Captive Images Race, Crime, Photography

Captive Images: Race, Crime, Photography

Captive Images explores law’s treatment of photographic evidence in order to investigate the relationship between law, image and fantasy. Based around the scholarly examination of a bank robbery, in which a surveillance camera captures the robbery in progress, the book unfolds a compelling narrative of crime, race and nation. Katherine Biber draws upon critical writing from psychoanalysis, postcolonialism, art, law, literature and feminism to read this crime, its texts and its images, as signifying something fundamental about race relations, about national identity, and about fear. Katherine Biber is a legal scholar and historian in the Division of Law at Macquarie University, Australia, and has been a community worker and a film critic.

Captive Images: Race, Crime, Photography

Katherine Biber

First published 2007 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN, UK Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY 10016 A Glasshouse book Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2007 Katherine Biber All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Biber, Katherine, 1972– Captive images : race, crime, photography / Katherine Biber. p. cm. Includes bibliographical references and index. ISBN–13: 978–1–904385–72–1 (hardback) ISBN–13: 978–0–415–42039–6 (pbk.) 1. Legal photography. 2. Electronic surveillance. 3. Evidence, Criminal. 4. Crime and race. 5. Discrimination in criminal justice administration. 6. Electronic surveillance—Australia— Case studies. 7. Bank robberies—Australia—Case studies. I. Title. HV6071.B53 2007 363.25'2—dc22 2006026307 ISBN 0-203-94512-3 Master e-book ISBN

ISBN10: 0–415–42039–3(pbk) ISBN10: 1–904385–72–9 (hbk) ISBN13: 978–0–415–42039–6 (pbk) ISBN13: 978–1–904385–72–1 (hbk)

Contents

Foreword: Alison Young Preface Acknowledgements Table of cases and documents

vii xi xv xvii

1

The hooded bandit

1

2

The national bank

27

3

The epidermal examination

45

4

The mother’s trouble

72

5

The danger zone

83

6

The spectre

98

7

Your fantasy, my crime

113

Bibliography Index

125 135

Foreword Alison Young

Photography, law, race, crime – at the intersection of these practices, events and identities we find the possibilities of justice and injustice. The story related in Captive Images exists at these intersections, and inscribed within it are the foldings and unfoldings of the legal process, the stereotypes of media images, the constraints of supposed sociological ‘facts’, and the assumptions made about the documentary nature of photography. The story appears to be a simple one. One day in Sydney, a bank was robbed by someone who was filmed by the bank’s security camera. A young man, Mundarra Smith, was charged with robbing the bank of $16,610. He was convicted and sentenced to imprisonment, but appealed against his conviction. Three and a half years later, the High Court of Australia quashed the conviction. Crucial to his conviction was the evidence given by two police officers that they recognised Smith from photographs taken by the bank’s security cameras and the trial court’s acceptance of the value of such evidence. Crucial to his successful appeal was the High Court’s recognition of the limits and instability of such testimony and of the truth-telling nature of photography. The case of Mundarra Smith perfectly exemplifies the ways in which a defendant in a criminal case enters not just the criminal justice system (with its network of courts and a police force designed to enforce the criminal law) but a nexus of institutions, practices and beliefs which I have called elsewhere the crimino-legal complex (Young, 1996). By this I mean to include the knowledges, discourses and practices that are deemed to fall under the rubric of criminology, criminal justice and criminal law, together with the popular discourses manifested in the media, cinema, literature and advertising. Through such a nexus, ‘crime’ has become a potent sign that can be exchanged among criminal justice personnel, criminologists, politicians, media practitioners and ordinary individuals. As a sign, ‘crime’ is both a floating signifier – able to accommodate a wide range of behaviours, effects, harms, victims and perpetrators – and also fixed according to a semiotic hierarchy marking individuals and activities by means of an oppositional logic of binary pairs. Such a logic is rarely straightforward. Thus ‘youth’ can be made to work as a signifier both of risk (for

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example, groups of young men or boys hanging out in public spaces such as malls are frequently read as exhibiting threatening, ‘pre-criminal’ behaviour) and of innocence (the child signifies pre-criminal innocence, that which must be preserved and protected for the future). In the oppositional interpretation of gender, ‘femininity’ tends to be associated with victimisation rather than with criminality, or occasionally with less serious crimes, or certain types of crime such as property offences. However, when a woman does commit more serious offences, such as murder or sexual assault, then it is as if her gender permits the behaviours to be read as more heinous, by virtue of the semiotic expectations of a woman produced in and through the crimino-legal complex. However, there is one signifier which does tend to operate within the crimino-legal complex in a devastatingly straightforward way. The white/ non-white oppositional term produces signs that coalesce around the notion of white propriety and non-white lawlessness, informed by a cultural baggage which stretches from colonial anxieties to contemporary sociological misreadings. As Mundarra Smith’s case makes plain, the signifier of ethnicity – and in the Australian context, the signifier of indigeneity – underwrites a host of crimino-legal practices (from the way a photograph is viewed by a police officer, to the ways in which the indigenous defendant is regarded and sentenced by the criminal court). In Captive Images, Katherine Biber reads Smith’s case in a way that traces how indigenous ethnicity signifies in the Australian crimino-legal context. More than this, she does so in a manner which foregrounds our cultural dependency on images and their effects. Although the Smith case is perhaps unusual in that it turned upon the interpretation of the meaning and value of photography, all domains of the crimino-legal complex depend upon the production and reproduction of crime as an image. In the Smith case, and in Captive Images, we see how youth, masculinity and indigeneity are made to mean through images: how they are produced and reproduced as spectacle. The crimino-legal complex therefore works through the discursive practices of law, policing, criminology, and the media. In Captive Images, Biber takes this nexus seriously and shows how its components rub together; however, Captive Images also works with these components – theory, doctrine, imagery – to make compelling arguments about the ways we read ethnicity, the impact of appearances, the raced and gendered qualities of our approach to violence, and the troubling undecidablity of the photographic image. This is not to oppose the image of crime with its reality. That would be akin to saying that the photograph showed someone who was thought to be Mundarra Smith in error; after the correction of the legal process we now know that it shows someone else. In such an approach, the truth-value of the photograph is left intact; it is merely our interpretation of the photograph that has been mistaken. Rather, Biber confirms for us that it is impossible to separate the interpretive techniques brought to bear upon the photograph

Foreword

ix

from the sociological and postcolonial assumptions brought to bear upon the body of the young indigenous male in contemporary Australian culture, and the ways in which legal and criminal justice processes underwrite and naturalise these assumptions as ‘reality’. Captive Images, therefore, provides for us a forensic examination not only of the case of Mundarra Smith but also of the workings of the cultural values of ethnicity, gender and criminality within the crimino-legal complex itself. Her reading of the case and its underpinnings puts this complex on trial, interrogating its vicissitudes and volatilities, recounting the unreliability both of the criminal law as an interpreter of the visual image, and of the visual image as a document of ‘reality’. It makes grimly compelling reading, its arguments a convincing critique of the postcolonial urban anxieties that reach into all aspects of contemporary everyday life. And yet, it ends with a sudden, deftly delivered note of hopefulness. The ‘catalogue of race, crime and photographs’ set out for us by Biber contains, instead of a worn-out struggle between truth and falsity or between image and reality, simply and critically ‘the white man’s fantasy’, with all its resultant capacity for critique, contestation and challenge. Captive Images both confirms for the reader the longevity and tenacity of such a fantasy and also suggests the ways in which its very status as fantasy might contain the possibilities of its undoing.

Preface

Captive Images seeks to contribute something new to our ways of thinking about criminal law and evidence, cultural criminology, and visual images. I argue that we need to recognise how deeply reliant each of them is upon the other. Captive Images starts with a series of photographs that were taken by a surveillance camera during a bank robbery. It explores how our existing notions of transgression, race and imagery are powerfully embedded in our fantasies of nationhood. It asks why we presume that we can look at a photograph and draw a conclusion. When we see a hooded bandit in the act of stealing our money, how does this affect our understanding of property, work and entitlement? How has race become so deeply entrenched in our thinking about crime? Captive Images tests how strongly we are committed to ideals of inclusion and welcome. This book asks how we create our fantasy nation out of deviance, darkness, familial dysfunction and haunting spectres. Photographs give us a concise way of capturing our fantasies and our fears. Law has opened itself up to photographic evidence without pausing to reflect on the consequences of doing so. This book cautions law against being seduced so willingly by photographs. We need a critical and rigorous jurisprudence of the visual, and Captive Images offers my own contribution to this dialogue. Scholarship is always a personal journey, wherein one’s life is always implicated in one’s study. Chance encounters and happy coincidences embed themselves in the research, until it becomes difficult to separate life from work. I dropped out of law school to be a historian, and also to work at Redfern Legal Centre, a community organisation based in inner Sydney dedicated to providing free legal assistance to the poor, the excluded and the often forgotten. Redfern is notorious in the public imagination of Sydney. A symbol of urban Aboriginal liberation, it is also the site of infamous police racism, intense poverty and riotous youth. The towering housing estates of Waterloo cast long shadows over the often eerily quiet streets of Redfern. Redfern Legal Centre opened my eyes and my mind to the coincidence of acute socio-cultural disadvantage and rich community life.

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Whilst working in Redfern, I also commenced a postgraduate research degree in the Faculty of Law at the University of Sydney, hoping to explore the ways Aboriginal people were represented in law. At the same time, I taught introductory law subjects to undergraduate students. I spent one afternoon looking for a legal judgment that I might use to teach students how to read cases. I wanted a case that was not famous, that had interesting facts, and where the legal doctrine was relatively simple. Searching the recent decisions handed down by the High Court of Australia, I found a case named ‘Smith’, where photographs were taken during a bank robbery, and an Aboriginal teenager was charged with the crime. The case turned out to be unsuitable for my teaching purposes, but I was curious about so many things that the High Court had left unspoken: about Aboriginality, photography, and the surveillance and criminalisation of young people. Mundarra Smith was represented by the Sydney Regional Aboriginal Corporation Legal Service (ALS), which acts for indigenous defendants in the criminal courts. A volunteer solicitor at the legal centre, Troy Edwards, was a staff solicitor at the ALS. One evening, we talked about the case and he offered to help me access the materials and information without which this project could never have started. Gripped by the photographs and transcripts, I decided that this case contained all the elements (transgression, visual imagery, race, property, family) to which I would anchor my research. I remain grateful to Troy and his colleagues at the ALS for instigating this project. Diana Black of Edmund Barton Chambers, the barrister who defended Mundarra Smith at his first trial, gave me her time, and shared her reflections and impressions with me. At the University of Sydney, my love of research was instilled in the Department of History, where I undertook my doctorate, under the supervision of Richard Waterhouse and Judith Keene, and consolidated in the Faculty of Law, where my master of criminology was awarded for the research that is the basis of this book. I owe particular thanks to Chris Cunneen and Isabel Karpin for their rigour and congeniality in supervising my research. For friendship, support and collegiality in that Faculty, I also acknowledge Hilary Astor, Dean Bell, Tessa Boyd-Caine, Michelle Burgis, Graeme Coss, Kristen Daglish, Bernard Dunne, Reg Graycar, Abigail Kohn, Arlie Loughnan, Bron McKillop, Desmond Manderson, Jenni Millbank, Mehera San Roque, Kristin Savell, Tim Stephens, Julie Stubbs and Jeremy Webber. I continue to be surrounded by inspiring and interesting colleagues in the Department of Law at Macquarie University, where this book was developed, and I have been made welcome by scholars across the campus. I thank my colleagues Michelle Arrow, Kirsten Bell, Andrew Buck, Rosalind Croucher, Alexander Edmonds, Nicole Graham, Marnie Hughes-Warrington, Bruce Kercher, Natalie Klein, Lawrence McNamara, Denise Meyerson, Pál Nyíri, Peter Radan, Alex Reilly, Simon Rice, Mary Spongberg, Deborah Staines, Cameron Stewart, John Sutton and Malcolm Voyce for their support

Preface

xiii

and interest. Joseph Pugliese has been tremendously collegial and inclusive, and I have gained so much from his scholarship. I owe special thanks to Kirsten Anker and Nicole Graham, who were often my first readers, and always my most rigorous critics. Mehera San Roque was a source of rich sagacity, and Michelle Arrow provided mirth when it was needed most. Tom Sear, anagrammatic maestro, deserves special mention for our Caringbah misadventure and the infinite jest. I also thank all my friends, whether they asked after this book’s progress, or whether they tactfully talked about something else, without whom I could not have gotten to the end of it. Alison Young agreed to write a Foreword for this book, having followed the development of this project from its early stages. As a thesis examiner she engaged closely with my ideas, and was generous in her responses. Her own scholarship has motivated so much of my thinking, and I am humbled by her support. Ghassan Hage was another thesis examiner, and was rigorous and enthusiastic in his comments. He pointed me in some unexpected directions, and I continue to learn from his work. Both David Rolph and Brent Salter conducted meticulous research, guiding me to some of the trickier corners of the law. David has been a persistent source of comfort and entertainment; Brent continues to astound me with his discoveries and vigour. David Ellison read multiple drafts of Chapter 6, ‘The spectre’ and his diaphanous presence looms over those pages. I was incredibly fortunate to find Michelle O’Reilly in Macquarie University’s Centre for Flexible Learning. With her perfectionist eye and infectious sense of wonder, I was able to include the photographs in this book. I am also grateful to Denis Beaubois for the activism of his artwork, and for his interest in my research. In Colin Perrin at GlassHouse Press I have found an incredibly rewarding commissioning editor. From the outset, our conversations have forced me to reconsider and defend my arguments, and he has steered this project towards areas I had not considered, but now I cannot imagine the book without them. My family, Alex Biber, Marika Biber, Andrew Biber, Maciek, and Rusty (deceased) have my unconditional love in return for their laughter, endurance and quizzical tilt of the head. And, for being a towering reminder of the things I value most, for his energy, curiosity and boundless sense of fun, this book is for Paul McCartan. Katherine Biber Sydney, February 2006

Acknowledgements

My first thoughts on this topic were published as an article titled ‘The Hooded Bandit: Aboriginality, Photography and Criminality in Smith v The Queen’, published in (2002) 13(3) Current Issues in Criminal Justice. I acknowledge the journal and its publisher, the Institute of Criminology at the University of Sydney, for this support. Chapter 6, ‘The spectre’ was first published as an article titled ‘The Spectre of Crime: Photography, Law and Ethics’ in (2006) 16(1) Social Semiotics. I thank the journal and its publisher, Taylor & Francis, for permission to republish it in this book. The surveillance photographs published in this book are the copyright of the National Australia Bank Limited, all rights reserved, and are reproduced here with permission. Those images that were tendered in evidence in the District Court of New South Wales have been reproduced with the permission of the court. Artworks by Denis Beaubois published in this book are the copyright of the artist, and are reproduced here with permission.

Table of cases and documents

The following cases and documents contain analysis of legal aspects of race, identification and/or photography. Page references in italics denote cases and documents discussed in Captive Images.

Smith and related cases Mundarra Smith v R, S233/2000 and S234/2000, High Court of Australia, Joint Appeal Book, 2 volumes R v Morris [1999] NSWCCA 326 R v Mundarra Doolan Smith (97/11/0742) District Court of New South Wales R v Murchie [1999] NSWCCA 424 R v Nicholas [1999] NSWCCA 433 R v Smith [1999] NSWCCA 317 R v West [1999] NSWCCA 325 Smith v R (2001) 206 CLR 650 Smith v R S233/2000 (25 May 2001) Transcript of proceedings Smith v R, Morris v R, West v R S201 and S204/1999, S200/1999, S202/1999 (8 September 2000). Application for special leave to appeal. Transcript of proceedings

passim 9 9 46, 47 passim 9 9 passim passim

9

Other cases Antonio Lenoir v State of Arkansas (2002) 77 Ark. App. 250 Colin Goodsell v Galarrwuy Yunupingu, Court of Summary Jurisdiction, Northern Territory (Gillies SM), 20 February 1998 (1999), 4 Australian Indigenous Law Reporter 29 Colin Goodsell v Galarrwuy Yunupingu [1999] AILR 19 Director of Public Prosecutions Reference No 1 of 1999 (1999) 128 NTR 1 Geoff Derrick v ANZ Group Ltd [2005] NSWIRComm 59 Geoff Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRComm 406

55

109 109 109 44 44

xviii

Table of cases and documents

In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2) [2001] TASSC 105 James Smith and Jason Mack v State of Maryland (2004) 158 Md. App. 673 James Smith and Jason Mack v State of Maryland (2004) 388 Md. 468 Mabo v Queensland (No 2) (1992) 175 CLR 1 R v Gardner [2001] NSWCCA 381 R v Griffith (1995) 79 A Crim R 125 State of Maine v Bobby Llamar Kelly (2000) 2000 ME 107 State of New Jersey v Maurice Valentine (2001) 345 N.J.Super. 490 State of New Jersey v McKinley Cromedy, aka Daddy, Mac, Flavor, Cromedy McKinley, McKinley Andrew Cromedy, Mackay Cromedy, McKinley Cromedy III, and Rehem Cromedy (1997) 158 N.J. 112 The People v Darin Reynard Palmer (1984) 154 Cal. App. 3d 79 The People v Marquel Dion Smith et al (2004) 2004 Cal.App.Unpub. LEXIS 2040 United States v David Wayne Johnson (1997) 114 F.3d 808 United States v Hugo Rincon (1994) 28 F.3d 921 United States v Richard Stevens (1991) 935 F.2d 1380 Whatley v The State (1996) 266 Ga. 568 Reports and public documents ‘Closed circuit television (CCTV): recent findings’, AICrime Reduction Matters (No 42), Australian Institute of Criminology, 2 February 2006 ‘Facts and Figures: Robbery’, Crime Facts Info (No 46), Australian Institute of Criminology, 1 April 2003 Inquest into the Death of Thomas James Hickey, NSW State Coroner, 17 August 2004 Inquiry into issues relating to Redfern and Waterloo, Final Report (Report 34), NSW Parliament Standing Committee on Social Issues, December 2004 Royal Commission into the NSW Police Service Final Report – Volumes 1–3, NSW Government, 1997 Watkins, J (2004) ‘Police power to prosecute using video footage confirmed’, Minister for Police Media Release, 26 February 2004

109 49, 120 23, 120 29 10 117 55 22

23 55, 56 18 57, 114 56 18, 56 18

Chapter 1

The hooded bandit

One Thursday at lunchtime, in a quiet Sydney suburb, the local branch of the National Australia Bank was robbed. Four male youths launched themselves into the bank wearing baseball caps, tracksuits and white gloves. One jumped over the counter and wrestled with a bank teller before the security screens were activated. Someone thought they saw a screwdriver being used to open drawers containing money. There was shouting and swearing and a woman lay on the floor, curled in a foetal position, ardently not looking at what was happening around her. The surveillance camera was triggered, capturing one photograph illustrating each second of the robbery. In the photographs, which are black and white and mostly grainy, we can see, frame by frame, one elderly man being pushed to the ground by a young bandit as another elderly man watches. This second man – each frame represents his hands moving incrementally, first to protect his head, then to break his fall – is pushed to the ground as his spectacles fall from his face.

2

Captive Images: Race, Crime, Photography

The hooded bandit

3

4

Captive Images: Race, Crime, Photography

The hooded bandit

5

A total of $16,610 is stolen, the final frames show three bandits walking out of the bank in what appears to be a casual stroll, possibly holding the money. The fourth bandit, his face almost entirely concealed by the hooded jacket he wears, stands beside the doorway to the street. He is the look-out. On the wall in front of him is a surveillance camera. The hooded bandit looks directly into it. This man was alleged to be Mundarra Smith, a 19-year-old Aboriginal man, whom two police officers later testified that they recognised in the photographs. On the basis of this testimony, Smith was sentenced to a minimum term of three years and ten months, of which he had served three years and six months before his appeals reached Australia’s highest court, the High Court, which quashed his conviction and ordered a re-trial. His second trial resulted in his acquittal. Captive Images examines what happens when law tries to prove things from photographs. This book disentangles the unsteady embrace between race and crime, blackness and deviance, and the role of photographs in holding them together. For law, photographs purport to tell the truth; photographs are evidence. The criminal courts pore over photographs, hoping to crack open the secret hidden within the image. Ignoring over one century of scholarship on photography, never attempting to formulate a jurisprudence of the visual, the law looks at photographs as if there were nothing impeding its capacity to see. Captive Images is about a series of photographs which, for three and a half years, alleged that a young black man had robbed a bank, before determining, upon balance, that he had not. This book is about the fantasy that permits law to imagine that decades of criminological, historical and cultural inquiries into race and representation, dispossession and deviance had not intercepted its capacity for vision. Looking at a photograph is not the same as

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Captive Images: Race, Crime, Photography

reading a chart, nor like listening to an eyewitness, nor entering a crime scene and dusting and scraping it for clues. The assumption that a photograph is analogous with ‘truth’ has never adequately been addressed by law. Photographs occupy multiple genres: they remind us of happy moments with our family, nostalgic reflections, memories of places we have been, disastrous images of places we never want to go, people we hope never to meet, our obsessions, our dark desires and our fears. The evidentiary capacity of the photograph needs to grapple with each of these genres, asking what is in these images, and also asking where these images belong. What is a photograph?

The hooded bandit

7

What is in a photograph? What is the role of these photographs in the lives of these young offenders? Are these proof of their criminality? Snapshots from their youth? Do these form part of an historical record of black men’s conduct and misconduct? Can we compile an album to leaf through later, recalling a time when we surrendered unflinchingly to the fantasy that we could really know the world from these pictures? In cases where a photograph is clear, its evidentiary capacity seems assumed. At Mundarra Smith’s trial and appeals, where the photographs were unclear, instead of scrutinising the place of photographs in the evidentiary canon, the courts devoted all their attention to determining who is permitted to look at and speak about an unclear photographic image. The doctrinal question that concerns the law is: Can two police officers who know Smith from the streets of a tough inner-city suburb give evidence that they recognised him in the surveillance images? This book deals with this question, which the High Court answered ‘No’, but it also asks other questions: What does it mean to accuse an Aboriginal man of crimes against property in the context of indigenous claims against a nation built upon stolen land? What does it mean when the eyewitnesses to the crime each described the perpetrator as having a different skin colour? Why was the defendant’s mother called as a witness and not shown the photographs? Is it dangerous for the jury to learn that the defendant is known to the police who patrol one of the most notorious areas in the nation? How provocative was it for the High Court to describe the hooded bandit as the spectre from Hamlet ? And what can it mean when Mundarra Smith looks at the image of the hooded bandit and says, ‘Doesn’t look like me.’ To look into the photographs in order to find Mundarra Smith is also to look into a space that contains racial difference, criminal conduct, banking, policing and surveillance. These photographs offer a kind of visual confirmation of a psycho-social assumption that conflates blackness with deviance. These images illustrate the evacuation from the inner cities and the ex-urban fringes of social services, networks of family support, educational infrastructure, all replaced by an increasingly threadbare welfare safety net and an increasingly fortified matrix of institutions dedicated to the supervision, surveillance and interception of proscribed misconduct. These photographs are evidence of adolescent misadventure, of misguided masculinity, disrespect for the elderly, for authority, for work, for other people’s possessions. They are images of boredom, poverty, and a craving for adrenaline. These may be Beatrix Campbell’s ‘marauding men’, boys from impoverished housing estates managed – without support and with little effect – by their mothers (Campbell, 1993: 93). And, of course, by the police. These photographs purport to show us what our world looks like. They become a window into ‘drug-related crime’, into ‘bank robberies’, into ‘black crime rates’. Law proceeds as though it does not, or need not, see any of these visual effects. Law imagines that it can quarantine the photograph from all of these social

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Captive Images: Race, Crime, Photography

images, asking a single question: Who is this? By privileging law’s question, law provides the definitive caption for the photograph: This is what you see. Captive Images sees something else in these photographs. This crime signifies something fundamental about race relations, about national identity and colonialism. This book tests whether it is possible to read crime, its images and its texts, as scenes in the management of national space. In White Nation (1998) the anthropologist Ghassan Hage wrote that the nation is a fantasy space, and nationalism is the fantasy of being in charge of it. A compendium of micro-fantasies constitutes the nation. In this fantasy nation, each of us occupies shifting positions. We imagine ourselves as included or excluded, belonging or not belonging, tolerant or tolerated. But the position we occupy is contingent upon our role in everyone else’s fantasy. Each of us may seek to include ourselves within a particular milieu, one that is defined through the exclusion of others. But another’s fantasy may depend upon our own exclusion. This enables us to occupy a particular position and its opposite without impossibility. We contain within ourselves the capacity to fulfil our own fantasy, but we also possess all that our adversary requires to achieve their counter-fantasy. They want to take it from us, claim it, and exclude us. In the endless confrontation of competing fantasies, the fantasy nation is always elsewhere. It is the nation we once were, and lost. It is the nation we could become, if only we remove the obstacle. This book is about the hooded bandit in the photograph. He is the obstacle to the fantasy nation where money is safe in the bank, where the young show respect for the elderly, where rampaging black men are kept behind bars. To achieve this fantasy, we enact laws, we convene courts, we empower police, we make demands upon parents and – increasingly – we install cameras. The role of the surveillance camera in the fantasy is to be everywhere, to see everything, to remember, to reinforce, to fill the blank space. And to show us what the obstacle looks like. One aim of this book is to interrogate the use of photographic technologies in the policing of minority individuals and communities. Anecdotal evidence from the Sydney Regional Aboriginal Corporation Legal Service (ALS), which represented Mundarra Smith, suggested that – at the time of these events – at least 20 per cent of Aboriginal defendants – adults and juveniles – were prosecuted for offences arising out of photographic or CCTV surveillance evidence. Now, as entire town centres, transport interchanges and public amenities are brought within the fold of surveillance, those figures would be much higher. In the decade leading up to Mundarra Smith’s successful appeal to the High Court, prosecutions for bank robberies were conducted very simply. The photographs were developed and passed around at police stations in specified areas. Police officers would claim to recognise the perpetrators, who were arrested and brought to trial. The jury was shown the photographs, and heard testimony from the police about their recognition of the defendant from these photographs. The jury would then

The hooded bandit

9

determine whether, beyond any reasonable doubt, and having looked at the defendant sitting in the dock, they agreed with the police recognition evidence. This method of prosecution had high conviction rates. Eliminating most of the traditional methods of crime investigation and eyewitness examination, the police played the leading role in identifying and intercepting the hooded bandits, the obstacles to achieving the fantasy nation. This is how Mundarra Smith’s first trial proceeded in the District Court of New South Wales,1 a joint trial with a co-defendant, Jason Nicholas, who was also convicted. The photographs were tendered and police officers were called to testify. The police were from the Redfern patrol, 20 train stations north of the crime scene in Caringbah. Caringbah, in the Sutherland Shire, is notorious for its mono-ethnic whiteness; the Shire’s major beach, Cronulla, was the scene of what the media and politicians called ‘race riots’ in December 2005. Redfern, on the other hand, is famous as the home of urban Aboriginal poverty, high crime rates, and an ever-present needle-exchange van. Two police officers testified that they recognised Smith from the Redfern area, and a third testified that he recognised Nicholas. Both Smith and Nicholas exercised their right to silence. In separate proceedings, Richard Murchie pleaded guilty to the bank robbery, admitting that he was the bandit who jumped over the counter. The fourth prosecution was of a juvenile in the Children’s Court, whose proceedings and findings are closed to the public. After an unsuccessful appeal to the NSW Court of Criminal Appeal,2 Smith’s appeal to the High Court was upheld,3 as were two related appeals brought by the ALS on behalf of Jason Morris and Lee West, who had been convicted of different bank robberies using the same prosecutorial technique.4 The majority of the High Court held that the police recognition evidence was irrelevant and, as irrelevant evidence is prima facie inadmissible, Smith was to be re-tried without the police evidence. His first conviction was quashed and the re-trial held in 2002. At Smith’s second trial, the jury was simply shown the photographs and asked to compare them with Smith, who sat silently in the dock. They were given additional instructions about the dangers associated with identifications made of Aboriginal people by non-Aboriginal people; an instruction derived from American jurisprudence, where ‘cross-racial identifications’ are in issue, and which are discussed later. The second jury was told of a sociocultural tendency amongst non-Aborigines to ‘recognise’ features that they associated with Aboriginality, rather than the features of the individual in question. They were told that it was not enough simply to see – in the dock 1 2 3 4

R v Mundarra Doolan Smith (97/11/0742) District Court of New South Wales. R v Smith [1999] NSWCCA 317. Smith v R (2001) 206 CLR 650. Smith v R, Morris v R, Lee v R S201 and S204/1999, S200/1999, S202/1999 (8 September 2000) Application for special leave to appeal.

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and in the photographs – an Aboriginal man. They needed to be certain beyond a reasonable doubt that both men were Mundarra Smith. They were not certain, and acquitted him. Policing techniques required immediate reconsideration in the wake of the High Court’s decision in the Smith case, and other Aboriginal men who had been convicted of bank robbery using the same method had their convictions quashed and re-trials ordered, beginning with Guy Gardner.5 The ramifications of the High Court’s decision continued into February 2004 when Redfern erupted into a ‘riot’ following the death of a teenage Aboriginal boy, T J Hickey, during a police pursuit. As indigenous youth clashed with police late into the night, police and amateur footage was taken, and later used to identify some of the participants. The Police Minister John Watkins issued a media statement confirming that the High Court’s decision in Smith v R would not impede the swift and strenuous pursuit of trouble-makers (Watkins, 2004). He said that, following the riot, the Police Commissioner Ken Moroney had sought legal advice which: confirms the Smith case cannot be used as authority to exclude images which depict an offence being committed. It does not matter whether images come from security cameras, media outlets, or bystanders. The bottom line is – as long as the pictures depict an offence being committed, they are relevant and admissible. (Watkins, 2004) The Minister was ‘pleased’ with this advice and announced that police would ‘continue their great work at Redfern’, restoring the nation’s fantasies of law and order and children in their beds at night, under the supervision of their parents. Captive Images is about whether photographs speak or are silent. The High Court, when it silenced the policemen, left the photographs to speak for themselves. The inanimate photograph was to be held against the animatedyet-silent defendant in the dock, and a conclusion drawn from the comparison. Nothing was said about how to look at a photograph; nothing was said about the role photographs have played in our national fears and fantasies; nothing was said about how, for most non-indigenous Australians, what we ‘know’ about Aborigines has been learned from images. In the Australian national imagination, where Aborigines appear at all, it is as noble savages, sporting stars, land claimants or trouble-makers. Whilst the jury instruction about cross-racial identification acknowledged that most of the Australian community is unfamiliar with images of ‘ordinary’ Aborigines, the absence of ordinary Aboriginal images or voices from socio-cultural discourse

5

R v Gardner [2001] NSWCCA 381.

