to mention the orders that I copped from

11

Justice Cavanough having a very similar affect.

12

But that was - I discussed that on the first day of

13

the trial.

14

could a barrister of Mr Devries seniority be putting

15

draft orders - he drafted them 95 per cent, and dropped

16

them on the table - Federal Magistrate O'Dwyer.

17

notice of them.

18

had a copy of Dr Entwhistle's psychologist report.

19

It goes to the credibility of the case.

How

I had no

Mr Devries says, "Mr Johnson would have

But he left within five minutes of the hearing".

I

20

did not leave that hearing within five minutes as Mr

21

Devries well knows, I was there, I made my third

22

application for that Federal Magistrate to step down

23

because of apparent and actual bias.

24

O'Dwyer didn't do it.

25

of that magnitude drafted - cemented by Mr Devries - - -

26HIS HONOUR:

Federal Magistrate

Then he signs his name to orders

All of these matters firstly from the Bar table

27

they're not evidence, secondly they're irrelevant.

28

don't you try sticking to points that actually may bear

29

on the issues in this case?

30MR JOHNSON: 31

Why

They bear on the credibility of the plaintiff's -

the reflect on the credibility of the plaintiff because

1.LL:NS 13/02/09 2Cressy

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96

DISCUSSION EXHIBIT 65

1

of the discredit or way that her legal representatives

2

have run the case. Secondly, I am making application to

3

Your Honour under your inherent jurisdiction preserved

4

under Chapter 4 of the Legal Practice Act to make enquiry

5

into, and to deal with misconduct by an (indistinct)

6

legal practitioner.

7HIS HONOUR:

As I said - - -

You're not making any such application.

The case

8

I'm hearing at the moment - or endeavouring to hear is

9

that between Miss Cressy and yourself, Miss Cressy's

10

claims against you, and your counterclaims as set out in

11

your counterclaim.

12

on so many occasions I would hate to think.

13

focus on those, you will not continue to abuse your right

14

of final address.

15

the issues that are salient to this case, you may do so.

16

I told you on Wednesday I'm not forcing you to make a

17

final address.

18

would more importantly assist yourself.

19

continually divert off that task you are not helping

20

yourself in relation to the judgment which I will be

21

writing in this case to determine the issues that I have

22

to determine.

You know that, I have emphasized it Now you will

If you wish to make a final address on

It would assist me if you did, and it When you

23MR JOHNSON:

May I refer Your Honour to - - -

24HIS HONOUR:

Now in your own interests focus on the case.

25MR JOHNSON:

May I refer Your Honour please and Mr Devries to

26

the unreported decision of Mr Justice Gray on 12 May

27

1993, Delahunty v. Howell?

28

reference - it can be found on LexisNexis.

I'm unable to find a

29HIS HONOUR:

Delahuty versus who?

30MR JOHNSON:

Delahunty v. Howell - H-o-w-e-l-l.

31

reference here BC9300688.

1.LL:NS 13/02/09 2Cressy

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I have a

I only have the one copy, 97

DISCUSSION EXHIBIT 65

1

which I'd like to hand up to His Honour if I may?

2HIS HONOUR:

It's normal protocol if it's unreported that a

3

copy should be provided to the other side as they have

4

done to you.

5MR JOHNSON:

Photocopying is a luxury.

6HIS HONOUR:

As a trained lawyer I would have thought you would

7

have been at least aware of your obligations to draw that

8

case to Mr Devries's attention so he could take - access

9

it off the Internet, but no doubt he'll be able to do it

10

at lunchtime.

11MR DEVRIES:

Your Honour I have seen that decision fairly

12

recently.

There is a copy of it sitting in my chambers.

13

I know essentially what it stands for, and I'm intrigued

14

to see what relevance it has to the proceeding today.

15HIS HONOUR:

Thanks Mr Devries.

16MR DEVRIES:

Just while I'm on my feet, so that Mr Johnson is

17

not taken by surprise, I'll be stating to Your Honour

18

during the course of my submissions that I am not - have

19

never been - cannot be, and have never held myself out to

20

be an accredited family law specialist.

21

for my instructor.

22

- sorry, my instructor is, I thought he wasn't.

23

certainly not, and I can't be because that's a title that

24

only solicitors can have.

The same goes

We are - neither of us are accredited

25HIS HONOUR:

Only solicitors have.

26MR DEVRIES:

After certain study.

But I'm

I've never worked as a

27

solicitor, I don't intend to work as a solicitor.

28

not going to put myself through the course of study to

29

become an accredited family law specialist.

30

resile from the fact that I do hold myself out as being

31

available to do work - - -

1.LL:NS 13/02/09 2Cressy

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98

I'm

I do not

DISCUSSION EXHIBIT 65

1HIS HONOUR: 2

Your area - is one of your areas of practice

family law is it?

3MR DEVRIES:

Yes, Your Honour, but that's as far as it goes.

4HIS HONOUR:

Yes, thanks Mr Devries.

Now Mr Johnson you seem

5

to think there's a decision of Justice Gray that is of

6

relevance to the issues in this case.

7MR JOHNSON:

It is relevant in the sense Your Honour that if an

8

Australian legal practitioner, or indeed any other

9

person, writes to the Legal Services Commission with a

10

complaint about an Australian legal practitioner who is a

11

litigation lawyer or barrister somehow involved in

12

litigation, the Legal Services Commissioner sends back a

13

stock standard answer, "I know you won't be happy with

14

this answer Mr or Mrs Complainant, but there's this

15

decision made in 1993 that says I don't have jurisdiction

16

under my 2004 legislation to hear your complaint.

17

You have to raise every aspect of your concern with

18

the trial judge and then come back to me afterwards,

19

depending on what the trial judge says, and I may

20

investigate further".

21

case because he wrote a complaint about me into the Legal

22

Services Commissioner.

23HIS HONOUR:

Now Mr Devries is aware of that

It seems quite clear that case has got nothing to

24

do with this case.

25

deciding the issues set out in the pleadings.

26

not assisting yourself Mr Johnson, and if you continually

27

try to derail the case I will draw the inference that you

28

don't want to make a final address, which would be most

29

unfortunate.

30MR JOHNSON: 31

You know as I have told you I'm You are

Your Honour before I come back to the living

together and contribution issues - - -

1.LL:NS 13/02/09 2Cressy

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99

DISCUSSION EXHIBIT 65

1HIS HONOUR:

Yes, well they're the issues.

2MR JOHNSON:

This will take one minute Your Honour, because I

3

am under an obligation to - when I write back to the

4

Legal Services Commissioner say that yes Commissioner, I

5

did try to raise all of these issues like you instructed

6

me with the trial judge, and the trial judge quite

7

rightly in my view said they're your jurisdiction not

8

his.

9HIS HONOUR:

I didn't say that, I simply said - you've again

10

misquoted me, I have simply said I am deciding the issues

11

that are in the pleading.

12MR JOHNSON:

I will quote Your Honour - - -

13HIS HONOUR:

And I'm deciding nothing more than the issues that

14

are in the pleadings.

I have made that clear, not just

15

on a daily or an hourly basis, but when you're on your

16

feet it seems to be every five minutes.

17

Services Commissioner may one day be interested in your

18

behaviour in disregarding the directions I've given

19

constantly to you, and which you have constantly saw fit

20

to disobey wilfully and contumeliously.

21

the pleadings, this case must finish Mr Johnson.

22

wasting the time of this court, you are wasting the time

23

of a Supreme Court judge, you are wasting the parties

24

times and the resources of this state, and it's quite

25

unconscionable your conduct.

26Now, concentrate on the issues.

Maybe the Legal

Now adhere to You are

You said you were about to

27

return to the issues of whether there was a domestic

28

relationship.

29

evidence.

30

me on issues relating to contributions to the properties

31

and to any such relationship that I may find existed

1.LL:NS 13/02/09 2Cressy

You need to address me on that, on the

You need to – you said you would be addressing

FTR:1A

100

DISCUSSION EXHIBIT 65

1

between you.

2

matters.

3MR JOHNSON:

It behoves you to make submissions on those

Do so now in your own interests.

Your Honour, I've closed my submissions in terms

4

of Chapter 4 of the Legal Practice Act and I will quote

5

Your Honour word for word and faithfully in my - - -

6HIS HONOUR:

Well I suggest that perhaps it's best you give the

7

Legal Services Commissioner the transcript, rather than

8

your distortion of it.

9MR JOHNSON: 10HIS HONOUR: 11

I shall do that indeed. Excellent.

Thank you, Your Honour.

Now let's proceed with the submission

in this case.

12MR JOHNSON:

As a courtesy for Mr Devries before I do move on

13

to living together and contributions issues.

14

copy of my complaint about him to the Legal Services

15

Commissioner in full.

16HIS HONOUR: 17

This is a

Well it's quite improper for you to be doing that,

Mr Johnson, in court.

18MR JOHNSON:

I will do it outside court, Your Honour.

19HIS HONOUR:

Yes, well, Mr Johnson, it has been put to me that

20

some of the matters you've been raising against those

21

currently acting for Ms Cressy, that your constant

22

harping on that has been an endeavour to intimidate them.

23MR JOHNSON: 24

I submit, Your Honour, it's my endeavour to comply

with the instructions - - -

25HIS HONOUR:

To be waving around a folder and threatening to

26

give it to Mr Devries while you're making final address

27

to me, does nothing more than reflect very poorly on your

28

conduct and your credibility.

29

issues in this case.

30MR JOHNSON: 31

I suggest you stick to the

Your Honour, I am endeavouring to do everything I

can to comply with the Legal Services Commissioner.

1.LL:NS 13/02/09 2Cressy

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DISCUSSION EXHIBIT 65

1HIS HONOUR: 2

You'll simply comply with the directions I give

you now.

3MR JOHNSON:

Thank you, Your Honour.

Coming to the – we're

4

still talking about the documents and the discovery.

5

Now, the only document linking me as a resident to having

6

used the address 166 Queen Street, Altona in any way, let

7

alone living there, is that mail redirection.

8

(indistinct) that exhibit is inadmissible for the

9

following reasons.

And I

It wasn't disclosed as it should have

10

been, it's tainted by illegality and it's tainted by

11

impropriety in the fact that it was raised against me in

12

cross-examination, not submitted to be discussed as part

13

of the evidence-in-chief of the plaintiff.

14

submit that that should be totally struck out and not

15

considered by Your Honour as part of the evidence in this

16

case.

17

So I would

Now, if Your Honour disagrees with that I point out

18

simply that it is a mail redirection.

19

that I gave under cross-examination and the total

20

surprise and shock that I'd be cross-examined with a

21

stolen document was quite valid, Your Honour.

22

redirect the mail because the utilities bills for that

23

property were being sent to that property address and

24

Ms Cressy wasn't passing them on to me.

25

And my explanation

I had to

And as a water industry lawyer, to be hit with an

26

urgent demand notice from City West Water for unpaid

27

rates, mega embarrassing for me in the industry, Your

28

Honour.

29

Johnson, my full legal name, James Johnson the name that

30

I never use except on strict legal occasions when I have

31

to use the same name as my father and my grandfather.

I fill in my form, I fill it in Harold James

1.LL:NS 13/02/09 2Cressy

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102

I

DISCUSSION EXHIBIT 65

1

also fill in as a matter of course because I had so many

2

properties and offices and they all got redirected to GPO

3

Box 1281.

4

relatively expensive.

5

three times more.

6

A redirection of residential mail is Redirecting business mail costs

So Sutton Johnson, a lot of that mail still comes

7

through because it's still a registered business name,

8

not used for legal purposes but as an accounting entity,

9

it's a relic, it hangs there.