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is not treated as an obstacle to the jury’s ability to ‘see’ who is in the photographs, and to ‘see’ the defendant who sits before them. Susan Sontag, a writer on cultural phenomena, wrote 35 years ago that photographs are the basis for an ‘ethics of seeing’ (1971: 3). But this case is built around an ethical silence and an epistemological vacuum. Mundarra Smith may or may not be the robber in the photographs. Captive Images is not interested in whether or not Smith is the robber. This book asks why the law imagines that the rules of evidence are capable of controlling the fantasies that compete when we look into a photograph, as if the criminal courts are neutral in the face of racial constructions and representations. Photographs of Aboriginal people and other minorities perpetrating crimes, even when examined solely for the limited purpose of establishing guilt in criminal litigation, are problematic socio-legal texts. These problems are ungovernable by legal doctrine and evidentiary rules, and this book points to a series of socio-cultural and historical obstacles to the fantasy in which photographs teach us about our world. For Sontag, ‘The very muteness of what is, hypothetically, comprehensible in photographs is what constitutes their attraction and provocativeness’ (1971: 24). But the muteness of the image is, for others, the language in which it speaks. John Tagg, a historian of the uses of photography, wrote: ‘To serve as evidence and record, the image had to be said to speak for itself, though only qualified experts could read its lips’ (1992: 129). Also on this question, art scholar John Berger claimed that ‘photography has no language of its own. One learns to read photographs as one learns to read footprints or cardiograms. The language in which photography deals is the language of events. All its references are external to itself’ (Berger, 1980: 293). Though mute, the photograph is always engaged in a discourse outside of itself. Criminologist Alison Young said that ‘crime’s images should be imagined as a response; that is, part of a dialogue that is always already taking place, a conversation or exchange with others’ (1996: 16). Just as, for psychoanalysis, the unconscious is structured like a language, the photograph, too, is a language. And, additionally, the photograph has an unconscious. Writing about the connection between photography and knowledge, the cultural essayist Walter Benjamin claimed, ‘one first learns of this optical unconscious, just as one learns of the drives of the unconscious through psychoanalysis’ (1980: 202). Captive Images evaluates the meanings of photographs – historically, psychoanalytically, as documents, in law – in order to uncover the cultural and juridical practices by which minority individuals and communities are subjected to surveillance, control and incarceration. This book examines the ways in which these images constitute a socially imagined body of ‘knowledge’ about Aboriginal people and other visible minorities. Images cannot be racially neutral. Judith Butler, critical theorist, wrote: ‘it is possible within this racist episteme that no black person can seek recourse to the visible as

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the sure ground of evidence’ (1993: 17). By challenging the cultural, racial and legal significance of images, we see the possibilities for these images and texts to operate as commentaries on national identity, narrative and myth-making. When reading a legal decision in which photographs are in issue, it is easy to sense that the court proceeds as though it has never before had to consider the value of visual imagery. The law often pretends that it is seeing photographs for the first time, that it believes its ruminations about whether photographs are ‘facts’ or ‘opinions’ are wholly original, that it imagines that photography emerged from nowhere and is benign, equal and true. Law also pretends that unlocking the secret within the photograph can be achieved through law, as if law alone might solve the mystery. Photography is the product of modernity and mass culture, posing new problems to accompany the opportunities it created. Photography would have consequences for law, but also for philosophy, politics and art. In 1935 Walter Benjamin published his landmark essay, ‘The work of art in the age of mechanical reproduction’, which grappled with the consequences of the new technologies of the image. For Benjamin, photographs destroyed the ‘aura’ that made an image unique, instead making the image democratic, achievable by anyone. Photographs were also more than we had before, they gave us images that were ‘unattainable to the naked eye’ (1970: 222). He wrote: ‘It has been said that “not he who is ignorant of writing but ignorant of photography will be the illiterate of the future”. But isn’t a photographer who can’t read his own pictures worth less than an illiterate? Will not captions become the essential component of pictures?’ (Benjamin, 1980: 215) From this early stage, writers on photography were already conceding that photographs alone were insufficient. Photographs were not captured truth. A photograph would have meaning only when spoken about; a photograph depends upon language. Benjamin wrote about the revolutionary change that accompanied the emergence of mechanical reproduction in art. For Benjamin, prior to mechanical reproduction, art was ‘parasitically dependent on ritual’, and the notion of ‘authenticity’ was at the centre of analysis and critique of art. Mechanical reproduction – and he includes photography in this new realm – liberates art from ritual and instead ties it to ‘politics’ (Benjamin, 1970: 226). Benjamin’s dichotomy opens out further questions about the mobilisation of imagery into discourses of power. On the one hand, an inquiry into pre-modern ritual suggests ‘anthropological’ images of indigenous people performing their ‘Aboriginality’ for white managerial inspection. On the other hand, ‘criminological’ techniques enable surveillance images of indigenous people performing candid acts of criminality, deviance or counter-colonialism for white managerial inspection. The motive for the inspection is alleged to be different, but the ritual/politics dichotomy becomes artificial, as both revolve around evincing a kind of ‘knowledge’ or ‘evidence’ or ‘truth’ about Aboriginal people. Both attempt to derive information or instruction from their

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inspection of these images. And both make blackness and black behaviour a fetish or curio; strange and different and frightening. Benjamin’s writing here invites the possibility of locating these security photographs as the false boundary between anthropological and criminological ‘knowledge’ about Aborigines and, in a broader field, about all visible minorities. Benjamin’s analysis has been followed in a long strand of philosophical writing on photography. Pierre Bourdieu analysed photography in his 1965 book Un art moyen (translated as Photography: A Middle-Brow Art (1990)). He focused on its use in bourgeois and domestic practices, located firmly in the family. Photography, for Bourdieu, is a tool of memory, recollection and re-presentation. But it is more than that. In law it becomes a tool for verification. Bourdieu claimed that photography is open to a ‘sociological’ reading: The photograph must only supply a representation that is true and precise enough to permit recognition. A methodical inspection and a prolonged observation are conducted, in terms of the very logic that dominates knowledge of other people in everyday life: by means of a comparison of fragments of knowledge and experiences. (Bourdieu, 1990: 22) Here, the photograph is read in connection with that which we already know or suspect; the photograph becomes the confirmation, even the tautology. Roland Barthes appeared to concur. A semiotician whose book on photography, Camera Lucida, is one of the most widely quoted texts on the subject, Barthes, like Benjamin, acknowledged that the challenge posed by photography was unique to the visual medium. But photography would always be immersed in its wider world of associations. Photography is about context. For Barthes, ‘In front of a photograph, our consciousness does not necessarily take the nostalgic path of memory . . . but for every photograph existing in the world, the path of certainty: the Photograph’s essence is to ratify what it represents’ (1981: 85). A photograph, for Barthes, cannot be autonomous. It functions in a semiotic system in which what we already know is already present. We do not look at a photograph for its own sake. We are already looking for something else. As Barthes wrote, ‘a photograph is always invisible: it is not it that we see’ (1981: 6). The relationship between the image and the thing that it purports to represent is the subject of Umberto Eco’s semiotic analysis. For Eco, the ‘resemblance’ between the two factors is compressed within the notion of the ‘iconic sign’ (1982: 32). He wrote: ‘[T]he iconic sign has cheerfully been spoken of as a sign possessing some properties of the object represented.’ But Eco goes on to suggest that ‘a simple phenomenological inspection of any representation, either a drawing or a photo, shows us that an image possesses none of the properties of the object represented’, raising the suspicion that ‘the iconic sign, too, is completely arbitrary, conventional and unmotivated’

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(1982: 32). In Eco’s analysis, our perception that there is resemblance is enabled by human processes of ‘transcription and selection’ (1982: 32). Again, as in Benjamin, Bourdieu and Barthes, for a photograph to have meaning requires an act of human intervention. Barthes closest reader was Susan Sontag, whose deliberative essays collected in On Photography (1971) asked a series of questions that arise when we wish to know what it means to look at a photograph. The conflation of photography with truth and proof is the subject of the book’s first essay, ‘In Plato’s Cave’. Initially, she wrote, ‘Photographs furnish evidence. Something we hear about, but doubt, seems proven when we’re shown a photograph of it. In one version of its utility, the camera record incriminates’ (Sontag, 1971: 5). So here, at the outset, a photograph is proof, but only when we begin with a problem, or a doubt. We must already have a question. And if we also have a photograph, we have an answer. Sontag proceeded: ‘The camera record justifies. A photograph passes for incontrovertible proof that a given thing happened. The picture may distort; but there is always a presumption that something exists, or did exist, which is like what’s in the picture’ (1971: 5). Now the photograph is more than proof; it is truth, an explanation, a plea for consensus, a silencing of disbelief or alibi. More than an object, the photograph becomes a discourse, a belief-system, a code for evaluating and attributing conduct. Sontag wrote: ‘the images that have virtually unlimited authority in a modern society are mainly photographic images; and the scope of that authority stems from the properties peculiar to images taken by cameras’ (1971: 153). The photograph becomes a taxonomy of knowledge and, by extension, a system of power. It is in Sontag’s writing that we get the first and clearest explication of the nexus between photography and power. Cultural scholar Meaghan Morris cautioned against using Sontag’s On Photography in anything but its entirety because, she stated, it is ‘not a book about photography’. Instead, she said (and with which she claimed Sontag agreed), it is ‘about consumerism, about advanced industrial societies, about the uses of photography when “a chronic voyeuristic relation to the world levels the meaning of all events” ’ (Morris, 1988: 151). Sontag herself, in her 2002 essay ‘Looking at War’, acknowledged ‘the determining influence of photographs in shaping what catastrophes and crises we pay attention to, what we care about’ (2002a: 96). There was former US Secretary of State Colin Powell addressing the UN Security Council in 2003, holding up an aerial photograph which he said showed that the Iraqi regime of Saddam Hussein was hoarding biological or chemical weapons. There were the photographs of Iraqi prisoners in Abu Ghraib, dehumanised and tortured, beside the jaunty thumbs-up smiles of their US military custodians in which we knew that something had gone terribly awry in the liberation of Iraq from tyranny. By the time footage was released of British soldiers beating Iraqi teenagers, complete with voice-over narrative and a theme by Wagner, these images had become a genre with which we were

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already familiar and growing weary. There were the blurry images from surveillance cameras in the London underground in 2005, assembled in the hot fury of hindsight, showing four young bombers making cheerful conversation before their deadly mission; images that seemed to confirm something about the certainty of martyrdom in the mind of the indoctrinated mass killer. There was the police killing days later in London of Jean-Charles de Menezes, who police initially claimed looked like an Islamist terrorist preparing for a suicide bombing, but who turned out to be a Brazilian electrician on his way to work. Once we saw photographs of his dead prone body on the train showing none of the hallmarks that were the claimed basis for his being shot, this evidence of the police error only compounded the grief that followed. Here, the discovery of a photographic representation is the first step in creating the subsequent discourse in which the photograph becomes indispensable. This was anticipated in Sontag’s earlier examination of the image: ‘Photographs, which cannot themselves explain anything, are inexhaustible invitations to deduction, speculation, and fantasy’ (1971: 23). Photographs are the tools and trinkets of our craft; we make of them what we will. They do not exist independently of us, they have no life of their own. They do not stop at their own image; they need us deliberately to develop them into our own compendium of truth. We employ them in our album of memories and in our fantasy schemes. They serve as our reminder and our authority, that what we think is the truth. Photographs legitimate our fantasies. We enlist photography in the task of managing national space, commanding our ability to mould that space and its occupants in accordance with our homely fantasies of possession contra dispossession, capital accumulation contra theft, white rule contra black deviance. After Sontag, subsequent writers on photographs have focused on this nexus between photographs and power, photographs as social capital. Abigail Solomon-Godeau, an influential art theorist and author of Photography at the Dock warned of ‘the manifest inadequacy of the single unmanipulated photograph to represent the contending real relations of power and interest that are themselves constitutive of reality’ (1991: 189). Alan Sekula, a photographer and art historian, in his book Photography Against the Grain, cautioned us against stating that photography and capitalism are inseparable, but he came very close to saying it himself. The epistemology and aesthetics of photography, he claimed, ‘are intrinsic to a system of commodity exchange’ (1984: 96). Further, he argued that photography became the tool – the weapon – of the bourgeoisie in entrenching a system that aspired to liberate one class through the sublimation of another: [P]hotography also needs to be understood as a simultaneous threat and promise in relation to the prevailing cultural ambitions of a triumphant but wary western bourgeoisie of the mid-nineteenth century. The

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historical context was one of crisis and paradox; to forget this is to risk achieving an overly harmonized understanding of the contradictory material and symbolic forces at work in the development of bourgeois culture. (Sekula, 1984: 96–97) The ‘threat’ of photography is the subject of Vilém Flusser’s polemical work, Towards a Philosophy of Photography. For Flusser, photography is a tool of capitalist oppression. Its use by those who have the power to programme the information it contains is ‘neo-imperialism’ (2000: 52). Photographs are obstacles in the pursuit of freedom, and Flusser called for a philosophy of photography that will ‘outwit’ the camera, because ‘it is the only form of revolution left open to us’ (2000: 80, 81). More than any other theorist, Flusser warned us of the dangers of photography, and the dangers of our complacency towards photographs. Continuing to believe the ‘promise’ that photographs are either benign or true places us within the clutches of an epistemology that will turn on us. Photography becomes located in socio-political practices that are associated with class and race prerogatives, and ultimately entrenched in the institution that enables the repeated articulation and manifestation of the power-wielding group: law. The historian who has written most lucidly on the mobilisation of photography into law’s ordering practices is John Tagg, whose book The Burden of Representation is the major work on the subject. He wrote: That a photograph can come to stand as evidence . . . rests not on a natural or existential fact, but on a social, semiotic process . . . [W]hat Barthes calls ‘evidential force’ is a complex historical outcome and is exercised by photographs only within certain institutional practices and within particular historical relations, the investigation of which will take us far from an aesthetic or phenomenological context. (Tagg, 1988: 4) What is the history of photography in law? Some of the earliest uses of photographs were evidentiary applications within criminal law. Sontag wrote: ‘Starting with their use by the Paris police in the murderous roundup of Communards in June 1871, photographs became a useful tool of modern states in the surveillance and control of their increasingly mobile populations’ (1971: 5). Jennifer Mnookin’s legal history of photography identified the frequent use of photography in US courts in the late nineteenth century. In 1889, a Massachusetts lawyer argued that ‘[t]he photograph is something more than a copy; it is a fac simile, and it is a perfect record of facts, not subject to prejudice, bias, or defective memory’ (in Mnookin, 1998: 18). But the early role of photographs in litigation was limited, when ‘judges declared that this form of evidence could be used only for illustrative purposes, rather

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than as independent proof’ (Mnookin, 1998: 13). This suggests a nuanced understanding of the limitations of the photograph, in which the image cannot stand independently from testimony. Case law in the United States developed a doctrine drawn from the standard common law compendium, Wigmore on Evidence, in which photographs were regarded as ‘demonstrable evidence’. Wigmore encouraged law’s embrace of new technologies: ‘It would be folly to deny ourselves on the witness-stand those effective media of communication commonly employed at other times as a superior substitution for words’ (in Mnookin, 1998: 43). But he stressed that photographs were tethered to witness testimony, not independent from it: ‘A photograph, like a map or diagram, is merely a witness’s pictured expression of the data observed by him and therein communicated to the tribunal more accurately than by words’ (in Mnookin, 1998: 44). All of the Anglophone jurisdictions begin with the notion that the best form of identification evidence in criminal matters comes from eyewitnesses to the crime. Such evidence is, in many places, accompanied by a judicial instruction to the jury, warning of the often seductive effect of identification from eyewitnesses; such evidence is often compelling, but frequently mistaken. Sometimes, these warnings acknowledge the growing body of psychological evidence showing that eyewitnesses to crimes may be distracted by stress, shock or the presence of a weapon, and these distractions may affect the accuracy of the identification. Eyewitness identifications are usually produced by inviting eyewitnesses to attend an identification parade, or line-up, which is thought to be the most secure form of recognition of perpetrators. Line-ups are governed by strict procedural rules in each jurisdiction, and all participants in the parade are required to share the feature(s) that have already been mentioned by eyewitnesses in preliminary interviews. Where a line-up is not convened, for instance where it is impracticable to convene a group, or where a suspect refuses to participate, secondary methods may be accepted by the courts, where recognitions are made from photographs. Sometimes an array of photographs will be selected by police; sometimes eyewitnesses are asked to look through police photo-books (which in some areas are transposed onto videotape or computer file). Photographic identifications are also supposed to contain a reasonable array of people sharing the pertinent feature(s), and none of the photographs is supposed to convey the sense that the photographed person is in police custody; to do so creates what is known as the ‘rogues gallery effect’, where the photographs are suggestive of that person’s criminality, which may unfairly expose them to subsequent and mistaken identification by an eyewitness. Often, the courts dispense with some of these procedural safeguards on the assumption that photographs are not ‘suggestive’ of certain identifications in the way that some psychologists warn they are. For instance, in Georgia, in the United States, an appellant argued that the photo array was unfairly suggestive, as he appeared in a photograph

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wearing a prison uniform and plastic prison bracelet. The Supreme Court of Georgia held that his prison uniform was ‘indistinguishable from street clothing’ and the plastic bracelet was ‘barely visible’.6 In another case, an appellant argued that he had been wrongly selected by two crime victims who had not been shown a photo array, but had instead looked at the ‘Wanted’ board at a police station, on which his photograph appeared twice, his were the only photographs in colour (the others were black and white, or composite sketches), and were 25 times larger than the other photographs. The US Court of Appeals for the Third Circuit held that a ‘Wanted’ board is not subject to the same standard as a traditional photographic array and that the victims’ ‘fortuitous discovery’ of their attacker was not the result of an ‘unnecessarily suggestive’ procedure.7 Of course, what is ‘suggested’ by a photograph is always in the eye of the beholder. An appellant in the Court of Appeal of California argued that video footage shown to the jury unfairly suggested that he was already in prison. The videotape had been shown to the court by the prosecution in order to demonstrate that the defendant was left-handed, even though he had offered to concede this fact. The footage showed him working in the prison, which the appellate court discussed at some length before concluding: ‘Carter seems to be enjoying himself [in the footage] and joking around while throwing toilet paper rolls to distribute them to other inmates. If anything, the videotape humanised Carter in a manner that the photograph could not.’8 As well as making an unprompted distinction between moving and still images, the court here determined that, even if an image is suggestive, it is suggestive of something favourable: not that Carter is already in custody and already assigned to a prison job, but that he is enjoying it. Whilst much of the legal doctrine in this area focuses on eyewitnesses to crimes, and the role played by photographs in eyewitness identifications, the Mundarra Smith case represents the growing tendency for criminal prosecutions to proceed using identifications from people who did not witness the crime. On that Thursday at lunchtime in Caringbah there were eight eyewitnesses to the bank robbery. Smith offered to participate in an identification parade, but none was convened. The eyewitnesses were shown a photo array. None of them identified Smith’s face as the face of the perpetrator, and two of the eyewitnesses identified someone else’s face. Consequently, the eyewitnesses were eliminated from the identification process, replaced with police officers. The police gave evidence that, based on their prior knowledge of Smith’s appearance, they were well placed to identify him when they claimed to recognise him from the grainy security photographs. There was no way

6 7 8

Whatley v The State (1996) 266 Ga. 568 at 569. United States v Richard Stevens (1991) 935 F. 2d 1380 at 1390. The People v Marquel Dion Smith et al (2004) 2004 Cal. App. Unpub. LEXIS 2040 at 48.

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of testing how the police identification process was conducted. Whilst trial judges in such matters are required to weigh the probative value of the police evidence against the unfair prejudice that might flow from the recognition being made by police officers (as it unfairly suggests that the accused is known to the police), the prejudice was generally dealt with by instructions to the jury. Prior to the High Court handing down its decision in Smith, the practice of replacing eyewitnesses with police officers resulted in a very high conviction rate for bank robbery offences. The High Court needed to ascertain what kind of knowledge could be derived from photographs, whether recognition evidence was ‘fact’ or ‘opinion’, as evidence of ‘fact’ can be admissible, whereas evidence of ‘opinion’ – subject to limited exceptions – cannot. Whilst hearing from Michael Sexton, senior counsel for the Crown, the court appeared to be coming towards the view that a photograph’s relationship with truth is a troubled one. Kirby J:

Sexton:

Kirby J: Gaudron J:

[I]t is a question of whether when you say that is a person, especially based on imperfect material, as is the case here, that you are stating a fact or stating opinion. How can it be a fact? It is an inference drawn from looking at the photograph and remembering the encounters you have had with the appellant. But, your Honour, if one was shown a photograph of one’s parents, for example, it is the same principle. We would say it would be a strange result to describe that as an expression of opinion. I do not see why. ‘It is my opinion that that is Mr Smith.’ And what else could it be in the case of an unclear photograph, a matter which you keep refusing to deal with? (High Court transcript: 34)

Sexton went on to define ‘opinion’, as something that ‘can be described as evidence of a conclusion, usually judgmental or debateable, reasoned from facts’. Hearing this, Justice Kirby retorted: Exactly what this one looks like. ‘I know Mr Smith. I have had dealings with him and his girlfriend. I know his face. I have had dealings with him over several years. I have been close to him. I have seen him at close range. I have seen him at distant range. I have seen him recently. I look at that photograph. From all this, I infer.’ (High Court transcript: 37, emphasis added) Justice Kirby’s comments here suggest that an opinion is formed out of some kind of prior knowledge which, collected in a particular configuration, informs what one sees when one looks at a photograph for the purpose of recognising a face. The opinion derives from something the witness has seen

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before they see the photograph. When we look at the surveillance images, we already know what we are looking for. We have already seen it, repeatedly, in newspapers, on television, in our victim’s-eye view of the world. It is familiar to us because it is genre and we are its audience. These images form part of the ‘security genre’, a genre that confers upon our vision the power to patrol and police. It is a fantasy genre, another example of which is the televised police pursuit. In the United States, news bulletins are routinely punctured by helicopter footage of Los Angeles freeways hosting hapless, occasionally tragic, chases between cops and crims. The consolidation of the genre came in 1994, when O J Simpson spent almost three hours cruising the freeways in his white Ford Bronco, contemplating suicide, followed by dozens of police cars and filmed by seven news helicopters. Tad Friend, in his article about the genre, wrote that ‘classic pursuits are diverse in their astonishments’ but that ‘you must adhere to certain rules’, citing long, stringy hair, the delusion of the possibility of escape, and being inevitably overpowered in a fast-food outlet car park (2006: 66–67). The police pursuit is transformed, for its viewers, into the pursuit of happiness, where the twin powers of freedom and defeat are performed for an audience that believes the camera is neutral and unmotivated, merely ‘reporting’ a crime. As if participants in these pursuits were not re-enacting scenes from a familiar script, as if eight separate crews of pilots and cameramen were not sitting in two local airports listening to the police radio, waiting for a pursuit to occur before joining it, as if the timing of the television newscasts were not in the minds of the pursuers and the pursued. What is rarely spoken yet easily acknowledged about these pursuits is that, whatever happens on the freeways is all about the camera overhead. Siegfried Kracauer said that a photographer is simultaneously witness, observer and stranger, ‘three types supposed not to be entangled in the events they happen to watch’. The photographer’s perception is untrammelled by ‘memories that would captivate them and thus limit their vision’ (Kracauer, 1980: 258–259). The photographer here becomes a kind of perfect eyewitness whose testimony is the photograph itself. The National Australia Bank security photographer is thus the ideal photographer, the apotheosis of photography, because the photographer is a machine. The machine does not discriminate, it has neither memory nor knowledge. Nor does it have responsibility. Like Judith Butler’s critique of the ‘smart bomb’ employed in the Gulf War, a bomb with a camera attached, it cannot picture its own destructiveness. It eliminates ‘the phantasmatic distinction between the hit and its consequences’. When we look through the eye of this camera, we are ‘absolutely proximate . . . and absolutely distant’ (Butler, 1992: 11). Susan Sontag, writing about war photography, identified the detachment that accompanies photography’s role in human violence: ‘No moral charge attaches to the representation of these cruelties. Just the provocation: Can you look at this? There is the satisfaction of being able to look at

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the image without flinching. There is the pleasure of flinching’ (2002a: 88). The security camera mechanically – unflinchingly – captures unguarded moments. Only later, when these moments are developed, examined, passed around by Redfern detectives, scrutinised by judges and juries, are they assembled into an album of disorder and deviance; an album in which it both shocks and pleases law to imagine that it catalogues the criminality of Mundarra Smith. Law’s struggle to contain visual evidence was apparent in the 1991 incident in which Rodney King, a Los Angeles motorist, was beaten by police officers. The beating was captured by a civilian on videotape which was used as evidence in the subsequent criminal prosecutions of the police officers. The videotaped images were broken down into photographic stills by the defence team for the purpose of claiming that the police beat King in self-defence. The acquittals of the police officers were followed by riots in Los Angeles. The manipulation of photographic evidence in that case has been the subject of scholarly inquiry into the use and misuse of photographs in ways that distort the significance of race. As Mnookin wrote: ‘post-Rodney King, we can no longer believe that photographs offer certain and incontestable narratives; we are more likely to agree with Susan Sontag that a photograph’s meaning comes about only through the relation between the image and its caption or its context’ (1998: 57). Judith Butler, writing about the policemen’s trial, discussed the ‘reversal of gesture’ – where King’s palm turned away from his body becomes a ‘physical threat’ – as operating within a ‘racial schematization of the visible field’ (1993: 16). Butler raised the suggestion that what is ‘seen’ is ‘always already in part a question of what a certain racist episteme produces as the visible’. This is not ‘simple seeing’ but ‘the racial production of the visible’ (Butler, 1993: 16). The visual field is ‘itself a racial formation, an episteme, hegemonic and forceful’ (Butler, 1993: 17). Here, it is necessary to introduce – for development later – the idea that ‘race’ operates within the visible register, but also somewhere beneath the visible. As a legal question, ‘What can you learn by looking?’ has been addressed, at least implicity, in a curious group of cases in the United States which appear confused about whether race is a label or an identity, forgetting altogether that race is a scientific-legal construct. Bela August Walker, in her argument against race-based suspect descriptions, said that racial labels used in law enforcement are simultaneously ‘overbroad’ and ‘inappropriately narrow’ (2003: 675), that monolithic labels (such as ‘Black’, ‘White’, ‘Asian’, ‘Hispanic’) are unhelpful (at 669–670), that they perpetuate racial discrimination, and impede the possibility of ‘multiracial identity’ and a ‘social deconstruction of race’ (at 664). She cited the case of Brown v City of Oneonta (2000),9 where an elderly white woman, the

9

(2000) 235 F 3d 769.

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victim of a burglary, described her attacker as young, black, male, and with a cut on his hand. The police investigation emphasised the ‘black’ component of the suspect description, turning the town’s 450 black residents into potential perpetrators, with 200 African Americans brought in for questioning, including at least one woman, temporarily criminalising the population to the extent that one newspaper columnist described the dangers of ‘breathing while black’ (in Walker, 2003: 671–672). But who is empowered to create the racial taxonomy of the population? Who determines whether someone is black enough to be a crime suspect? Locating people on the colourfield is discussed in Chapter 3 ‘The epidermal examination’. American jurisprudence has a long history in which courts have been invited to decide who counts as white, determining that Armenians and Mexicans could be included, but that Hawai’ians, Chinese, Japanese, Burmese and Filipinos could not (Haney López, 1996: 203). In the PBS television series Race – The Power of an Illusion (2003), the historian James Horton said: You got some places, for example, Virginia – Virginia law defined a black person as a person with one sixteenth African ancestry. Now Florida defined a black person as a person with one eighth African ancestry. And Alabama said, ‘You are black if you got any black ancestry, or any African ancestry at all.’ But you know what this means? You can walk across a state line and literally, legally, change race. (See transcript at www.pbs.org/race) In one recent decision the Superior Court of New Jersey held that ‘Hispanic’ was not a race. In that case, Edwin Negron, a Hispanic man, identified Maurice Valentine, an African American man, as having robbed and assaulted him. Valentine argued that the jury should have been warned that, as Negron made a cross-racial identification, his identification evidence was less reliable. The court held that ‘Hispanic is not a race. It is a cultural term, an ethnic identification.’10 After consulting the American Heritage College Dictionary the court agreed with the trial judge and prosecutor that Hispanics constitute different races, including African American, Caucasians, Native American, and Asian, and that Negron was of ‘Spanish and African background’ (at 497). Consequently, the jury did not need to be instructed about the dangers of cross-racial identification, as Negron had not been looking across race. The principle that underlies the cross-racial identification is that ‘race’ can be an impediment to vision whilst, at the same time, something can be learned about race by looking. In the jurisprudence of cross-racial identification jury instructions, race is simultaneously a socio-biological classification as well as a plotted point on the colourfield. Race is what one is and also what one looks

10 State of New Jersey v Maurice Valentine (2001) 345 NJ Super. 490 at 496.

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like. The psychological research that forms the basis for the jury instruction is inconclusive and incomplete, and it presumes that ‘race’ is a stable category, that there is consensus about who counts as a member of a racial group, and that membership of the group can be objectively adduced, whether by consulting a dictionary, or by examining the body. Ignoring altogether the discredit into which the quasi-sciences of phrenology and eugenics have fallen, the psychological studies on ‘cross-racial’ and ‘own-race’ effect accept uncritically the position that racial difference is an obstacle to be measured. There is no acknowledgement that racial difference is a social fantasy; instead, incrementally, race becomes a large, legitimate and lawful reason for making a mistake when identifying a criminal.11 It is a question for the jury whether or not a mistake has been made, but it is a matter for the trial judge whether to posit ‘race’ as a possible reason for a mistake being made in the circumstances. In some instances, the court has sought something more than racial difference, some other reason why – in the circumstances – race matters. This arose in a case in Baltimore, where the court had to decide whether race alone was an impediment to recognition. In that case, the court was implicitly meditating on the act of looking, the obstacles to looking, and whether someone – here, a white female crime victim – had learned to be a good looker. In an appeal against the trial judge’s decision not to allow argument about the dangers of cross-racial identification, James Smith and Jason Mack v State of Maryland (2004)12 concerns the evidence of Christine Crandall, a white woman from a mixed-race neighbourhood who identified Smith and Mack as having robbed her. Smith and Mack, both African Americans, argued that the jury should have been told of the dangers of cross-racial identifications. At trial, the following exchange occurred: The defense counsel will not be able to argue on cross-racial identification . . . there is not evidence in this case to that effect. But defense certainly could say my client is black, victim is white. Mack’s counsel: But are we free to argue one reasonable inference, identification would not be as strong as if the complainant and defendant were the same race? Court: You can argue the facts that are in evidence. That is not a fact that is in evidence. Court:

11 US jurisprudence on cross-racial identification has been developing since 1967, when the factor of ‘race’ was discussed in the context of mistaken identifications. The legal and psychological history of cross-racial identifications is outlined in State of New Jersey v Cromedy (1999) 158 NJ 112, regarded in many jurisdictions as persuasive authority. See also Sheri Lynn Johnson (1984), the first major US law review article on the topic, and the entire special theme issue of (2001) 7 Psychology, Public Policy and Law, titled ‘The Other-Race Effect and Contemporary Criminal Justice: Eyewitness Identification and Jury Decision Making’. 12 388 Md. 468.

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Mack’s counsel: But it’s an inference that can be drawn. Court: You can argue he is black, and the victim is white. Anything else? (at 475–476) In issue was whether the victim had a unique capacity for looking. For Crandall, her attackers looked ‘normal’, ‘great’, ‘fine’; Smith was ‘pretty distinctive looking’ and Mack was ‘really handsome’ with a ‘strong posture’ (at 474). Furthermore, she was an art teacher and painter, experienced in human portraiture, and had studied people’s faces for most of her life. She testified: ‘I think [of] myself [as] very, very good with people’ (at 475). The Court of Appeals of Maryland examined the literature in the field of cross-racial identification, identifying three broad theories. The first theory, not widely supported within the scientific community, is that ‘individuals with prejudicial attitudes to members outside of their race were more likely to exhibit own-race bias’ when making identifications (at 483). The second theory, based upon ‘ethnographic’ or ‘physiognomic homogeneity’, says that people exhibit own-race bias because they find the features of other races to be homogenous, making it difficult to distinguish between them (at 483). The third theory, based on ‘interracial contact’, states that a person’s capacity to tell the difference between people from another race depends upon the quality and quantity of contacts a person has had with people from that race (at 483–484). For instance, one study shows that Caucasians who are avid fans of the National Basketball Association are ‘above average in . . . proficiency in identifying African Americans’ (cited at 495–496). The court found that, as the scientific evidence is inconclusive, as it is based primarily on studies of Caucasian and African American people, and as it pays no regard to ‘multiracial’ individuals (at 497), the giving of cross-racial identification instructions to jurors, without good reason for doing so, is ‘effectively to denigrate an opposing witness’s credibility based solely on his or her skin colour or ethnicity’ (at 498). At issue seems to be the question ‘Through which lens does a person see?’ The basis for the cross-racial identification instruction is that a white person – routinely the instruction is requested by counsel for African American defendants where the eyewitness is white – sees the world through the lens of whiteness. The party requesting the instruction is not interested in whether whiteness is a socially produced lens, a biologically unavoidable lens, or a legal fiction. The point is that the lens of race distorts vision and, for the eyewitness to a crime, the unimpeded capacity to see is the entire basis for their credibility. Returning to the trial of the police officers charged with beating Rodney King, the question asked by political scientist Thomas Dumm was: ‘Whose eye is being looked through?’ Dumm cited Michael Stone, the defence counsel for Laurence Russell, ‘The officer who delivered the most blows on

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King’s body’ (1993: 186). Stone described the defence strategy for using the photographic stills: ‘We got the jurors to look at the case not from the eye of the camera or the eye of the video cameraman, but from the eyes of the officers who were out that night’ (in Dumm, 1993: 186). As is discussed later, in the trial of Mundarra Smith, the jury was invited to look at the photographs not through the eye of the photographer, nor through the eye of the eyewitnesses, nor through the eyes of Mundarra Smith nor his mother. Instead, they were directed to look through the eyes of the policemen. In Judith Butler’s analysis, the jury in the trial of Rodney King’s assailants occupies every position: the white witness, the police, the victim, the judge. [I]n some sense, they are the white witness, separated from the ostensible site of black danger by a circle of police; they are the police, enforcers of law, encircling that body, beating him, once again. They are perhaps King as well, but whitewashed: the blows he suffers are taken to be the blows they would suffer if the police were not protecting them from him. Thus, the physical danger in which King is recorded is transferred to them; they identify with that vulnerability, but construe it as their own, the vulnerability of whiteness, thus reconfiguring him as the threat. (Butler, 1993: 19) The act of looking becomes simultaneously active and passive and performed from the location named ‘white’. We identify the gaze as both potent and impotent. The act of looking confers pleasure or gratification; the enjoyment of flinching. Describing the effect of the footage of Rodney King’s beating, Elizabeth Alexander described the ‘pornographic spectacle of black male bodies being violated’ (1996: 160). When a jury is told how to see, it seems that they are rendered powerless in the face of these images, they are seduced. They are puppets in the fantasy that dupes them into thinking that they are in charge. Where a jury is made to occupy multiple positions, each of them hostile to the black man, it suggests that they have disavowed the potency of their viewing position, believing themselves to be neutral and disinterested finders of ‘fact’. The jurors participate actively in the perpetuation of the fantasy project, confirming for themselves an enduring role in a managerial position, and confirming the impossibility of imagining the fantasy without the component of race. The impact of photography upon knowledge or truth or vision is widely acknowledged. Often we might say that we remember something ‘as clearly as if it were a photograph’. When viewing footage of some disaster, we hear ourselves think that it ‘looks just like a movie’. Visual technologies have already colonised our vision; they intrude upon our ability to see. Sontag wrote: Knowing a great deal about what is in the world (art, catastrophe, the beauties of nature) through photographic images, people are frequently

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disappointed when they see the real thing. For photographic images tend to subtract feeling from something we experience at first hand and the feelings they do arouse are, largely, not those we have in real life. Often something disturbs us more in photographed form than it does when we actually experience it. (Sontag, 1971: 168) That images become more ‘real’ than ‘the real thing’ is apparent in the case of the bank robbery at Caringbah, where the eyewitnesses to the actual event cannot be sure of what happened, but the policemen who looked at the photographs claim to know the truth. Law proceeds – regardless of whether or not identification testimony is admitted – as if only the image really knows who robbed the bank. Sontag went on to examine the limits of photographic ‘knowledge’, arguing that whilst photography can ‘goad conscience’, it can never establish ‘ethical or political knowledge’. Photographic knowledge was, for Sontag, ‘knowledge at bargain prices – a semblance of knowledge, a semblance of wisdom’. But the proliferation of photographic images of the world has ‘an incalculable effect on our ethical sensibility’. She wrote: ‘By furnishing this already crowded world with a duplicate one of images, photography makes us feel that the world is more available than it really is’ (1971: 23–24). But perhaps this world is precisely as available as it needs to be. It may give us less than knowledge, less than ‘the real thing’, because we only need enough of it to fulfil our fantasy. The image, just as it operates as a limit to knowledge, can also be interpreted as the limit of law. For as long as we invest the image with a capacity for truth, the image has the potential to overpower law. If the image can be said to contain the answer, what then is our need for law? Jennifer Mnookin formulated the danger posed to law by the image: ‘Evidence that offered an exceptionally high degree of certainty was at one and the same time the ideal toward which the system strove and the El Dorado that might threaten the system altogether’ (1998: 57). In the moment that law opens itself up to the photographic apparatus, it threatens to become the agent of its own ruin. For this reason, the open gesture towards the image must always be conditional; law always remains engaged in manipulative reading practices to divert itself from the trajectory that leads to its own annihilation. Certainty is law’s desire, and the photograph plays a key role in its pursuit. But certainty marks the end point of law, and so it is no wonder that law refuses to engage critically and theoretically with non-legal photographic discourse. The image shrinks in the sights of the law, given a meaning of its own, a meaning that operates only in a unique – legal – complex, where it may be seen but not spoken with, proof but not truth, beyond a reasonable doubt but not utterly certain. Law consigns certainty – and, with it, the photographic image – to a fantasy space, always visible but always also concealed.

Chapter 2

The national bank

The robbery of the National Australia Bank in Caringbah at lunchtime unlocked a cache of coruscating fantasies: of the nation and its management, of the proper regard for money, and of the status of the bank robber in national mythology. Each of these fantasies is encircled by law. Law is the conduit for national identity and belonging; law entitles us to possess the nation, in its conceptual entirety and in small commodified parcels. Law is also the tool for dispossession, wherein the nation is wrestled back from those deemed to hold it illegitimately. The Mundarra Smith cases are situated at the nexus of two dominant national fantasies: law-making and law-breaking. People who rob banks and people who prosecute them are engaged in conflicting acts of entitlement and audacity, control and deviance. The bank is a site of capital, it regulates wealth, possession and security on behalf of the nation and its subjects; the law-maker protects these properties. The bank robber subverts these fantasies, performing an alternative national character: individualist, redistributor of wealth, man of action, law-breaker, risk-taker, laconic self-made national hero. His prototype is evident in potent historical narratives that reveal an enduring fascination with banditry. Emphatically so in Australian popular culture (Biber, 1999) and also apparent elsewhere, national heroism is performed through acts of spectacular, iconographic and celebrated transgression. But banking institutions now pursue new economic structures, closing local branches, introducing new ‘products’, moving away from individual savings and towards ‘cash management’; prison terms for armed robbery have escalated; and so bank robbery has become more violent, less lucrative, and primarily conducted under the influence of drugs. Consequently, the status of the bank robber has shifted away from the gentleman bandit, towards the hard-core, junkie desperado, unloved and uncelebrated. In this chapter, banks and bank robberies are examined for their potential to implicate the nation. For the four bank robbers in Caringbah, this crime likely has clearly delineated objects: action, adrenaline, money for drugs. But their crime is anticipated by a national project which uses their transgression to achieve other goals: protection of property, increased surveillance, incarceration of

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troublesome black youth. The bank robbery becomes a device for unleashing these nationalist fantasies upon young black men. In the perpetual manufacture of the fantasy nation, these surveillance photographs, these places and these laws each play their part. National identity is tied to practices of national myth-making. There are certain pervasive and popular myths and narratives that we – as obedient and included national subjects – employ in the telling and retelling of our national story. These are the myths and narratives that we must invoke to explain ourselves to ourselves. In Australia, these myths require us to believe that we are benign, naïve, tolerant and free, and they conceal the mendacity that underlies the myth-making project. Myths of Australian nationhood perpetuate a national image that is white, male, young, fit and happy, by managing all peoples and ideas that do not conform to this ‘type’. It is not that these others are forgotten; they are enclosed. And the process of enclosure is a key component of fantasy nation-building. In order to see ourselves as ‘Australian’, for example, we must segregate or contain certain aspects of ourselves. We must employ institutional and socio-cultural practices to quarantine parts of ourselves, parts that we do not expose in our public performances of our identity. These enclosed spaces are hidden from most public fantasies in which ‘Australia’ is imagined. The point is not only to recognise that something has been hidden, but to read it as a secret, something repressed and traumatic, something that’s missing. But who are ‘we’? ‘We’, when we are spoken to by law, when we are included in the nation, are assumed to participate in practices that would perpetuate obedience and unanimity, and regenerate existing notions about who and what constitutes the nation. The collective ‘we’ does not include the Other, any troublesome identity who fails to collaborate in the national project, and from whom national subjects are distinguished. If ever the Other is addressed by law and by the nation, it is as ‘you’. ‘We’ speak to ‘you’, but ‘you’ are never one of ‘us’. The ‘we’ of Captive Images refers to law’s subjects, nation’s subjects, to whom the decrees of dominant discourse are addressed, and with whom law and nation converse. These discourses address us as if we participate in law’s unity and as if we are subjects of national homogeneity. It is the manager’s fantasy that ‘we’ exist. Yet each of us assumes that we retain individuality, autonomy and difference; that is our own fantasy. The photographs from Mundarra Smith’s trial take a central role in the nationalist fantasy in which national space is contained, contested and managed. Ghassan Hage’s analysis of national space centres around notions of ‘power’, ‘belonging’ and ‘tolerance’ through which legitimacy is asserted and perpetuated. The nation – a ‘fantasy space’ – is contested by groups seeking to exert power over that space. Hage (1998), invoking Lacan’s and Zˇizˇek’s theorisations of the Nation-Thing, described the simultaneous impossibility of attaining that fantasy nation, and the constant need to

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believe in its possibility. The fantasy nation is our desire, and desire is what Zˇizˇek called ‘the elusive lure’ (1992b: 228). In Zˇizˇek’s Lacanian theory, the Thing is that which we most ardently desire, something we believe will make us whole. All of our endeavour is in pursuit of what we have lost: our Thing. Hage wrote: ‘If the fantasy space [the nation] is to be perceived as possible, it requires something to explain its failure to come about’ (1998: 74). We believe that our Thing has been taken from us by the Other; the Other is the obstacle to our completion, the impediment to the fulfilment of our fantasy. They have our Thing; if only we can eliminate the Other, we can get our Thing back. For Zˇizˇek, the Nation is the fantasy space that stages our desire; the Nation is our Thing. In his landmark work on nationalism Benedict Anderson wrote, ‘the nation is always conceived as a deep, horizontal comradeship’, with all of the strategies of exclusion and violence that accompany the imagination of a national community (1991: 7). What this means, for Australia, is the occupation and colonisation of the national space, the designation of it as the white man’s home, and the management of that space and those who move around in it. The Aborigine is the overwhelmed Other. Simultaneously conquered, dispossessed, enclosed and erased, the Aborigine is the ‘being’ and the ‘nothing’ of Australian identity (McLean, 1999: 114). As obstacle to, and agent of, legitimacy, Aboriginality is the impossible kernel at the heart of the nation. This is Zˇizˇek’s paradox, in which the Thing is simultaneously threatened by, and inaccessible to, the Other (1992c: 165). The Thing itself, when stripped of its fantasy components, is an empty space. For Zˇizˇek, the ‘transubstantiation’ that makes an ordinary object into a Thing is the embodiment of ‘materialized Nothingness’ (1992c: 83). This ‘nothingness’ is the nation, and it is appropriate to imagine it either as something in the possession of someone else, or as nothing belonging to no one. In both constructions the Aboriginal Other is the ideal opponent against whom everyone else – the unified national ‘we’ – competes for the nation. When the Other possesses the space, it is either in the wrong hands (entitling ‘us’ to wrestle it back), or it is terra nullius (entitling ‘us’ to seize it).1 Of course, our identity is determined by what we lack, not by its fulfilment. It is the imagined loss of the Thing and our pursuit of it that gives our lives plenitude and significance; the Thing gives us ‘something more’ than the sum of its parts (Hage, 1998: 72). Our identity is inscribed in our loss. We can never attain our Thing, because the loss of loss marks the end of our status as subject and, with it, our sense of ourselves. We desire our loss. Whilst we pursue our fantasy, we concede that we cannot have the real thing, and settle instead for the Thing as the object of desire, always within our sights, but just

1

The doctrine of terra nullius was overturned by the High Court in Mabo v Queensland (No 2) 175 CLR 1. See Biber (2004).

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out of reach. The Thing is our fantasy nation, obstructed by four transgressive adolescents – one is a hooded black bandit – who invade the suburban banking zone. We only know that they exist because, first, we do not inhabit the fantasy nation yet and, secondly, we have seen photographs that show us precisely who is preventing us from living there. As we vainly pursue our ultimate – national – desire, we achieve other – smaller – desires; for Lacan and Zˇizˇek these are the objets petit a, the little ‘others’, banal or ordinary things that we invest with value, making them Zˇizˇek’s ‘hidden treasure’ (1992c: 77). The common law constitutes a symbolic order, with its own symbolic, imaginary and real registers. Within the symbolic order, each of these elements has a place, a role. The Aborigine is the common law’s unconscious, endlessly repressed. These elements are kept in their place through the operation of the gaze. The gaze is primarily a tool of self-governance, operating through a combination of paranoia, repression and power. Each of us may see from our individual positions, but we are viewed from multiple perspectives. We give ourselves to be seen. We cannot escape the gaze. The gaze is the operation of power upon us. And we practice that power ourselves, as we are recruited to look through the gaze. We see each other, we see ourselves, through the eyes that see us. Being in the subject-position enables us to practise the gaze; what we are gazing at is the Other. But the Other also has a gaze. Far less apparent than the colonial gaze, when the Other looks back at us, the symbolic order is destabilised. In this moment of rupture, something uncontrollable leaks out. What we learn, in the moment that the gaze is returned, is that fantasies of control, certainty and management depend upon the transgressive Other: his perpetual transgression and our perpetual failure to govern him. In this case, law’s first fantasy would proceed only when Mundarra Smith was identified as the hooded bandit. From the white managerial position, if only we could lock him up and punish him for stealing our money, then our money, our banks, our streets, our lives would be safe again. We could rediscover our fantasy nation. We could get our Thing back. But, in his acquittal, Smith gave us more than just a motive for our continued managerialism (we must remain vigilant). Here our gaze was turned back upon us. The black man, the Other, the obstacle to our fantasy, looked directly into our camera, directly into our gaze and reflected it back at us: You want to see? Well, take a look at this!2 What has happened to our fantasy now? Who is in charge here? In the

2

See Lacan (1977: 101). Lacan speaks here about the function of the painter who creates images to be looked at: ‘The painter gives something to the person who must stand in front of his painting which, in part, at least, of the painting, might be summed up thus – You want to see? Well, take a look at this! He gives something for the eye to feed on, but he invites the person to whom this picture is presented to lay down his gaze there as one lays down one’s weapons.’

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national fantasy, the self and the Other must be adversaries. The symbolic order depends on the Other being opposite, inconsistent and obstacle. We imagine ourselves in opposition to the Other. We may be reflected in the Other; we may recognise the Other; we may accommodate the Other. What becomes impossible is the unconditional gesture that invites the Other to share the fantasy space; to concede that the Other is entitled to their own fantasy. In Julia Kristeva’s psychoanalytic work on nationalism and citizenship, the journey we embark upon to meet the Other is ‘undertaken only to return to oneself and one’s home’ (1991: 133). We stage the encounter with the Other for the sole purpose of encountering ourselves. It is a ‘strategy of strangeness’ (Kristeva, 1991: 137). It is a strategy that may have repressive and violent consequences for the Other, but it is not a strategy in which the Other participates. The strategy is enacted for ourselves, and we manoeuvre the Other within it, ensuring that they keep to the script we have written for them. Certainty, order, property, family – these are the kernels of a managerial fantasy without which the nation is unimaginable. The Other poses an obstacle to the attainment of these micro-fantasies, each of them crucial to the sanctity of that larger ideal, the fantasy-nation. Here, the Other – the hooded bandit and Mundarra Smith – poses both a moral and a manifest obstacle to the attainment of that fantasy. ‘Moral’, because in Australia the indigene interferes with the legitimacy of white sovereignty. ‘Manifest’, because the hooded bandit is there in the picture, and our inability to identify him means we – as national managers – must invent new strategies of management, control and surveillance. As a physical body and as the spectre that looms over white managerialism, he needs to be moved, contained, restrained and inspected using legal, political and discursive devices. Law is employed to shift the obstacle. Law becomes the conduit to fantasy fulfilment. Ghassan Hage distinguished between national power and national belonging, locating Aborigines as the problematic obstacle to colonial national belonging in Australia (1998: 57). Being in charge (power) presumes a claim to be at home (belonging). Power without belonging is illegitimate. What becomes necessary, in the colonial project, is the performance of power such that it appears not to be illegitimate or oppressive, but instead the confident hospitality of the host at home. ‘Home’, in colonial contexts, is ‘contested ground’ as opposing claimants ‘jostle each other to establish a space as their own, as an exclusive manifestation of their subjecthood’ (George, 1996: 18). Whilst the ‘home’ is traditionally associated with a domestic economy, in which home-making and hospitality are functions of the women’s sphere, in a nationalist discourse, the home is the zone of managerialism, where power, belonging and tolerance are weapons wielded by the group claiming an entitlement to manage. ‘Home’ is mobilised into an economy that distributes power to a managerial group who uses it against any Other who is perceived as a stranger, an outsider, and therefore a threat. And the ‘homely’ encounter

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is rendered corporeal. The body – typically removed from managerial fantasies – is the central figure of nationalist discourse. The body of the manager becomes substantial, real, and vulnerable to attack, and the body of the stranger assumes a threatening pose. The nation is imagined, in Benedict Anderson’s analysis, as a ‘totalizing classificatory grid’, in which everything has its place: ‘it was this, not that; it belonged here, not there’ (1991: 184). In constructing the nation, it is always complete, always within its own boundaries. In this manner, the fantasy body is protected from violation, never abandoning the pleasurable position from which it performs the fantasies of loss, desire and national management. In challenging colonial legitimacy, the native becomes the conduit for the smooth application of legitimating practices. It is in the process by which space is seized, occupied, colonised and managed that legitimacy is at stake, and through which sovereignty is manufactured and asserted. In the Mundarra Smith case, the body of the manager begins to disappear. The finger of the bank security photographer is invisible, mechanical. National management becomes automatic and self-regenerating. Practices of dispossession, destruction and exclusion appear to have no corporeal perpetrator; these processes seem to operate organically and rhythmically. We pursue our fantasy by being blind to ourselves and the sense in which the fantasy is ours. The production of legitimacy may involve invasion, occupation and violence, but it may equally be achieved through ‘law’, the most compelling of legitimacies and, following Jacques Derrida, itself a form of violence (1990: 919). In this quest for legitimacy we all imagine ourselves as fringe dwellers or victims. Those who colonise locations of contested legitimacy – seized spaces – legislate their legitimacy, disguising the manoeuvres through which they have acquired their centrality, preferring instead to believe in their own peripherality, their alienation, their victimisation in the face of ‘law’. The colonial identity becomes an identity defined around the refusal to assume responsibility for colonial techniques; it is an identity of self-denial. Being at home amongst these strategies involves contortions whereby the white manager performs the role of the host, but in such a way that the home is imagined as perpetually under threat. The nation becomes a domestic space, and it is the white manager who seeks to be in charge of it. Performing the role of the host besieged justifies the taking of occasional extraordinary measures to assert authority. Placing a surveillance camera in the bank is a response to the state of siege. These photographs are colonial weapons, colonising the banking zone. The bank becomes mobilised into a national fantasy; the integrity of the bank is conflated with the integrity of the nation. Despite its name – National Australia Bank – the scene of this crime is a private space, associated with the accumulation and protection of personal wealth, individual relationships of credit and debt, and corporate profit. Nevertheless, under the terms of the liberal social compact, the violator of private property is an offender against

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the state. When capital is attacked, the Nation-Thing is invoked. The totalising wholeness of the nation can only be symbolised when something slips out of place; the bank robbery constitutes that symbol. It is by quarantining and controlling the robbery that the nation begins to pursue its missing Thing, the lost piece of home, the desire to be complete. This is why the act of protecting banks is a national practice. It becomes possible to imagine surveillance technologies as nationalist techniques; cameras patrol zones all over the nation until, when something looks out of place, it is captured. Thus symbolised, it can be operated upon until wholeness is restored. But these photographs are inadequate. We need something more, something clearer. They require caption, explanation. The person best able to describe what we see is the hooded bandit. He looks directly at us, but he is silent. We ask Mundarra Smith to give an account of the photographs, but he has exercised his right to silence. And it is possible to read his silence as an anti-managerial, counter-colonial tactic. As Frantz Fanon wrote, ‘to speak is to exist absolutely for the other’ (1967: 17). Here, the silence of the black man is a problem: ‘And then there is that overwhelming silence – but of course, the body cries out – that silence that overwhelms the torturer’ (in Bhabha, 1996: 202). Does the silence of the hooded bandit challenge the white manager’s ability to feel at home here? Or does the dialogue with the Other proceed only when the Other cannot speak, and will not reply? The silent accused sits at the centre of Michel Foucault’s examination of the dangerous individual. In the face of the silent accused, Foucault wrote, ‘the machinery jams, the gears seize up’ because ‘the accused evades a question which is essential in the eyes of a modern tribunal . . . “Who are you?” ’ It is insufficient, in response to this question, simply to assert in Foucault’s terms, ‘I am the author of the crimes before you, period. Judge since you must, condemn if you will.’ Managers need to know what they are up against, the extent of this transgression: ‘Beyond admission, there must be confession, self-examination, explanation of oneself, revelation of what one is’ (Foucault, 1988: 126). In the ‘homely’ fantasy of the white manager, the silence is filled by the voice of law’s agent. In the trials of Mundarra Smith, Jason Morris, Lee West, Guy Gardner, and numberless other indigenous defendants, the silence of the black man was replaced with the voice of the policeman. But the High Court held that this was an unlawful replacement. And so, again, there is silence. And, in the case of Smith, his enduring silence forced a second jury to acquit him. Smith’s acquittal, however, does not reverse the practices in which the judicial voice, the legislative voice, the historian’s voice, the ‘managerial’ voice all colonise black minds and bodies, having assumed colonialist privileges entitling them to dispossess the black man from his own identity. The High Court, by silencing the policemen, permits the silence of Smith to prevail. But this does nothing other than perpetuate the notion that white managerialism is an enduring project, an unattained fantasy. The Caringbah robber is still out there. That law has been eluded by its transgressor means

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that law’s work is yet to be done, and that continued methods of control, supervision and fantasy fulfilment must be devised and practised. Despite these attempts at management, we are still left with Mundarra Smith, the black man who may have a secret. The dangerous black man must continue to obstruct the fantasy, reminding us of our elusive desire. Homi Bhabha tells us that the role of the black man in colonialism is ‘the docile body of difference’ (1994: 31). But this body is not always docile, and not always different. It is not only an object, laid out for scrutiny and for violation. It is also a troublesome body, serving as a dangerous reminder of colonial excess and illegitimacy. And the ‘difference’ of the black body is arbitrary. Black man is not selected, identified, chosen. He is not the black man; he is a black man. He is replaceable. One will do as well as another. It is, after all, a role in a pre-written colonial fantasy, and the difference is just a performance we believe in. Anyone can be cast into the role and the narrative will progress nevertheless. The hooded bandit, the silent black men in the dock, the unclear photographs, perform their roles. In the Mundarra Smith case we see that an autonomous counter-narrative is emerging, one that is uncontrollable by our scripted fantasy. Suddenly, either by design or by improvisation, the black men in the dock and in the photographs taunt us, subverting attempts to maintain the fantasy of being in charge. Although retaliating with the standby prompts for violence and law, the manager concedes an irretrievable departure from the original narrative, a crucial line misspoken, the protagonist upstaged, a surprise ending: the black man acquitted. Reading Fanon, Bhabha located ‘the deep cultural fear of the black figured in the psychic trembling of Western sexuality’ (1994: 41). Bhabha insisted that we admit – ‘a half acknowledgement’ – that ‘otherness has left its traumatic mark’ (1994: 62). The traumatic mark is evident in the skipped beat of the fantasy narrative; it is apparent upon the body of the black performer and upon the corpus of the colonial text: its bodies, its images and its documents. It is the prosaic mantra of the law of evidence that only that which is probative is admissible. And it is more than a semantic comment to note that ‘proof’ is legally detached from ‘truth’, although the courts’ considerations of evidence have, to date, failed to come fully to grips with the necessary distinction between proof and truth, and the role of photographs within that distinction. Nevertheless, whilst probative evidence may be excluded for other lawful reasons, once it is admitted, the parties and the court engage in a frantic struggle to control it. Because regardless of its proof-value, that which is probative has the capacity to unravel the legitimacy of the system it seeks to bind. Whilst the ‘docility’ and the ‘difference’ of the black body are aspects of the colonialist fantasy, the ‘traumatic mark’ that erupts is not necessarily an operation of power by the black man. Here is it necessary to consider the complex meanings of black resistance. Usually, black resistance is co-opted by the coloniser, providing the necessary motive for colonial strategies. But

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sometimes, when the black body resists, it does so outside of the discursive and legal limits placed by the empire. Gillian Cowlishaw’s work on the oppositional cultural practices of Aborigines – drinking, swearing, criminality – identified acts of political defiance, but her critics have claimed that the negative and self-destructive effects of these practices plays directly into the hands of white colonisers (see Lattas, 1993: 240, 241). Similarly, Dorothy E Roberts, in her work on black single mothers, cautioned against reading certain practices as acts of resistance to patriarchy. She wrote: ‘It is difficult to identify the emancipatory moments that spark within the vast realm of subordination’ (Roberts, 1995: 240). The point is to differentiate, to discriminate, to see the operation of colonial managerialism upon the black body, and to see where those methods run out. Roberts argued, ‘We must do the hard work of distinguishing between self-destructive and self-affirming behavior, between resistance and accommodation, between what merely reproduces illegitimate hierarchy and what destroys it’ (1995: 240). The colonial imagination has left involuntary gaps in which the native – itself a colonial construct – becomes disobedient and difficult. The trials of Mundarra Smith reveal not only those moments at which the black man is subjected to legal oppression and management, but also to disclose the instances in which he fights back, in which he eludes capture. Bhabha wrote of ‘the white man’s artifice inscribed on the black man’s body’ (1994: 45). This artifice is law. But sometimes the black man slides out of law’s envelope. In manufacturing the white nation, motives and alibis are endlessly rearticulated, attributing to the black body qualities which are either ‘inherent’, ‘magical’, ‘blood’ (JanMohamed, 1986: 86) or else criminal, deviant, delinquent. In the latter, the transgressive Other becomes photographic negative of the nation; the manager’s dark doppelgänger. For Bhabha, authority is terrorised by ‘the ruse of recognition, its mimicry, its mockery’ (1986: 176). Bhabha noted the ‘ambivalence of mimicry (almost the same, but not quite)’ wherein mimicry is ‘at once resemblance and menace’ (1994: 86). Thus the Other is absorbed into a framework in which he or she becomes readable, knowable, and yet also liminal, prohibitive. Bhabha recognised this as the moment in which we realise that ‘something is beyond control, but it is not beyond accommodation’ (1994: 12). This is the unhomely moment. In this moment, the Other – although out of control – must still be accommodated. The colonial fantasy anticipates these moments where the native slips out of control; resistance, rebellion and rampage provide the necessary motives for colonial repression. The manager cannot prevent the black man from perpetrating his counter-colonial terror. But there are endlessly modifying ways of watching him, catching him and punishing him for his violation. The manager derives enormous pleasure from asserting authority. Abdul JanMohamed described this as a ‘moral authority’, and its texts must ‘mask the pleasure’ derived from management (1986: 103). The hundreds of pages in which law narrates its conflicts with

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transgressive black men suggest a fascination with exquisite detail, a leisurely and contemplative tone, a magnanimous gesture of consideration. Here ‘moral authority’ becomes legal authority. The Mundarra Smith case unmasks much of law’s enjoyment of colonial methods. Freud’s concept of the ‘uncanny’ emerges in the recognition that the heimlich (‘familiar and congenial’) and the unheimlich (‘concealed and kept out of sight’) are almost analogous (1953: 375). For Kristeva, the ‘immanence of the strange within the familiar’ lies within Freud’s assertion that ‘the uncanny is that class of the frightening which leads back to what is known of old and long familiar’ (Kristeva, 1991: 182; Freud, 1953: 369–370). The unhomely challenge posed by the Other is at once anticipated, ethical and impossible. Kristeva described what we hear from the stranger, ‘A drastic challenge: “I am not like you.” An intrusion: “Behave with me as you would among yourselves.” A call for love: “Recognize me” ’ (1991: 42). But recognising the Other in this case unravels law’s fantasy, which relies upon the perpetual transgression of the Other. In the very spot where these fantasies compete, law entrenches itself, steadfastly not seeing the Other who is already there. Once the hooded bandit is recognised, the fantasy concludes, leaving law without the means to pursue its desire for continued conflict and control. In the act of recognising the Other, law performs its uncanny act of rupture. And so the moment of recognition is deferred. In the terrifying moment in which law confronts its transgressor and fails – or refuses – to recognise him, we discover that law already contains strategies of counter-terror. This is the seamless violence of law, described by Michael McDaniel as ‘whitefella magic’ (2000), and by Terry Threadgold as ‘legal witchcraft’ (1999b). Law finds a way to live with its unhomely eruptions. Law’s lost control is necessary to the maintenance of colonial authority. Loss is crucial. As Zˇizˇek wrote, once we lose our loss, ‘we lose the fascinating dimension of loss as that which captivates our desire’ (1992c: 86). This book reads the competing fantasies that emerge in Mundarra Smith’s case. It examines the symbiotic relationship between law and transgression, wherein the dangerous black man manifests law’s repressive capacity, whilst law derives legitimacy and pleasure from his continued disobedience. But there is also a point beyond accommodation; a limit to homeliness. Whilst much of law’s pleasure derives from the knowledge that the pursuit of its fantasies is perpetual, there is a space for the transgressive black man’s fantasy. Kristeva anticipated the Other’s fantasy: ‘Within the crowd of foreigners . . . a new form of individualism develops: “I belong to nothing, to no law, I circumvent the law, I make the law” ’ (1991: 103). The Other’s fantasy does not exist within law’s regulating authority, nor does it depend upon law for its articulation. The hooded bandit looks into the camera, and yet we cannot see him. He defies us to recognise him, and yet we cannot. He does not speak to us, he does not even acknowledge us, as we endlessly scrutinise his spectral image. He is law’s impenetrable Other. He is enacting a fantasy, and we have no idea what it is.

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One thing we do know about the hooded bandit is that he does not have a proper regard for money. Money, in the fantasy nation, deserves respect. It is earned, saved, secured, managed. It is evidence of our past labours; it is our ticket to the future. Properly regarded, money is not a thing in itself; money is a value, rewarding thrift with commodities, work with consumption. Money that we care about is kept in the bank. Banks care about our money by insuring it. Insurance mitigates the harm done when the bank is robbed by people who do not respect money. The Australian Broadcasting Commission (ABC), in its national weekly investigative programme Four Corners, produced a programme examining banking and bank robbing in contemporary Australia.3 Interviewed for the programme was convicted bank robber Bernie Matthews, who had been described by veteran detective Mick Kennedy as ‘an organic intellectual’ (programme transcript: 4). Matthews told the programme: Most career bank robbers, they’ve got no respect for money, you know, because it’s easy come, easy go. So you might have $100,000, you might have $10,000. There’s no respect there because you haven’t earned it, you haven’t gone out and earned it with, you know, sweat and toil . . . You’ve got something from a financial institution, and you’ve got it for nothing. (programme transcript: 2–3) Much of the programme focuses on the effects of bank robberies upon bank staff, indicting banks for protecting their interest in money over the safety of their workers, challenging banks about the ‘proper’ regard for money, arguing that the safekeeping of money ought not to be at the cost of safety to people. Matthews, a self-confessed veteran of the ‘old school’ of bank robbing, talked about the gradual changes in banking practices, from a time when bank tellers were issued with firearms to urge them to defend the bank’s money with deadly force, to the present practice in which tellers regularly deposit large amounts into a secure drop-box, leaving only small quantities in their cash drawers. Matthews observed: ‘That’s not protecting the teller. That’s only protecting the money, you know . . . They only give a damn about their money. Anyway, that’s only from a mug’s point of view. From a criminal’s point of view’ (extended interview transcript: 9). Echoing this interpretation of the bank’s regard for money was Michelle Mulvihill, a psychologist who counsels bank staff and customers after robberies, and who was interviewed by Four Corners. Describing the experience of being a bank robbery victim,

3

‘In the Firing Line’, Four Corners, Australian Broadcasting Corporation, screened on 23 February 2004. A transcript of the programme, and transcripts of extended interviews made for the programme, appear on the ABC website at www.abc.net.au/4corners/content/2004/ s1135117.htm.

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she said, ‘You’ve just had a gun placed here . . . You’re nearly collapsing. You feel like vomiting. You’ve wet your pants. You’re feeling in a shocking, traumatised state and someone rings up and says, “How much money did they get?” ’ (programme transcript: 1). As an institution, the bank transforms social fears into cultural comfort. The anxiety that someone wants to steal our money is averted when the bank offers to keep our money safe. Responding to public fears that crime is out of control, the bank co-operates with the industries of insurance, policing, security and risk management, in producing the fantasy that everything is all right. Furthermore, banks project themselves as safe places to work – a job in a bank becomes the very icon of stability – forgetting that branch closures, automation and bank robbery fundamentally undermine the myth. Also, until it was interrupted by a Royal Commission on police corruption, bank robberies in New South Wales were largely facilitated through the active cooperation of the police armed robbery squad, where favoured bandits were given the ‘green light’ in return for a share of the profits.4 The bank plays a key role in national fantasies: it enables the forces of speculation, globalisation, actuarialism and credit to drive forward without engaging in otherwise inevitable conflict with those national – largely Protestant – values of thrift, hard work, patriotism and moderation. The bank strives to achieve seamless consensus, uniting the nation in its proper regard for money, whilst propagating the fantasy that it performs – indeed convenes – national harmony and public service. David Bell, CEO of the Australian Bankers’ Association, the industry peak body, was interviewed on Four Corners about whether banks take seriously the safety of their staff and customers. He said, ‘We have a group called the Security Issues Forum which comprises representatives of our banks, police services and other parties that have a direct interest in these matters including, for example, the trade unions’ (extended interview transcript: 2). Despite being singularly motivated by private profit, the bank seeks to align itself with national interests: legitimacy, possession, certainty, inclusion. Banking objectives are achieved through the deft deployment of law, itself in the service of promoting the proper regard for money. Each of these interests and fantasies come together in the name of the institution targeted by the four bandits in Caringbah: national, Australia, bank. Bank robbery has an enduring, sometimes complex, role in national identity and national mythology. Banditry has always veered between heroism

4

This era was best dramatised in the television mini-series Blue Murder, screened in 1995 across Australia, but withheld from NSW viewers until 2001, when legal proceedings against Rogerson, Smith and others had concluded. This police corruption was examined by a Royal Commission, and detailed in the Royal Commission into the NSW Police Service Final Report – Volume 1 – Corruption (1997).