So I write Mr Sutton

10

Johnson, OK.

11

it quickly and I've wrote Mr Sutton James.

12

nonsense, Your Honour, OK, it's a nonsense.

13

Now, unfortunately on that form I've wrote It's a

It's hardly the single smoking gun evidence that's

14

going to prove that I lived in a de facto relationship or

15

lived at that premises at all with Ms Cressy.

16

Your Honour is a wise man and you're not going to make

17

your decision hanging such an important finding solely on

18

that.

19

is admissible, it's worthless, Your Honour.

20

documents.

21

And again

So I submit it's not admissible at all and if it That's on

Much was made about my licences and the addresses on

22

my licences.

23

again put to me in cross-examination, not first put to

24

Ms Cressy as part of her evidence-in-chief.

25

disclosed to me through the proper affidavit of documents

26

discovery process which I submit applied to the plaintiff

27

because of the mere fact that they produced an affidavit

28

of documents, whether they were legally obliged under the

29

rules to do it or not, they simply did it.

30

start the ball rolling, you have to comply with the

31

continuous disclosure.

1.LL:NS 13/02/09 2Cressy

Now, the old expired licence from 2001,

FTR:1A

Not

Once you

I rule that document is not 103

DISCUSSION EXHIBIT 65

1

admissible as evidence either, Your Honour.

2HIS HONOUR: 3

Yes, well I'm against you on both of your

submissions - - -

4MR JOHNSON:

If Your Honour wishes to admit it - - -

5HIS HONOUR:

There's no Cleland discretion in a civil case.

6

Even if there were, I would not be exercising it against

7

its admissibility.

8MR JOHNSON: 9

I take what Your Honour says.

this aspect of the law of evidence.

I know nothing of But, I say, even if

10

it's admitted, it's worthless.

11

shocked me, because I know as a fact I never lived at

12

Illoeura Avenue in Grovedale.

13

is that as I was exiting Geelong to come back up to

14

Melbourne, I'm paying a lot of leases, Your Honour, I'm

15

paying 142 Gheringhap Street, I'm basically sleeping

16

upstairs in my shop which I'm in the process of closing.

17

I'm trying to get the lease taken over, plus all of its

18

magnificent options.

19

to Melbourne.

20

clients.

21

It's worthless.

It

Now, what I think happened

I'm getting out of there to move up

Re-establish my links with Melbourne

I think that what has then happened is that I have

22

had to – I'd never changed my address for licence

23

purposes from Belgrave, Your Honour, the house where

24

Mrs Johnson lives to this day, OK.

25

that.

26

future.

27

asked Ms Cressy, who'd been at the Salvation Army home

28

for close to three years, two and a half, three years at

29

that stage.

30

Your Honour.

31

my licence, OK.

I felt a need to do

And I didn't have fixed address in the immediate As I said in evidence, I believe I may have

1.LL:NS 13/02/09 2Cressy

So we're talking in the early part of 2001, If I could use her address as an address on Very simple.

FTR:1A

104

DISCUSSION EXHIBIT 65

1

We then get the AMP loan applications, and when I

2

recovered the loot, and we discussed didn't we, this

3

year, Your Honour, the AMP documents, and I put the 'sign

4

here' sticker on to flag it to me.

5

of the plaintiff's exhibits I think.

6

Your Honour.

7

They're actually part Exhibit D,

Now according to Exhibit D, I did a home loan

8

application saying that my present address was 45

9

Nicholson Street, South Yarra, totally correct at the

10

date of the document.

11

says - - -

The previous address I stated

12HIS HONOUR:

Thanks, Mr Richards.

13MR JOHNSON:

Forty – 45 again, rather than five.

I just raise

14

it with 45, Your Honour, chopping things around quickly.

15

I've oopsed up and did it again.

16

Illouera Avenue, 45 Nicholson Street, 45 Illouera Avenue,

17

rather than five.

18

there from May 2000 to November 2000 I think it says

19

there.

I've written down 45

I've put on that form that I'd lived

20

Now that's clearly contradicted by a statutory

21

record that neither Ms Cressy nor I can dispute with, and

22

that's the birth certificate for Illyana Cressy.

23

it's Illyana Patricia Cressy on that birth certificate,

24

Your Honour.

25

Patricia Cressy Johnson even, Your Honour, Illyana

26

Patricia Cressy.

27

That's Exhibit 9.

I note

It's not Illyana

Now that was a little warning bell to me that I

28

chose in my kindness and generosity and concern, never to

29

take issue with Ms Cressy previously, the little girl

30

doesn't have any part of my surname to her name.

31

Illyana is unique to Illyana, the Patricia is both her

1.LL:NS 13/02/09 2Cressy

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105

The

DISCUSSION EXHIBIT 65

1

mother and grandmother's middle name.

2

familial connection in Illyana's name whatsoever to me.

3 4

So there's no

Now I think I tendered a copy as an exhibit, I actually have an original with me.

5HIS HONOUR:

A birth certificate?

6MR JOHNSON:

A birth certificate, yes.

7HIS HONOUR:

Yes, Exhibit 9.

8MR JOHNSON:

Exhibit 9, yes, issued to somebody on 22 June

9

Now this shows that as at, I think it's the date

2007.

10

that you witness these, Your Honour, not the date of the

11

birth.

12HIS HONOUR:

Steve, can I – have you finished with Exhibit D?

13

Have you finished submitting, making submissions to me on

14

it?

15MR JOHNSON:

No, I'm still kind of linking - - -

16HIS HONOUR:

Just a moment, OK well I'll just hang on to that.

17MR JOHNSON:

Exhibit 9, Exhibit 10 and an old licence,

18

Exhibit C.

19HIS HONOUR: 20

Exhibit 9, sorry I distracted you.

is - - -

21MR JOHNSON:

Exhibit 9.

22HIS HONOUR:

Yes.

23MR JOHNSON:

Forgive me, Your Honour.

24

Exhibit 9

Exhibit 9, Exhibit C and

Exhibit D are all linked.

25HIS HONOUR:

All right.

26MR JOHNSON:

In this explanation of the evidence.

Now on 9

27

June 2000, Ms Cressy lived at the Salvation Army Home in

28

Grovedale, 9 June 2000.

29

that she moved into the address below, Gheringhap Street

30

in early 99 or late 99.

31

the same story of Your Honour.

1.LL:NS 13/02/09 2Cressy

FTR:1A

She was claiming in evidence

She gives different versions of

106

How did she still have DISCUSSION EXHIBIT 65

1

possession of and a lease from the Salvation Army?

2

I don't think there's any dispute between the

3

plaintiff's evidence and the defendant's evidence that

4

she was in possession of 5 Illouera Avenue, the 'b'

5

should be a 'u', Your Honour, I mentioned that in the

6

evidence giving stage.

7

home under lease from the Salvation Army.

8

She was in possession of that

I don't think she contradicted, the query even

9

supported the evidence from the defence that that was a

10

rent subsidised lease from the Salvation Army to young

11

woman in distress.

12

right from around the time that her middle child was born

13

in July 1998, through til around about April, May 2001.

14

Your Honour, those dates, they were July 1998 to April

15

2001.

16

Salvation Army.

17

She kept possession of that house

She has a low rent lease, those premises from the

Now she's claiming all funny things.

That she moved

18

into my house at Gheringhap Street where I am at the date

19

the little girl was born, in early 99 or late 99.

20

she keep renting that house?

21

Did the Salvation Army not mind that an asset that they

22

had dedicated to a social welfare program to help young

23

unmarried women in distress was not being effectively

24

used?

25

nearly three years, Your Honour.

26

short-term, Your Honour.

27HIS HONOUR: 28

Did she leave it empty?

Short-term accommodation, July 98, 99, 0, That's a really long

Part of what you said to me is evidence from the

Bar table as I believe you - - -

29MR JOHNSON: 30

Did

I'm aware of what has been said in evidence in

chief.

31HIS HONOUR:

I don't think there's any evidence that her tenure

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DISCUSSION EXHIBIT 65

1

of the Illouera Avenue premises endured until April 2001.

2MR JOHNSON:

Let me find it for you, Your Honour.

3HIS HONOUR:

You can draw me to any part of the transcript, or

4

any of the documents that have been tendered.

5MR JOHNSON:

I shall, Your Honour.

Your Honour, I've not

6

cross-referred by evidence in chief, but it is certainly

7

in my – Ms Cressy's evidence on when she moved into South

8

Yarra with me.

9HIS HONOUR: 10

I - - -

You're right in one respect, that is you say

that - - -

11MR JOHNSON:

I think - - -

12HIS HONOUR:

- - -she claimed to have moved into Gheringhap

13

Street by the time of Illyana's birth, from my

14

recollection, and you point to this birth certificate as

15

being – as indicating to the contrary.

16

that's an address that relates to the evidence, and you

17

make a point there.

18

certificate contradicts the viva voce evidence that by

19

June 2000 she was living at Gheringhap Street.

You're on –

What you say is that birth

20MR JOHNSON:

Sorry, at which street, Your Honour?

21HIS HONOUR:

Gheringhap Street.

22MR JOHNSON:

Gheringhap Street, yes.

23HIS HONOUR:

That seems to me part – you made two submissions,

24

one which is based on the evidence is that point.

25MR JOHNSON:

Yes, so there's no evidence that I lived at

26

Illouera Avenue and there's no evidence that she lived at

27

Gheringhap Street, during those timeframes, that is

28

superior to the rest of it, Your Honour.

29

that goes to credibility issues as well, in terms of the

30

plaintiff's story.

31

dates of the move to Gheringhap Street, early 99, late

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And I submit

The fact that she gives different

108

DISCUSSION EXHIBIT 65

1

99.

There was a suggestion that she moved to Gheringhap

2

Street while she was pregnant.

3

Honour, because that was actually a summary that – if I

4

can find that one - - -

I've got that, Your

5HIS HONOUR:

I think she gave evidence to that effect.

6MR JOHNSON:

Thank you, Your Honour, because you did note that

7

and state it back to me.

8

pregnant.

9HIS HONOUR: 10

She moved in when she was

I think at p.117 she said she moved there in 1999.

I think she returned to that at some stage.

11MR JOHNSON:

But the Salvation Army kept short term emergency

12

rental – low rental house open for her in the meantime

13

rather than using it for other young mum's in distress.

14MR DEVRIES:

No evidence of that.

15HIS HONOUR:

No evidence of that but - - -

16MR JOHNSON:

It's not plausible, Your Honour.

17HIS HONOUR:

That's your submission.

18MR JOHNSON:

Yes, Your Honour.

19HIS HONOUR:

It's not clear on the evidence rather than from

I follow.

20

what you say from the Bar table how long she had that

21

tenancy for.

22MR JOHNSON:

But certainly she was there as a tenant on 9 June

23

2000, Your Honour, which is some six to 18 months after

24

she claimed to have moved out of the place - - -

25HIS HONOUR:

She did say at p.231 that in the first half of

26

2001 she was asked by the landlord to leave Illouera

27

Avenue.

28MR JOHNSON:

Thank you, Your Honour.

29HIS HONOUR:

That's the evidence you were pointing to - - -

30MR JOHNSON:

That's the point at which in my evidence and in my

31

That's the one - - -

puttage to Miss Cressy – she couldn't find alternative

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DISCUSSION EXHIBIT 65

1

accommodation to the Salvation Army.

I couldn't help her

2

to find it and therefore as a last resort, because she

3

and her three children including sweet little Illyana,

4

who may or may not be mine – or used to be mine, Your

5

Honour, maybe, would've been out on the street.