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and anti-heroism, occasionally mobilising popular support, occasionally arousing popular panic. In Australia, the hero-bandit comes dressed in the fetish armour of Ned Kelly, the nation’s most celebrated anti-imperialist, robbing a bank at Jerilderie in 1879 and destroying mortgage documents, shooting police at Glenrowan in 1880, constituting an ideal national ‘type’ in the very moment that photography emerged to capture his transgressive fantasies. Contemporary bank robbery pales in comparison to the exploits of the Kelly Gang. Bernie Matthews, when asked by Four Corners, ‘There’s nothing romantic or brave or noble about robbing a bank with a loaded gun, is there?’ responds, ‘No. No, of course it’s not. It’s not a hero worship sort of syndrome. I’m not a Ned Kelly and . . . you know, no one’s that sort of character’ (extended interview transcript: 11). The hero-bandit haunts the mug-shot of Jimmy Governor, serial murderer and thief, the Aboriginal bushranger hanged for hacking to death white women and children in 1900, just in time to be mobilised into the rhetoric of Australia’s place in the empire on the eve of federation (Moore and Williams, 2001). The hero-bandits preoccupied the Australian national imagination throughout the 1980s and 1990s, when the Royal Commission into police corruption revealed an enduring symbiotic relationship between cops and robbers.5 They were epitomised by Neddy Smith and Roger Rogerson, incomparable Sydney crime duo – career criminal and corrupt policeman – smirking with suppressed laughter as they revelled in their decade-long crime spree before it all came comically unstuck.6 But by the time the National Australia Bank was robbed in Caringbah, armed robbery had become a common and uncelebrated crime in metropolitan Sydney. In fact, 2001 saw a peak in crimes of this kind.7 A special police task-force named Bangarra was established to investigate bank robberies in which a perpetrator jumped over the counter, as happened in this instance. The robberies were quick, in suburban branches, and the proceeds were usually several thousand dollars. Photographs from bank security cameras were all the evidence left behind by the bandits. Many young indigenous men were charged with these offences, and many were convicted. The impact of the policing and prosecutorial processes was of significant concern to their legal representatives, the Sydney Regional Aboriginal Corporation Legal Service, that they brought simultaneous appeals in three matters to the High Court, one of which was the matter of Mundarra Smith.

5 Royal Commission into the NSW Police Service Final Report – Volumes 1–3 (1997). 6 See Blue Murder television mini-series. In 2004, Roger Rogerson hit the comedy circuit with the show Wild Colonial Psycho, with notorious criminal Mark ‘Chopper’ Read, and former football personality Mark ‘Jacko’ Jackson. The tour ended abruptly when Rogerson was arrested and later imprisoned on further corruption charges. 7 ‘Facts and Figures: Robbery’, Crime Facts Info (No 46, 1 April 2003), Australian Institute of Criminology.

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The hero-bandit is moulded from white bodies; Jimmy Governor is such a complex exception that his status in Australian mythology is perpetually recast.8 The law attempts to cast Mundarra Smith into the role of law-breaker, each attempt emphatically oblivious to the practice, by some indigenous men, of using law-breaking as a means of accessing heroism, practising belongingthrough-transgression, although this is not ‘national’ belonging, but ‘heroism’ within another milieu. Performing the law-breaking role reveals the difficulty of occupying the transgressive subject position because transgression invokes a necessary confrontation with law. Law is preoccupied with its own questions (Who is this? Is this you?) that cannot accommodate the lawbreaker’s motives (I defy you. I reject you), nor can it admit the law-breaker’s challenge to law (You need me. You desire me. You create me). Every nation has its heroic bandits, its exalted transgressors, its pet criminals, and it is interesting to see how certain bandits become heroes, whilst others do not. The film Dog Day Afternoon (1975), directed by Sidney Lumet, is based on the true crime of John Wojtowitz. In the film, the hero-bandit, Sonny, holds up a Brooklyn bank with an accomplice, takes its staff hostage, and transacts negotiations into the night with the police and the FBI. Early in the robbery, they spray paint in the lens of the surveillance cameras. As the siege continues, Sonny reveals that he has married his boyfriend, Leon, and has robbed this bank to raise money for Leon’s sex-change operation. By the time this is disclosed, the audience’s sympathies already rest with Sonny. The Marxist theorist Fredric Jameson viewed Dog Day Afternoon through the lens of class and consumption in America. For Jameson, much of Sonny’s ‘heroic’ status is achieved through Al Pacino’s performance, and through the historical transformation of ‘outsider’ and ‘existential anti-heroes’ into modern ‘heroes’ (1985: 721). Further, Jameson identified the political and economic upheavals in the United States in the 1960s and 1970s that allowed a bank robber to become a middle-class hero. Vietnam, Watergate and ‘the experience of inflation itself, which is the privileged phenomenon through which a middle class suddenly comes to an unpleasant consciousness of its own historicity – these are some of the historical reasons for that gradual crumbling of those older Protestant ethic-type values (respect for law and order, for property, and institutions) which allows a middle-class audience to root for Sonny’ (1985: 724). Jameson’s analysis of Dog Day Afternoon forms an early part of his major critique of the ‘logic of capitalism’ (1991), wherein he disputed that there is some organic ‘logic’ to processes such as commodification, suburbanisation, mall culture, and the evacuation of the white working classes from the inner

8

Jimmy Governor has been the subject of popular fiction (Keneally, 1972), popular film (The Chant of Jimmie Blacksmith, 1978, directed by Fred Schepisi), biographies (Clune, 1959; Moore and Williams, 2001) and critical scholarship (Threadgold, 1996).

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cities. Jameson wrote, ‘someone was responsible for all that’; these processes were ‘the consequences of the decisions of powerful and strategically placed individuals and groups’ (1985: 725). Dog Day Afternoon coincided with the ‘dawning realisation’ of the workings of capitalism at a mass social level, a realisation that occurred because of a change in class and power relations (Sonny musters crowd support by starting the chant, ‘Attica! Attica!’) achieved, in part, by the operation of the mass media (news crews crowd outside the bank, and reporters telephone Sonny during the siege) (Jameson, 1985: 725). The media transforms social panic into cultural pleasure, enabling a bank robber to become a folk hero, articulating the anxieties of his hostages. This precise matrix unfolds in the scene where Sonny conducts a telephone interview on a live television news programme. Sonny: TV anchorman: Sonny:

TV anchorman: Sonny:

TV anchorman: Sonny: TV anchorman: Sonny:

TV anchorman: Sonny: TV anchorman: Sonny:

I’m robbing a bank because they got money here. That’s why I’m robbing it. No, what I mean is why do you feel you have to steal for money? Couldn’t you get a job? Uh, no! Doing what? You know, if you want a job you’ve got to be a member of a union. See, and if you got no union card you don’t get a job. What about non-union occupations? What’s wrong with this guy? What do you mean non-union? Like what? A bank teller? You know how much a bank teller makes a week? [To a hostage: How much?] A hundred and fifteen to start, right? Now are you going to live on that? [Hostages: No!] I got a wife and a couple of kids, how am I going to live on that? What do you make a week? Well, I’m here to talk to you, Sonny . . . Well, I’m talking to you. We’re entertainment, right? What do you got for us? Well, what do you want to get for it? Do you expect to be paid because . . . No, I don’t want to be paid, I don’t need to be paid. Look, I’m here with my partner and nine other people, see. And we’re dying, man. You know? You’re going to see our brains on the sidewalk. They’re going to spill our guts out. Now, are you going to show that on television? Have all your housewives look at that, instead of ‘As The World Turns’? I mean what do you got for me? I want something for that. Sonny, you could give up. Give up? Right. Have you ever been in prison? No! No! Well let’s talk about something you fucking know

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about, OK? How much do you make a week? That’s what I want to hear. Are you going to talk to me about that? Transmission ends abruptly. Here, mass media conjures from the feared criminal the voice of popular dissent, enabling the anti-social and the social to operate mutually, and to do so for entertainment. For Jameson, this is the ‘reprocessing of alarming social materials for the reassurance of suburban movie-goers’ (1985: 721). Alarm produces reassurance. The repeated articulation of fear (crime is out of control) creates the sense that the fear is a known quantity, that it has a proper place within the vast catalogue of social fears, it is better than some, worse than others. If repeated often enough, the fear seems familiar, anticipated, it feels like home. Ours is a crime nation, built upon crimes, entertained by crimes, where crimelessness is unsustainable and unimaginable, a fantasy we do not bother to pursue. Instead, we seek to return to some ideal nation where crime revolves around its own stable moral compass. Dog Day Afternoon produces precisely this nostalgic effect, the return to an idealised past when bank robberies brought communities together. It seems impossible to watch the film now and not feel charmed by the naïveté of these bandits, by the spontaneous all-night celebrations in the street outside the bank, occasionally rewarded by Sonny’s appearances on the footpath. He knows that he cannot steal chronological sequences of banknotes, instead throwing them to the crowd; once Sonny is revealed on television as having a male lover, a gay-pride march commences to support him. Sonny’s hostages, the bank tellers, rally around him and each other, suggesting places where Sonny and Sal might escape to; one of them telephones her husband to explain how to heat his dinner and comfort the baby. The hostages all agree that the asthmatic security guard should be the first to be liberated; the head teller will not leave ‘her girls’ until the siege has safely ended. Sonny’s robbery unites the community around shared aspirations of family and belonging. Jameson reminds us of Bertold Brecht’s question, ‘What kind of a crime is the robbing of a bank, compared to the founding of a bank?’ (1985: 724). In a time when adolescents, often from racial minorities, commit small and violent robberies for drug money, it is a question that has lost its sting. Interviewed by Four Corners, the psychologist Michelle Mulvihill discussed the disjuncture between bandit mythology and the reality. She said: Bank robbers are a very interesting tribe. There are very few bank robbers who are white, middle-class people who are highly educated, who get dressed up in a suit and walk in and politely say, ‘I’m here to rob the bank, now give me the money’, and it’s not like on movies. It’s not like Dog Day Afternoon. It doesn’t work like that. It’s not a pleasant, warm, fuzzy feeling. (extended interview transcript: 3)

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For Bernie Matthews, the ‘old style’ robbers inspire nostalgia for a mythical time when mateship and teamwork ruled, a reverie destroyed by drugs. Describing his own experience of honour amongst thieves, Matthews said: There’s sort of an integrity amongst old bank robbers . . . I know it sounds strange, but it’s true. You know, like, I could rob a bank with a crew, and I might have to be separated [from them] for six weeks, you know, 12 weeks, or whatever the case may be. And if I’m working with a crew that I know, my whack of the bank robbery will be sent to me where I want it, and not one penny’s missed. You know, I get exactly what I’m entitled to. Whereas these days that’s all gone out the window. You know, it’s a dog eat dog world, and it’s motivated by speed or cocaine. (extended interview transcript: 5) Both Matthews and Mulvihill mark the transitional moment in bank robberies at the early 1980s, when heroin hit the streets and the prisons in significant quantities, eclipsing marijuana, hashish and LSD use amongst armed robbers. Matthews said, ‘Well, you could sum it up in one word: heroin . . . What you’ve got today is . . . a culture of armed robbers who are feeding a million dollar arm’ (extended interview transcript: 7). More alarmingly, for Mulvihill, is that drugs are no longer the motivation for bank robbery; instead, they provide the bravado necessary to commit the crime: ‘What I’m seeing is that people who are conducting bank robberies are now on drugs. They’re no longer just simply conducting the bank robbery to buy drugs. They’re actually on drugs when they’re doing it’ (extended interview transcript: 7). An anonymous convicted armed robber told Four Corners, ‘You’re in the car, you have a shot. Throw the needle on the floor. You go in. Produce your gun. Mate, that’s the biggest adrenaline buzz ever. I mean, you’ve got the shotgun and the . . . bloke’s shitting himself. You’re in control’ (programme transcript: 6). But the point made by Matthews and Mulvihill is that bank robberies are now out of control. The unpredictable violence of bandits on drugs means that, unlike the old days, there is no internal logic to the robbery (stay down, keep quiet, co-operate). Mulvihill also noted that the incidence of violent drug-fuelled robberies coincided with the transition of women into teller roles, and the promotion of male tellers somewhere behind the scenes (extended interview transcript: 5). For Mulvihill, this produced a toxic result; whereas in the ‘old days’ male tellers responded to robberies with bravado, today female tellers might have a gun shoved between their legs, producing a far more acute, fundamentally gendered, trauma (extended interview transcript: 1). Returning to Brecht’s question, and the conflict between bank-robbing and bank-founding, we see a new interpretation emerging. Illicit drug transactions occur in one of the purest forms of capitalism: day-to-day, cash-only, supply-and-demand, unregulated and unconcerned about the exploitation upon which it relies at every level. The commodity, once used, leaves no

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commodifiable trace of itself, needing to be replaced, returning buyers immediately to the marketplace. This puts into stark relief the model of capitalism upon which the bank operates: deferred benefits, cashless transactions, heavy regulation of products and practices, and closely supervised by government. Seeing the visceral urge of the drug-dependent bandit hit the wilful banality of everyday banking, the mythology of the heroic bandit becomes fixed in a distant past. The nation has nothing to celebrate in contemporary bank robbery. Bandits on drugs terrorising clerical workers in return for meagre amounts of cash leave no residue from which to build a fantasy. The media rarely reports these crimes. Banks cloak their responses to these bandits in the language of risk assessment and target hardening. The law’s response is often obscure: after repeated complaints from the Finance Sector Union, the ANZ Bank was found guilty in the NSW Industrial Relations Commission for failing to protect its staff, leaving workers in the Brookvale and Peakhurst branches vulnerable to armed robbery by not implementing target-hardening measures.9 Even the High Court, in the Smith decision, buried itself within the interpretation of evidentiary rules, not acknowledging the transformative potential that transgressive images once possessed. Australia is a nation that celebrates its convict past and comfortably embraces the illegitimacy of its possession. For a nation whose fantasies rest directly upon these deviancies, it seems that there is no more space left within the fantasy for these new crimes, motivated by new desires, and perpetrated in part by dispossession’s descendants. When young black men show an improper regard for institutionalised wealth and privatised property, when they raid the national bank, they are photographed, giving us an image of someone who does not fit our fantasy.

9

See Geoff Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRComm 406 and Geoff Derrick v ANZ Group Ltd [2005] NSWIRComm 59.

Chapter 3

The epidermal examination

The trial of Mundarra Smith shows how the law, whilst it has also treated ‘race’ as some heritable quality of blood and belonging, in matters of identification evidence, regards ‘race’ as a visual genre. Upon inspection of the body, a person can be plotted into a colour chart, slotted into a classification that produces legal categories from socio-scientific theories. Repeatedly, the criminal courts admit – and repeat – claims that race requires difference, and the differences can be adduced by looking. This chapter shows how legal discourses of ‘race’ rest upon close corporeal scrutiny. At Smith’s trial, two types of identification evidence were admitted: first, the evidence of the eyewitnesses to the robbery, and secondly, the evidence from the police officers that they recognised Smith from the photographs. Graham Bowrey witnessed the robbery from the street outside the bank: Bowrey: I can only describe three of them. One had a hood on, and he was taking the hood off as he came out of the bank. The other three were all just young white boys, and the other one was an Aboriginal . . . Crown: Can you describe his face? Bowrey: I can only describe it as dark-skinned. Crown: Can you put some sort of nationality? Bowrey: I would have said Aboriginal, mainly because his build was smaller than what – I would consider Islanders are usually bigger people. That’s how I’d describe him . . . Out of the other three . . . I know they appeared young because they had like fresh skin. It’s a bit red and it’s not as though they’re every-day shavers. Now whether that’s a wrong assumption or not, it’s not to say. All I know is they all had very – they were very neat with their hairstyle, the three of them, I noticed because there was no long hair hanging out the back of the hats or whatever, and they were all dressed in what looked good gear for younger people these days. (District Court transcript, in Appeal Book: 99–100)

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Bowrey’s testimony here reveals the impact of knowledge upon vision. Describing one of the perpetrators as ‘dark-skinned’, he concluded that he was Aboriginal because his build was ‘smaller’ than ‘Islanders’ who are ‘usually bigger people’. ‘Islanders’, in the Australian epidermal economy, usually refers to Polynesians – primarily Tongans and Samoans – although sometimes Fijians will be included. In the world available to, or known by, Bowrey, it seems that dark-skinned bank robbers will be either Aboriginal or ‘Islander’, and that the distinction is made on a ‘smaller’/‘bigger’ scale. Further, Bowrey ‘knows’ that these perpetrators are young because of the perceived effects of shaving (or not shaving) upon their skin. Redness of skin becomes certainty of youth and of whiteness. ‘Neatness’ of appearance is known when he sees ‘good gear’ and ‘no long hair’. Another witness on the street, Clare Ayers, gave evidence about the appearance of the perpetrators: Crown: Ayers: Crown: Ayers: Crown: Ayers: Crown: Ayers:

Crown: Ayers: Crown: Ayers:

What did he look like? What did you see? Coffee-coloured skin, I’d call it, I think it was. Coffee-coloured skin? Mmm. Can you place a nationality on who he might have been? No. How dark was his skin? Well all I could say it was a coffee-colour. Like not real dark, not black . . . As I said, the hat was floppy all round his face . . . Five foot eleven, twelve, six foot. He looked tall to me. He was the tallest of the four . . . He was doing a lot of singing out, shouting and swearing and telling the others to hurry up . . . Are you able to describe any of the other . . . No – there was another one the same colour as this chap, and two – they looked like Australian. Can you describe them any further, their heights or build? Much shorter than he was. (at 104–105)

For Ayers, it seems, two of the perpetrators are ‘coffee-colour’ and ‘not black’, unlike the other two perpetrators who look ‘like Australian’. Assuming that two of the perpetrators are Aboriginal, or only one (as Bowrey testified), Ayers is not alone in thinking that Aborigines are ‘not Australian’ and that ‘Australianness’ is to be conflated with whiteness.1 ‘Inclusion’ and 1

Apart from the joint trial of Smith and Nicholas, both of whom pleaded not guilty, a third defendant, Richard Murchie, pleaded guilty to participating in this robbery (and additional ancillary offences). He is not identified as Aboriginal in any of the texts on his case: R v Murchie [1999] NSWCCA 424. A fourth defendant was a juvenile, about whose identity and criminal procedures we cannot access information.

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‘tolerance’ are the prerogatives of white managers. Non-whites (Aborigines and certain migrants) are among ‘us’, but they are not ‘us’. They are something else. When assuming a managerial pose, regardless of our actual colour or our actual identity, we must imagine ourselves as part of a collective, colourless (and therefore white) ‘we’. Like Bowrey, Ayers is responding to the Crown’s insistence that the witnesses attempt to attribute a ‘nationality’ to the perpetrators, as though this kind of knowledge were available to an eyewitness; as if looking at someone would enable you to know where they come from, or where they belong. A lending officer, Martin Collins, was inside the bank during the robbery. Since there were four perpetrators, and the one alleged to be Mundarra Smith was standing beside the doorway to the street, sometimes with a hooded top on, Collins was apparently describing the three other perpetrators. The man who jumped over the counter was ‘probably around six foot, of very similar build to me, probably between 80 and 90 kilos’.2 The man with a knife was also ‘about six foot and pretty much a similar build to myself, so that’s between 80 and 90’.3 A third man, armed with a screwdriver, is described in the following examination: Crown: Collins:

Crown: Collins:

Are you able to describe the man who had the screwdriver? He was dark-skinned, and that was pretty much as I can tell you because I was focussing on the person who jumped the counter. When you say dark-skinned, are you able to place some sort of nationality on him? At the time I though he was South American or that sort of colour. (at 97)

Mark Graham, another witness who saw the robbery from the street, gives evidence about the appearance of the perpetrators: Crown: Graham:

Crown:

Can you describe the four persons that you saw? Only that they were all wearing like jeans and maybe baseball – running shoes and jackets of some sort and baseball hats. No identifying features at all, no. The man you saw inside, next to the ATM and you’ve described as a hood, was he one of the four men?

2 Richard Murchie admitted to jumping over the counter: R v Murchie [1999] NSWCCA 424. 3 In Murchie’s appeal on sentence, Simpson J said: ‘Another witness thought that one of the men had a knife but this was not supported by any other witness and as no finding of fact was made in this respect by the sentencing judge it should not be taken into account as an aggravating factor’: R v Murchie [1999] NSWCCA 424, para 7.

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Graham: Crown: Graham:

Yes. Are you able to say what colour their skin was? All I can remember is just white people, that was all. (at 103)

There is no attempt to justify why four different, sometimes inconsistent, eyewitness descriptions – Aboriginal, coffee-colour, South American, white – are supposed to point to the complicity of the man in the dock, Mundarra Smith. The colour of the perpetrator, of course, represents deeper distinctions. Race, according to Anthony Appiah, is ‘constructed by metaphor and metonymy; it stands in, metonymically, for the Other; it bears the weight, metaphorically, of other kinds of difference’ (1986: 35). Abdul JanMohamed wrote that ‘racial difference’ represents ‘moral and even metaphysical difference’ (1986: 80). The point of identifying the bank robbers as having a colour is to demonstrate that they are not like the collective, colourless ‘us’. We disapprove of what they have done, and we seek to separate them from ourselves. First, we do this by distinguishing them. Later, we complete this by segregating them. The something else is put somewhere else. The difference is constructed to give effect to the fantasy. Beneath the fantasy, but obstructed by law, lies the grim realisation that we are just like the Other, only the Other gives effect to our secret desires. Homi Bhabha imagined the coloniser as ‘tethered to, not confronted by, his dark reflection’ (1994: 44). The true dichotomy, the actual location of our split, is ‘not Self and Other but the otherness of the Self’ (Bhabha, 1994: 44). The hooded bandit transgresses because we make transgression possible. We create a space, enclosed by law, in which plunder, pillage and brazen disobedience may be performed. That space becomes necessary to our fantasies in which transgression is practised by somebody else. We need their transgression, we capture it in a fantasy zone where we may watch it, examine it, derive enormous pleasure from it. We need the hooded bandit to be the bank robber solely to demonstrate that it is someone else, someone other than ourselves, who impedes our progress towards our fantasy nation. In fulfilling this fantasy function, the transgressor must also be diminished and denigrated. Not only is he not us, he is less than us. He is there, robbing the bank, and he is that colour, and we can see him, whereas ‘we’ are nowhere, everywhere, invisible and colourless, and that is why ‘we’ are in charge. The eyewitness accounts of the ‘racial’ identity of the perpetrators evoke the analyses of Stuart Hall and Homi Bhabha, both of whom read Frantz Fanon to disclose something about colonial contact and conflict. Reading Fanon, Hall identified race as a ‘corporeal schema’ that is ‘cultural and discursive, not genetic or physiological’, what Fanon described as ‘a historicracial schema . . . woven . . . out of a thousand details, anecdotes, stories’ (Hall, 1996: 16). Bhabha, also reading Fanon, identified colonialism as dependent upon making fetishes of its stereotypes. Those stereotypes –

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‘savagery, cannibalism, lust and anarchy . . . scenes of fear and desire’ (Bhabha, 1994: 72) – are essential to the imagination and elaboration of colonial fantasy. Colonial fetishes – Fanon’s ‘epidermal schema’ – are not secret fantasies and urges, like sexual fetishes. Bhabha wrote: ‘Skin, as the key signifier of cultural and racial difference in the stereotype, is the most visible of fetishes . . . and plays a public part in the racial drama that is enacted every day in colonial societies’ (1994: 78). The Crown Prosecutor’s probing confirms this institutionalisation of the epidermal fetish: ‘Can you place a nationality . . .?’, ‘How dark . . .?’, ‘What colour . . .?’, ‘Coffee-coloured . . .?’ Her questions reveal a fascination with blackness as the colour of criminal deviance. The epidermal fetish is at the heart of colonial representation of the Other. For Fanon, in Black Skin, White Masks, the ‘effective disalienation of the black man’, his inclusion into colonial discourse, is effected through the ‘internalization – or, better, the epidermalization – of this inferiority’ (in Hall, 1996: 16). Hall’s reappraisal of Fanon’s writing welcomed this observation: ‘A wonderful word, epidermalization: literally, the inscription of race on the skin’ (1996: 16). The process of inscription is, of course, conducted by the colonial manager, in pursuit of the colonial fantasy. The black man does not participate in the making of the epidermal fetish. His blackness is not his secret, nor is it his desire. His blackness is his role, and he performs it in the colonial fantasy. As Fanon famously stated, ‘not only must the black man be black; he must be black in relation to the white man’ (1967: 110). Furthermore, as the Court of Appeals of Maryland heard, a blacker man looks a likelier criminal than a less-black man. In that case, where a white portrait painter identified two black men as her robbers, one of the men, Jason Mack, argued that he was wrongly selected from the photo array because he was ‘the darkest complected individual in this array’, making him stick out ‘like a sore thumb’.4 The other man, James Smith, argued that he was ‘distinctively darker than the other people . . . in the photo array’ (at 706). The function of the Aborigine in Australia’s epidermal economy is to provide this measure of ‘blackness’. In Hage’s White Nation (1998), the blackness of the Aborigine operates to entitle all those not-blacks who are also not-white to access ‘Whiteness’. Using the same coffee metaphor as one of the bank eyewitnesses (although here employing a system of variegation appropriate to a society that is both multicultural and urbane), Hage wrote, ‘All the cappuccinos, macchiatos and caffe lattes of the world that are neither black nor white, skin-colour wise, can use the Blackness of the Aboriginal people to emphasise their non-Blackness and their capacity to enter the field of Whiteness’ (1998: 57). When the eyewitnesses to the bank robbery located the perpetrators on the colourfield, they engage in the collateral practice of describing themselves. The Aborigine emerges when white people talk to each 4

James Smith and Jason Mack v State of Maryland (2004) 158 Md.App. 673 at 706.

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other. When Marcia Langton wrote that ‘ “Aboriginality” is a social thing’, she referred to the ‘social thing’ described by Emile Durkheim. Durkheim’s thing was knowable through ‘observation and experiment’, ‘in a process of dialogue, of imagination, of representation and interpretation’ (in Morris, 1996: 12, 15). That the eyewitnesses at Smith’s trial saw a variety of colours that were mostly (but not unanimously) not white reminds us that each of us sees a different route towards reaching the fantasy nation, and it is our failure to agree that is the real reason for the fantasy’s impossibility. In Zˇizˇek’s reading of Freud’s dream analysis, a repeated (dream) narrative discloses its meaning not through the details that remain consistent through the repetition, but through the details that differ: ‘it is the small changes, variations, omissions, discrepancies between the successive narratives which indicate the real kernel repressed by the dream’s official narrative’ (2001: 192). To the robbery witnesses, what differs is the colour they see. The eyewitnesses have repressed the epidermal fantasies that underlie the criminalisation of the black man. Crucially, in this case, the policemen all agree with each other, they all see the same obstacle painted in the same colour, reminding us that there is a managerial hierarchy. The policemen employ unanimity to ensure that they are in charge; theirs is the official narrative. Whilst the eyewitnesses fumble with the colour chart, the police attempt to push us – all of ‘us’ – into their fantasy nation. Meanwhile, the black man sits silently in the dock, waiting to learn whether or not he has been recruited to play in this fantasy this time. Let us now consider how the eyewitness evidence differs from the police recognition evidence. The police evidence needed to be adduced in two parts: first, that they were sufficiently acquainted with Smith to recognise him from a blurry security camera photograph, and secondly, that what they had to say about the photographs could rationally affect a material fact in issue (when they looked at the photographs they recognised in them Mundarra Smith). In Smith’s trial the defence requested that the police officers first give their evidence on the voir dire – in the absence of the jury – to establish its admissibility. Specifically, the court wished to evaluate the extent to which the police evidence was probative and the extent to which it was unfairly prejudicial, as unfair prejudice may flow from the jury learning that a defendant is known to the police. Where unfair prejudice outweighs the probative value of evidence, the evidence is excluded. Judge Latham, pre-empting Constable Trevallion’s capacity to give his (as yet unheard) evidence, said, ‘But he says he knows him, you see. That’s what he says. He says they’re on a first-name basis.’ Counsel for Smith’s co-accused, Jason Nicholas, replied: Yes, he said that. I would seek to raise the issue as to just what feature is identified, and what he’s looking at, of course, is a person who’s depicted as the bandit in the bank photographs. That’s plainly not the way he saw

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him, or I assume it’s not unless he’s going to give some evidence that he did see him just like that. (District Court transcript, in Appeal Book: 6) Here is raised the question of precisely what the policeman recognises when he says that he recognises Jason Nicholas. The defence counsel first tried to argue that, however the policeman may have seen the defendant in the past, if he had not seen him just like that, we cannot know on what basis he was making the identification. Umberto Eco examined the ‘codes of recognition’ that enable the recall of perceived or familiar things: These codes list certain features of the object as the most meaningful for the purposes of recollection or future communication: for example, I recognize a zebra from a distance without noticing the exact shape of the head or the relation between legs and body. It is enough that I recognize two pertinent characteristics: four-leggedness and stripes. (Eco, 1982: 33) When it comes to recognising the bandits from the bank robbery, the eyewitnesses to the crime and the police who examined the photographs were unable to make any meaningful connection between the ‘pertinent characteristics’ they nominated and the ‘recognition’ they claimed to have made. As becomes apparent from an examination of the witness testimony, when they saw bandits in caps or a hood, they knew who they were looking for, but they could not articulate why. This ‘why’ is proposed by legal scholar Dorothy Roberts when she wrote that the ‘unconscious association between blacks and crime is so powerful that it supersedes reality: it predisposes whites to literally see black people as criminals’ (1993: 1954). It was this missing link – the ‘why’ – that Smith and his co-appellants claimed differentiated between evidence of fact and evidence of opinion. Before the High Court, Paul Byrne, senior counsel for one of the appellants, stated: Specific features, specific characteristics can be the subject of evidence but not a conclusion of opinion that that is the man . . . It would be different if the person had taken the photograph . . . but where somebody is simply looking at an image on a piece of paper and drawing a conclusion from various observable characteristics and comparing it with their knowledge of the person in question then it constitutes an expression of opinion as to identity. (High Court special leave application transcript: 4) Nicholas’s counsel at the trial went on to argue that the policeman’s knowledge – whatever it is – was insufficient to make a satisfactory identification and, further, that testing the sufficiency of the knowledge was impossible

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without exposing his client to unfair prejudice: ‘He hasn’t got sufficient familiarity to identify him in this bank security photograph . . . The more one seeks to probe the sufficiency of a basis for identification . . . the more one gets into the rogues gallery effect’ (District Court transcript, in Appeal Book: 8). The ‘rogues gallery effect’ arises where an image of a person shows that they are adversely known to the police (for instance, is a mug-shot, or shows them in handcuffs or in prison clothing). This is thought to expose them to a mistaken identification because of this taint. The point here is that the policeman knows the defendant, from which it may be inferred that the defendant has prior criminality. The policeman’s knowledge may prompt a ‘recognition’ that would otherwise not have been made. When examined on the voir dire, Constable Trevallion described the process of looking and of recognition: Counsel: Trevallion:

Counsel: Trevallion:

To identify somebody as a particular person, you would want to be able to see the face of that person completely? Well, your best identification’s going to be a perfect portrait, I guess, but you can certainly see ample of Jason’s face in that photo to identify him. . . . That photo – when I saw that photo of Jason I am and was – I am a hundred percent sure that that’s Jason Nicholas because I recognised him as a person, not from a physical feature. Or as a person whom you look at and say, well, it looks like Jason Nicholas? No, that is Jason Nicholas. (at 39)

Trevallion’s identification testimony gives a telling insight into the processes of recognition. Disagreeing with counsel about the implication that recognition can only ever be an opinion (‘it looks like’) and not a fact (‘No, that is’), he says that he recognises Nicholas as a person, and not as a series of characteristics or features. Recognition, in the legal discourse unfolding in the Smith cases, seems to require evidence of a physiognomic register, wherein each characteristic or feature is named, catalogued, and checked off by the viewer before arriving at a conclusion that the image represents the defendant. Legal identification evidence grapples uncertainly with testimony of a recognition in which the witness cannot articulate their reasons for recognising a person. Trevallion testified that he knew the defendant as a person, and not as an accumulation of features. In this moment, he stepped out of place as a policeman who had put together all the clues, retreating into a position where policing is intuitive. Of course, this is a method of recognition we all exercise uncritically and uncontroversially. The problem arises here when this method makes a plea for legality. How is it possible for the symbolic order of law to accommodate

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intuition, even where it is the intuition of the policeman? Legal theorist Costas Douzinas, in his work on law’s relationship to images, recognised the normativity ascribed to the outcome where ‘the subject’s alienation in the sign becomes part of the dialectic of her formation’ (2000: 826). In order for the defendant to become a legal subject and – crucially – a criminal subject, he must be reduced to a sign that law recognises. Two questions from the Smith cases address this point: first, what is the sign that law looks for? Secondly, who is entitled to recognise signs on law’s behalf ? Justice Gaudron of the High Court was the only judge on appeal to identify the issue of the unclear photograph as an obstacle to answering these questions, implicitly targeting Trevallion’s claim that he made a recognition from an imperfect portrait. Her Honour advised the Crown that: . . . somewhere, at some stage, at least, your argument has to come to grips with the unclear photo, because that is what you concede you have got, and it may well be that you are in a different area of discourse with the unclear photograph. (High Court transcript: 33) She pressed the Crown to establish ‘the probative value of unclear photographs’: Well, your Honour, there is a range on the spectrum between a photograph that is useless and a photograph that is absolutely clear. Gaudron J: And if the photograph is absolutely clear then maybe there will be very few cases where there will be any dispute about the fact. (at 31) Crown:

Her Honour stated that the unclearness of the images pushed the identification into the area of opinion evidence: ‘Well, if the photographs are not clear the best evidence of the policeman can be, “It is my best guess” ’ (at 30). But there is no consideration of whether a ‘perfect portrait’ enables a viewer to make a conclusion of fact, nor is there any attempt to establish the location of the threshold of unclearness at which facts become opinions, or best guesses. Two police officers were called to testify to their recognition of Mundarra Smith from the security photographs. Senior Constable Crampton, who was a member of the Redfern patrol at the time, was cross-examined by Smith’s counsel at his first trial, Diana Black: Black: How long did you spend looking at the photographs? Crampton: Oh, not long at all. Black: . . . How did you know [Smith]?