6

man to do, Your Honour?

7

any (indistinct) man do in that situation?

8

a man who's living in a house on his own, and he's

9

working a lot of hours anyway.

What's a

What would a man – what would Particularly

He's hardly home.

All of

10

this of course is in the period – it's – the plaintiff's

11

claiming a much longer period of living together and in a

12

domestic de facto relationship - then she would need to

13

meet the requirements of the Act.

14

So all of this period we're talking about now is

15

much earlier, than if she just stuck to the attempt to

16

claim two years – within two years of a separation date.

17

She would've been much better on presenting her case if

18

she'd done that, Your Honour.

19

relevance this really goes to credit because the real

20

issue is whether she and I lived together at Queen Street

21

in a de facto relationship, because that would give you a

22

reference point starting in June 2006.

23

be established would take us up to May 2007, so that

24

would give 11 months and then you'd only have to find

25

another 13 months that Mr Johnson and Miss Cressy were

26

living together; Part A and Part B in a domestic de facto

27

relationship at Dorrington Street.

28

So I think in terms of

And if that could

She could've simplified her case enormously by

29

focusing purely on that rather than talking about the

30

Geelong experiences.

31

pitched her purported claim to broadly, and damaged her

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All that's happened is that she's

110

DISCUSSION EXHIBIT 65

1

credibility in the process, Your Honour.

2

certificate doesn't match up with the stories that she's

3

given.

4

amazing story – she purports that she ever lived at 142

5

Gheringhap Street.

6

is, well, what evidence has the plaintiff led to suggest

7

that Mr Johnson (a) lived at 166 Queen Street or (b) if

8

he did live there he lived there with her and (c) if he

9

did live there and live there with her he lived there

10

The birth

That when she left Illouera Avenue and this

So the really interesting question

with her in a domestic de facto relationship.

11

Now, Mr Johnson's evidence is that he never resided

12

there.

13

that funny little skewy mail redirection, and it's

14

outside the relevant period anyway and it's very tainted

15

and suspicious.

16

that it was used in evidence in cross – as an item in

17

cross-examination, given the failure to meet the court's

18

normal rules governing discovery.

19

there's the plaintiff's word.

20

credibility issues, with nothing documentary to support

21

it.

22

credibility issues not really supported.

23

There's nothing documentary to prove it except

It fell into the plaintiff's hands and

Nothing to suggest -

There's her mother's word.

Well, that's viva voce and

Again, viva voce and

I've got a cute little heading here, Your Honour.

24

Let me have a look.

At about p.905 of the transcript,

25

Line 29, there's much excitement about my driver's

26

licence.

27

with me in court that day, and my motorcycle learner's

28

permit.

29

that I wasn't carrying them and I wasn't able to spring

30

them out of my pocket under cross-examination and put

31

them into evidence.

The fact that I didn't have my driver's licence

There were inferences to be drawn, Your Honour,

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There were inferences to be drawn by 111

DISCUSSION EXHIBIT 65

1

my inability to prove my innocence, Your Honour.

2

Extraordinary stuff, Your Honour.

3

I don't have to prove my innocence in anything, Your

4

Honour.

Anyway, despite considerable back pain I drove

5

down to Geelong that evening, got my licences, brought

6

them up and what did they show?

7

p.905 of the transcript at about Line 29.

8

licence – well, my motorcycle learner's permit gives my

9

address 2302, 668 Bourke Street.

10

it doesn't.

11

it was a renewal one.

12

668 Bourke Street.

Well, we find out at My driver's

Sorry, sorry, no, no,

It gives 7A Endeavour Drive, Torquay because The original one had me at 2302,

13Mr driver's licence had me as – gee, I hope I'm getting this 14

correct, 2 Dorrington Street, Point Cook on the front and

15

then there were at least three, maybe four changes – no,

16

no, sorry, I'm wrong again.

17

Yarra.

45 Nicholson Street, South

18HIS HONOUR:

My note and I think it might be Exhibit 48 - - -

19MR JOHNSON:

Thank you, Your Honour.

20HIS HONOUR:

Just a moment.

21

My note of your evidence was,

"Expired motorcycle permit shows my address as 2302".

22MR JOHNSON:

Yes.

23HIS HONOUR:

"The address on my current driver's licence is 7A

24

Endeavour Drive" - - -

25MR JOHNSON:

Yes.

26HIS HONOUR:

Just a moment.

27

And the original? Before that the address is 2302,

before that it was probably 2 Dorrington Street.

28MR JOHNSON:

Yes.

29HIS HONOUR:

That's my summary of your evidence - - -

30MR JOHNSON:

Thank you, Your Honour, and - - -

31HIS HONOUR:

- - - at 906 to seven. I think - - -

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DISCUSSION EXHIBIT 65

1MR JOHNSON:

And I - - -

2HIS HONOUR:

Just a moment.

3

the documents.

It's probably helpful if we get

It's Exhibit 48.

Just photocopied.

4MR JOHNSON:

And the address - - -

5HIS HONOUR:

I'm just trying to read it.

Your driver's licence

6

which is on the top part of the photocopy, and I think we

7

photocopied it because it's your current licence, has the

8

initial address is Nicholson Street and then the new

9

address is Endeavour Drive, Torquay.

On this photocopy

10

document, the learner permit – I'm just trying to see,

11

the address is 2302 Bourke Street.

12MR JOHNSON: 13

Yes, and there were two or three changes of

address, or three or four changes in between.

14HIS HONOUR:

I think that's right.

I don't know if this

15

photocopy in fact assists a lot because of that.

I think

16

the original object - I'm not sure why we accepted a

17

photocopy.

Was it - - -

18MR JOHNSON:

Because I need to carry my licence on me - - -

19HIS HONOUR:

I think you need to carry it with you, I think

20

that's the reason.

21MR JOHNSON:

- - - at all times.

22HIS HONOUR:

Now - - -

23MR JOHNSON:

But, Your Honour, what this does and firstly I

24

say, look - - -

25HIS HONOUR:

Anyway you refer to these - - -

26MR JOHNSON:

I have no burden of proof.

27HIS HONOUR:

Sorry?

28MR JOHNSON:

I have no burden of proof.

I don't have to prove

29

where I lived at any of those times, Your Honour.

30

burden of proof is entirely on the plaintiff as to where

31

I lived.

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113

The

DISCUSSION EXHIBIT 65

1HIS HONOUR:

Well there's a shifting evidentiary onus.

The

2

legal onus on the balance of probabilities remains on the

3

plaintiff.

4MR JOHNSON:

Sir, my driver's licence shows that I lived at 45

5

Nicholson Street, South Yarra at the start of the

6

document.

7

Endeavour Drive Torquay, OK.

8

quite clearly the expired motorcycle permit, that date on

9

that would have been matching VicRoads' records with

And when last updated it shows I lived at 7A Now, I said to Your Honour

10

whatever the sticky label was on the driver's licence.

11

VicRoads have just taken that data as per their record

12

for my driver's licence.

13

Drive sticker there's a 2302, 668 sticker.

14MR DEVRIES: 15

So beneath the 7A Endeavour

Sir, this is clearly evidence from the Bar table,

Your Honour.

16MR JOHNSON:

I'm recounting evidence I gave in chief - - -

17HIS HONOUR:

The evidence - - -

18MR JOHNSON: 19HIS HONOUR:

I can provide the transcript, Your Honour. Just a moment.

Yes, I agree.

I think we've got

20

to go back to the evidence because there was some

21

evidence given on this.

22

I'll just get - - -

Instead of relying on my notes,

23MR JOHNSON:

Page 905 of the transcript, Your Honour.

24HIS HONOUR:

Nine zero five to 907.

25MR JOHNSON:

Yes.

26HIS HONOUR:

Just a moment.

27MR JOHNSON:

Mr Devries said something - - -

28HIS HONOUR:

Just a minute.

29MR JOHNSON:

Yes.

I've just got to find the page.

Mr Devries said something that gave me a wry

30

smile this morning, at p.909 Line 17, Mr Devries says

31

something to the effect of (indistinct) peel off the

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DISCUSSION EXHIBIT 65

1

stickers if we could but it might not be safe to do so.

2

That's a nice little double entendre on that might be

3

safe.

4HIS HONOUR:

Now, you're looking at 905.

5MR JOHNSON:

Yes.

And I'm submitting that it might not be safe

6

- it would not be safe for plaintiff's case to peel off

7

those stickers even if the data would be retained because

8

the sticker immediately under 17 Endeavour Drive would be

9

2302, 668 Bourke Street.

10

And my expired motorcycle

learner's permit confirms that.

11HIS HONOUR:

Now, what you've said here is at 906 Line 20 you

12

say the – this is your evidence, "The expired

13

motorcycle's permit shows my address as Apartment 2302,

14

668 Bourke Street".

15

you say when you last rode it in the Spring of 2006.

16MR JOHNSON: 17

There's no date of issue.

And then

Your Honour, what – Your Honour, please, what was

the date that that licence, the expired one was issued?

18HIS HONOUR:

This is the learner's permit we're talking about.

19MR JOHNSON:

Yes, the expired learner's permit, Your Honour.

20MR DEVRIES:

Nine zero six Line - - -

21HIS HONOUR:

Yes, 25 December 2007.

22MR JOHNSON:

That was the expiry date.

23

What was the issue date

please, Your Honour?

24MR DEVRIES:

Spring 2006, Your Honour.

25HIS HONOUR:

Thanks.

26MR JOHNSON:

OK.

27HIS HONOUR:

Yes, you said you got - - -

28MR JOHNSON:

- - - says that I lived at that address in

So well there's a document - - -

29

September 2006.

30

September 2006 I was - - -

31HIS HONOUR:

Ms Cressy's case, she's arguing at that

Yes, what you said was these are normally issued

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115

DISCUSSION EXHIBIT 65

1

for a year but this one had been extended, that's what

2

your evidence was that this had been issued in Spring.

3MR JOHNSON: 4

No, it does, because it goes back to when it was

originally issue.

7MR JOHNSON: 8

The relevant

point - - -

5HIS HONOUR: 6

That's irrelevant, Your Honour.

The relevancy is that in September 06 my residence

for VicRoads' purposes, or my registered address - - -

9HIS HONOUR:

Was 668 Bourke Street.

10MR JOHNSON:

Yes, Your Honour.

11HIS HONOUR:

Just a minute.

12MR JOHNSON:

The plaintiff's case, for her to get up, she must

13

prove to you – discharge her burden of proof on the

14

Briginshaw standards, et cetera, et cetera, that I – my –

15

that that address is not my residential address, that my

16

residential address 166 Queen Street - - -

17HIS HONOUR:

Well I don't see why the Briginshaw standard comes

18

in on a claim under Part 9.

But she does have the onus

19

on the balance of probabilities - - -

20MR JOHNSON:

Yes.

21HIS HONOUR:

- - - of proving - - -

22MR JOHNSON:

Yes, Your Honour.

23HIS HONOUR:

Now - - -

24MR JOHNSON:

I thought that the more serious the allegation the

25

more substantiation required to meet the balance of

26

probabilities test.

27

paragraph that I read about Briginshaw's case.

28

litigator, Your Honour.

29

Honour.

That was what I read out of the

I'm not a barrister, Your

30HIS HONOUR:

So that's the motorcycle licence.

31MR JOHNSON:

And I - - -

1.LL:NS 13/02/09 2Cressy

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I'm not a

116

DISCUSSION EXHIBIT 65

1HIS HONOUR:

And then you gave evidence - - -

2MR JOHNSON:

Who to - probably - - -

3HIS HONOUR:

Now, during - - -

4MR JOHNSON:

Probably the address under that, part of my

5

defence, which I don't even need to give a defence, Your

6

Honour, I don't have to prove my innocence, was at

7

probably the address under 2302/668.

8

been even at 909/668 or it could have been 2 Dorrington

9

Street.

Now, I think it was probably 2 Dorrington

10

Street.

I don't think I ever with VicRoads changed my

11

address to 909, I didn't need to.

12

then, that I owned 2 Dorrington Street, sir.

13

it's purely an address to give VicRoads - you get the

14

mail if you're 3 ks over the speed limit on - when

15

driving to work in the morning.

16

learn the tales of what your current demerit points - - -

17HIS HONOUR: 18

Now it could have

The reason for that Any mail -

Every three months you

Well, I don't need evidence from the Bar table.

just said at 907 - - -

19MR JOHNSON:

And 909, Your Honour.

20HIS HONOUR:

- - - was that your - - -

21MR JOHNSON:

Sorry, sorry, yes.

22HIS HONOUR:

Your driver's licence, the current address is at

23

7A Endeavour Drive, which reflects what's on that

24

photocopy.

25MR JOHNSON:

The one before that - - -

26HIS HONOUR:

Just a moment, you said before that, "I'm

27

confident that the address immediately under this label

28

was 2302/668 Bourke Street.

29MR JOHNSON: 30

I

The most - the expired motorcycle, what, learner's

permit - - -

31HIS HONOUR:

We're talking about the driver's licence now.

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DISCUSSION EXHIBIT 65

1MR JOHNSON: 2

date that was recorded on the driver's licence.

3HIS HONOUR: 4

Yes, but the motorcycle learner's permit has the

Then you say, "The label immediately underneath

that would be either my previous Apartment 909 - - -

5MR JOHNSON:

Yes, Your Honour.

6HIS HONOUR:

- - - but it was probably 2 Dorrington Street."

7MR JOHNSON:

Yes, Your Honour.

8HIS HONOUR:

I think my summary of your evidence which I read

9

The reason being that - - -

out a few moments ago was accurate.

10MR JOHNSON:

Yes, Your Honour.

So, my licence, on my

11

submission, shows my addresses as starting off as 45

12

Nicholson Street, OK, and that's in 2001.

13HIS HONOUR:

Yes.

14MR JOHNSON:

That's well before the clock starts running in

15

terms of the two years, within two years' test.

16HIS HONOUR: 17

Yes, 2 Dorrington - and then you've got it as 2

Dorrington - - -

18MR JOHNSON:

Then it's 2 Dorrington, which I did live at - - -

19HIS HONOUR:

Then you've got it to - - -

20MR JOHNSON:

- - - for a brief period in 2003 for about four

21

months.

22HIS HONOUR: 23

Yes.

Then you say you've got it at 99 - at

909 - - -

24MR JOHNSON:

Yes.

25HIS HONOUR:

- - - at 668.

26MR JOHNSON:

Yes, but I don't think I ever bothered to change

27

my address with VicRoads and I said that at the time.

28

didn't - the next address was - I stayed at 2 Dorrington

29

Street for a number of years for - - -

30HIS HONOUR:

2302, I think you said.

31MR JOHNSON:

It became 2302.

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118

I

DISCUSSION EXHIBIT 65

1HIS HONOUR:

2302, yes.

2MR DEVRIES:

He gave an explanation on p.908, Your Honour, from

3

about Line 9, I suppose.

4HIS HONOUR:

Then Torquay.

5MR JOHNSON:

And simply because I have these mail directions

6

and I got all of my mail from 2 Dorrington Street.

7

going to get my mail.

I'm

I don't need - - -

8MR DEVRIES:

It's not the explanation on - - -

9HIS HONOUR:

Well, it's the explanation that's in the evidence,

10

Mr Johnson.

11MR JOHNSON:

Yes, thank you, Your Honour.

12HIS HONOUR:

I agree with Mr Devries, this is a time for

13

address, not changing evidence.

14MR JOHNSON:

I thought you were agreeing with me, Your Honour,

15

that I'm just retelling to you the evidence as part of my

16

submission, I'm not changing it.

I'm not changing it.

17HIS HONOUR:

Just - - -

18MR JOHNSON:

My address goes from 2 Dorrington Street to 2302

19

at Bourke Street.

20HIS HONOUR: 21

residential address for tax purposes."

22MR JOHNSON: 23

Well, it's got "2 Dorrington Street is my

The key point, Your Honour, was that 166 Queen

Street was not in - - -

24HIS HONOUR:

So, that's the point you're making, is it?

25MR JOHNSON:

Yes.

26HIS HONOUR:

On these documents Queen Street never featured.

27MR JOHNSON:

Yes.

28HIS HONOUR:

Just a moment.

29MR JOHNSON:

That's right.

The plaintiff wanted to make an

30

issue of my driver's licence and these details and I

31

said, "Oh, holy smoke, it backfired on you, boys, because

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DISCUSSION EXHIBIT 65

1

it strengthens my defence, my proof of my innocence but,

2

hey, wait a minute, I don't have to prove my innocence."

3

Totally demolishing all of my evidence viva voce of the

4

witnesses hard evidence doesn't establish the plaintiff's

5

case, Your Honour.

6

I could have just sat here mutely for two days, four

7

days, six days, because defendants don't have to present

8

a case, their evidence, they ain't, the ain't.

9

extent that they purported through viva voce evidence,

10

and there's bits of paper and stuff that they're thrown

11

in without proper discovery and of the rules, it's

12

(indistinct) it's deluged because I had the commonsense

13

to present a different scenario.

14

burden of proof and credibility and it is that simple,

15

and attacking my credibility, it might be fun, for

16

everyone except me, but it doesn't build a case for the

17

plaintiff.

18

Honour, is attacking my credibility and the real

19

attention should be focused on does the plaintiff have a

20

case?

21

guys, ever gather enough information to justify three

22

rounds of caveats, issuing proceedings, two sets of

23

interlocutory applications.

24

interlocutory relief without giving undertakings,

25

et cetera, et cetera.

26

we knew it because she had no pennies (indistinct) for

27

costs.

28

You can take all of this out of it.

To the

It really comes down to

So, the irrelevance, I would submit, Your

Did she ever have a case?

Did we, the plaintiff's

Holy smoke, we actually got

It would have been worthless and

Major credibility issues, that fourth strand again,

29

in the way that the plaintiff's being represented have

30

pushed her kindly, not followed proper process.

31

clearer demonstration of abuse of process can there be

1.LL:NS 13/02/09 2Cressy

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120

What

DISCUSSION EXHIBIT 65

1

than a demonstration of a failure to follow proper

2

process, to rock up on the first day of a trial and waste

3

two-thirds of the court's first day with an issue that

4

had not, contrary to Mr Devries' suggestion, ever been

5

raised in this court, that I may lack mental capacity,

6

therefore lack legal capacity.

7

dangerous precedent.

8

going to make in the future of the rationale of that

9

aspect of that ruling.

Your Honour, that's a

I don't know what law students are

Every time a barrister and

10

solicitor stands up can he be self-represented, can he be

11

surprised by the other side by having to on his feet with

12

no preparation, warning, notice, and especially if he's

13

never played an advocating role, certainly in this

14

magnitude before in his life, sit back in moot court

15

going back 20 something years ago in (indistinct) to

16

defend his sanity so that he can defend his innocence in

17

a situation where he's supposed to be presumed innocent

18

and the plaintiff is the one that has to demonstrate a

19

case, demonstrate a case.

20

backwards, demonstrate Mr Johnson doesn't have a case,

21

demonstrate Mr Johnson doesn't have a defence,

22

demonstrate Mr Johnson doesn't have credibility,

23

demonstrate Mr Johnson doesn't have sanity.

24

embarrassing.

25

make an application to a Supreme Court judge questioning

26

the mental capacity, and therefore the legal capacity, of

27

a fellow Australian legal practitioner even if they only

28

sign the roll the previous day.

29

they'd signed the roll 18 and a half years - - -

30HIS HONOUR: 31

Everything here has been done

It's

It's embarrassing that any solicitor would

It doesn't matter if

Mr Johnson an hour ago I made the observation that

I regarded the application as being properly made,

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DISCUSSION EXHIBIT 65

1

notwithstanding that I did not accept it.

2

the reasons, both in a ruling I gave on that day, and

3

which I have reiterated to you today.

4

ad hominem attacks against the plaintiff's legal

5

representatives really do not assist you.

6

become relevant you do assist.

7

I explained

Now your constant

When you do

You were making another point, and that was you've

8

taken me both to Illyana's birth certificate, which you

9

submit contradict the evidence of the defendant - of the

10

plaintiff that at that time she was living at Gheringhap

11

Street, and you've pointed me to Exhibit 48, which you

12

submit supports your evidence as to where you had been

13

living.

14

case, and you'll also assist me to do justice between you

15

and Miss Cressy.

16

interests to try to stay more relevant.

Now if you'd stay relevant you will assist your

So I just encourage you in your own

17MR JOHNSON:

I assure Your Honour, I just - - -

18HIS HONOUR:

Just focus, and don't worry about playing the man.

19

Just let's play the ball for a change.

20MR JOHNSON:

Your Honour that's the credibility issue, the man

21

I have been played - this man has been played right from

22

the outset.

That's what it's all been about.

23HIS HONOUR:

That has not been my perception at all.

24MR JOHNSON:

We don't need to discuss that.

25HIS HONOUR:

No.

26MR JOHNSON:

Let's keep moving hey?

27HIS HONOUR:

Yes.

28MR JOHNSON:

Just a reminder, I don't have to prove that she

29

didn't live with me.

I don't have to prove where I

30

lived.

31

to prove that she lived at Gheringhap Street.

She has to prove her case.

1.LL:NS 13/02/09 2Cressy

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122

She doesn't even need She didn't DISCUSSION EXHIBIT 65

1

need to make a claim so broad.

2

limited her claim to within the two years, and the two

3

years test under 285.

4

She could have brought -

Her legal representatives took the bribe and created

5

problems for themselves.

We've had a lot of enquiry

6

about who lived where, when, why and what during that

7

period, which is irrelevant to the case - the claim

8

that's been purported, except it comes back to

9

credibility Your Honour.

Living together - now usually

10

where a person claims to be living in a domestic

11

relationship with another person - usually both those

12

people will be in agreement Wincheski v. Dons,

13

Baumgartner v. Baumgartner.

14

Well the Baumgartner's virtually married.

15

de jure, not de facto.

16

cases that Mr Devries handed to me on I think the second

17

or third day of the hearing, there's no issue - domestic

18

de facto relationship.

19

this case very prominently just simply doesn't come up.

20

Usually - now I was thinking about this - now if I was an

21

accredited family law specialist or someone like

22

Mr Devries who'd practiced 20/30 years in the

23

jurisdiction, what sort of evidence would I be bringing

24

to Your Honour if I had to present a case that I was

25

living in a de facto relationship?

26

marriage certificate full stop.

27

Mrs Baumgartner has that advantage at least.

28

and friends will know of the marriage de facto, and their

29

evidence to substantiate it will be readily available.

30

It's at the usual form of photographs, joint social

31

events, mutual family friends and relatives who can give

1.LL:NS 13/02/09 2Cressy

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It doesn't come up.