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Crampton: I’ve spoke to him a number of occasions. (at 15–16) When probing the qualities of Crampton’s recognition, the following exchange took place: But you do accept that there’s a lot of young men of his [Smith’s] age, some with some Aboriginal blood perhaps, around Redfern? Crampton: Of course, yes. Black: What is it particularly about him that gives you so much confidence that it’s him? Crampton: His facial features stand out. Black: Why do you say that? Crampton: He’s got a very prominent nose and his face just jumps out of a photo at you. (at 156) Black:

What jumps out of the interrogation by Smith’s counsel is the reference to Aboriginal ‘blood’. She asks if there is Aboriginal blood flowing through the suburb of Redfern, and the policeman is certain there is: ‘Of course, yes.’ In this instant, the epidermal fetish becomes visceral, and we learn that there is nothing about the transgressive black man – not even what lies beneath his skin or pumps through his veins – that is inaccessible to the manager. We can see him – all of him – from the panoptic vantage point of managerialism. Not only is the transgressor perpetually visible; he is perpetually transgressing. Crampton’s identification animates the photograph at the moment of recognition. A blurry security photograph reveals Mundarra Smith to the policeman because he stands out, he jumps out of the photograph. Crampton’s testimony marks his metamorphosis from a passive viewer of photographs to an active eyewitness to crime. He claims to see action. He occupies the viewing position recognised by Susan Sontag as ‘that flicker of an out-of-body, into-the-picture sensation’ (Sontag, 2002b: 142). Crampton’s vision transports him into the crime scene. When Smith jumps out of the photograph towards him, he sees not only Mundarra Smith in a photograph; he sees Mundarra Smith robbing the bank. Law admits an easy slippage between a photographed person and the real thing. A body may be represented graphically in a photograph, but an additional, inarticulable something makes it more than a picture; somehow the photographed body steps back into the world, repopulating it. Courts take this sensation for granted, admitting from eyewitnesses evidence that describes how, after seeing a photograph, they were directly reconfronted with the physical body of a perpetrator. Most commonly, they found themselves looking eye to eye with their assailant. A female US Air Force officer

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was sexually assaulted in 1991 by a man who had entered the military base at Fort Dix, New Jersey. Later, looking at a ‘Wanted’ board in the police station, she identified Richard Stevens in a photograph. She testified: ‘[I] looked down at him [in the photograph] and the first thing that hit me was, yes, it was. It’s the man. It was his eyes . . . In real life his face looked slightly heavier.’5 A married couple, the proprietors of a liquor shop in Wynne, Arkansas, were victims of an armed robbery. The husband was shot dead, and his wife later identified Antonio Lenoir from two photographs. When shown a book of photographs she said, ‘I know this is him, because of his eyes.’ Continuing to look through the book, she saw a different photograph of the accused and said, ‘This is him.’ When the accused was brought in for a line-up parade, he was the last man to make eye contact with the eyewitness. The judgment states, ‘When he finally made eye contact, Mrs Cannon identified him.’6 In Biddeford, Maine, a taxi driver picked up a passenger who later robbed him at gunpoint. When shown a photo array by a detective, the driver immediately chose a photograph of Bobby Llamar Kelly, later testifying it was ‘his eyes, just the way his eyes were, wide-open. I saw the eyes so clear. All of the other pictures . . . the eyes aren’t the same thing, not like that.’7 Because of the significance of the eyes in his identification evidence, defence counsel sought to cross-examine the driver, showing him a photo array with only the eyes visible. Presented with ‘a number of sets of eyes’, he was unable to identify the robber. The defendant was outside the courtroom during this process. Under examination by the prosecutor, in the defendant’s presence, the driver had pointed to the accused in court, identifying him. The accused was the only African American man present (at 10). We can see clearly how law uncritically permits the corporeal excision of the eyes, out of the picture and into the world, having a special yet unspoken significance in unlocking the secret within the photograph. Courts have admitted psychological evidence to claim that there are qualities that will enhance an eyewitness recognition (such as law enforcement background)8 and some circumstances in which a recognition may be mistaken (such as acute stress,9 weapon focus,10 and cross-racial identification). There has been no legal consideration given to the effect we experience when we remember someone by their eyes. These cases, and others, mention without reflection that, whilst eyewitnesses remembered the eyes of the perpetrator, they missed other – apparently salient – features. For instance, when Patricia Cannon, the liquor store proprietor, knew her husband’s killer by his eyes, she did not 5 6 7 8

United States v Richard Stevens (1991) 935 F.2d 1380 at 1391. Antonio Lenoir v State of Arkansas (2002) 77 Ark. App. 250 at 255–256. State of Maine v Bobby Llamar Kelly (2000) 2000 ME 107 at para 8. People v Roberts (1967) 256 Cal. App. 2d 488 at 491, and People v Yeats (1984) 150 Cal. App. 3d 983 at 992, both cited in People v Darin Reynard Palmer (1984) 154 Cal. App. 3d 79 at 84. 9 Morgan et al. (2004). 10 Cited in United States v Stevens (1991) 935 F.2d 1380 at 1386.

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recall other features which the man she identified, Antonio Lenoir, possessed: prominent tattoos, a moustache, a missing front tooth, and a T-shirt with the word ‘CHICAGO’ written across it. Her recognition – the eyes – aroused in her a full-body experience. When she saw a photograph of the man who shot her husband, ‘It turned me inside out and I lost it’ (at 255). In each of these cases, a cross-racial identification occurred; the facts behind the identification process were adduced to prove that race plays a complicating role in the (mis)identification of body parts. Another case draws a matrix arranging eyewitnesses according to race, and comparing their ability to recognise the accused from a photograph, or notice that the accused wore a prominent silver brace on his teeth and had one silver-capped tooth. Darin Palmer, an African American man, was on trial for an armed robbery in a service station, to which there were six eyewitnesses.11 Two of the victims were described as ‘a black’; one of these chose Palmer from a photograph, the other could not. Neither recalled the perpetrator’s teeth. Two other victims, who had no race attributed to them, were shown the photographs. One of them prevaricated between two photographs (one of which was Palmer’s) and was unable to decide. The other initially selected a photograph of one of the black victims to the robbery before admitting he had ‘difficulty distinguishing between black men’. He was more certain in the courtroom that Palmer was the perpetrator; Palmer was the only black man in the court (at 84). Two other raceless victims were not shown the photographs but identified Palmer in court. None of them remembered anything unusual about the robber’s teeth, and Palmer bared his teeth for the jury to illustrate their prominence. No explanation was offered, none was demanded, to help us understand why there are some things we fail to notice in the face of fear, and other things which, when we see them, make us certain that we know. And the certainty of seeing is presumed to transfer from the body in the world into the body in the photograph. But what is the difference between a body and a photograph of a body? Hugo Rincon was tried for two counts of unarmed bank robbery in California in 1988. A surveillance photograph was tendered and two eyewitnesses testified that they recognised him. Rincon’s sole defence was to display himself in front of the jury standing beside the photograph. On appeal, the court stated, ‘Had Rincon chosen to introduce a photograph [of himself] instead of presenting himself to the jury, the jury’s view of the two photographs would clearly have been appropriate. In substance, Rincon substituted himself for a photograph.’12 David Johnson took another approach to this defence technique. Charged with an armed bank robbery, surveillance photographs were tendered showing the bandit wearing a distinctive baseball cap and sunglasses. In his defence, Johnson’s counsel permitted him to be photographed in the crime scene wearing these accessories for the 11 People v Darin Reynard Palmer (1984) 154 Cal. App. 3d 79. 12 United States v Hugo Rincon (1994) 28 F.3d 921 at 927.

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purpose of enabling the jury to compare the two photographs.13 In these two instances, we see the body of the accused offer itself up for examination, to see whether it resembles the body of crime. In both cases, there is an unchallenged replacement of the physical body with the photographed body, presuming that they are commensurable quantities, measurable against each other. Whilst the consequences of placing a non-guilty person in a crime scene have been challenged by the photographer Taryn Simon (in her series ‘The Innocents’ (2003), where she photographed people acquitted through the Innocence Project in scenes that were significant in the crimes for which they were wrongly convicted), this practice is not reflected upon by the courts. For an accused man to hold his body up against a photograph in which a crime is being committed seems a deeply provocative act. For an accused man to clothe himself in the costume of deviancy, performing the transgressive pose within the crime scene, as if offering himself up to the managerial gaze, presumes that there is nothing problematic or dangerous in the corporeal examination undertaken by law; everything can be learned by looking. Returning to the trial of Mundarra Smith, we find that the body of crime does not always surrender so easily, and the photograph may also erect its own obstacles cast from shadows and light. The cross-examination of Senior Constable Peterson reveals how this might occur: Black: Peterson: Black: Peterson: Black: Peterson: Black: Peterson: Black: Peterson:

I suggest to you that the photographs just shown to you, they are both very dark, aren’t they? The face is shadowed by the hood? He is wearing a hood but you can see his face. There is a shadow in the face, which is in the shadow, a dark shadow cast over the face? There is a shadow over the face but you can still make out his features. It is not easy though, is it, to make out the features? I can see them. There is a light right behind him? Yes, there is a wall behind him, a white wall. A light wall and a hood over his face and his face is in shadow? Yes. (District Court transcript, in Appeal Book: 162)

Here, counsel for Smith listed all of the obstacles to identification from these photographs: the darkness, the light background, the hood, the shadow. Peterson nevertheless testified that, despite barriers that would prevent identification of features by most observers (‘it is not easy’), ‘I can see them.’ His testimony here suggests either special knowledge of Smith, or special ability to see in the dark. 13 United States v David Wayne Johnson (1997) 114 F.3d 808 at 813.

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This photograph was signed and dated by Constable Peterson, who wrote the words ‘Mundarra Smith’ to indicate that he recognised Smith from this photograph.

Seeing through the obstacle laid down by the Other is the managerial fantasy. The look-out in the bank wears a hood. He sees without being seen. Diana Fuss, in her critique of Frantz Fanon’s writing on veiled women in Algeria, wrote, ‘Faced with a veiled Algerian woman, Fanon writes, the European is consumed with a desire to see, a desire that, in colonialism’s highly sexualized economy of looking, also operates as an urge for violent possession’ (Fuss, 1994: 26). The shadow, the hood, the grainy figure in the bank: the manager refuses to recognise that these are obstacles to looking; being in charge means being empowered to tear away the barriers that impede our view. The jury made their own attempt to examine the hooded body of crime hiding in the dark. They requested a magnifying glass, but Judge Latham told them that their correct role was to assess – not to replace – the policemen’s conclusions about the bodies in the photographs: Thank you ladies and gentlemen. I have received your note and discussed it with counsel. Upon reflection I think that we will have to decline your request for a magnifying glass. The reason for that is this: the issue in this trial and no doubt it has not escaped your attention is whether or not the police officers who identified these accused identified them correctly from their knowledge of the accused and that when they looked at the photographs they did that with a naked eye, without any aid, and the issue is as to the correctness of their identification, not so much whether or not you might form a view that perhaps with the aid of some magnifying device that they could have done a better job. I don’t want to distract you from

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the prime issue in the trial and on that basis we will leave magnifying glasses out of it. (at 183) At this moment we see that the jury attempted to make an independent recognition. They sought to exert their own gaze over the transgressive scene. The jury’s collective will almost leaked out of its limited role, exceeding its capacity. The judge pulled them swiftly back into their allocated place. They were instructed to look through the eyes of the police officers. When they look at the photographs, they operate the policemen’s gaze. When they look at the photographs, the bandits have already been compared with the bodies of the accused; the bandits have already been animated by the certain something that brings a photograph to life. The jury’s role is to concur, or not. We do not know whether or not the police were aided in any way when looking at the photographs. It is the secrecy surrounding the process of viewing photographs that counsel for Smith – at first instance and on appeal – raised as a significant problem with the use of photographs in this way. Lee West, whose appeal to the High Court was brought together with Smith’s (S202/1999) was another young Aboriginal man convicted of bank robbery using the prosecutorial method of replacing eyewitnesses with police recognitions from photographs. During the special leave application to the High Court, West’s counsel, Peter Zahra, said: But there was much cross-examination of the individual police officers as to the circumstances [in which they identified West]. This was a case where there were five police officers who had given evidence of identification. Four of the police officers are said to identify the photo at the Downing Centre [court building], together. The cross-examination revealed that none of the police officers could give detailed evidence of the circumstances in which they identified, whether they were with another person or who in fact gave them the photo. There are no procedural safeguards. (High Court special leave application transcript: 8) Zahra later went on to state: There was in fact a situation [in West] where one of the police officers is said to have identified Mr West from the photograph and he was in fact the same person who had then carried out the identification with other police officers, in other words, showing them the photograph. (at 14) In the same application for special leave, Paul Byrne, senior counsel then

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appearing for the appellant, Jason Morris, also questioned the procedural inadequacies, or the unknowable extent of the persuasion between policemen when showing the photographs to each other. Because there was no record made of the identification process, and because the identifications were made by police officers together in a police station, there was no way, Byrne argued, to test whether the policemen were making ‘genuinely independent observations’: It is not difficult to imagine that one officer would say to the other, ‘Well, that looks like Bill Smith, don’t you think?’ and the officer is then prompted to make the recognition, so-called, of Bill Smith, but there is just no record of any of that material, it is evidence emerging from a police station which has none of the safeguards which are normally required to be attached to evidence of identification before it can be admitted. (at 13) (Parenthetically, this is not the only time in the matter of Mundarra Smith that, from the bar or the bench, the nominal perpetrator was referred to as ‘Smith’, a particularly perilous or careless remark when the defendant was actually named Smith.) Despite the manifest inadequacies entrenched within the police identification process, the jury was instructed that the ‘prime issue’ for their determination was whether or not to believe the policemen. The incompleteness of their knowledge as to the policemen’s conduct clearly hampered their deliberations, and the denial of their request for a magnifying glass limited their ability – however crude – to test the veracity of the police testimony. It is the skewing of the central issue that concerned the High Court when they came to consider the Smith case: Gleeson CJ: Byrne: Gleeson CJ: Byrne: Gleeson CJ:

The photographs show him hooded on some occasions and not hooded on other occasions. Yes, certainly, your Honour. Some of the photographs appear to give a quite clear view of his face. I suppose, your Honour, that is a question for determination. Yes, that is a jury question. (High Court transcript: 3)

The Crown, however, argued that it could not be a jury question because of the poor quality of the photographic evidence. Because the evidence was imperfect, the Crown argued, the identification could not be left to the jury and needed to be made by a person ‘well acquainted’ with the person in the photograph:

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I am beginning to see why the judge or the Crown at the trial thought that there were sufficient imperfections in the photographs to allow them to be the source of identification. I mean, if one looks at the photograph . . . the one with the hood near the bank automatic teller machine, it does not look like the photograph, exhibit N, to me, of the accused. It seems a more angular shaft of face, which – Crown: Your Honour, this is the point of evidence of persons who are well acquainted with the person in the photograph . . . it may well be that for a stranger it is quite difficult to make an identification from a photograph, but for the person who is well acquainted – Gummow J: What about a juror? We are going round and round in some rarefied whirl, and I just do not understand it. Crown: Well, your Honour, it may be difficult for the juror for the same reason. Gummow J: Well, we are doing it. Crown: Your Honour is looking at it. Your Honour does not have to make the – Gummow J: Well, you are inviting us to look at it for a purpose. Crown: For the purpose, your Honour, to say that they are certainly clear enough for a person who is well acquainted. Kirby J: Well, you say that, but you must understand that the prejudice and the dangers that that has – say, policemen in Redfern who have dealings with particular accused people – I mean, it is pregnant with danger and with prejudice. (at 27) Kirby J:

Justice Kirby’s allusion here to a viewing position that is dangerously ‘pregnant’ arose also in Siegfried Kracauer’s essay, ‘Photography’. Writing on Proust’s claims about the distorting effects of love upon vision, Kracauer identified ‘emotional detachment’ as the purported virtue of the photographer. This detachment, the lack of love, enables an abundance of clear vision: ‘They may perceive anything because nothing they see is pregnant with memories that would captivate them and thus limit their vision’ (Kracauer, 1980: 258, emphasis added). The pregnant image is a dangerous image, because it is carrying something extra, something undesirable. It cannot be emotionally detached, because something is attached. And because it gives more than a clear view, it is less than safe. Justice Gummow remained concerned that the jury was not allowed – indeed, was prevented – from testing the police testimony by comparing the photographs with the accused in the dock: Gummow J: The jury can look at him [Smith]. They do not have to hear

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him. They do not have to see him walk. They do not have to do anything but look at him . . . Crown: Except . . . if films or photographs taken in these kinds of circumstances are not, themselves, extremely sharp, then their use will be effectively nullified – Gummow J: Why? Crown: Because the jury will not be able to make an identification from those, whereas, in fact – Gummow J: Well, they were trying to make a fist of it here and they were prevented from it. Crown: This is not, your Honour, can I say, the ideal case from that point of view. Gaudron J: And it may be no bad thing that it is effectively nullified. The notion upon which criminal law proceeds is that people are not guilty unless it is proved beyond a reasonable doubt, and if it cannot be proved beyond a reasonable doubt, then so be it. (at 30) Chief Justice Gleeson had other questions that may or may not have affected a jury’s ability to recognise Mundarra Smith from the photographs. First, he wanted to establish whether there was any additional significance that flowed from the fact that, in looking at photographs from a bank security camera, the jury was determining if Smith was perpetrating a crime in the bank. Chief Justice Gleeson said: Well, the question of whether Mundarra Smith was at the National Australia Bank at Caringbah on 26 June 1997 is a question that could be relevant to an issue in a whole variety of kinds of litigation, not necessarily a question that only arises because it is alleged that Mundarra Smith happened to be robbing the bank at the time. One thing I would like to get clear in my mind is what, if any, difference it makes that the question is being looked at by us in the context of an allegation that he was there robbing a bank. (at 29) The Chief Justice then went on to imagine a series of possible scenarios – none of them involving criminal conduct – in which it might be necessary to know whether or not Mundarra Smith was in that bank at that time. Smith, in these scenarios, was not present in court, and a bank security photograph is tendered into evidence in an attempt to establish whether or not he was in the bank: And then he [the nominal litigant] calls a witness – and Mr Smith may be nowhere near the court for anybody to compare his features with the

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photograph, he calls a witness who says, ‘I am well acquainted with Mundarra Smith.’ The next question that arises is, ‘What further evidence can that witness give?’ It seems to be agreed that the witness can say, ‘Mundarra Smith is a person of Aboriginal appearance who commonly dresses in an Adidas tracksuit and owns a distinctive peaked cap of a certain kind and is about six feet tall and is about 25 years old and weighs about 12 stone.’ A question that we may have to answer is whether the witness can go on to say, ‘I am well acquainted with Mundarra Smith’ – perhaps, ‘I am Mundarra Smith’s mother, and I recognise the person in the photograph as Mundarra Smith.’ Now, does the answer to that question depend on such things as whether Mundarra Smith is present in court for a judge or a jury to compare him with the photograph? (at 29) In separating the issue of identification from the issue of criminality, the Chief Justice probed the component parts that together amount to recognition. In the case of Mundarra Smith, acquaintance with him appeared – in the schema proposed by the Chief Justice – to entitle a witness to note his Aboriginality, height, weight and manner of dress. These qualities alone would be sufficient – if presented in a manner permitted under the rules of evidence – to lead an acquainted person to recognise him – or, precisely, recognise these features – from a photograph. What the Chief Justice left out of his equation, deliberately, was the issue of whether someone acquainted with Mundarra Smith’s prior criminality, when looking at a photograph in which criminal conduct is taking place, was making their recognition on that additional feature or characteristic. This is because his prior criminality was the source of the policemen’s acquaintance with him, and refusing to test the difficulties associated with that type of acquaintance must limit the independence or neutrality of the recognition. Of course, the Smith case fits into a particular genre of looking, a mode of inspection that aims to fulfil a certain fantasy. Criminality is central to this image. If, in the photograph in question, there were no transgressive Other, there would be nothing in it that would generate this fantasy. Equally, in Chief Justice Gleeson’s hypothesis, there is no analysis of the dangers associated with asking the mother of the accused if she recognises her son. Chapter 4 ‘The mother’s trouble’ explores this question further. The significance of showing her a photograph of her son in different scenarios must be interrogated. Would she recognise him in the photograph if he were at a family gathering, surrounded by his siblings? Would she recognise him in the photograph if he were a missing person? Would she recognise him in the act of robbing a bank? Whilst not suggesting that a mother – or indeed any class of witness – would deliberately give true or false recognition evidence to achieve a desired outcome, the context in which the recognition is required

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must always, even if subliminally or subconsciously, affect the recognition. Because the context in which we make a recognition, the context in which we are invited to look is always affected by factors outside the spectrum of vision. In John Tagg’s analysis of photography in legal contexts, he wrote about visual images of criminals, and the way we are invited to extract from the images the fundamental features of criminality: What we have in this standardised image is more than a picture of a supposed criminal. It is a portrait of the product of the disciplinary method: the body made object; divided and studied; enclosed in a cellular structure of space whose architecture is the file-index; made docile and forced to yield up its truth; separated and individuated; subjected and made subject. When accumulated, such images amount to a new representation of society. (Tagg, 1988: 76) Compounding the Chief Justice’s speculation about the impact of criminal contexts upon visual recognition, Tagg here raised for us the possible impact of photographic images of criminals upon our ability to see. For the juror, for the mother of the accused, for someone who has perhaps never witnessed a bank robbery, these photographs are not neutral: they instruct and they affront. For the person well acquainted with such crimes, perhaps for bank employees who have been robbed repeatedly, these photographs taunt and violate. And for the police officers, who look at such photographs in the course of their everyday duties, these photographs confirm something that they already know. And for all of these people, when they inspect a photograph of a bank robber in the act of crime, the photograph is evidence of social consensus about the fantasy genre: bank robberies look like this. The Chief Justice was additionally interested in the effect upon the jury of the defendant’s appearance whilst sitting in the dock. As well as considering the possible effect upon a juror (or anyone else) of the recognition being made in the context of criminal proceedings, the Chief Justice sought to scrutinise the effect of recognitions or identifications that are made in the courtroom. First, the purpose of his inquiry was to satisfy himself that a jury would, if necessary, be able to note any changes in the appearance of the defendant between the time of arrest and the time of the trial. For this reason, an exhibit was tendered into evidence that was a photograph of Mundarra Smith taken on the day of his arrest. To explore any possible changes in appearance, Chief Justice Gleeson said: But, so far as we know, there was no beard or moustache grown or no hair shaved or no relevant feature of the appearance of your client at the trial that made it difficult to compare him with the

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photographs, except such difficulty as might have arisen from the photographs themselves. (at 18) Second, the Chief Justice wondered about the possible benefits to appellate courts of being able to assess visually certain elements of the trial under appeal. He ruminated upon this to counsel for Smith: The time will come, you know, Mr Byrne, and the time has come in some countries where an appellate court considering a matter like this will have in front of it a picture of the accused. The time will come and the time is here, in some jurisdictions, in which the trial will be videoed and the appellate court will observe the demeanour of the witnesses in the box. What the consequence of that will be is another interesting question but there are some places in the world now where trials are videoed as a matter of course and the witnesses who want to do so can buy the video tapes of their evidence, perhaps even buy all the video tapes of their evidence. (at 18) One intrigue devolving from this digression is the Chief Justice noting that witnesses may be able to buy tapes of their evidence. Two meanings suggest themselves here. To buy the tapes conjures the notion that there is a market in evidence, that testimony has become a commodity. Buying the tapes enables witnesses to watch themselves on the screen, to see themselves, repeatedly, in their moment under the spotlight. The exotic allure of being an image renders one more than human; when one is imaged, pictured, one is famous. Law’s celebrity. The alternate inference arises from the comment that the witnesses might buy all the tapes. Here, one’s testimony becomes a source of infamy and shame. Buying all the tapes exhausts and eliminates the market, removes them from view. One’s testimony then becomes invisible. It is erased. In his comment here, the Chief Justice also identified demeanour as an important element of witness testimony. It suggests that he wished visually to confirm – or oversee – the jury’s or the trial judge’s assessment of the witness’s demeanour. This leaves open the possibility that an appellate court’s assessment of a trial may be affected not only by the words spoken in testimony and available in the transcript, but by factors such as the demeanour, even gesture and style, of the person speaking. Of course, the video tape of the trial would also enable the viewer to scrutinise the demeanour, style and appearance of the accused, sitting silently in the dock. The following exchange raises additional questions about visual knowledge: Byrne:

[A]t the end of the evidence in the trial, when the jury went to consider their verdict, the jury had spent a considerably longer

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Gleeson CJ:

period of time in the presence of the accused than either of these witnesses had. In the case of one witness, he had seen him approximately half a dozen times for a period of a couple of minutes on each occasion. Yes, that is what is troubling me at the moment. I am puzzled a little about that and that is [why] I wish we had a video of this trial. I am not sure whether Mr Smith was sitting before the jury in a navy blue suit with a white shirt and a tie on and manicured fingernails or whether he was sitting with an Adidas tracksuit top on in a more customary manner of dress for him, but there is nothing in the evidence that seems to suggest anything turned on that. (at 46)

The Chief Justice did not seem to find problematic the idea that he sought to compare the epistemological value of one kind of visual evidence (photographs) with another (video). His comment contained the assumption that from looking at the accused (or, actually, looking at a visual representation of the accused), and, specifically, from seeing how the accused dressed and groomed himself for his court appearance, the jury and the Chief Justice would be able to extract some sort of ‘knowledge’. That knowledge would establish for the jury if Smith was correctly identified from the bank photographs by the police. And that knowledge would establish for the Chief Justice if the jury were correct – or, at least, if the jury were well placed – in making the comparison. Additional troubles emerge from the suggestion that a well-groomed man in a suit does not look like a casually dressed man in a bank, raising the foundational question: What does a criminal look like? Is a tracksuit-wearing defendant a likelier bank robber than a business-suitwearing defendant? Or is a tracksuit-wearing defendant more likely to look like the bank robber in the photograph? If so, is it the defendant that is being recognised? Or his tracksuit? Or the criminality we assume appends to someone who dresses like that? The speculation by the Chief Justice about how Mundarra Smith might ‘customarily’ dress, and the suggestion as to how Aboriginal defendants ought to dress recalls an historical case in which the bar and bench pondered this same question. In 1965, the Commonwealth Conciliation and Arbitration Commission in Australia heard arguments as to whether or not male Aboriginal pastoral workers should be included in the Northern Territory Cattle Industry Award in order to receive equal pay and conditions as non-Aboriginal workers.14 The full bench visited a cattle station in Arrernte 14 The case is cited at 113 CAR 651. The discussion quoted here was between Chief Justice Kirby, later Sir Richard Kirby, and counsel for the pastoralists, John Kerr QC, later a Justice of the Industrial Court and, between 1974 and 1977, the Governor-General of Australia.

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country, near Alice Springs, to hear evidence. The following exchange took place between Chief Justice Richard Kirby and John Kerr QC, who appeared for the pastoral industry: But do Aborigines ever revert to simply the loin cloth they wore in olden days, or do they always wear the dreadful sort of halfworld clothes that we have seen, such as old army jackets, which make them half white men and half native? It seems dreadful that they are either allowed to or encouraged to be neither one thing nor the other in such clothing, as we saw them. Therefore, I have wondered whether, when they go walkabout in the bush, they still dress that way or do they get back to being something like the hunters they used to be? Kerr: I do not think the latter position develops very much nowadays. I made the same enquiry and I was told – perhaps we could ask this question of some witnesses who would know directly – that today there is a tendency to discard clothes to some extent when they get away. Kirby CJ: It would be a good thing if when they do discard such clothing they should get something better, perhaps by issue. I imagine they could be encouraged quite seriously to wear much better garments, if they were available, in order to give some appearance of dignity, not only in our white men’s eyes but in their own, rather than wear those dreadful, shapeless, nonpatterned garments that make them neither one thing or the other. Kerr: I think you see among those who have gone some distance, such as the stockmen, decided improvement; the sort of thing captured by artists’ pictures. Kirby CJ: That sort of thing is very good. Kerr: The impression is a very distinctive kind of stockman’s dress; it might be a bit untidy – Kirby CJ: Not at all. Kerr: It is a very distinctive kind of stockman’s dress which, I think men wear with pride. Kirby CJ: Very much so. Daryl Lindsay’s paintings capture this excellently. Kerr: Yes, Daryl Lindsay depicts it very clearly. (in Rowse: 1991: 3–4) Kirby CJ:

For all their well-intentioned urging of dignity and self-esteem upon the Aboriginal stockmen, more than anything this exchange reveals the court’s attempts to mould the black men into a pre-existing fantasy. The fantasy has already been painted, by a white artist engaged in an elitist, anti-modernist

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nationalist art project.15 The court ultimately decided to include the stockmen into the award, and we may speculate that this is, in part, because they imagined that the stockmen – if only they had better clothes – would ably play their ascribed role in the fantasy. Chief Justice Gleeson’s final phrase in his own sartorial reverie is perhaps the most revealing: ‘there is nothing in the evidence that seems to suggest anything turned on that’. Of course, there will never be anything in the evidence to suggest that what the jury was really looking at was a casually dressed black man who looked, to them, like the hooded bandit recognised by the police. The suggestion will never be explicit that, from his dress, from his demeanour, from his Aboriginality, from his nexus to Redfern police, a conclusion can be drawn. These thought tangents must always be unspoken, unacknowledged, perhaps even unknown to the thinker. They exist nevertheless in the genre that makes these thoughts speakable from the bench of the High Court. In Smith’s trial, Judge Latham summed up for the jury, giving a warning about the use of photographic evidence in criminal trials. (She also warned the jury about the use of police evidence, ostensibly to limit the possibility of unfair prejudice: ‘I want you to keep firmly in mind that the fact that this accused has been identified by a police officer cannot be used by you to infer anything adverse to the accused. It doesn’t mean anything at all’ (District Court transcript, in Appeal Book: 121).) Her summary to the jury was lengthy. At one point she said, ‘the experience of the courts is honest witnesses can be mistaken when it comes to identification of persons from photographs’ (at 190). Later, she added, ‘The one-dimensional nature of photographs is always less satisfactory than the three-dimensional nature of an identification parade where an identifying witness can observe the person in the flesh, as it were’ (at 198). This does not accord with one of the submissions made by the Crown before the High Court. In addressing the question of relevance, Michael Sexton, senior counsel for the Crown said that one way of addressing that question was ‘to say that there is no difference between looking at . . . these photographs, extracted as they are from the camera at the bank, than being on the scene as a bystander, evidence that must be admissible’ (High Court transcript: 29). Whilst this claim is provocative for a number of reasons, some of them discussed earlier, the suggestion that there is no difference between being an eyewitness and looking at a photograph is emphatically disproved by what happened in this case. All theoretical analyses of photography aside, 15 Daryl Lindsay (1889–1976) was an artist and director of the National Gallery of Victoria (1941–56). His large and well-known family of artists and writers, the Lindsays, were practitioners – with differing levels of enthusiasm – of bohemianism, elitism, anti-modernism, anti-semitism, anti-provincialism and anti-wowserism. See Davison, et al. (1998); Serle (1983).