They were

The list of

The threshold issue raised in

123

Marriage is easy - a

Baumgartner Many family

DISCUSSION EXHIBIT 65

1 2

evidence supporting one or other side of the claim. Possibly the child of that relationship would bear

3

nomenclature in her legal name that reflected both of the

4

alleged parents Your Honour.

5

contributed and reflecting - the mum must be the mum, I

6

don't know how you dispute that with DNA, but there's

7

issues in there.

8

evidence - there's the evidence that hasn't been given

9

that you would expect to be given.

But 100 per cent name,

I say - just like I said, where is the

Now I don't like

10

Jones v. Dunkel as a principle because that shocks me in

11

terms of privilege against self incrimination.

12

OK, I can see why the failure of a person who has to

13

state a case to bring evidence - witnesses that you would

14

ordinarily expect to bring would look bad against the

15

plaintiff.

16

Where are the relatives, where are the neighbours, where

17

are the friends?

18

relationship of some nine years.

19

never socialised, no one who socialised with Mr Johnson

20

and Miss Cressy as a couple could be found to come and

21

give evidence.

22

birthday party - I turned 40 years old in 2004, where's

23

the video?

24

at my 40th birthday party, no, she wasn't Your Honour.

25

The sort of evidence that a plaintiff would bring to

26

demonstrate a de factor relationship.

27

it, you know, that there would be birthday cards, there

28

would be gifts.

29

Honour, this is quite remarkable - quite remarkable.

30

have some cards, let me see, Exhibit E a valentine's card

31

sent to the plaintiff.

1.LL:NS 13/02/09 2Cressy

But that's just ordinary burden of proof.

Miss Cressy is claiming a de facto A funny relationship,

There's no documentary evidence.

Where's the guest list?

My 40th

Was Miss Cressy even

Someone twigged to

So if we look at the exhibit list Your

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We

Exhibit G, a card written by the 124

DISCUSSION EXHIBIT 65

1

defendant and plaintiffs on (indistinct) paper.

2

H, an envelope sent by the defendant to the plaintiff in

3

February 00.

4

Your Honour we do have some cards.

Exhibit

Someone twigged

5

that in a nine year domestic relationship there would be

6

evidence in the way of love notes and trinkets and

7

birthday cards and that.

8

by the plaintiff?

9

1999, stuff from the turn of the century, way outside the

So what do we - what's produced

Stuff from last century, stuff from

10

field of relevant enquiry did a relationship exist for

11

two years prior to the date proceedings were issued 26

12

November 2007.

13

What relevance Your Honour?

Once again, the

14

plaintiff's guys have shot themselves in the foot.

15

They've identified their own weakness.

16

the loving cards, videos of birthday parties, social

17

gatherings - social events, guest lists - the family

18

photo albums Your Honour.

19

bookshelves full of photo albums from the ten years of

20

our marriage that we were actually living together as

21

legal and de facto man and wife, and that was a decade

22

ago Your Honour.

23

There are none of

Mrs Johnson has got

Ms Cressy doesn't, why not?

So once again, the

24

plaintiff's guys have shot themselves in the foot.

25

they think?

26

they considered when they wrote those caveats, and

27

equitable charges in May 2007?

28

last century's a bit old love, haven't you got anything

29

of more recent vintage?"

30

extraordinary.

31

Is this some of the evidence they had which

Didn't they say, "Oh,

It's extraordinary, it's

OK, simply case of show me the evidence.

1.LL:NS 13/02/09 2Cressy

Don't

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125

Show me DISCUSSION EXHIBIT 65

1

you have a case.

I was going to say something about a de

2

facto case dear to Mr Devries' heart.

Procopets?

3HIS HONOUR:

Procopets.

4MR JOHNSON:

Yes, Mr Sex Lies and Videotape - - -

5HIS HONOUR:

And Gilda.

6MR JOHNSON:

They had some video tape.

A 65 year old man.

Do

7

you think given Ms Cressy's background, if we had of made

8

a home porno movie that that wouldn't be in evidence?

9

Most bizarre, Your Honour.

There's nothing, none of that

10

family relationship memorabilia, nothing to indicate

11

socialising, no hard evidence.

12

pretty weird de facto relationship by the evidence that

13

you would expect to be given that hasn't been given.

14

This must have been a

Your Honour, nine years and a child of the

15

relationship.

16

know where the ring is Your Honour?

17

finger of another lady, and it has been there for 20

18

years, 20 years last month.

19

been legally married.

20

Where's the ring?

Where's the ring?

You

The ring is on the

Mrs Julie Johnson and I have

It's a little weird, isn't it?

Nine years in this

21

relationship.

22

being a child of the relationship, and yet still married

23

for ten years continuing to another lady.

24

little weird, don't you, Your Honour?

25

be asked.

26

that inexplicably according to this fanta story, fantasy

27

story went wrong in May 2007, or April 2007?

28

there?

29

once your 12 months is up you do the applications, Julie

30

and I are good friends.

31

Three children by three different men, one

I think it's a

Questions have to

Why didn't within this loving relationship

Why wasn't

It's easy to go Family Court, get a divorce kit,

Michael Clarebrough's report testifies to that.

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DISCUSSION EXHIBIT 65

1

Very easy to get that marriage annulled, and woo hoo I

2

can put myself into some serious difficulty there,

3

Your Honour.

4

no ring.

5

don't have to prove my innocence or my absence of that

6

relationship.

7

existence of a relationship.

8 9

Didn't do it.

No proposal.

It didn't happen.

There was

Not even an engagement ring.

I

Ms Cressy has to prove my guilt and the

Can I be a little bit cheeky, a little bit naughty? The diary exhibits.

Ms Cressy's diaries.

10

typical diaries of a typical de facto wife?

11

look at those.

12

the exhibit numbers.

Are they the Let's have a

Sorry, Your Honour, I just need to find

13HIS HONOUR:

Yes I think I may as well start a new folder.

14MR JOHNSON:

While I do that, I did want to hand back – I do

15

want to hand back please, Your Honour, Exhibit 46, I

16

think I just saw it was.

17HIS HONOUR: 18

You want to re-substitute that?

Medicare card.

19MR JOHNSON:

Yes, yes because it's my Medicare card for my

20

household at Warren.

21

haven't docketed the seam like the - - -

22HIS HONOUR: 23

That's the

It's really really old, and I

I was going to say though, according to me it's

valid til – this list is valid to January 2012.

24MR JOHNSON:

Because it was probably issued in 2002.

25HIS HONOUR:

Just a moment though, at the glacial pace at which

26

this case is proceeding, you may need it for medical

27

treatment before I have written my judgment.

28MR JOHNSON:

I did need it, Your Honour.

29HIS HONOUR:

Do I need the original?

30MR JOHNSON:

I am happy for you to have the original.

31

I have

another one ordered, it's probably waiting for me at my

1.LL:NS 13/02/09 2Cressy

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127

DISCUSSION EXHIBIT 65

1

address - - -

2HIS HONOUR:

I'll receive that, I'll re-receive as Exhibit 46,

3 the defendant's Medicare card 4 5#EXHIBIT 46 Re-received defendant's Medicare card 6 no.3402234931 valid to January 2012. 7MR JOHNSON:

My need for it was exceeded by a greater need I

8

found out on the afternoon I came to collect it which was

9

to be in your presence, Your Honour, the following day

10

for the voir dire that we had on the - - -

11HIS HONOUR: 12

You were going to take me to a

different document.

13MR JOHNSON: 14

Excellent.

Yes, Ms Cressy's, the photocopied extracts from

her diary.

15HIS HONOUR:

Is that Exhibit 3?

Is that what you're - - -

16MR JOHNSON:

Yes, Your Honour.

I believe it would be one of

17

the list.

Yes, Your Honour.

Now I can address three

18

points at once on this, but I won't.

19

through it.

20

little domestic housewife?

21

as highly domesticated and dutiful about the hard working

22

hubby and the children?

I'll just skip

Are they the sorts of diary entries of a The typical Mrs Brady who was

23HIS HONOUR:

Thanks Steve.

24MR JOHNSON:

You know, it's three different brothels on three

25

different days, Your Honour.

26

– was born one day before Mum was born, Your Honour.

27

There's the - - -

28MR DEVRIES: 29

This is all evidence from the Bar table,

Your Honour - - -

30MR JOHNSON: 31

There's the boyfriend who's

I'm recounting evidence in chief,

Your Honour - - -

32MR DEVRIES:

There's no evidence of his birth date.

1.LL:NS 13/02/09 2Cressy

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DISCUSSION EXHIBIT 65

1HIS HONOUR:

Well I - - -

2MR DEVRIES:

There is no evidence of his relationship to her.

3

It's an assertion.

4HIS HONOUR: 5

I think to say it's evidence - - -

Mr Devries, rest assured I understand your

objection.

6MR DEVRIES:

Yes.

7HIS HONOUR:

Your objection is correct.

I am only going to be

8

writing this judgment on evidence given viva voce, before

9

me, not on assertions made from the Bar table.

But if I

10

ignore the inadmissible parts, of what Mr Johnson is

11

putting, I think the gravamen of what he's trying to put

12

to me is that Exhibit 3 militates against the existence

13

of a domestic relationship because it points to

14

activities by one party to that relationship which would

15

not be normal in a domestic relationship.

16

gravamen of his submission.

That's the

17MR DEVRIES:

Yes.

18HIS HONOUR:

That is how I'm going - - -

19MR DEVRIES:

I'm more concerned that he's wasting a great deal

20

of time giving evidence from the Bar table if it's not

21

going to be of any relevance.

22HIS HONOUR:

I agree with that.

23MR DEVRIES:

I thought we were going to finish this today,

24

Your Honour, but I have grave doubts now.

25HIS HONOUR:

I have real concerns in that regard Mr Devries.

26

You're perfectly right.

27

so far as Mr Johnson persists in stating matters from the

28

Bar table that aren't in the evidence that does waste and

29

consume court time.

30 31

Your objection is correct, and

But nonetheless, I think we'll simply deal – we'll simply try and distil out of what has just fallen from

1.LL:NS 13/02/09 2Cressy

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129

DISCUSSION EXHIBIT 65

1

him, what I understand to be a submission, and that

2

submission is that Exhibit 3 indicates within an alleged

3

de facto relationship the conduct of one partner who –

4

which would not be normal in a de facto relationship.

5

that right, Mr Johnson?

6MR JOHNSON:

Yes, it undoes the pretence of a de facto

7

relationship, Your Honour.

8

submission before.

9

summarise evidence for Your Honour's benefit.

10HIS HONOUR: 11

Forgive me, I've never done a

I thought it was appropriate to

It's evidence that's in the, that has made

led - - -

12MR JOHNSON: 13

Is

It is given, Your Honour, can I refer you to

p.291? of the transcript at Line 5.

14

In cross-examination Miss Cressy said that she and

15

Monsieur Mark (words spoken in French) des ami.

16

still friends.

17

potential for another – it won't be Part 9 of course

18

because it's under the new legislation and it won't be in

19

your court, Your Honour, because it's in a new

20

jurisdiction but there's a two year relationship

21

simmering to be legally actioned, Your Honour.

22

They are

So the landlord's present – well, I see

Another example is Mr Cockram.

Now, I have trouble

23

going through the transcript locating evidence-in-chief

24

from Miss Cressy and Mr Cockram, but I think that is

25

because his name was misspelt.

26

can't remember how it was misspelt but I've searched for

27

it.

28

know a Peter Francis Cockram"?

And I think she replied,

29

"No, I've never heard of him".

I've searched last night

30

and today.

It was spelt funny.

I

I think it put to Miss Cressy a question, "Do you

31MR DEVRIES:

I couldn't find it there, Your Honour.