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the difference here was that the eyewitnesses could not say what they saw. Either they could not or they would not. The police, however, apparently could and certainly did. Whilst conceding that photographs are less satisfactory than line-up parades in making identifications, Judge Latham accepted from Senior Constable Rotsey, who was running an aspect of the investigation, the following explanation for why a line-up did not take place, despite Smith agreeing to participate in one. Rotsey testified: Because it was my opinion that witnesses to the offence did not have a satisfactory view of the offenders’ identifying features to warrant conducting an identification parade. That was the main concern . . . The second concern is that particularly on that task force which I have been attached to for some time, we were charging a very large number of Aboriginal and Islander offenders and have had numerous attempts at obtaining members of the public to take part in these identification parades and to this date I have not been successful in successfully getting enough offenders with a similar appearance, to successfully hold an identification parade. (District Court transcript, in Appeal Book: 135) Aside from the interesting slip, in which Rotsey conferred ‘offender’ status on members of the public who are Aborigines or ‘Islanders’, his explanation made additional disclosures. First, he claimed that eyewitnesses to the robbery could not recognise ‘identifying features’ of the perpetrators. However, none of the police officers who were called to give identification evidence was able to nominate identifying features, apart from the unexplored mention by Senior Constable Crampton that Smith has a ‘prominent nose’. Second was his assumption – vindicated in part by the District Court’s acceptance of his explanation – that the difficulty in finding volunteers to participate in a lineup parade should disentitle black defendants from protections explicitly required by the rules of evidence. Thirdly – and this is never explained in any of the cases in which line-up parades are convened – is the implicit expectation that members of visible minorities ought to participate in policing practices that expose them to the types of epidermal examination and corporeal scrutiny by which so many of their communities are criminalised. To volunteer to line up with a group of people all of whom, in the eyes of a police officer, look more or less like the offender described by an eyewitness, is to collaborate in a managerial fantasy cast from a racialised epistemology where, by looking and comparing, we can claim to know something about crime and its perpetrators. Rotsey’s claim – that the eyewitnesses did not get a good look – was pursued by Smith’s counsel before the High Court. The second – that indigenous people would not co-operate – was not. Paul Byrne, senior counsel

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for Smith, describing the quality of the identifications offered by the police officers, said: [E]ach of the two police officers who identified the appellant in the photographs were unable to nominate any identifying feature at all. Theirs was one of those identifications which was one of an instant impression, if you like. They looked at the photo and said, ‘That’s him, I know him.’ The same process of identification might have been used, if it was in any sense valid, with the witnesses to the offence. (High Court transcript: 10) In addition, the problems with the evidence offered by eyewitnesses were raised by Byrne. It created the impression (later speculated upon by Justice Kirby) that the police witnesses were brought in to remedy the inadequacies and ‘errors’ of the eyewitness evidence. Byrne argued: There was, in fact, eight people who were present in the bank, who were shown photographs amongst which was included a photograph of the appellant, but none of these eight people were able to identify in any form the photograph of the appellant. When I say ‘in any form’, there was no witness who said in relation to the photograph of the appellant, ‘Well, that looks similar to’, or anything like that. In fact, two of those witnesses picked out photographs of people other than the appellant as people who were involved and apparently playing the role. (at 10) Reminding us here that this crime is a performance, Byrne described the process of witnesses looking at photographs in order to cast their fantasy. The bank robbers play the role of the transgressive Other who steals our Thing. But injudicious casting is corrected by the police who step in to lead us back into the performance as it was intended. As Justice Kirby put it, ‘the police officer was being used to top-up the photographs because the photographic evidence was not sufficient for the jury’s purpose’ (High Court special leave application transcript: 13). Abigail Solomon-Godeau, in an essay about the American photographer Connie Hatch, wrote, ‘By taking as the very subject of her work the act of looking (or not looking), Hatch draws attention to the warp and woof of power relations as they are inscribed in the operations of the gaze itself: the photographer’s, the spectator’s, and the gazes represented in the pictures’ (1991: 120). This serves as an instructive analogy for this case, where the act of looking (by police, by the jury, by the judges), and the claim of not seeing (by eyewitnesses or victims or, later, by Smith himself) can be evaluated through examining the operation of power as it is distributed by the gaze. John Tagg argued that documentary photography ‘inscribed relations of

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power in representation’ wherein the image is produced for those with ‘relative power’ enabling them to scrutinise the ‘pathetic objects capable only of offering themselves up to a benevolent, transcendent gaze’ (1988: 12). The camera has the potential to command the functioning of a paternal or panoptic state. We see in this bank robbery that it is not only the pictured bandits who must surrender to the gaze of the viewer, but also that the authority to describe the images is vested not in eyewitnesses to the event, but in the police, as agents of the state. The viewing position becomes an analogue of the speaking position. Whilst the photograph does not enable the eyewitnesses to confirm what they have seen, it enables the policeman to confirm what he knows, or suspects, or desires. The photograph distributes power in a preformed matrix, wherein the image itself becomes a tool in the maintenance and consolidation of state supervision and control. The image is corralled into a paternal fantasy in which agents of state power imagine that they manage and sanction prescribed uses of national space. Another reading of the power of the gaze comes from Alison Young, who linked the image under examination with the image of the imagination. She wrote: Imagination, the process by which we make images of crime, recalls the drive of spectatorship; the desire to see which in turn touches the desire to be seen. Seeing the Other is a form of self-representation. In looking at or for the other (the criminal), we represent ourselves to ourselves. The continual repetition and regeneration of crime’s images displays the failure of our imagination of crime to live up to our demands of it (that our imagination of crime should always be crime). (Young, 1996: 15) The image is a crime; looking at it is a perilous practice, loaded with almost limitless potential for danger. Depending on what we see and imagine when we inspect the image, a man may be imprisoned or liberated, truth may be ventilated or suppressed, the violation of capital may be vindicated or forborne. Depending on where we fit within this imaginative discursion, we may see our own criminality (suppressed or unelicited), our own victimhood (manifest or potential), our own parenthood (successful or difficult). When we are called to serve as a juror, we are recruited into the role of the national manager. We may see and imagine ourselves as Mundarra Smith, as the bank customers, as Mrs Smith, but always also as the prosecutors, as managers of national space, realising our own fantasy of being in charge.

Chapter 4

The mother’s trouble

In her book Goliath: Britain’s Dangerous Places (1993), an examination of masculinity in the 1980s amongst the formerly working classes, Beatrix Campbell achieved a radical reinsertion of mothers and motherhood into communities sabotaged by masculinity out of control. Campbell investigated the effects that flow from evacuating welfare services from public housing estates, leaving fatherless families to perform increasingly incendiary responses to unemployment, racial difference, poverty and poll-driven policing. Mundarra Smith’s trial, used here as a prototype for the fantasy practice of policing and prosecuting young men, operates as an ideal companion text for Campbell’s study. On the streets of Redfern and Waterloo, and in the courtrooms of inner Sydney, we meet the difficult adolescent boys whose lives are conducted under the supervisory gaze of the police, and the inconstant gaze of their bewildered mothers. This chapter examines the role of the Aboriginal mother in a managerial fantasy. Chief Justice Gleeson questioned the sufficiency of the role played by Smith’s mother in his trial, suggesting that a jury of Smith’s peers must have been impatient and unsatisfied with the limited testimony she was allowed to provide. He stated, ‘I would say that the jury in this case must have thought it is a very unusual system of justice that deals with this question without hearing from the mother, although she is called as a witness in the case’ (High Court transcript: 8–9). The testimony of Lisa Smith, Mundarra Smith’s mother, illustrates her fraught position. At his first trial she described being called into the police station on the day of her son’s arrest, as she scrambled to do or to say something helpful for her son in trouble: Crown: L Smith:

Crown: L Smith:

You declined to make a statement on that day, didn’t you? Yes, because they flashed all these photos in front of me to say this is your son and do you know the other boys and I didn’t even know the other boys and I didn’t know my son. Pardon? They showed me photographs and said, ‘This is your son, do

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Crown: L Smith: Crown: L Smith: Her Honour: L Smith: Her Honour: L Smith:

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you agree with that’ and I said, ‘Excuse me, I don’t think so’ and I talked to my solicitor. You don’t think so? Pardon? Is that what you said about – I’m not quite sure. You’re not quite sure what you said? When they approached me at Redfern – no, I said I don’t think – no, it is not. You said ‘no, it is not’? I don’t know. I think I just said I’ll talk to my solicitor: (District Court transcript, in Appeal Book: 175)

Lisa Smith was called by the defence to give a type of alibi for her son and she was cross-examined by the Crown about Mundarra’s usual routine on weekdays, to explore the possibility that he was likely to have been elsewhere when the crime was commissioned. What emerged in her testimony, however, was enlightening evidence of her attempt to make a home for her children. The home she described has none of the ‘managerial capacity to command space’ described in the work of Ghassan Hage. Lisa Smith is in charge neither of her home nor of her children in the way that managerial fantasies stipulate. Nor is hers the ‘incredulous terror’ of Homi Bhabha, nor the unheimlich of Freud. The Smith home is an Aboriginal home; as Lisa Smith said, attempting to be conclusive, ‘we are Aboriginal people, the door’s open’ (at 177–178). Her testimony here invokes two possible ways of imagining the home space: open or closed. Lisa Smith claims that her home is ‘open’ because it is an Aboriginal home. In the nationalist fantasy, however, restrictions are placed upon homeliness. Not everyone is welcome, and the Aborigine is emphatically not given the role of host. The colonial home is ‘closed’. Rosemary Marangoly George wrote about contemporary representations of home in post-colonial narratives as dependent upon ‘exclusions’. Homes, she observed, ‘are not about inclusions and wide open arms as much as they are about places carved out of closed doors, closed borders and screening apparatuses’ (George, 1996: 18). Significantly, exclusion and enclosure are the central concepts of property law, which itself constitutes the dominant discourse employed to disentitle Aborigines from claims to belonging, possession or management. The distinction between the post-colonialist fantasy of exclusion and Lisa Smith’s evidence of welcome offers a clear image of the fantasist’s opportunity for colonisation and dispossession. The Aboriginal home-owner has left the door open; the colonist has abused her hospitality, adopted managerial presumptions, and unhomed the host. In the practice of indigenous displacement, Lisa Smith is asked nevertheless to account for her son’s whereabouts, to defend her home-making practices.

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Cross-examined by the Crown about Mundarra’s usual routine, Lisa Smith testified, ‘He probably would have been at home. Like his usual thing is to be at home with me on a Wednesday, Thursday to do the shopping, to get his money for his allowance that I usually give him, I give all my children, my four children’ (at 176). Lisa Smith and her children lived in Rooty Hill, a suburb on the western fringes of Sydney. The Crown was attempting to prove that Mundarra Smith had left home two years ago to live in the Redfern/ Waterloo area, where he was unsupervised by his mother, in an attempt to discredit her alibi evidence. Lisa Smith’s answer was, ‘I’m a mother. My door is open every minute of the day for my children. I’m a mother and my door is never closed. They can move out but that door is always open to come back in’ (at 177): Crown: L Smith: Crown: L Smith:

I’m suggesting to you that he lived in the Redfern area. No – I don’t know – but he was mostly at home with me. What do you mean you don’t know? I don’t know. (at 177)

Twice in her testimony Lisa Smith invoked the image of the open door. The first time, she claimed that the door is open because the Smiths’ is an Aboriginal home. The second time, her door is open because she is a mother. In both instances, the suggestion is that non-Aboriginal people and nonmothers might close their door on their children. Whether or not Lisa Smith posits a superior, or simply an alternative, ontology of homeliness operating within her own home, it is clear that the strategy of the Crown was to defeat her testimony on the grounds that she practises a failed mode of homemanagement. In the competing homely practices presented to the jury, the prosecution argued that Smith’s mother could not know where he was because he was not at home, whilst Lisa Smith claimed that, wherever he is, he is always also at home. Continuing to probe the mother’s capacity to account for her son’s whereabouts and conduct, the Crown put to her the suggestion that Mundarra was renting a room in a Waterloo house with his girlfriend. His mother testified: May/June, he stayed there – that’s his father’s relation – we are Aboriginal people, the door’s open . . . I always tell my children pay your way. You can rent your room, give them money for board if you have to stay there for a time if it is too much for you to come home to your house, my house. You give them a loaf of bread or pay some money to help them out. (at 177–178) This is not an alibi for her son, but a defence of her own parenting. There is

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really nothing in Lisa Smith’s testimony that stands as an alibi for the charges faced by her son. Whilst it appeared to have been her intention to state that her son was unavailable for a bank robbery because he was helping her with the shopping, what was adduced instead was testimony that she did not raise her children to be free-loaders. The Crown challenged her reliability as a witness: ‘You really don’t know where he was living’, ‘You don’t have any idea’, ‘Mrs Smith, do you know who your son is friends with in the Redfern area?’, ‘You don’t know who he mixes with?’ (at 178). The inference from these questions is that the Crown was challenging her reliability as a mother, an inference that Lisa Smith recognised. ‘Yes, I do. I have a lot of idea. I have four beautiful children and I know exactly where they are and where they’ve been’ (at 178). What arose, however, was that she did not always know: ‘He wasn’t at home every Wednesday and Thursday with me every day, you know, but mostly a lot of times that’s our routine’ (at 179). Judge Latham sought to clarify something Lisa Smith had said: ‘What do you mean by “his usual thing was to come home Thursday and Friday”. Come home from where?’ L Smith: The usual is he’s home with me. Latham J: But you said the usual thing was for him to come home Thursday and Friday. L Smith: Or to be home. (at 180) In these pages of the transcript we find the defendant’s mother attempting to account for her children, for their whereabouts, for their upbringing, for her own capacity to be a mother, for making a home for her children to come home to, or to be home in. During this brief part of the trial, it appeared – at least in the view of Lisa Smith – that her mothering was on trial. Motherhood, as identified by Martha Fineman, is ‘a colonized [concept] – an event practiced and experienced by women but occupied, defined, and given content and value by the core concepts of patriarchal ideology’ (in Roberts, 1995: 116). The ‘good mother’ is a woman who ‘guides, supports, encourages and corrects’ her children (Kline, 1995: 119); she is responsible for the ‘proper care and government of her children’ (Carrington, 1993: 79). The ‘bad mother’ deviates from this path; in one analysis she is constructed as the ‘photographic negative’ of the good mother ‘with the operation of racism and other such factors rendered invisible’ (Kline, 1995: 122). The bad mother, in Marie Ashe’s analysis, is constructed in opposition to her ‘innocent child’, who requires rescue from the damaging home she provides (1995: 152). For Alison Young, in her study of children who kill, the bad mother is regarded as being the maker of a criminogenic home, either through her ‘absence and indifference’ or her ‘suffocation and excessive, limitless presence’ (1996: 124). The bad mother, in Young’s analysis, either loves too little or too much.

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Love also complicates our capacity to look at photographs, always implicated in the processes of family, nostalgia, memory and yearning. Marcel Proust, in The Guermantes Way, described certain eyewitness experiences as feeling like photographs: The process that mechanically occurred in my eyes when I caught sight of my grandmother was indeed a photograph. We never see the people who are dear to us save in the animated system, the perpetual motion of our incessant love for them in its vortex, flings them back upon the idea that we have always had of them, makes them adhere to it, coincide with it. (in Kracauer, 1980: 258) What he saw when he saw his grandmother before him was a photograph of his grandmother; he saw her the way he wanted to remember her and also the way he imagined her. Siegfried Kracauer, examining this extract, wrote, ‘Proust starts from the premise that love blinds us to the changes which the beloved object is undergoing in the course of time’ (1980: 258–259). Here the difference between seeing someone and seeing a photograph of someone is an operation of love. Love distorts what we see; love is the undisclosed reason why Lisa Smith, when called to her son’s defence, was not shown the bank security photographs. The assumption, discussed later, is that love may have blinded her to the purported truth of her son’s banditry. Susan Sontag, in her reading of Proust’s use of photographs, wrote that in using them as instruments of memory, Proust ‘misconstrues what photographs are: not so much as instruments of memory as an invention of it or a replacement’ (1971: 164–165). This raises for us the perilous possibility that photographs, more than enhancing or stimulating memory, actually manufacture memory. When Pierre Bourdieu wrote about photography’s role in nostalgia, he was alluding to its potential for meaning beyond itself: ‘The person photographed is placed in a setting which is primarily chosen for its high symbolic yield’ (1990: 36). The setting already exists. The bank, our symbolised fantasy space, lies in wait. The bandit walks into it and is photographed. This event yields disputes over motherhood, crime, security and property. The camera attempts to resolve these without the interference of love, love being an impediment to vision. Kracauer wrote, ‘The ideal photographer is the opposite of the unseeing lover. He resembles the incriminating mirror; he is identical with the camera lens’ (1980: 258–259). Lisa Smith was not shown the photograph in the courtroom because the law cannot control the impact of her motherhood upon her inspection of the photograph. The examination of Lisa Smith by the Crown did not fit her snugly into either the ‘good’ or the ‘bad’ category of mother. In her testimony, she was presented as an effective mother: she has four children, she has provided them with a home. She has a job. Her children are expected to do chores in return for an allowance. She has raised them not to sponge off those

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who give them care. She claims to know where they are, and where they have been. She presents clearly as a mother who knows what is expected of her. The trouble with her, the trouble that the Crown sought to expose in order to advance the prosecution, was that she was unable to provide the evidence her son needed to answer the case against him. Her evidence did not counter the ‘truth’ of the photographs, the ‘truth’ of the time and date of the robbery with some commensurate truth that would place her son elsewhere. Lisa Smith’s evidence was not probative of her son’s whereabouts on the day of the robbery. Pierre Bourdieu interpreted photography as a practice intrinsic to rituals of everyday bourgeois domestic life. Photographs, for Bourdieu, capture ‘good moments’ and transform them into ‘good memories’. They are a ‘festive technology’ for preserving the special occasions – ‘the most euphoric and intoxicating moments’ – through which a family celebrates and regenerates itself (Bourdieu, 1990: 27). Photographs eliminate individual secrets within a family, uniting them by preserving a common history, the imagery for their nostalgia. Whilst Bourdieu was writing about a different genre of photography than that at issue in Mundarra Smith’s trial, his analysis invites reflection on the role of these security photographs in the Smith family. It is difficult to resist the speculation that the surveillance camera has constructed an alternative album of memories for the urban indigenous family. Whilst for Bourdieu ‘there is nothing more decent, reassuring and edifying than a family album’ (1990: 31), this collection of photographs is violent and terrifying, threatening to unravel the Smith family. The images collected here and shown briefly to both mother and son on the day of Smith’s arrest, ask the Smith family to see themselves as a house of transgression and dysfunction. Showing the photographs to Smith’s mother forces us to consider a domestic reading of photographs that would otherwise seek to occupy another genre – the security genre – employed in managerial fantasies supported by rhetorics of ‘evidence’ or ‘truth’. The bank robbery, captured by the surveillance camera, becomes the intoxicating moment in which the family’s future hangs in the balance. That this family’s photo album is compiled by a private security firm contracted by the National Australia Bank confirms the practice of patriarchal intervention into Aboriginal family life, frustrating the family’s attempts at an autonomous, independent existence. The Australian video and performance artist, Denis Beaubois, whose work comments on surveillance technologies, offers an ideal intervention here. One of his 1996 works, titled ‘ATM Family Portrait’, documents a visit with his parents to an automatic teller machine in the Kings Cross area of Sydney. Their visit had ‘the aim of obtaining a family portrait from the covert camera hidden inside the ATM’. As his father conducted a transaction – triggering the camera – Beaubois and his mother smiled at the machine. In one frame Beaubois, performing one of the hallmarks of his work, raised a sign to the camera with his name printed clearly on it. In this frame, the family is

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captured: simultaneously they are located, monitored, accounted for, named. The Beaubois family participated in their capture in an attempt to turn the technology back upon itself; to subvert the function of the machine. Beaubois wrote, ‘The prints were obtained through rigorous liaising.’ 1 ATM FAMILY PORTRAIT – On the first of July 1996 my parents and myself went to an automatic teller machine in Sydney’s Kings Cross with the aim of obtaining a family portrait from the covert camera located inside the ATM. A transaction was made and the Beaubois family were photographed. The prints were obtained through rigorous liaising.

Denis Beaubois, ATM Family Portrait © Denis Beaubois

In an analogous subversive strategy, Lisa Smith, through her testimony, challenged the role of the mother in law. For both the Crown and the defence, ‘mother’ is used as a legal category. Motherhood is limited. Either a mother 1

Key works by Denis Beaubois are accessible at http://dirtymouse.net/surv/. In his work ‘Memorial Action’, he stood in the forecourt of the Sydney Opera House with a sign pinned to his back that read: ‘Please place me in your photographic album’. Beaubois wrote: ‘The work becomes complete when the viewer follows the instruction on the sign and the resulting snapshot is placed in their photographic album.’

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provides an alibi for her son, or she does not. But Lisa Smith did not say whether or not her son was shopping with her whilst the bank was being robbed. Instead, she told us something else, something that the law does not wish to recognise as evidence. She told us about the familial economy, about a door that never shuts out her children. Here she became law’s excess: unlimited and irrational. Nevertheless, because the court believed it was considering the value of her ‘alibi’, her testimony was admitted in the presence of the jury. What she said about herself, her son and her family was uncontrollable once it was heard by the jury. She was there out of love and maternal duty. In Jennifer Mnookin and Nancy West’s reading of the role of mothers in narrative cinema, in particular a film in which a mother is invited to examine evidence of her son’s criminality, they identified a ‘gendered opposition between faith and proof’, stating that ‘[t]he mother requires no evidence at all’ (2001: 352 at n72, 351). Lisa Smith had no way of proving her son was not in the bank when it was robbed. Her presence at his trial was evidence of her motherhood. Smith has a mother. The Smiths are a family. In her testimony, she was telling the jury: We are people like you. We are not what you imagine us to be. Lisa Smith had not seen the photographs since the day of her son’s arrest. No one in the courtroom had asked her to look at the photographs of the bank robbery and state whether or not – in the opinion of a mother – her son was depicted in them. And it is for this unasked question that the High Court sought an account. Smith’s senior counsel, Paul Byrne, explaining her silence to the High Court, referred to the dangerousness of this question, alluding also to the dangerousness of the mother’s role in the criminal defence of her son. He stated: One of the difficulties with [asking the mother to look at the photographs] is that the mother’s ability to make some assessment, to give her opinion of what is depicted in the photograph is, in a sense, dangerous because it is going very close to a presumption that that is him in the photograph, and she is able to say something about it. (High Court transcript: 8–9) For Byrne, it is her opinion that is dangerous. But for a jury it is her self, her motherness, that poses the greater danger to Mundarra Smith. He is the unruly son who has gotten into trouble. She is the mother who cannot help him. It is not surprising that, illuminated by the work of Beatrix Campbell, Kerry Carrington and Alison Young, we see once again the articulation of single motherhood as a criminogenic category. Lisa Smith could not say – because she was not asked – whether her son was the bandit in the photograph. All that was adduced from her evidence, all that the jury could be

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confident about, was that she is Mundarra Smith’s mother, and that she is here today trying frantically to save her son. Of course, she was not asked – neither by prosecution nor defence – because her answer – if she were able to give it – would be definitive. Byrne continued: If the prosecution were confident that that would be the answer [i.e. that it is him in the photograph], one would have expected them to ask that question of the mother, but it was not asked. They are refraining from asking that question and it must have been based on something, but it is unlikely that they would have simply forgotten that that was available to them. (at 8–9) And herein lies the key. In amongst the dithering about whether or not Lisa Smith knew her son’s whereabouts, or the identity of his friends, one thing is certain from the refusal to ask her the definitive question: if shown the photographs, the mother would know. When the Four Corners programme investigated bank robbing in contemporary Australia, it interviewed Rosemary Stevens, the mother of Anthony Stevens, a convicted armed bank robber who was reported to the police by his mother when she recognised him on the television news from surveillance footage. When asked ‘So you knew it was Anthony?’ she replied, ‘Yes, yes, by the clothes, and by just, the walk, the face, the hair. I just do. A mother knows so much more’ (programme transcript: 8–9). In the face of the mother’s recognition, the law was certain. Stevens spent six years in prison because his mother unlocked the secret in the image. She knew her son’s secret and she disclosed it, in what she described as an act of love. For Rosemary Stevens, it was ‘more than tough love’. She practised ‘tough love’ several months earlier when she asked her drug-addicted son to move out of her home. She saw her son for the first time in months, from a distance, dressed in a way she found ‘odd’ and carrying a bag that was ‘very odd’. That evening, she saw him again on the television news: ‘And I can’t tell you how I knew. I don’t know how I knew that it was Tony. I just did’ (at 7). Going to the police was ‘tougher’ love than she had ever shown before, a love for which she fought with herself: I was ashamed initially, then guilt-ridden. Have I done something? Could I have done more? . . . I guess it took probably a good two years before I started to think I didn’t do it. I don’t think any amount of love is going to stop that. I knew how much I loved him and I also knew that he was worth fighting for. (at 9) For Rosemary Stevens, ‘fighting for’ her son made her surrender him to the

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police; for Lisa Smith, fighting for her son made her resist co-operating: she had seen the photographs earlier but, challenged about her alibi evidence, challenged about where her son lived and who his friends were, challenged about her family routines, Lisa Smith’s uncertainty was her act of refusal. She knew whether or not her son was in the photograph, the court knew that she knew, and she was not asked the question. Instead, the court implicitly adduced something else from her: her refusal to co-operate. In the familial sphere, children are controlled by the managerial gaze of their parents. Parental supervision is required for the family to be regarded as functional within the patriarchal order. This is precisely the reason why the defendant’s mother was called by the defence: to demonstrate the family is functional, that it respects the structures of patriarchal control. Kerry Carrington wrote, ‘the family is a site of government whose destiny is linked in intricate ways to the destiny and social objectives of the nation’ (1993: 89). To call the mother into the witness box is to recognise her as a potential agent of patriarchy and state control. Patriarchal collaboration of black mothers has been the subject of scholarship into the role of women under slavery. The black mother breeds workers for the master. Recruiting the black mother into her son’s defence is therefore a perilous practice. Either she is required to confirm that she promotes patriarchal practices in the governance of her children under her gaze, or she concedes that her gaze is impotent; her son has slipped from her view. In the first instance, she becomes a patriarchal agent. In the second instance, she surrenders her son to patriarchal control without her intervention. But there is a third possibility. Lisa Smith’s testimony confirms that she knows how functional homes operate. She knows what patriarchal familial systems expect from her. She knows what will happen if her son is recognised in the photographs. She has seen the photographs. She knows whether or not her son is represented in them. She practises her unique maternal authority. She knows but she does not say. Revealing the secret in the photograph is law’s fantasy and, using an approach taken by Slavoj Zˇizˇek, the secret is addressed in a social game – solving the mystery – in which representation is deflected by hidden desires and motives. Zˇizˇek plots the social game by analogy with one of its masters, Alfred Hitchcock. One element of the game is that which ‘sees all but fails to grasp the real significance of what he sees’ (Zˇizˇek, 1992c: 72). This is the surveillance camera containing all the answers, but which needs to be cracked open. Another element, the adversary, ‘apprehends perfectly the real implication of the act, but is nonetheless condemned to the role of a passive witness’ (Zˇizˇek, 1992c: 72). This is Mundarra Smith, the silent accused. The final element, the agent, ‘under the guise of simply following the rules of the social game – deals a decisive blow to the adversary’ (Zˇizˇek, 1992c: 72). Playing the game, the law summons the mother to act as the agent – it wants her to deliver the decisive blow – and she does not. Instead, she is replaced by the

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policemen, whose evidence solves the mystery and fulfils the fantasy: the black bandit is convicted. But this mystery has a twist. The High Court silences the agent and orders a re-trial, wherein the fantasy is retracted. The decisive blow is withheld; the mystery is unsolved. All that remains is the camera, omniscient yet mute. But the camera has already intruded into the Smith family, penetrating the domestic enclosure, undermining the managerial capacity of the mother, reminding the Smiths that the surveillance and criminalisation of black men is always everywhere. The Aboriginal mother may lay down the law in her home, but she has left the door open. Law – public law – retains its repertoire of unhomely gestures. At any time, Lisa Smith may be confronted with a grainy photograph and asked, ‘Is this your son?’

Chapter 5

The danger zone

The national fantasy requires a setting, a stage upon which to perform, a space to be occupied, traversed and contested. In this fantasy, a danger zone is located in inner-city Redfern, and the roles are cast from among that suburb’s delinquent youth, a group whose deviance is as famous as it is endlessly compelling, repeatedly captured in tabloid transmissions of the fantasy. Redfern is the notorious black heart of the city. Indigenous people from the bush visiting Sydney for the first time headed to Redfern, knowing they would find camaraderie and welcome. Police walk the streets of Redfern, looking for trouble. Community welfare workers, mental health agencies, drug dealers, public health programmes, each of them finds plenty to do in Redfern. Under the prime-ministership of Gough Whitlam (1972–75) one of the largest urban Aboriginal land grants was made, giving a section of Redfern/Chippendale known as ‘The Block’ to the indigenous community. An indigenous organisation, the Aboriginal Housing Company, was established to act as the landlord and was lauded as an example of self-determination. In the last decade, Redfern has been gradually depopulated of its Aboriginal residents, largely because the Aboriginal Housing Company has relocated tenants to western Sydney, where the availability of affordable housing is greater. The relocation programme has been funded in part by the sale of Redfern properties; the depopulation of Aborigines has coincided with the gentrification of the area, and also its increased commercialisation as Sydney’s central business district crawls south. The removal of the Aboriginal tenants from Redfern is the subject of heated debate within the indigenous community, between those who see it as a violent intervention that exacerbates Aboriginal dispossession, and those who see living standards on The Block as of acute humanitarian concern. Following the Redfern riots in February 2004, when police clashed with groups primarily made up of indigenous youth and some community leaders, the state government Standing Committee on Social Issues undertook an

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inquiry into ‘issues relating to Redfern and Waterloo’.1 The committee’s report announced a new programme for Redfern. The Redfern Waterloo Authority, Redfern Waterloo Plan and Redfern Waterloo Partnership Project were announced,2 and one of the authority’s goals was to ‘consider the impact of the Authority on the future of the Aboriginal Housing Company and the Block’ (Final Report, 2004: 127). Under the leadership of the minister Frank Sartor, the authority was charged with ‘revitalising’ the area through ‘urban renewal’, and the aim of transforming The Block from a ‘no-go zone’ into a ‘landmark’ for the indigenous community (Sartor, 2006). Government spin-doctors shuddered at ‘No Blacks on The Block’-style media pronouncements, and sought diversions in promoting the heritage significance of the railway yards, the expansion of the Australian Technology Park, and celebrating the diversity of Redfern’s cultures. Redfern continues to be a danger zone in the sunny imagination of Sydney, and this zone was scrutinised in the trial of Mundarra Smith, where the suburb’s youth were shown to be subjects of close police supervision. This chapter examines the twin fears of ‘Redfern’ and ‘youth’ in the national fantasy, and law’s attempt to squeeze them into a suburban banking zone, thus creating a crime scene. Concentrating on youth as a public spectacle, the Centre for Contemporary Cultural Studies inaugurated the practice of ‘cultural studies’ with an examination of the dual impacts of class and mass media upon young people in post-war Britain. Known as the Birmingham School, this group of scholars brought a cross-disciplinary methodology to studies that focused initially on youth, gender, poverty, urban life and welfare policy. Stuart Hall and his Birmingham School colleagues, in their foundational 1976 anthology Resistance Through Rituals, explored the ambiguous socio-cultural role of youth after World War II: In the 1950s, ‘youth’ came to symbolise the most advanced point of social change: youth was employed as a metaphor for social change . . . [Y]outh was the vanguard party – of the classless, post-protestant, consumer society to come . . . Social change was seen as generally beneficial (‘you’ve never had it so good’); but also as eroding the traditional landmarks and undermining the sacred order and institutions of traditional society. It was therefore, from the first, accompanied by feelings of diffused and dispersed social anxiety. (Clarke et al., 1976: 71) Resistance Through Rituals and other publications of the Centre for

1

See Inquiry into issues relating to Redfern and Waterloo (2004), Final Report (Report 34, December 2004), Legislative Council, Standing Committee on Social Issues. 2 www.redfernwaterloo.nsw.gov.au/index.html.

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Contemporary Cultural Studies were interested in mass media representations of young people: ‘youth now played the role of symptom and scapegoat’ (Clarke et al., 1976: 72). Dick Hebdige identified representations of young people in popular media as either ‘trouble’ or ‘fun’ and, in either event, condemned for hedonism (in Walton, 1983: 68; see also Hebdige, 1988). All of these claims about youth form the basis of the many pathologies and aetiologies of deviance and delinquency that dominate youth studies. Scholars of collective youth behaviour, like the Birmingham School, imply that counter-hegemonic resistance is the only aspect of youth culture worth investigating (hegemony being exerted by both bourgeois and adult culture). At the centre of these studies is an assumption that ‘youth’ can be understood through its rituals. They imply further that those rituals offering the richest sources of youthful behaviour are found in working-class street culture, the ‘spectacular’ conduct of misbehaving boys, whose rituals are objects of community fascination and concern. These studies focus upon the style, the image, the argot, the spectacle of being young, being a member of a group and, more often than not, being male.3 It is precisely the same formulation of youth that was under examination in the trials of Mundarra Smith, Jason Morris, Lee West, Guy Gardner and their respective co-defendants. It is only when these adolescent boys and young men collectively, publicly, spectacularly get up to no good that we notice them at all. Whether clashing with police outside the railway station in Redfern (February 2004), or in the streets of the sprawling housing estate at Macquarie Fields (February 2005), or on the beach at Cronulla (December 2005), or anywhere in the world where two or more models of masculinity confront each other for the cameras, we endlessly consume images – demand more images – of male deviance. As emerged in the trial of Mundarra Smith, law and popular socio-legal discourse remain fascinated with – and repulsed by – the collective misconduct of boys and young men. By way of illustrative confirmation, consider Idiot Box, the 1997 Australian film by David Caesar. As a popular culture narrative and successful feature film, Idiot Box represents several days in the lives of two fictional adolescent white boys confined to the outer suburbs of a nameless Australian city.

3

Chapters in Clarke et al. (1976) include themes such as ‘Cultural Responses to the Teds’, ‘The Meaning of Mod’, ‘The Skinheads and the Magical Recovery of Community’, ‘Doing Nothing’, and ‘Style’. The subcultural approach was also the subject of Hebdige (1979). Australian work on youth subcultures includes Cunneen and Lynch (1988), Stratton (1985) and (1992). Walker (1985) and (1988) has written two important historical studies of Australian male youth. The 1988 article is about the Mount Rennie rape case, which aroused a moral panic about ‘larrikins’, out-of-control young men in the Redfern, Waterloo and Moore Park area in 1886–87. Two noteworthy studies of female youth culture reveal that girls tend not to be theorised in subcultural groups, but rather as a mass of potential consumers: Johnson (1989) and Bailey (1988).

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Bereft of prospects for attaining any of the badges of white adulthood – employment, property, family – Mick and Kev resolve to make their own mature masculinity through crime. They are going to rob a local bank. During the closing credits of Idiot Box, Mick reveals a fear of living beyond ritual youthful misconduct. Closely resembling the unemployed, fatherless boys described by Beatrix Campbell, Mick occupies his time drinking, watching television, loitering at the bottle shop, and planning a bank robbery with his best mate, Kev. These mythically ‘typical’ pastimes define Mick’s ‘spectacular’ public life. As the credits roll, he recites one of his poems; one of Mick’s less typical pastimes is composing spontaneous poems: Hey, I got a poem for ya. It’s called ‘Quiet’: When I get home, I put the telly on for the noise. I hate the quiet. I fucken hate it. Mick’s poem reveals his fear of privacy, invisibility and silence. In contrast to ‘the quiet’, the public world of boys and young men is characterised by ritual and display. The performance of being a boy in public reveals a wealth of cultural codes and formulae. A possible extrapolation of the Birmingham School’s approach is that, because of twentieth-century movements to contain youth in socio-cultural and consumer institutions, much of the life of young people is lived publicly, visibly, under the surveillance of adults. Meanings attach to public youthful behaviour, and the attempts by young people to conduct public lives provide opportunities for creativity and resistance. Mick and Kev, in Idiot Box, learn how to rob banks from television, and Kev identifies the typical errors made by failed robbers: Every fucken movie, there’s five things they do when they’re robbin’ a bank . . . They tell their missus. Or they fucken piss off some crim who goes to the cops. Or they don’t have a proper plan. Or they get on the piss. Or they get all fucken emotional . . . Five. Kev is caught between wanting to do something, and wanting to do nothing, because he does not know quite what to do. At the cusp of manhood, but without the attributes that will push him over that boundary, he begins to grasp the significance of action. With Mick, he resolves to rob a local bank. Ironically, his quest for manhood-through-crime is hijacked when their bank robbery is sabotaged by a ‘real’, adult bank robber. Kev makes a ‘heroic’ decision to sacrifice his own life in pursuit of the most violent, destructive, hyper-masculine mode of action he can – given his televisual repertoire –

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imagine. He is killed in a stand-off with the police, his brazen homage to the heroic bandit, Ned Kelly.4 It is possible to locate Kev and Mick in a long tradition of folk heroes who emerge from the periphery, who choose to be dangerous, whose resistance has little to do with alienation from the urbane.5 Mick and Kev do not behave as they do because they want to be ‘like us’. Instead, following an argument clearly elucidated by Beatrix Campbell (1993), their ‘problem’ is they have no role models. And in the absence of pedagogy and surveillance, this is the culture that they make for themselves. This is how they transform themselves from forgotten children into spectacular folk heroes. Raised in the blue glow of television that transmits to them but does not monitor them, these boys are hiding in the light (see Hebdige, 1988). Once they step inside the bank, they are under the supervisory spotlight of the concealed camera. Now it is the camera that is hiding in the light; these once-invisible boys – the novice bandits – are exposed and captured. Two Hands (1999) is another Australian bank heist film that can function as a commentary on bank robbing as a national practice. In Two Hands, the hero Jimmy has inadvertently lost $10,000 belonging to a Kings Cross crime boss. He resolves to raise the money quickly by robbing a bank but has no idea how to proceed. His friend Deirdre convenes a meeting at her mother’s home to introduce Jimmy to some bank robbery veterans, Wozza and Craig. Both men’s wives are working that day, so they bring their young children to the meeting. They plan the robbery in a suburban living room with children squabbling over toys in the background: Jimmy: Wozza: Jimmy: 4

You’re givin’ me a shottie? Yeah. Why? You don’t like shotguns? No. Yeah. Shottie’s are good, mate.

The obvious historical reference for Kev’s death is the killing of Ned Kelly. David Caesar commented upon a paper the author presented at the Playing the Man conference at the University of Sydney, November 1998, a version of which was later published in Biber (1999). Caesar insisted that Kev, in Idiot Box, wears a T-shirt commemorating the dead AC/ DC singer, Bon Scott, as a tribute to Scott’s stance as a folk hero, and alluding to the possibility that Mick and Kev also become folk heroes. Caesar added that the sound of bagpipes in the scene of Kev’s death serves as a double tribute to the heroism of both men. 5 Wark (1999) has suggested that Mick has ‘urbane tendencies’ because he is a poet. He debated this idea with David Caesar and Rowan Woods (director of The Boys, 1998) at a seminar called Blood, Lust and Discord at the Australian Film, Television and Radio School in October 1998. Whilst Caesar agreed that there is a degree of alienation that describes ‘the problem’ with Mick and Kev, he also argued that there is considerable agency and creativity amongst the ‘forgotten’ children of Australian outer suburbs. When Wark suggested, in his reading of The Boys, suburbia ‘is evil’, Rowan Woods objected vigorously. Most Australians, Woods argued, originate from and continue to live in the suburbs. To characterise this space as evil based upon extreme acts of sensational and celebrated deviance was a problematic prejudice in Wark’s ‘urbane’ logic.

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Child: Wozza:

Gimme that truck! Kelvin, what’s goin’ on in there, mate? Listen, just be a good boy and share your toys, all right?

Whilst this scene is deliberately comical, the film also makes a clear statement about bank robbing as a vocation, a form of specialised labour enabling a man to support his family. Robbing banks becomes a familial practice, planned in the home with the children – its beneficiaries – nearby. By contrast, the real-life bank robber, Bernie Matthews, interviewed by Four Corners, regarded his crimes as a vocation, but he said that he stole the money for ‘women, grog, gambling’ (extended transcript: 2). In the film, Wozza advises Jimmy about some favoured techniques: Fire off a shot if you like, you know. It’s always good for crowd work. Remember old Bluey, you know, always used to fire a cartridge. Used to shoot the cameras, you know. It was pretty funny. Meanwhile, in Kings Cross, Jimmy’s love interest, Alex, a country girl, is walking around the streets with a camera. She sees an Aboriginal man sitting on some stairs and is about to take his photograph. He holds up his hand and shouts at her: Hey! What the fuck do you think you’re doin’? I was just taking your photo. Why the fuck do you wanna take my photo for? Sorry. I didn’t – I just wanted to take your photo. Sorry. You’re such a good-looking bastard. Man [Smiling]: Well, that’s different. Man: Alex: Man: Alex:

He poses for her camera and she takes a photograph. The role is played by the late Kevin Smith, an established Sydney actor and indigenous community leader, who was Mundarra Smith’s own father. This seamless juxtaposition of scenes coruscates with inadvertent provocation when read against the Mundarra Smith cases under examination here. The film’s bank robbers discuss the destruction of surveillance cameras as a strategy and a source of amusement. At the very same diegetic moment, the defendant’s father is coaxed into posing for a photograph; he is captured by the camera in the same instant that the robbers fantasise about destroying the camera. Kevin Smith is also discussed in Chapter 6 ‘The spectre’, where his role in Hamlet haunts the interpretation of his son’s trial. It is apparent that both of these bank heist films advance a very particular socio-cultural, socio-political and socio-economic position on bank robbing. In these films, bank bandits fall within the established limits of Australian mythic masculinity: they are larrikins and battlers, men of little ambition

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who are having a go, doing a job with their mates. These are working-class men; stealing money is their job or, at least, the job they want. Banks are their workplaces, enabling the working man with the right skills and bravado to do his job, collect his money, and go home to his family. It is a view of bank robbing that is not apparent upon the surface of the texts or images used in the prosecution of Mundarra Smith and his fellow defendants. The case against Smith was supported instead by the competing national fantasies of capital accumulation and the protection of property. Banking institutions, as they are represented in the legal discourse, actively suppress the class fantasies of bank robbers whilst indulging the class fantasies of bank customers. Private caches of money guarantee the indefeasibility of bourgeois entitlement. The bank is the bourgeois institution par excellence. It is a private enterprise which profits from the single activity of preventing a person’s liquid assets from falling into the hands of another. Money in the bank is not only an attribute of the bourgeoisie; that money actually embodies their class status. The bank robber, therefore, directly attacks the corpus of the middle classes whose savings enable capitalism to function. For that reason, bank robbing is outlawed by the state; to rob the bank is to attack the nation. Despite the national fantasies enacted in our popular cinema, stealing from banks is prosecuted as a counter-national practice. This apparent contradiction of national ideals may be reconciled by considering the centrality of transgression to the practice of control. Being in charge has meaning only when someone else is out of order. Our fantasy is predicated on the Other’s disorder. Alison Young argued that, whereas Durkheim saw rule-breakers and law-abiders as part of the same community, bonded by a collective unconscious, for herself ‘the rule-breaker is necessarily expelled from the community’, as the existence of the community depends upon the ‘symbolic expulsion’ of the transgressor (1996: 11). But an alternative explanation is possible: the expulsion of the transgressor is the fantasy. That they remain amongst us prolongs the duration of our pursuit of the national Thing. Zizˇek also made the connection between transgression and community. What holds a community together, for Zizˇek, ‘is not so much identification with the Law which regulates its “normal” everyday circuit as, rather, identification with the specific form of transgression of the Law, of its suspension (in psychoanalytic terms, with the specific form of enjoyment)’ (1992b: 225). Judith Roof’s reading of Lacan concurred: ‘The Law affords the potential for transgression and Desire the motive’ (1996: 101–102). For Derrida, too, law is nothing in itself. It has no origin and no existence. It only opens the way for what is next. He wrote, ‘The law yields by withholding itself’ (Derrida, 1992: 192). Law thus becomes the impenetrable kernel at the heart of ourselves, about which we fantasise constantly, but which we can only know when we encounter transgression. Otherwise, it withholds, ‘it guards itself’, ‘the law would be the guarding itself, only the guarding. And this singular look between the guardian and the man’ (Derrida, 1992: 206). It

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is in the singular look that we imagine our fantasy. The look reveals the spectre that haunts us, but it is also the gaze that we practise in order to bring him to light. The singular look in the eye of national identity requires the presence of the transgressive Other as well as the possibility of his elimination. The transgression is only imaginable where there is a fantasy zone in which it may be practised. Crucial to the imagination of the man in the dock as the hooded bandit in the photograph is the (re)construction of the crime scene, for the benefit of the jury, creating a space in which Mundarra Smith seems likely to be a perpetrator. Law constructs the transgressive space, then contemplates different strategies for breaching its boundaries. The artist Denis Beaubois engages with the transgressive zones created by the presence of a surveillance camera. In his 1996/97 video, entitled In the event of Amnesia the city will recall . . ., he was filmed attempting to enter into dialogue with surveillance cameras around Sydney. Standing near a camera, displaying a large card with ‘Denis Beaubois’ printed on it, Beaubois forced the machines to turn and look at him and, in that moment, recognise him.

Denis Beaubois, In the event of Amnesia the city will recall . . . part I, 1996–97, Video, 7.41 min. © Denis Beaubois

The role played by bank security cameras is speculated upon by the High Court, as these cameras offer up a technology and a language through which the crime and the crime scene can be revisited. The epistemological significance of the camera shifts as the High Court’s discussion develops. During the application for special leave, Justice Kirby stated, ‘the whole point of having bank video film is to permit people to be identified. That is the whole point of it’ (High Court special leave application transcript: 3–4). His comment here suggests a form of technology-led jurisprudence. Jennifer Mnookin,

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in her work on the accommodation of photography into American jurisprudence, assessed the camera’s role in law as leading to the introduction of a new evidentiary category – ‘demonstrative evidence’ – that relied upon ‘analogic reasoning as a judicial strategy for coping with novelty’ (1998: 7). Unlike Justice Kirby, Justice Gaudron was more sceptical about the role played by the cameras, as her exchange here with Roy Ellis for the Crown revealed: Ellis:

Gaudron J:

Ellis: Gaudron J: Kirby J: Ellis:

[T]he reality is these video cameras are put in place so that there can be an identification of the felons at some subsequent time. If the Court, as a matter of principle, rules that the evidence is simply not admissible, then we might as well scrap video cameras because it is just an interesting quirk, ‘Oh, there is Bill Smith robbing the bank’. That is putting the matter far too highly. That is much more than a rhetorical flourish. One knows perfectly well that there is a difference between investigation and evidence . . . Your submission would be an exaggeration. It [the camera] would assist in the investigation. It would assist in the investigation. And, it would assist in the deterrence, also. It is not like the Crown to exaggerate. Everybody has a flourish, I suppose, your Honour. (High Court special leave application transcript: 12)

As Justice Gaudron stated when the matter was before the High Court: There are . . . reasons why the banks put up these video cameras. They are to act as a deterrent and secondly to aid in the investigation process. They may also aid in the trial process, if matters are properly proved. Undoubtedly the photographs were admissible, on any view, assuming they were properly proved. (High Court transcript: 14) In Her Honour’s formulation, the bank is always the scene of a crime (‘investigation’) or the scene of a potential crime (‘deterrent’). The bank is a dangerous space, and the court attempts to control our capacity to enter and to inspect that space. Whilst the rules of evidence purport to prefer the testimony of people who occupied that space during the commission of the crime (eyewitnesses), in Mundarra Smith’s trial we find that the crime scene was a scene of contested accounts and conflicting observations. The facts as they were adduced from the eyewitnesses did not amount to sufficient evidence to remove reasonable doubt from the jurors as to the identities of the perpetrators. The camera here did not deter the crime; indeed the

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perpetrators at times stood very close to it; the hooded bandit looked directly into it. The crime scene – the bank – does not offer up the clues that enable the police to proceed with their investigation. As Walter Benjamin knew, ‘The scene of a crime . . . is deserted’ (1970: 228). Beyond the photographs themselves, the police found none of the money, clothing or fingerprints in the homes of the defendants or in the stolen getaway car. The crime scene in Caringbah was silent. To build their case, the police constructed another crime scene. They built it in Redfern and cast themselves as the key characters. The crime scene expanded. Zıˇzˇek noted the sensory experience that accompanies any construction of a spatial boundary: ‘As soon as we wall or fence in a certain space, we experience more of it “inside” than appears possible to the outside view’, there is a ‘surplus of the “inside” in relation to the “outside” ’(1992c: 15). The bank was not big enough for our purposes. The crime scene dilated to include all of Redfern and Waterloo, because they were more suitably sized to fit this fantasy. The scene of the crime must have the potential to be anywhere and everywhere that the obstructive Other might lurk. Benjamin wrote, ‘Not for nothing were the [photographs by] Atget compared to those of the scene of a crime. But is not every spot of our cities the scene of a crime? every passerby a perpetrator? Does not the photographer – descendant of augurers and haruspices – uncover guilt in his pictures?’ (1980: 215). The streets, the back lanes and the other public spaces of Redfern and Waterloo, in Mundarra Smith’s trial, became scenes of crime and of potential crime. The danger is apparent always; the young people recognised by Redfern’s police are always and already trouble. Being known to Redfern’s police is the indelible mark of guilt. Because of the nature of this trial, in which the knowledge of police became more central than the knowledge of the witnesses in the bank, there was far more discussion about the streets of Redfern and Waterloo than about the bank in Caringbah. Far more testimony was entered about the extent to which Smith and his co-accused, Jason Nicholas, were known to Redfern police, and why. Counsel for both sides were attempting to adduce the extent to which the police were well positioned to recognise Smith and Nicholas from a surveillance photograph. And adducing that evidence required them to speak about the extent to which young people are policed in Redfern; this was their implied ‘expertise’. Alison Young wrote, ‘As Derrida’s reading of Plato informs us, the scene of representation is the scene of a crime. While re-presenting the crime, a responsive imagination also constructs the event of crime’ (1996: 16). This is a useful way of thinking about Mundarra Smith’s trial, because the scene of representation (the security photograph) is the scene of the crime (the bank robbery). No one attempts to argue that the photograph does not portray a crime, nor does anyone suggest that the hooded figure is not a perpetrator. It is the ‘re-presentation’ of the crime – the narrative constructed for the

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jury – that took place in the courtroom, presenting a catalogue of events, opinions, instructions and images in order to present the crime anew, for the tribunal of fact. Here the ‘responsive imagination’ was invoked, because the re-presentation of the crime for the jury was less concerned with what happened in the bank, and more concerned with what the police knew about Smith and Nicholas from the streets of Redfern. Smith’s counsel at his first trial, Diana Black, argued with Judge Latham about the prejudicial danger to her client of cross-examining the police about their relationship with Smith. Overtly, she was concerned that adducing too close a relationship between Smith and the police would lead the jury to infer that Smith had a close nexus with criminality. Unspoken, however, was the suggestion that the word ‘Redfern’ is itself unfairly prejudicial. For decades associated with poverty, crime and Aborigines, and in 1992 – following the national broadcast of the Cop it Sweet documentary – associated with gutchurning police racism, and in 2004 – after the international broadcast of the Redfern riots – seen as wild and ungovernable, ‘Redfern’ is the terrifying zone of trouble and danger in the social imagination of Sydney. Locating Mundarra Smith in Redfern, and placing him in close and regular proximity to Redfern’s police, places him always and already in a crime scene. Judge Latham, responding to Diana Black, said, ‘I appreciate that but can I just say, I’ve just finished a trial, totally unrelated to this . . . It all occurred in the Redfern area and what seemed to be clear from what everybody said is that everybody knows everybody’ (District Court transcript, in Appeal Book: 9). Of course, this is an exaggeration. The notion that ‘Redfern’ is a criminal conspiracy is crucial to the fantasy. It might be true to say that, in Redfern, most of the police know many of the regular local offenders, and that some of the regular local offenders are known to each other. Further, it might have been true at the time to say that the Aboriginal people who lived on or around The Block would have known each other and their families. But this is not Redfern’s everybody. This is Redfern’s excessively scrutinised and spectacularly supervised community. This is the Redfern that we see on the news and read about in the papers, exposing the latest scandal of extreme poverty, the mismanagement of community organisations, the alleged inadequacies of law-and-order techniques, and the media’s criminalisation of urban Aborigines. Ceridwen Spark, in her analysis of media representations of The Block, described an ‘irreducibly complex place’ that defies visual reimagination and transmission (2003: 33). Televised images show The Block simultaneously embodying a ‘dream for self-determination’ and a ‘shameless slum’ (at 35); a ‘homeplace’ and a place of ‘failed domesticity’ (at 38); ‘emplacement’ and ‘displacement’ (at 33, 43). Andrew Lattas, addressing scholarly debates about Aboriginal resistance, compared the ‘romanticism’ of historians who treated resistance as an ‘oppositional practice’ to the ‘romanticism’ of critics who argue that resistance must be ‘rational, self-fulfilling, collective action’ in pursuit of ‘positive’

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effects (1993: 241). To give authority to his own position, he disclosed, ‘I live in the over-policed battle zone of Redfern and often see Aborigines openly challenging state officials’ (at 242). Here, Redfern becomes another kind of contested territory, where the manager must possess Redfern in order to claim a speaking position. Lattas himself is not contemplated as belonging to Redfern’s everybody as formulated by Judge Latham. But his own private claim upon Redfern suggests that he is speaking about everybody’s Redfern, site of territorial skirmishes between police, lawyers, academics and national fantasists. When we look at Redfern, we see a crime scene, populated by an out-of-control community that obstructs the fantasy nation in the distance. When counsel for Smith’s co-accused, Jason Nicholas, cross-examined Constable Trevallion on the voir dire, he sought to establish something about the Redfern and Waterloo areas that he policed. He asked, ‘I think in Redfern there’s a fairly close knit community, isn’t there?’ Trevallion answered, ‘Yeah, you could say that . . . Yeah, yeah. If you talk about Redfern and close knit community I think most people would be talking [about] maybe the Aboriginal community. Jason wasn’t a member of the Eveleigh Street area and he didn’t hang out in that area, if that’s what you’re referring to’ (District Court transcript, in Appeal Book: 33). Embedded in the words of Judge Latham and Constable Trevallion is a presumption that the ‘Redfern’ under scrutiny in this trial is an Aboriginal place and a criminal place, where everybody is either policing or policed. Inaudible in the written transcript, but immediately apparent to the jury, is the knowledge that Jason Nicholas is not Aboriginal, unlike his co-defendant Mundarra Smith. In stating that the accused does not hang out around Eveleigh Street, Constable Trevallion makes clear that Jason Nicholas is not an Aborigine, nor does he hang out with those people. If Redfern’s Aborigines are to be criminalised in the police mind, Jason Nicholas represents another kind of Redfern criminal: the pale young troublemaker. The policeman’s off-hand remark recalls Alison Young’s analysis of the representation of crime which ‘can only ever approach the pale criminal as a chiasmus of fear and desire’. Young borrowed the term ‘pale criminal’ from Nietzsche, writing, ‘I intend the pallor of the criminal to suggest the ways in which . . . the criminal is bloodless, insubstantial, a pale, unmarked reflection in the victim’s eye of fear, able to re-present whatever the fear seeks to displace: the city, racial difference, sexual difference’ (1996: 19 and n28). The policeman and the judge affirm the jury’s imagination of ‘Redfern’ and the rampaging youths it harbours, reminding the jury – and us – that we are the victims of these brazen bank robbers. Caught in the victim’s eye of fear are Jason Nicholas, Mundarra Smith, and hundreds of dangerous men just like them sitting squarely in the dock but located always in the criminogenic heart of Redfern. The two police officers who identified Smith from the photographs were selected by Senior Constable Rotsey, who directed this aspect of the police investigation into the Caringbah bank robbery. Smith’s counsel questioned

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Rotsey about how he came to select these police officers to view these photographs: Black:

Rotsey:

How was it that you went from having those photographs to . . . choosing police officers to identify them – or who you would like to identify them? The information we had received at the time – and certainly there was a very large number of arrests – indicated that a large proportion of those offenders had come from the Redfern area and that a lot of them were being identified by people who were familiar with the Redfern locals. It was – it was the best place to – to show the photographs. (District Court transcript, in Appeal Book: 47)

On this basis, Senior Constable Rotsey apparently showed the photographs to Constable Trevallion, in the event that he could identify Jason Nicholas, and Senior Constables Peterson and Crampton, to attempt identifications of Mundarra Smith. Constable Trevallion disclosed in his testimony that, even when not perpetrating crimes, Redfern’s young people were constantly in his sights. Describing his knowledge of Jason Nicholas, Trevallion said, on the voir dire: I saw him numerous times in my time [at Redfern]. Many, many times in my time in Redfern while on patrol. As well as that for some time he was reporting on bail at the station . . . In – in the street and – and at the station but on patrol. He used to – he lived in Wellington Street but he spent a lot of his time in that area with some of the guys which I presume are his friends. The Hayes boys and the Hughes boys and Kelly Beddoni, he lived with. I think Kelly’s his cousin, I think. But they used to hang out around Lenton Parade and Wellington Street, Elizabeth Street, that sort of region of Waterloo . . . I’d physically see Jason on average over a long period of time maybe every second day and I may have spoken to him every second time I saw him. May – may not have spoken to him for a policing reason. Just had a conversation . . . He – he always was happy to speak to you. He was generally relatively polite. (at 25) It was Constable Trevallion whose identification of Jason Nicholas from the security photograph constituted the whole of the case against Nicholas. Mundarra Smith was identified by Senior Constables Peterson and Crampton. Peterson, describing his knowledge of Smith from the Redfern area, examined on the voir dire, said: I’ve spoken to Mr Smith a number of times while working at Redfern . . .

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Oh, five to six times, maybe. Arrested him a couple of times . . . From memory, maybe two times . . . He was a witness to a suspicious death in early ’97. I didn’t actually speak to him about that. That was dealt with by Redfern detectives. (at 18) Senior Constable Crampton, on the voir dire, described several incidents when he dealt with Mundarra Smith in the Redfern area: Crampton: First time I spoke to him was in – I believe it was in Walker Street at Waterloo when he was with Kelly Beddoni and they caused to stop and – Black: Why did you speak to him then? Why did you have occasion to speak to him? Crampton: We had a complaint of vehicles being broken into around that area and as part of a patrol we – we stopped and spoke to Kelly Beddoni and Mundarra, who, at that time, gave me the name of Wanjon Murray. Black: Was that the first time you’d ever met him? Crampton: Yes. Black: On what other occasions did you meet him? Crampton: Oh, I’ve seen him on a number of other occasions around the Redfern area . . . On 21 January ’97 I spoke to him and Kelly at the rear of 43 Wellington Street. They were in a vehicle at the time that was parked at that – at the rear of them premises, and also on – Black: Why did you speak to them on that occasion? Crampton: I can’t remember the exact reasons why. There was a number of police present at that time. I can’t remember the exact incident . . . Second time [we spoke] it was daylight and on a third occasion . . . [was] on 10 April at Redfern Railway Station. We were doing a – an infringement enforcement at the railway station and once again – . . . And we had occasion to stop Kelly Beddoni and Mundarra for not having a ticket at the railway station and they were issued an infringement notice . . . There have been other occasions when I’ve seen him and not spoken to him. (at 15–16) The vigorous and uninterrupted supervision of Smith by police stands in marked contrast to the testimony of his mother. Obviously assisted by notes and other aids to recollection, the policemen who testified to their knowledge and recognition of these defendants were able to place them in particular sites in Redfern on many occasions. These police know what they have been up to and who they were friends with. They are engaged in a protracted exercise in

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which young people are observed, accounted for and disciplined. Lisa Smith’s testimony, on the other hand, was not really able to detail anything about her son’s life outside of her home, and the parents of Nicholas were not called. These opposing accounts of the conduct of Mundarra Smith operate as critical insights into the family life of adolescent male offenders. Moments in this trial can be recognised as attempts to manufacture a legal history of the Aboriginal family in contemporary Sydney. Mundarra Smith, in this legal narrative, could not be located easily in the crime scene in the bank. Further, following the testimony of his mother, he could not be located at home in Rooty Hill. If he was to be criminalised, he had to be placed firmly in Redfern – his transgressive home. The parenting role was taken away from his mother whose testimony – emphatic, uncertain, imprecise – was unhelpful to a fantasy project that depends upon managing troublesome young men. Instead, this role was given to Redfern’s police, who could detail Smith’s whereabouts and general conduct with the precision and memory that law requires. Smith’s ‘home’ became Redfern, always a crime scene, implicated in the criminogenesis of indigenous youth.

Chapter 6

The spectre

Within the image is a dangerous thing. The hooded bandit is law’s spectre, haunting our fantasies of sovereignty. The High Court was dissatisfied with the quality of the images tendered, and the following exchange, clearly an aside, is more evocative than was likely intended: Gleeson CJ: [The photograph exhibit] K35 is a good deal clearer than our [copy of] 35. Kirby J: . . . It is not very much clearer. It still looks like a spectre from Hamlet . . . It is the ghost. It is the ghost. It is Hamlet’s father who wandered into the bank. Sexton: Your Honour, Hamlet was the only person who was not in this case that – Gleeson CJ: Yes, but Hamlet is not, on the argument against you, permitted to go into the witness box and say, ‘That is dad.’ (High Court transcript: 26)

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Of course, the High Court was here probing the evidentiary capacity of an unclear photograph. By naming the spectre and remembering Hamlet, they were also doing something else. Justice Kirby’s summoning of Hamlet may, on the one hand, suggest the court’s shared knowledge of an Anglophone canon from which they draw imagery to illustrate their witty banter with the bar. On the other hand, however, Hamlet is a literary monument that captures all of the fantasies at the heart of the managerial project: family, treachery and nation. In this scene, we realise that Hamlet and English common law emerge from the same canon of transgression, tragedy and managerial fantasy. Justice Kirby’s invocation of the ghost invites an analysis of the relationship between law, crime and spectres. In the opening scene of Hamlet, the watchmen, Bernardo and Marcellus, see a ghost that looks like the dead King. They summon Horatio to look at the ghost, because Horatio was well acquainted with the King, and his evidence about the identity of the ghost is persuasive. Before he sees the ghost, Horatio is sceptical: ‘Horatio says ’tis but our fantasy, And will not let belief take hold of him touching this dreaded sight.’ But, seeing it with his own eyes, Horatio is convinced of the likeness: ‘Most like; it harrows me with fear and wonder.’ Because he is a person of sufficient status to have the King’s ear, the watchmen urge him to speak to the spectre: ‘It would be spoke to.’ ‘Question it, Horatio.’ But the spectre says nothing. The trio then summons someone better acquainted with the King: his son, Hamlet. When Hamlet sees the ghost, he is certain: it is his father. Although satisfied with Hamlet’s identification, Horatio is anxious about the mendacious allure of the image; believing in this vision exposes Hamlet to danger. Hamlet says, ‘It waves me forth again. I’ll follow it.’ Horatio counsels against it, cautioning his friend that this vision may render him mad: What if it tempt you toward the flood, my lord, Or to the dreadful summit of the cliff That beetles o’er his base into the sea, And there assume some other horrible form Which might deprive your sovereignty of reason And draw you into madness? Think of it. (Act I, scene iv) Here, conflated in a single Shakespearean sentence, we find everything that characterises our confrontation with the spectre: temptation, confusion, contested territory, loss of the managerial capacity. Hamlet is the legitimate sovereign displaced by his treacherous uncle. Hamlet’s encounter with the ghost urges him to avenge the treachery and restore legitimacy. But in his quest for power, Hamlet becomes distracted by his fantasies of love, performance and madness. His uncle, however, pursues his power through action, and the illegitimacy of his sovereignty does not prevent him from overseeing a functional and efficient court. In Zˇizˇek’s reading of Hamlet, action is in opposition to knowledge.