Because it is not there; that's why.

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DISCUSSION EXHIBIT 65

1MR JOHNSON:

In my embryonic advocating estate with so many

2

things on my mind, so much financial and emotional strain

3

as Miss Love wrote about, and particularly the indignity

4

of having to prove my sanity before I can prove my

5

innocence in a case where I – I have to prove a case,

6

Your Honour, it looks like I forgot to ask her about

7

Peter Francis Cockram.

8

considerable difficulty - - -

9HIS HONOUR:

Anyway we did subpoena after

I'll see if I can – I'll have a quick look at my

10

notes if it assists you, but I might not have made a note

11

of that.

12MR JOHNSON:

It is a question.

I've got doubt on my forensic

13

ability to comprehend all this.

14

Your Honour.

15HIS HONOUR:

It's my first trial,

Whether I - - -

You endeavour to be quite conscientious on issues

16

relating to Browne v. Dunn.

17

see if there was something on it.

18MR JOHNSON:

Just a moment.

I'll just

I believe the relationship between Miss Cressy and

19

Mr Cockram is still in the evidence, Your Honour –

20

benefit of Senior Detective Jennifer Locke of the Purana

21

Taskforce on the evidence - - -

22HIS HONOUR:

I can't find it but it's not to say you didn't ask

23

that question, but in any event you rely on whatever was

24

stated by Senior Constable Locke?

25MR JOHNSON:

Yes, yes, and the extraordinary evidence of

26

Mr Cockram who couldn't remember things, but he was

27

incredibly coherent on the fact that he lived at that

28

house in Feversham Street, Park Orchards, for 18 years.

29

Incredibly coherent.

30

ground.

That he'd worked at the Salvation Army from 2002

31

to 2007.

Now, the senior detective from Purana Taskforce

1.LL:NS 13/02/09 2Cressy

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I guess he felt he was on safe

131

DISCUSSION EXHIBIT 65

1

gave evidence, hence the reason I asked the questions.

2

knew he was going to play up before Your Honour, before

3

he went into the box at that point.

4

those places and, yes, a Mr Peter Francis Cockram lived

5

there.

6

copies of draft emails, copies of actual emails.

7

Computers, both from the Salvation Army.

8

Army comes back into the story again.

9

between the two arms of the Salvation Army, Your Honour,

10

She raided both

Copies of my documents and

The Salvation

No connection

but - - -

11HIS HONOUR: 12

She took evidence.

But he was stalking her.

He was a client and he

stalked her and you - - -

13MR JOHNSON:

He was a long term relationship - - -

14HIS HONOUR:

- - - and you went along to the police to - - -

15MR JOHNSON:

Because she was scared and I wanted - - -

16HIS HONOUR:

The evidence from Ms Locke is you went there to

17

complain about stalking activities by Mr Cockram.

18MR JOHNSON: 19

I

To protect this young lady and especially the

young children, Your Honour, yes.

20HIS HONOUR:

Miss Cressy was also a complainant in that regard.

21MR JOHNSON:

Of course I knew nothing about it except I was

22

Miss Cressy's solicitor for the purpose of getting

23

intervention orders against Mr Cockram.

24

that Mr Cockram - - -

25HIS HONOUR: 26

That doesn't prove there was any relationship of

the type to which you're referring, to Miss Cressy - - -

27MR JOHNSON:

Miss Cressy - - -

28HIS HONOUR:

Just a moment.

29

I didn't know

To Miss Cressy and Mr Cockram.

Where's the evidence of that?

30MR JOHNSON:

In Senior Detective Jennifer Locke's evidence.

31HIS HONOUR:

She - - -

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DISCUSSION EXHIBIT 65

1MR JOHNSON:

Which I was never privy to, Your Honour.

I was

2

never privy to the fact that Mr Cockram was charged.

3

That was all news to me.

4

relationship and they had been seeing each other.

That they were in a long term

5HIS HONOUR:

Wasn't Ms Locke's evidence.

6MR JOHNSON:

It was in Ms Locke's evidence, Your Honour.

7HIS HONOUR:

No.

She said she understood there was some sort

8

of relationship outside the premises at which Miss Cressy

9

worked, but then when cross-examined by Mr Devries she

10

said that relationship consisted of Cockram effectively

11

tracking down Miss Cressy's address and stalking her.

12MR JOHNSON:

Mr Devries suggested in cross-examination – posed

13

a question to the effect that they were strictly

14

prostitute and client until they became prostitute and

15

stalking client.

16

the Purana Taskforce said, "No, they were definitely

17

seeing each other outside of the premises.

And Senior Detective Jennifer Locke of

18HIS HONOUR:

That's not what she said.

19MR JOHNSON:

I believe it is, Your Honour.

20

I'm quite prepared

to - - -

21HIS HONOUR:

It's at p.1323 of the transcript; somewhere around

22

there.

You've got to go back to her evidence-in-chief

23

because you asked a question as to what Miss Cressy – in

24

fact you started at Lines 1013.22.

25

that investigation did Miss Cressy at any time explain to

26

you anything about the nature or duration of a

27

relationship with Mr Cockram"?

28

down into a non-leading question, and Ms Locke at Line 21

29

said, "She'd taken a statement off Miss Cressy.

30

read it for some time".

31

recollection she stated they had met at I believe it was

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"During the course of

And then I broke that

Haven't

Then she said, "From my

133

DISCUSSION EXHIBIT 65

1

Harem International at Park Street, South Melbourne.

2

There was a relationship of sorts of some time.

3

say for how long that was.

4

she knew who he was".

5

relationship went and she said she couldn't remember.

6

And then at 1323

I can't

That's how she explained how

And then I asked for how long that

7If you've got your transcript there.

Mr Devries

8

cross-examined, Ms Locke, "What she told you was that she

9

had a business relationship but he was a client of hers.

10

Over a period of time you started to pester her, follow

11

her home and so on, didn't she".

12

extended outside of business relationship, outside the

13

actual premises but that's just from my memory.

14

Question - - -

15MR JOHNSON: 16

Answer:

I believe it

That's the part I was referring to, Your

Honour - - -

17HIS HONOUR:

Question: I suggest to you that she told you that

18

it was only extended outside because he followed her

19

home.

20

recall".

21MR JOHNSON:

She said, "That could be the case, I can't

Your Honour, I then re-examined Ms Locke and said

22

well how did you track down Mr Cochram and he was tracked

23

down by computer crimes, tracking emails and - - -

24HIS HONOUR:

To the work location.

25MR JOHNSON:

And his home location so that the time that

26

Ms Cressy and Mr Cochram was spending outside of a

27

brothel environment wasn't by any reference to the police

28

investigation.

29

spend time with him, it was quite independent of the

30

police - - -

31HIS HONOUR:

It wasn't like he was blackmailing her to

No, he was sending emails from a work computer.

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DISCUSSION EXHIBIT 65

1MR JOHNSON:

Yes.

2HIS HONOUR:

And making a nuisance of himself.

3MR JOHNSON:

To me, Your Honour, not to Ms Cressy.

4

Can I take

you to Exhibit 62, please, Your Honour?

5HIS HONOUR:

Just a moment.

Exhibit 62?

6MR JOHNSON:

Sixty-two, Your Honour, the LEAP extract recording

7

the intervention order attained by Ms Cressy against

8

Peter Cochram dated 22 January 2004.

9HIS HONOUR: 10MR JOHNSON:

Thank you. Now, it would seem pretty clear that a lengthy

11

police investigation, there'd been a lengthy personal

12

relationship of some description between Ms Cressy and

13

Mr Cochram that preceded that.

14HIS HONOUR: 15

Intervention order - - -

16MR JOHNSON: 17

Well how do you say that from that document?

They didn't meet and kiss and cuddle on

20 January 04 - - -

18HIS HONOUR:

Interim order - - -

19MR JOHNSON:

Then investigated on 21 January 04, Your Honour,

20

and the intervention order the following day.

21HIS HONOUR:

Yes - - -

22MR JOHNSON:

It wasn't a 48 hour relationship, Your Honour, it

23

obviously extended much further.

24HIS HONOUR:

It's not suggested that the stalking only went on

25

for 48 hours but that's – it seems to me a gigantic

26

quantum leap in logic to say you can just go from an

27

intervention order to saying they had a relationship.

28MR JOHNSON:

Your Honour, I believe I gave evidence-in-chief

29

that the stalking abusive emails towards me began just

30

before Christmas 2001.

31

meeting Ms Cressy, spending time with her, deciding he

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So that would have Mr Cochram

135

DISCUSSION EXHIBIT 65

1

liked her and then playing snoopy detective and tracking

2

her even before Christmas 2001, Your Honour.

3MR DEVRIES:

This is all idle speculation, Your Honour.

4HIS HONOUR:

I agree with that.

5MR DEVRIES:

And a total waste of time.

6MR JOHNSON:

It is of low relevance in this instance.

I don't

7

have to disprove a relationship with Ms Cressy.

8

Ms Cressy has to prove a relationship with me, Your

9

Honour.

10HIS HONOUR:

On the balance of probabilities - - -

11MR JOHNSON:

But this is another long term relationship and so

12

I'm frightened to think that the current position is that

13

a person could have multiple de facto domestic

14

relationships with multiple people at the one time.

15

as I understand it under the Part 9 laws it used to apply

16

to these sorts of cases and does apply to this one, this

17

purported claim, that was an impossibility.

18

But

You may only have – just like the laws of bigamy.

19

The crime of bigamy, you may only have one husband, de

20

facto or de jure at a particular moment in time.

21

telling you that this woman – it corroborates a number of

22

other aspects.

23

and then that developed into something else, OK.

24

exactly my story and that is exactly what happened in

25

this case.

26

minute, shortly after 2.20 a.m. on 12 September 1998 when

27

I met Claudia, that's in my evidence.

28

I'm

This is a man that she met in a brothel That's

I can pinpoint very precisely almost to the

Now, Ms Cressy - the second point is that that

29

stalking beginning in December 2001 towards me says met

30

and liked Ms Cressy.

31

found me in the house also.

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He's followed her home.

136

He's then

This is all Nicholson DISCUSSION EXHIBIT 65

1

Street, South Yarra.

2

that's taken quite a bit of time, Your Honour.

3

all in evidence-in-chief, Your Honour.

4

am disproving a relationship, I don't have to disprove

5

anything, she's got to prove that.

6MR DEVRIES:

He hasn't done that in 24 hours, That's

Once again here I

Your Honour, Mr Johnson keeps saying disproving,

7

disproving, viva voce evidence, no corroboration, could I

8

assist him, Your Honour, one of the documents that

9

corroborates my client's case that I'll be relying on

10

very heavily, which he hasn't addressed and I suggest

11

that it would be in his interests to address, is

12

Exhibit F, I believe.

13HIS HONOUR:

Is that the affidavit?

14MR DEVRIES:

The affidavit.

15

If there was no other document in

this matter and that goes in without explanation

16HIS HONOUR:

Well I'm waiting for him to - - -

17MR DEVRIES:

I suggest that - - -

18HIS HONOUR:

- - - address that.

19

- - -

He endeavoured to do so in

evidence.

20MR DEVRIES:

Yes.

21HIS HONOUR:

Explained what his concept of telling the truth

22

is.

23

innocence.

24

not troubled by the presumption of innocence.

25

plaintiff in a civil case such as this has what we'd call

26

the legal burden of proving her case on the balance of

27

probabilities.

28

also an evidential onus to the extent that on some issues

29

the actual onus of bringing forward evidence may shift.

30 31

Mr Johnson, you keep talking about proving your Firstly, this isn't a criminal case, so we're A

As I explained to you before, there's

It's not uncommon, for example, where one party gives viva voce evidence that there was a relationship to

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DISCUSSION EXHIBIT 65

1

expect of the other parties in court that they will come

2

forward and give evidence to the contrary.

3

respect you indeed have done that.

4

yourself and that is why questions have been raised about

5

your credibility and the like.

6

Now, in that

You've given evidence

And you're certainly entitled to raise issues about

7

the reliability of Ms Cressy's evidence.

8

be treating this someway as if it was a criminal trial

9

where the right to silence exists and the like and the

10

presumptions of innocence.

11

that by the by.

12

But you seem to

This is a civil case.

I say

If we move back to something a little bit more

13

relevant.

You're addressing me, as I said, on

14

Mr Cochram, is that right?

15

some – you claim there's evidence of a relationship

16

between Ms Cressy and Mr Cochram during the period you

17

were living in South Yarra and you say that militates

18

against the existence of a domestic relationship between

19

the two of you at that time.

You were saying there was

Is that your submission?

20MR JOHNSON:

Yes, Your Honour.

21HIS HONOUR:

Right.

22MR JOHNSON:

I'm also submitting that I don't even need to make

23

that submission because I don't have to disprove a

24

relationship.

25

Kelly factor, as I call it, Exhibit F, shortly, but I

26

just want to finish because we're talking about that

27

period when Ms Cressy was - and the question is, well,

28

when did she first become an adult sex provider.

29

explained my story how we met, met in the brothel, she

30

introduced me, her name was Claudia.

31

I've got notes of this at about p.216 to 221 of the

1.LL:NS 13/02/09 2Cressy

May I continue?

FTR:1A

138

I will come back to the

Now, I

Let me look at -

DISCUSSION EXHIBIT 65

1

transcript when I was cross-examining Ms Cressy on these

2

issues.

3

this story, she was sunbaking in late August, early in

4

September 1998, I don't remember it being a particularly

5

hot winter, but she was sunbaking down on the beach at

6

Torquay.

7

to her second child.

8

sunbaking, winter time, three to five weeks after giving

9

birth to a child, a lady who's very confident and doesn't

Ms Cressy has got a totally different version of

This was three to five weeks after giving birth It might be p.245, Line 12.

She's

10

worry about stretch marks, Your Honour, or cold weather.

11

I walk up on the beach and say, "Hi baby."

12

her number but not her name.

A week later we're living

13

together at Illouera Avenue.

Not a very coherent story.

14

This discussion - I didn't know her name for a while, no

15

explanation of what I called her.

16

this story under cross-examination, we didn't have much

17

contact for several weeks after that, didn't have much

18

contact after several weeks after I've moved in with her

19

after a week.

20

to lie in the box, you know, put a bit of planning into

21

it.

She gives me

Another version of

It's scary, Your Honour.

If you're going

It's just crazy.

22

May I take you to the documents that I discovered in

23

the garage under the mess on the Boxing Day.

I'll take

24

you in particular to - not the green shopping bag, not

25

the white one or the black one - - -

26HIS HONOUR:

Sorry?

27MR JOHNSON:

- - - but the spiral notebook.

28HIS HONOUR:

What do you want me to look at now?

29MR JOHNSON:

The spiral notebook, Ms Cressy's handwritten

30

memoirs, Exhibit 60, Your Honour.

31

Your Honour to decide the authorship, I just merely note,

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139

It is obviously for

DISCUSSION EXHIBIT 65

1

as I did in my return to the box in evidence-in-chief,

2

which I was never cross-examined on, and Your Honour

3

remarked on this merely because of that, I was not cross-

4

examined on any of the evidence of what I found or where

5

I found it or what I did with it, et cetera, et cetera.

6

This booklet, now, the handwriting on Exhibit 60, you can

7

compare it to some of the others.

8

to Trevor on his (indistinct), where is that one, the

9

very early one?

The handwritten letter

Number 2, Exhibit 2, and the handwriting

10

from Exhibit 3 and you might reasonably conclude, Your

11

Honour, that they're in the handwriting of the same

12

person.

13

Now, if I may just pause to read a couple of

14

paragraphs from that.

15

finds that it is Ms Cressy's handwriting, after several

16

notes describing the legal situation, well, constitution

17

laws, which may interest some of the lawyers in court, it

18

doesn't interest me, there's - at the start it looks like

19

an autobiographical story, "Old men, new men, borrowed

20

men, blue men."

21

second page - on the bottom of the first page she talks

22

about after she and her friend Kim, who it's common

23

ground in the plaintiff's and its evidence that Kim was

24

Kimberley - I've forgotten this name, Brookes.

25HIS HONOUR: 26

You can read the preamble.

On the

I don't think there's any common ground, but what

on earth has this got to do with the case?

27MR JOHNSON: 28

In this document, if Your Honour

This corroborates my story of meeting Ms Cressy

working in a brothel in Geelong - - -

29HIS HONOUR:

You say this supports - - -

30MR JOHNSON:

- - - at about 2.20 a.m. on 12 September 1998,

31

Your Honour, working under the assumed name Claudia.

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140

DISCUSSION EXHIBIT 65

1

"Kim and I went to visit Jason, afternoon, after a lunch

2

of chardonnays.

3

easily.

4

work.

5

be Jim.

6

with Kim and perhaps a little embarrassed as obviously

7

Kim had made a revelation.

8

southern Italian looks," beauty is in the eyes of the

9

holder, I've seen the man recently, "and a kindness

10

Kim liked to shock but I wasn't shocked

I told him I'd like to find out more about the He replied that Jason would best to ask."

He must

"Jason was surprised to see me at the doorway

Jason was a beautiful man,

portrayed by his" something - - -

11HIS HONOUR:

This looks like a fictional work.

Do you say this

12

is a fiction borne out of something that actually

13

happened?

14MR JOHNSON:

No, I say from my knowledge of Ms Cressy this is

15

about 90 per cent accurate, Your Honour, it corroborates

16

my story.

17HIS HONOUR: 18

Well, where does this corroborate your story?

Rather than me have to - - -

19MR JOHNSON:

It corroborates it in two places.

20HIS HONOUR:

- - - suffer all this being read to me.

21MR JOHNSON:

Corroborates it in two places.

She goes to the

22

brothel where Jason is working and the story says he's

23

taken over for the time being his mother's job as the

24

madam at the brothel, Jason is the madam at the brothel

25

at this point.

26

would be evidence from the Bar table, Your Honour.

27

suppose he felt at that time like a devil accosting a

28

virgin, just (indistinct).

29

simplicity," she writes.

30

establishment asked me my name.

31

expression as it turned to, 'And what will you use as

1.LL:NS 13/02/09 2Cressy

I have contrary information but that

FTR:1A

"

I felt pity for his "The first woman I met in the

141

I told her, then saw her

DISCUSSION EXHIBIT 65

1

your working room.'

2

'Claudia, my confirmation name.'"

3

Claudia, Your Honour.

4

confirmation name.

5

know that it was her confirmation name.

6

that she had a confirmation name, I'm not even sure what

7

that is, I'm not a practising Catholic.

8MR DEVRIES: 9

There was no malice, only guidance. Claudia, that name

I didn't know it was her

Was I close enough to Ms Cressy to I didn't know

There is no evidence that she has a

confirmation - - -

10HIS HONOUR:

I agree with you.

11MR JOHNSON:

There is evidence that she was working in a

12

brothel in Geelong under the name of Claudia, the moment

13

that I met her.

14

that she worked in a brothel in Geelong under the name of

15

Claudia.

16

winter, the earliest being three to five weeks after

17

giving birth to her second child.

18

me her number but not her name and then - - -

19HIS HONOUR: 20

It's evidence in her own handwriting

She claims that I met her sunbaking, the end of

"Hi baby", she gives

You both gave conflicting evidence as to how you

met but does that really matter in this case?

21MR JOHNSON:

Does it really matter whether right from the

22

start, I am a man, I was a - met this lady in a brothel.

23

She had fun and took advantage of my kind heart.

24

Mr Cockram, why did he start stalking her?

25

he next?

26

Mr Marles, is

I give evidence of another appellant, Zac, that she

27

told me about at Easter 2007 when I realised, no, no,

28

she's never going - this pretty woman is never going to

29

become redeemed like a Julia Roberts.

30

of a Mr Johnson has been fooled and wasted his time and

31

he's going to be in a lot of trouble - a lot of

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142

This Richard Gere

DISCUSSION EXHIBIT 65

1

embarrassment when this extortion comes out in public.

2

That is relevant to ulterior motive and purpose.

3

This lady doesn't - her credibility is shot, Your

4

Honour.

5

case.

6

single bloody lie right as a prostitute, forgive me, I've

7

got to say it, she can't lie straight in bed let alone

8

out of bed, let alone in a witness box.

9HIS HONOUR:

She has no hard evidence, she has not put up a It all depends on viva voce.

She can't get a

That's enough of that sort of talk.

10MR JOHNSON:

Your Honour, how - - -

11HIS HONOUR:

You were admitted to practice - - -

12MR JOHNSON:

- - - blatant does the perjury have to be before

13

the person is caught before Your Honour to explain

14

themselves under contempt laws.

15

there's a prima facie case but for Prima Donna Cressy

16

here, there's a prima facie case for Mr Cockram.

17

think he had a genuine medical reason.

18

facie case for a process server who perjured, it would

19

seem, two affidavits of service, supposedly on my behalf,

20

Mr Wittekind, Mr Wonder Boy as Wittekind translates into

21

more modern English.

22

the plaintiff's legal representatives have conducted this

23

case.

24

contempt.

25

am close to contempt, et cetera, I the man, am constantly

26

attacked - - -

27HIS HONOUR:

So I would have thought

I don't

There was a prima

I have issues about the way that

I think some of them should be in the box on Now, I am constantly harassed and told that I

I'm not attacking you, I'm warning you that if you

28

were at the Bar - if you were a member of the Bar, if you

29

join the Bar and you behave like this, you'll end up in

30

deep trouble before you can even blink.

31

a ruling or gives you a direction, you cannot disobey or

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143

If a judge makes

DISCUSSION EXHIBIT 65

1

wilfully not follow it as you've been constantly doing.

2

That's the point I've been making to you.

3

extraordinary patience and lenience to you, given the

4

fact that you are a solicitor of 20 years standing.

I've extended

5MR JOHNSON:

Your Honour - - -

6HIS HONOUR:

Now, let's not keep having a go at Mr Devries.

7

Unless it's focussed on the issue - the point I think

8

you're endeavouring to make to me is this, that I should

9

prefer your version as to how you met, I should reject

10

Ms Cressy's evidence, Exhibit 60 you say had some support

11

for the way - your version, and that thus impacts on

12

Ms Cressy's credibility because you say she did not tell

13

the truth in describing to me how the two of you met.

14

seems to me, doing you more than justice is trying to

15

extrapolate from what you've been saying in the last

16

20 minutes, seems to me the gravamen of any submission

17

that could be made in your favour, is that right?

18MR JOHNSON:

In a very gentle way of describing it towards

19

Ms Cressy - a very gentle way, yes, Your Honour has

20

termed it well.

21HIS HONOUR: 22

It

May I just please - - -

Well it took about three sentences, rather than a

diatribe.

23MR JOHNSON:

Is this the sort of memoire that a typical

24

de facto wife would write, Your Honour?

I won't mention

25

names, but other men in court presumably have wives or

26

de facto wives.

27

like the diaries that are in evidence - Ms Cressy's diary

28

threats.

29

It's extraordinary.

Do they have memoires like this?

Just

Are they typical of other men's wives' diaries. It's just extraordinary.

30

This story continues as a disgusting little story

31

about a Dolmio grin and a long term relationship with a

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144

DISCUSSION EXHIBIT 65

1

60-70 year old Italian man.

Over the page, this is

2

interesting.

3

hairist.

4

nemesis."

5

and only stalker was a 50 plus year old married with

6

small children.

7

South Melbourne."

8

we talking about Harem International?

9

family's comings and goings.

Ms Cressy writes "I'm not a racist, I'm a

Red hair to be precise.

Red haired men are my

Nemesis is spelt a couple of ways.

"My first

He followed me home from work, now in Are we talking about Mr Cockram or are

children to crèche and school.

11

names.

He stalked me taking my

10

I didn't want to name

He threatened my partner."

12HIS HONOUR:

That's you?

13MR JOHNSON:

No.

"Followed my

A fellow named Harry.

I get an - - -

A Harry, it's not a

14

name I've used.

15

Harry based on - based on me, I guess, an aspect of me as

16

Dr List would, in his funny way, put it.

17

cruel when faced with rejection."

18

from Peter Cockram?

19

the police, they took down the evidence."

20HIS HONOUR:

She's given - created this fictitious

"Men could be

What did she reject

"I did name him after prompting by

There's no admission - there's no admission in

21

this document that she had a relationship with Cockram.

22

This document - - -

23MR JOHNSON:

"Men can be cruel when faced with rejection."

24HIS HONOUR:

This document seems to support the proposition

25

that she was in fact - her only relationship outside the

26

- outside the place of work was that she was stalked.

27MR JOHNSON:

"Men can be cruel when faced with rejection."

My

28

recollection, and I'm so disappointed I couldn't find it

29

this morning, where she denied ever knowing a Peter

30

Francis Cockram.

31

that question to her in cross-examination.

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I'm kicking myself.

145

I'm sure I put I'm just DISCUSSION EXHIBIT 65

1

and I couldn't find it in the transcript.

2HIS HONOUR:

Well, you may be able to find it over lunch.

3MR JOHNSON:

It goes on Your Honour, "The police did their job.

4

Were a little too (misspelt) compassionate to the wrong

5

party.

6

was free from his assault.

7

like to free him from", hang on, "I fantasised I would

8

like to free him from his appendage if ever we met again.

9

Too gory".

10

Yet at the end of the day, he was caught and I I fantasised what I would

There's a reference in here to her commencing work

11

as a teenager in that brothel.

She was a teenager in

12

that brothel when I met her.

13

birthday.

14

because I can't read whether it's a 14 or a 17 or a 19.

15

Fourteen is a pretty scary thought, but I've heard

16

stories from Ms Cressy. Again I am giving evidence

17

perhaps from the Bar table.

It was prior to her 20th

I do want to find that reference Your Honour,

18HIS HONOUR:

Yes, you are.

19MR DEVRIES:

Making vile accusations gratuitously - - -

20MR JOHNSON:

I'm trying to read her handwriting Mr Devries.

21MR DEVRIES:

- - - knowing that there can be no comeback for

22

that.

It's a cowardly act by Mr Johnson the way he's

23

conducting his vitriolic criticisms of my client.

24MR JOHNSON:

How could I cross-examine her on this material

25

when she had closed her case before I even discovered it

26

under the trash pile.

27HIS HONOUR:

Well I don't see the relevance of much of this

28

except so far as you say that insofar as you're writing

29

fiction some of it is borne out of fact, and if that is

30

right then she's described a circumstance in which a red

31

headed man stalked her.

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If you tender a document for the 146

DISCUSSION EXHIBIT 65

1

truth of its contents it cuts both ways, and you say

2

contradicts or lends support to your version of how the

3

two of you met.

4

Gratuitous insulting remarks about Miss Cressy's

5

work as a sex worker I can tell you now have no affect on

6

my assessment of her credibility, that is it does not

7

make me take any prima facie or other view as to the

8

credibility or character of Miss Cressy.

9

remarks like that done in an underhanded way by a

But gratuitous

10

practising solicitor reflect poorly on the person who

11

makes the remark.

12

be warned Ms Johnson, I'm unimpressed by these sort of

13

insults you're throwing at Miss Cressy.

14

you point to matters which contradict her evidence.

15

That's what interests me in trying to assess the evidence

16

of the pair of you.

17MR JOHNSON:

They undermine your credibility.

Now

I am helped when

This contradicts her evidence Your Honour.

May I

18

ask - because again I had to ask Your Honour how do I put

19

this evidence that I found on Boxing Day - - -

20HIS HONOUR:

Equally for your comfort - equally for your

21

comfort I should add that I do not take it against your

22

credibility as a witness that you as a practicing

23

solicitor, and as a married man with three young

24

children, took it upon yourself on your evidence to visit

25

a brothel when you're away on a conference.

26

assured I won't be taking that against your credibility

27

either.

28

concerned with the credibility of evidence that's given

29

in this court, not with barbs thrown by you against the

30

character and personality of another litigant.

31MR JOHNSON:

So rest

In other words, I'm more interested and

Your Honour may I ask - - -

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147

DISCUSSION EXHIBIT 65

1HIS HONOUR:

Bear that firmly in mind.

2MR JOHNSON:

Your Honour may I ask given that clearly

3

discoverable documents - Exhibits 1A to 1K were not

4

disclosed to me - I found them by good fortune - - -

5HIS HONOUR:

Yes.

6MR JOHNSON:

- - - and given that this material, which I would

7

have thought would be discoverable if Miss Cressy's

8

lawyers had been aware of it and they had bothered to

9

update their continuous disclosure obligations, it was

10

not made available until after Miss Cressy had finished

11

in the box, I'm accused of things in an underhanded way I

12

did not even know if or how this evidence would be put

13

before you Your Honour.

14

the sequential timing in what's the - in a inhanded way

15

Your Honour.

16HIS HONOUR:

How might I have done it given

I'm not saying that, I'm talking about the

17

constant remarks you're making about Miss Cressy's former

18

profession - or her profession.

19MR JOHNSON:

I'm not making comments about - - -

20HIS HONOUR:

I have - I've permitted you to reopen your case to

21

tender more documents you've found.

I don't criticise

22

you for that, if you say you didn't have them available

23

at the beginning of your case but you found them over

24

Christmas then I've given you the opportunity to tender

25

them.

26

which Mr Devries properly stood up to object to.

27

just stick to the point.

28

have been taking me to really for a protracted period of

29

time supports your version of how the two of you met.

30

What other - apart from that, what other forensic use -

31

legitimate forensic use do you seek to make of it?

But it's the remarks you're constantly making

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Now

You say this document which you

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1MR JOHNSON:

It demonstrates that the viva voce evidence, which

2

is everything that the plaintiff's legal representatives

3

are hanging their case on is perjured.

4

this bit, I'm how many pages in - I think about six or

5

seven pages in she writes, "I am in truth a beautiful

6

liar, a loving mother, yet a horrible dictator.

7

- this imaginary Harry, significant other, and I am

8

unfaithful in the extreme.

9

daughter to my mother and I hate her for that.

May I read you

Harry's"

I am more friend than I'm a big

10

sister to my sisters, simple.

11

deck".

12

a full deck, reaching for yet another card", and so on

13

and so on.

14

with various other men, including men who dined with the

15

governor (indistinct) the previous (indistinct) Your

16

Honour.

17

domestic wife would write?

18

weird, this lady is not your typical de facto wife

19

material Your Honour.

20

Your Honour".

21

just want to point out some other things about the story.

22

I am a woman with a full

That's a questionary comment.

"I am a woman with

There's descriptions of various adventures

Now is that the sort of memoire that a typical You know, this is really

"I am in truth a beautiful liar

That's pretty scary.

Let me go back, I

To the extent that she claims that she's had an

23

income that she hasn't demonstrated any evidence of, but

24

she says trust me Your Honour, I've got lots of money, I

25

give it all to James.

26

and she talks about when she started her prostitution in

27

all sorts of funny ways.

28

Line 26, her mother became aware that she was working as

29

a prostitute when Miss Cressy and I were both -

30

Mr Johnson were both living at Dorrington Street.

31

that's in March/June 2003 if that's a true statement, and

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She talks about her prostitution,

Her mother's evidence, p.317,

149

So

DISCUSSION EXHIBIT 65

1

I was actually living at Dorrington Street at that time,

2

OK, or at some time after, under the imaginary story that

3

I continued to live there after I moved into my Bourke

4

Street apartment in July 2003.

5HIS HONOUR:

What's the relevance of that?

6MR JOHNSON:

The question is well at what point in her life did

7

Miss Cressy become a prostitute and it goes to

8

credibility, because - - -

9HIS HONOUR: 10MR JOHNSON:

What's the relevant of that? - - - and it goes to her potential to have income

11

- to have potential, even though she didn't bother

12

putting the evidence to prove it, to have made any

13

contributions towards me and my assets.

14

the money from Your Honour? We can't forgive the fact

15

that there are no tax returns, bank statements, payslips

16

or receipts.

Where'd she get

We simply can't forget that.

17MR DEVRIES:

The dingo stole them.

18HIS HONOUR:

Mr Devries, that was inappropriate.

19MR DEVRIES:

I apologise, Your Honour.

20MR JOHNSON:

The super dingo stole them.

21

Your Honour.

I was - - Attacking the man,

Is this man ever - - -

22MR DEVRIES:

I apologise, Your Honour.

23HIS HONOUR:

I have just reprimanded, Mr Devries.

24

That type of

remark was inappropriate.

25MR JOHNSON:

No.

It sums up the case, Your Honour.

This super

26

powerful dingo also stole the copies of these documents

27

from the Tax Office, the banks, the brothels that issues

28

the payslips, the tradesmen who did the work.

29

amazing – I'm not just an amazing human.

30

super dingo, Your Honour.

31

proposition, "Ah, don't worry.

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I'm an

I'm an amazing

How can you put up a

150

We don't need hard DISCUSSION EXHIBIT 65

1

evidence because a dingo stole it and Mr Johnson's a

2

dingo", when there are counterparts within government

3

agencies to those very documents.

4

counterparts of my clearly shown to have been unlawfully

5

taken documents.

6

case when I didn't have to - - -

7HIS HONOUR:

I went out and got

I got the counterparts to demonstrate a

Returning to the argument you have made which I've

8

already summarised on your behalf, and that is that

9

Miss Cressy has not produced documents in support of her

10

case, you say that even if somehow they went missing she

11

had the opportunity to repair the defect as have?

12MR JOHNSON:

Yes.

13HIS HONOUR:

That's the point you're making.

14MR JOHNSON:

(Inaudible response.)

15HIS HONOUR:

What I think I'll do is I wish to rise a couple of

16

minutes early.

17

one o'clock.

18MR JOHNSON: 19

I think that we'll rise now.

It's almost

We'll continue at 2.15.

I hope I don't have much longer to go, Your

Honour.

20HIS HONOUR:

I have that sincere hope too, Mr Johnson.

I say

21

it is important you don't curtail your submissions to cut

22

out anything relevant, but it is also important your

23

curtail your submissions to cut out anything that's

24

irrelevant.

25

will be advancing your own cause.

26

until 2.15, thanks.

Just stick to the issues in the case.

You

I will now adjourn

27LUNCHEON ADJOURNMENT 28

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DISCUSSION EXHIBIT 65