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Because Hamlet knows what he is doing, he cannot do it; he cannot avenge his father’s murder, unlike Oedipus, who is able to kill his father because he does not know he is doing it. For Zˇizˇek, this distinguishes tragedy – which requires ‘misrecognition or ignorance’ – from melodrama, in which the Other (here, the spectre) possesses some ‘excessive knowledge’ that is imparted to the hero only in the melodramatic denouement (2001: 12). This operates as an effective commentary upon the impossibility of law’s dealings with the hooded bandit. In this case, the spectral image knows who is robbing the bank. Law is caught between not knowing what it means to look at the image, knowing what it means and, for that reason, not looking, or – a third possibility – knowing and looking regardless. For Zˇizˇek, the third formulation denotes the contemporary hero, whose action in spite of his knowledge is either a function of his ‘moral depravity’, or else his response to an ‘inexorable ethical injunction’ (2001: 14). Law, in the Mundarra Smith cases, seems to occupy all of these positions successively and simultaneously. The fungibility of law’s position enables it to know and not know, act and not act, make choices that are both ethical and depraved. Before the law stands a spectre, and in that confrontation law is produced. Ari Hirvonen undertakes an ethical reading of Hamlet’s encounter with the Ghost, in which the spectre tests the prince’s relationship to the Other (1998). In this encounter, Hamlet stands in for each of us, individual subjects burdened with choices, responsibilities and fantasies. The Ghost represents the Other, against whom we define ourselves, but to whom we owe a duty. Hirvonen recalled the Ghost’s demand of Hamlet: ‘Remember me!’ He wrote, ‘Hamlet is chosen, addressed, made responsible, summoned, charged. He is obliged to hear the word and to answer to it with righteous acts, that is, respond with responsibility’ (Hirvonen, 1998: 199). The analogy with our fantasy narrative is clear. We have not chosen Mundarra Smith as the vehicle for our fantasy fulfilment. We have been chosen by the Other, the spectre, the hooded bandit in the picture. The bank lay in wait for him, he walked into it, he was photographed. We are already – always already – in an ethical relationship with him, this ghost, the Other. For Derrida, the spectre ‘begins by coming back’ (in Hutchings, 2001: 8); it returns from the place in which we repressed it, haunting us with something we recall from before. Like Hamlet, we are judged by what we do now, what we do next. Necessarily, the spectre must return first. It summons us. We respond. As Hirvonen emphasised, ‘Hamlet is (was and will be) bound to the Ghost that precedes him’ (1998: 199). Derrida’s ethical writing concurred: ‘However “free” it is supposed to be, the response inaugurates nothing if it does not come after’ (in Hirvonen, 1998: 199–200). For Hirvonen, the future is the time of justice, whilst the present is the time of law. The past, then, is the time of the act of transgression. The transgression is already done, we cannot erase it. Our only duty is to deal with its spectre. Zˇizˇek’s analysis of spectrality is also tied to Derrida’s conception of ethics. For Derrida, he wrote, ‘the

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apparition of the Other provides the ultimate horizon of ethics’. Spectrality is ‘rooted in the fact that the thought is horrified at itself, at its own founding gesture’ (Zˇizˇek, 1999b: 79). The transgressive thought, even the thought of the fantasy, sees itself as a spectre, and it is terrified by what it sees. When we confront ourselves with the spectre of our thoughts, we reach an ethical limit or, at least, an ethical crossroads. Derrida claimed that the spectre marks the arriving (avenir, yet to come) of ethics. For Lacan the spectre arrives (or returns) too late: the spectre ‘already bears witness to a retreat, a withdrawal’ (Zˇizˇek, 1999b: 79). Zˇizˇek’s reading of Schelling connects the spectre with the terror we experience when we encounter freedom; ‘the spectre itself already emerges out of a fear, out of our escape from something even more horrifying: freedom’ (Zˇizˇek, 1999b: 80). Hirvonen’s essay identified the Ghost as transmitting an additional condition: ‘to remember the abyss, the void, the Freudian or Lacanian Thing, and the death’ (Hirvonen, 1998: 201). The spectre in the picture has emerged in time to warn us about our practice of fantasy pursuit. When we imagine that our Nation-Thing is a concept born out of freedom, we forget the violence that enables it. The spectre transmits an ethical call to remember. The past, the transgressive moment, issues us with a duty, a duty that reminds us of our inadequacy. This is the ‘infinite debt’ to which we are unequal, but which we are bound to repay perpetually, ethically, arising out of our continued duty to the Other. We are bound – ethically – to live in a relationship with the Other. Emmanuel Levinas described this relationship as one of ‘welcome’, where our freedom is enacted through – and founded upon – ‘responsibility to the Other’ (1969: 203). For Hirvonen, ‘To live more justly is to live with ghosts. This with is most important. Without with there is no being-with, no society’ (1998: 204). It is not only that the Other gives meaning to ourselves; the Other imposes upon us a duty, and it is from that duty, after that duty, that we derive our status as subjects. Peter Hutchings wrote that Hamlet is ‘one of the earliest – if still most resonant – fictions of subjectivity’ (2001: 10). Our relationship with the Other is physical, discursive and silent. We live with the Other corporeally, and from that connection emerges obligation. We speak with the other – ‘a conversation which proposes the world’ (Hirvonen, 1998: 208) – and in that speech we face them. Facing the Other, the face-to-face encounter, calls us to justice (Hirvonen, 1998: 207). In speaking with the Other, even their ‘No’, especially their ‘No’, contains the possibility of ethics. But being silent with the Other, ‘a wordless approach’ (Hirvonen, 1998: 208), requires us to find a new language that communicates an acknowledgement of our duty, and an undertaking that our next gesture is ethical and just. The Mundarra Smith case follows a clear spectral trajectory. It begins in darkness, where there is a secret known only to the hooded bandit (and, as Kirby J later acknowledges, to ‘God’ (High Court transcript: 35)). The next step is illumination, where the bandit is recognised, dragged into the spotlight

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for a moment before disappearing again, into prison. In the final stage, the High Court re-examines the spectre and determines that here, now, darkness is safer. They turn out the light. The spectre returns to the shadows. But what does this mean for our fantasy? Either it is snuffed out, or it flourishes in the dark. Peter Hutchings, in his book The Criminal Spectre in Law, Literature and Aesthetics, wrote, ‘the spectre, neither body nor soul, is the subject of law’ (2001: 10). Tracing the gradual transformation of law, crime and punishment from visible spectacle to an invisible spectre, Hutchings identifies the spectre as law’s subject (the criminal, the law-abiding citizen), as well as law’s object (rational modernity) and law’s agent (policing, surveillance). The spectre appears in order to give a kind of shadowy form to law, without which law cannot be imagined or represented. What form does law take when the High Court imagines the hooded bandit as the spectre from Hamlet? When the hooded bandit is rendered spectral, the High Court has simultaneously pictured and named a fantasy. But we must not forget that the spectre emerges from the unconscious as the return of that which has been repressed, bearing a message: ‘Remember me?’ We are prompted to remember that Mundarra Smith’s father, the late Kevin Smith, was an actor who performed in Neil Armfield’s definitive Sydney production of Hamlet in 1994.1 Kevin Smith appeared in the opening scene as the watchman Bernardo who, seeing the effect upon Horatio of the Ghost’s appearance, asks, ‘Is not this something more than fantasy?’ He appears again in the final act, digging a grave. When Hamlet asks him, ‘Whose grave’s this, sir?’ he replies, ‘Mine, sir’ (Act V, scene i). The High Court cannot be expected to know the depth of provocation they have perpetrated by invoking the tragedy of Hamlet in a case concerning Kevin Smith’s son. As the gravedigger, Smith unearths a skull that prompts Hamlet to ponder: ‘Why might not that be the skull of a lawyer?’ (Act V, scene i). Death and law become inextricable. The spectre’s presence – and message – can lead to two possible outcomes: catastrophe and justice. These two outcomes may be symbiotic. In the presence of the spectre, the gaze is reversed. Derrida wrote, ‘This spectral someone other looks at us, we feel ourselves being looked at by it’ (in Hutchings, 2001: 9). It is under this gaze that, according to Derrida, law is produced. Law originates in the encounter we have with the Other, the encounter that Levinas described as ‘ethical’ and that inaugurates our retreat

1

The production, at the Belvoir Street Theatre, starred Richard Roxburgh as Hamlet and Geoffrey Rush as Horatio. The theatre is within the Redfern police patrol. Kevin Smith became involved in theatre in 1974 when he joined the National Aboriginal Black Theatre in Redfern, an activist theatre organisation founded by Gary Foley. He was an Aboriginal elder in the Redfern community. Following his death, on 16 August 2005, the theatre community held a memorial service for him in the York Theatre, Sydney. Indigenous and theatrical leaders spoke and performed, as did the NSW Minister for the Arts, Bob Debus.

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from solipsism. Law emerges in our realisation that we must transact with another who has an autonomous existence. Law emerges not from the lawabiding citizen but from the transgressor, thus taking its form from the shape of its Other. Reading Derrida, Peter Hutchings wrote, ‘the problem is that these spectres can be neither controlled nor (it amounts to the same thing) questioned’ (2001: 8). In our encounter with the spectre, we surrender to its sovereignty; we are under its gaze. Derrida wrote that, in the spectral confrontation, we ‘feel ourselves seen by a look which it will always be impossible to cross . . . [W]e do not see the one who sees us, and who makes the law’ (in Hutchings, 2001: 9). The reversal of the gaze, the surrender to the spectral other, becoming power’s subject; these are manoeuvres that reveal the operation of sovereignty upon us. When Hamlet first follows the Ghost into the darkness, Horatio is concerned: ‘He waxes desperate with imagination’ (Act I, scene iv). So what can it mean when the High Court imagines – albeit briefly and facetiously – the hooded bandit as law’s spectre? The spectre, like any approach by the Other, always requires a response. Hamlet has responded to the Ghost’s command with chaotic and undirected action. He looks to the ghost for assurance, but Horatio knows that the spectre cannot help him. There is no dialogue between them; simply a command and a response. Where the response is inadequate – as is Hamlet’s – his doom is confirmed. The spectre does not enable Hamlet to reclaim his Nation-Thing and restore himself into a complete – sovereign – subject. The Ghost is not his ally. It has emerged from Hamlet’s unconscious deliberately to test his suitability for leadership.2 After its command, Hamlet acts alone. And, under the gaze of the spectre, Hamlet becomes insubstantial, ineffectual, weightless. If nothing else, Justice Kirby’s invocation of Hamlet, the play, and the Ghost’s summoning of Hamlet, his son, become cautionary episodes reminding us that these images cast in shadows are not to be looked upon lightly. Let us assume for a moment that the hooded bandit is the spectre of what has been repressed by law, now returning in the photograph to force a confrontation between law and its unconscious. The apparition requires a response. But what has law repressed, and how might it respond? When the court or the jury or the policemen face the spectre, they are looking at a manifestation of their own repressed trauma. They (or we) are law’s agents, suddenly challenged to demonstrate law’s authority, law’s managerial capacity, law’s legitimacy. The spectre – here embodied in an arbitrary black man – forces law to prod the shaky foundations of white sovereignty. Colonial sovereignty in Australia rested upon the doctrine of terra nullius, an

2

A classical psychoanalytic reading suggests that the Ghost is the manifestation of Hamlet’s guilt at wishing his father dead to eliminate his rival in seeking his mother’s attentions; the basic Oedipal complex. In Zˇizˇek (2001) at 9.

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unoccupied land, entitling the British Crown to claim title over the land and to exercise jurisdiction upon it. The High Court of Australia, in the landmark decision of Mabo v Queensland (No 2) (1992) overturned the doctrine of terra nullius and inaugurated the fraught regime of ‘native title’, sometimes described by Aboriginal claimants as ‘whitefella magic’. Any confrontation between the common law and indigeneity is haunted by the memory of this foundational constitutional illegality (Biber, 2004). This raises an interesting perspective upon Levinasian ethics, which meditates upon the question of whether there can be ethics without foundation. Colin Davis, writing about Levinas, asked ‘what does it mean to talk of justice or responsibility when the belief systems which sustained such terms are in a state of collapse . . .?’ (Davis, 1996: 3). The common law always and already contains the kernel of its own illegality; a kernel that always threatens to rupture. This arbitrary black man who stands before the law arouses anxiety about law’s dogged pursuit of certainty; he brings into troubling proximity the concepts of legality and transgression; he forces us to confront the impossibility of the pursuit of managerial fantasies. A black man appears before the law, he defines the law, he transgresses the law, he commands law to respond. And the law is inadequate. Justice Kirby suggested as much when, in considering who can identify the bandit, he stated, ‘The fact is known to God and maybe to the appellant’ (High Court transcript: 35). The inference is that the law has no way of knowing who stands in its way, and no way of managing those who transgress. Law must simply wait until it is approached. In that moment it is tested. And, in the encounter with this spectre, law – which like Hamlet involves itself in ultimately pointless fantasy distractions – is inadequate. It is not new for writing about law to use the language of spectrality. In his essay, ‘The Dangerous Individual’, Foucault described the body of the offender in spectral terms, originally ‘a pale phantom’, slowly becoming ‘more substantial, more solid and more real’ until the offender had become the dominant figure, and the crime became ghostlike, ‘nothing but a shadow hovering about the criminal’ (1988: 127–128). For Foucault, the primary change in criminology in the nineteenth century was the gradual emergence of the criminal, out of a context that had previously only recognised the crime and the penalty. In Derrida’s reading of Benjamin, he recognised the police as also taking on a spectral form as law’s agents of control and violence: ‘the police aren’t just the police (today more or less than ever), they are there, the faceless figure ( figure sans figure) of a Dasein coextensive with the Dasein of the polis’ (in Hutchings, 2001: 21). Tracing this shift further, David Garland’s examination of the changing rhetoric of control in contemporary criminology noted the ‘remarkable return of the victim to centre stage’. Whereas the penal-welfare model revolved around the criminal, it has now become expedient to ‘invoke the figure of the victim’ (Garland, 2001: 11). The employment, in criminological writing, of ghosts and shadows and faceless

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figures is enormously provocative. Whether imagined as crime’s perpetrator, crime’s victim or crime’s nemesis, the spectre haunts law’s imagination of itself as formless, frightening and everywhere. The spectre also hovers above writing on photographs. Allan Sekula wrote, ‘Photography is haunted by two chattering ghosts’: science and art (1984: 78). Science and art are also the spectres looming over the new criminology of risk management, where rhetorics of control are mobilised into the discipline of psychology, disguising as science the practice of manufacturing fear and moral panic (Feeley and Simon, 1996). But there are other spectres that hover around the image. They are epistemology, ethics, law, family, property and nation. The image is dangerous for a society that has invested it with meaning and power. When we surrender to the image our capacity for truth, justice and fantasy fulfilment, we separate ourselves from our own capacities for judgment and ethical choice. Equally, in Zˇizˇek’s reading of Lacan, those qualities that give our lives meaning and value are unimaginable without images: ‘there is no reality without the spectre . . . the circle of reality can be closed only by means of an uncanny spectral supplement’ (Zˇizˇek, 1999b: 73). The spectre is reality’s surplus, the something more that gives it meaning. Here, the image must terrify us (it is the uncanny or unheimlich); we cannot adequately symbolise law, and it is from this void that the spectral apparition emerges (Zˇizˇek, 1999: 74). In psychoanalytic terms, the spectre escapes from our unconscious; it is a clue to what lies within. It gives us a spectral glimpse of what we have repressed. In her long essay on Marxism and ideology, Sarah Kofman wrote that the ‘camera obscura . . . plunges consciousness into darkness, evil and error, which makes it become dizzy and lose its balance. It is an apparatus which renders real relationships elusive and secret’ (Kofman, 1998: 14). The camera becomes an agent of repression; it produces repression by creating in the photograph a hiding place for trauma. It is from the photograph that the spectre emerges, reminding us of our trauma – ‘remember me?’ – and inviting us to respond either by naming our anxiety, or by pushing it back into the darkness. The photograph seems the ideal place to conceal a secret, given its confident manipulation of darkness and light. Both darkness and light rely upon each other for their existence, and the photograph is the zone in which one yields to the other. The photograph alone has the power to tilt the balance. And the photograph that is taken by a hidden camera, the ever-present spectre of surveillance, reminds us that photographic secrets are produced constantly, autonomously, and in unverifiably large numbers. Mundarra Smith’s sole defence and only hope is that the image does not identify him as the hooded bandit. If bank robbing is his secret, he looks to the spectral image to prevent its disclosure. Dick Hebdige of the Birmingham School titled one of his books on youth Hiding in the Light (1988), which conflates perfectly the two elements of the Crown’s prosecution and Mundarra Smith’s defence. Illuminated for the prosecution are images of the hooded bandit in

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the security photograph and spoken testimony about those images. Under the spotlight for the defence is the mute presence of Mundarra Smith in the courtroom, a black man who does not speak, and who hides behind his fervent desire that the photographs remain silent and invisible. Both the hooded bandit and Mundarra Smith are hiding in the light. This seems a timely moment to remember nineteenth-century ethnographic claims that photographs of black people were ‘difficult to light’ (Astbury, 1999: 184). Leigh Astbury described the anthropomorphic poses and measuring scales that were used to classify naked black people. These early photometric methods, according to Astbury, ‘produced skin colour as a key signifier of racial difference in the stereotypical Other’ (1999: 184). In a taxonomic system which claims that photographs have the capacity to illuminate the truth, photographing a black person requires a combination of truth and technique. It suggests that, expertly manipulated, the technique produces a talent for capture. In a subsequent manoeuvre, the technique requires the black person to develop a talent for elusion. One reading of these images suggests that the black man eludes by becoming phantasmatic. A reading of Foucault or Derrida might suggest that, since the spectre is the source of law, the image and its (in)visibility locates a new system of power, in which the unidentified black man plays a central role. But in the process of becoming a phantom he is also diminished. Reading Frantz Fanon’s concept of the racial epidermal schema, Robert Gooding-Williams described the process by which a black man becomes an image. When placed into the schema, ‘one feels as if one had acquired a second epidermis . . . that had been superimposed on one’s body and then come to haunt it like a shadow’ (1993: 164). As Avital Ronell concurred, ‘I need not stress the extent to which the black body in the history of racist phantasms has been associated with the ghost or zombie’ (1992: 3). The indigenous writer Mudrooroo, in his study of indigenous Australian literature, discussed the practice of non-indigenous people acting as ‘ghost’ writers for Aboriginal authors. He recalled, ‘But that is how many Indigenous people once saw European people – as “ghosts” ’ (Mudrooroo, 1997: 187). As a spectre, the image is less than a black man. The ‘less than’ contributes to the managerial capacity to oppress him, but perhaps, sometimes, it enables him to slide out of the manager’s grasp. Slavoj Zˇizˇek’s psychoanalytic analysis of Hitchcock offers an excellent insight at this juncture. He wrote: ‘man alone is capable of deceiving by means of truth itself . . . [O]nly man can lie by telling a truth that he expects to be taken for a lie. Only man can deceive by feigning to deceive’ (Zˇizˇek, 1992c: 73). Does the spectre practice a deception? In Mundarra Smith’s case, we are asked to concede that the photographs contain the truth. The hooded bandit is truthfully depicted in them. He poses in the photograph, he looks directly at the camera. And yet we cannot see him. Mundarra Smith may or may not be deceiving us when he says ‘it is not me’. The hooded bandit has deceived us, but so has the photograph. Linking this mystery to a narrative form

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favoured by Hitchcock, Zˇizˇek reminded us that his films teach us that ‘we effectively become something by pretending that we already are that’. ‘[I]n the social-symbolic reality things ultimately are precisely what they pretend to be’ (Zˇizˇek, 1992c: 73). In the first instance, law pretends – by pursuing its fantasy of certainty – that the hooded bandit is Mundarra Smith. And, through the deft wielding of law, that is what he becomes. But in the final scene – the second trial – Smith’s pretence (in the sense of his allegation, rather than deception) wins out. He pretends to his own innocence and, when this narrative concludes, that is precisely what he has become. The captive black man escapes. Alison Young’s Imagining Crime (1996) is her criminological study of cultures in the grip of surveillance techniques, where new epistemologies emerge in the face of spectral images. Young identified two new forms of social anxiety that develop in response to image-driven cultures. In the first, anxiety stems ‘from the realization that we live through and as images’. In the second, we realise that ‘outside or beyond there is only death, darkness and the inhuman’. We respond with fear and with a renewed vigour in our pursuit of imagery: ‘terrified of darkness and death, of the horizon and the limit of the visible, we turn to the image as bearer of light’ (Young, 1996: 20). The man in the image is simultaneously dangerous and vulnerable; the hooded bandit is a site of trouble. Invested in him is the complex of anxieties that pervade crime and capital, power and knowledge. We need his image, the spectre, in order to place ourselves in relation to him. It is when we have nothing to see that we begin to disappear. Tagg’s work on photography and law describes photographed bodies as becoming ‘passive but pathetic objects capable only of offering themselves up to a benevolent, transcendent gaze – the gaze of the camera and the gaze of the paternal state’ (Tagg, 1988: 12). Without an object, the gaze is impotent. Here, the hooded bandit must surrender to inspection and to identification, both are unreliable precursors to incarceration. It is as if his being framed in the image acts as an analogy and an augury to his impending imprisonment. But when the ‘pathetic object’ of the gaze is rendered spectral and uncanny, it becomes capable of elusion and transgression. In Smith’s appeal, we suspect the phantasmatic bandit performs in some autonomous narrative, one that is silent and invisible to us. Our inability to respond to this spectre does not conclude the narrative, but it prevents us from knowing what happens next. Or, if we know, we cannot act. In her study on the James Bulger case, in which two ten-year-old English boys abducted and killed a two-year-old boy, Young described the seductively manipulative effect of surveillance imagery in the manufacture of public hysteria surrounding the case. The case posed a new limit of vision. Young wrote: ‘The horror that overwhelms me in this case is located at the point where Robert Thompson and Jon Venables disappear from view, climb over the railway embankment in the dusk and go on to the railway line where they carried out the crime in the dark’ (Young, 1996: 112). The new limit of vision

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does not only ask: What am I looking at? It also panics: I can’t see! Our panic is multiplied by our knowledge: I can’t see, and yet I know what is going to happen. We are rendered impotent by the image (I can see, but I cannot intervene), but we are also impotent without vision (I know it, but I cannot see it). It is not only the image that disarms us. The possibility of image in the absence of an image gives us a new fear of the dark. The anxiety aroused by the image – its visibility, its invisibility, its spectre – derives from our inability to control it. We cannot summon the hooded bandit to the courtroom. The best that law can do is to summon Mundarra Smith and hope that the spectre reveals itself in time for the jury to see it. Despite law’s repeated attempts to see it, the spectre recurs in its own time. Derrida writes, ‘A question of repetition: a specter is always a revenant. One cannot control its comings and goings because it begins by coming back’ (in Hutchings, 2001: 8). The arrival of the spectre marks the unpredictable but always anticipated return of the repressed. The hooded bandit is the locus around which circulate the monoliths of property, security and punitive punishment. Remembering Sontag’s call for an ‘ethics of seeing’, recalls Solomon-Godeau’s claim about the ‘manifest inadequacy’ of photographs in revealing the power relations that underlie them (1991: 189). Inspecting a photographic image is manifestly inadequate for invoking the serious sanctions that flow from it. Justice Hayne of the High Court made this argument, criticising the resource limitations that enable a prosecution to proceed with a single set of images. He complained, ‘Are budgetary constraints in New South Wales so tight that a trial at which a man can face six, eight, ten years imprisonment is to be conducted with 12 jurors sharing one set of photographs? If it is the position, that is startling, and, for my part, entirely unsatisfactory’ (High Court transcript: 15). Of course, Justice Hayne’s point was that a single set of photographs is inadequate. But what he leaves unspoken is an assessment of how many photographs are enough to send a man to prison for up to a decade, or whether he wants something more than photographs before he is satisfied and no longer startled. Justice Hayne’s remark can be read in light of Zˇizˇek’s ethical commentary on moderation (inspired, quite helpfully, by Hamlet wryly noting: ‘Thrift, thrift, Horatio! the funeral bak’d meats did coldly furnish forth the marriage tables’ (Act I, scene v)). Moderation is an ethical practice, disciplining the subject by leading them away from transgressive desire. For Zˇizˇek, the miser, motivated by thrift, ‘makes an excess out of moderation itself’ (2001: 40). Moderation becomes the practice of desire; the miser is seduced by thrift. The desire to withhold, anti-desire, becomes a transgressive practice; a kind of jouissance of restraint. This seems an irresistible analogy for law. Whilst Justice Hayne complained of the startling inadequacy of a single set of photographs, the insufficiency of photographic evidence was never addressed. It is this lack that leaves law satisfied. Photographs simultaneously startle and satisfy. Photography’s capacity to

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unsettle us is explored by writers who consider the connections between the photographic and the catastrophic. For Barthes, the photographic surface represents ‘flat death’ (1981: 92). Susan Sontag, whose acknowledged source of inspiration was Barthes, identified the photograph as ‘a trace’, ‘something directly stenciled off the real, like a footprint or a death mask’ (1971: 153). She described the act of photographing people as violation: ‘by seeing them as they never see themselves, by having knowledge of them they can never have; it turns people into objects that can be symbolically possessed. Just as the camera is a sublimation of the gun, to photograph someone is a sublimated murder – a soft murder, appropriate to a sad, frightened time’ (Sontag, 1971: 14–15). Here, the conflation of ‘possession’ with ‘murder’ reminds us that the power to take and to look at images is violent. What we take from a person when we photograph them, or when we inspect their image, may be their liberty, their spirit, or their life. Asking, ‘May I take your picture?’ identifies the giver of the picture as an accomplice. Taking without permission thus becomes a kind of theft: possessing whilst dispossessing. Taking photographs of Aboriginal people has been the subject of case law, jokes in popular culture, anthropological, criminological and tabloid practice. Each of these discourses operates as a managerial response to an indigenous proscription against photographic capture. In Colin Goodsell v Galarrwuy Yunupingu (1999)3 Yunupingu was prosecuted for assaulting a white man photographing indigenous children on Aboriginal land. Yunupingu, a tribal elder, argued that the assault was in pursuit of a lawful activity, as he is entitled to administer Aboriginal law on Aboriginal land. He was acquitted. That decision was overturned on appeal.4 The case of Marianne Watson (2001)5 concerned a woman attempting to prove she was an ‘Aboriginal person’ for the purpose of being included on the electoral roll of the Aboriginal Land Council of Tasmania. Watson needed to prove that she was of Aboriginal descent and sought to tender photographs of people whom she asserted were her Aboriginal ancestors. Aboriginal witnesses were called to testify that the people represented in the photographs were Aborigines. Chief Justice Cox of Tasmania said that, ‘[t]o my unpractised eye, the photographs are not definitive’ (at paragraph 14), and Watson’s Aboriginality remained unproven. In the popular film Crocodile Dundee (1986), one scene portrays the prohibition on photographing Aborigines as cultural misunderstanding. The white woman thinks she cannot take the photograph because it will capture the black man’s spirit. The black man tells her she cannot take it because she

3 4 5

[1999] AILR 19. Director of Public Prosecutions Reference No 1 of 1999 (1999) 128 NTR 1. In the Matter of The Aboriginal Lands Act 1995 and In the Matter of Marianne Watson (No 2) [2001] TASSC 105 (27 August 2001).

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has not removed the lens cap. When, in the prosecution of Mundarra Smith, the laws of evidence require the photographic image and the subsequent scenes in which the image is scrutinised, we observe a managerial practice at odds with Aboriginal law. Furthermore, when the High Court identifies the hooded bandit as the spectre of the dead sovereign, it invokes the fraught legitimacy of white rule. The Ghost issues a command to Hamlet to avenge the illegitimate overthrow of sovereignty: ‘Revenge his foul and most unnatural murder’ (Act I, scene v). In this moment, the spectre faces the High Court, challenging the very legitimacy of its law-making position. In the instant that the High Court sees the black man as the spectre of Aboriginal sovereignty, it destabilises the basis upon which English common law is the law of ‘Australia’. It also encroaches upon the prohibition against naming the Aboriginal dead. To avert the need to address the consequences of such ruptures, the court looks away before it can realise the consequence of this literary detour. Not only does the Aborigine appear in order to fill the void left by the invisible transgressor, he is also imagined so that he may portray his annihilated forebears. His visibility is produced to verify his invisibility, his erasure. The act of looking is simultaneously an act of ideology, an act of collaboration, and an act of oppression. The moral shortcomings of unsatisfactory or unethical looking are actually required for the smooth conversion of an unknown bandit into an incarcerated black man. In German Ideology, Karl Marx described that conversion as an ‘inversion’, not accidentally applying a photographic metaphor: ‘If in all ideology men and their circumstances appear upside down as in a camera obscura, this phenomenon arises just as much from their historical life process as the inversion of objects on the retina does from their physical life process’ (Marx, 1978: 154). For SolomonGodeau, this phrase clarified ‘the critical limits of an inventory of appearances’ (1991: 189). It places a boundary between what we ought to see and what we are required to see. These ‘critical limits’ locate a boundary between ethics and expedience. This conversion of the subject into the captive can be interpreted, through Sontag, as an ‘appropriation’, where the act of photographing becomes an act of appropriating the thing photographed; taking a picture ‘means putting oneself into a certain relation to the world that feels like knowledge – and, therefore, like power’ (Sontag, 1971: 4). The hooded bandit is appropriated – taken – by those of us who are empowered to look at his image and, in looking at it, command his destiny. John Berger wrote, in his Marxist critique of visual images, ‘Every photograph is in fact a means of testing, confirming and constructing a total view of reality. Hence the crucial role of photography in ideological struggle. Hence the necessity of our understanding a weapon which we can use and can be used against us’ (1980: 294). Here we are reminded that this is not just a photograph of a bank robber. This is a photograph of a bank robbery. In

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this image is a hooded man who, with his baseball cap wearing accomplices, pushes civilians to the ground and steals their money, our money, before walking out of the frame. The use of these photographs in criminal procedure purports to enquire: ‘Who are these men?’ But the photographs make an additional, mute yet audible exclamation: ‘Look what they have done to us!’ Solomon-Godeau warned that, whilst the photographic image ‘appears to speak for itself’, such self-evidence conceals ‘the working of ideology which always functions to naturalize the cultural’ (1991: 182). Tagg concurred: ‘Like the state, the camera is never neutral’, identifying photographic representations as ‘highly coded’ claiming that ‘the power [the camera] wields is never its own’ (1988: 63–64). Of course, the power that the camera wields is ours; we exercise that power whenever we look at an image. The power to ask, ‘Who is this hooded man?’ confers a power to assert, ‘He is committing a bank robbery, an act that offends us by interfering with our fantasies of order, property and management.’ And when someone is able to say, ‘This hooded bandit is that man in the dock’, what follows is the authority to cry, ‘Lock him up!’ But in naming the spectre of the overthrown sovereign, Justice Kirby urges us to remember: ‘Look what we have done to them!’ Here we have a clear resonance of what Homi Bhabha described as ‘the shrill alarm of the unhomely’ (1990: 9). In the spectral image we invest all the managerial capacities for order, control and certainty. But not without it also leaking out our repressed anxiety about indigenous dispossession, the illegitimate seizure of sovereignty and the captured spirit of the captive black man. Following the ‘trace’ of the image back to Barthes, we identify the image as an attempt to frame – and to contain – our unswerving trajectory towards catastrophe. Barthes wrote: In 1865, young Lewis Payne tried to assassinate Secretary of State W. H. Seward. Alexander Gardner photographed him in his cell, where he was waiting to be hanged. The photograph is handsome, as is the boy: that is the studium. But the punctum is: he is going to die. I read at the same time: This will be and this has been; I observe with horror an anterior future of which death is the stake. By giving me the absolute past of the pose (aorist), the photograph tells me death in the future. What pricks me is the discovery of this equivalence. In front of the photograph of my mother as a child, I tell myself: she is going to die: I shudder . . . over a catastrophe which has already occurred. Whether or not the subject is already dead, every photograph is this catastrophe. (1981: 96) The security camera in the National Australia Bank at Caringbah captures each succeeding moment of the robbery. By the time the photographs are developed, the crime has been committed. As police officers flick through the images in the detectives’ office at Redfern police station, the likely suspects

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are being encircled. And as Mundarra Smith sits silently in the dock, and as the jury passes amongst themselves the single set of photographs, and as police officers step into the witness box to testify that, when they looked at the photographs, they recognised Mundarra Smith, the catastrophe has already unfolded. Far from hiding in the light, the light illuminates and discloses concealed secrets. Smith’s conviction in his first trial simply punctuates a pre-fabricated doom. The hooded bandit is captured in the act of attacking patriarchy, capital, civility and entitlement. What follows is fore-ordained: the hooded bandit is a doomed man. Smith’s acquittal in his second trial may be law’s catastrophe. Like the ghost in Hamlet, the spectral image conveys to us a message that is also a warning: respond to me; remember me. But our response is irrelevant because our fate is sealed. Hamlet’s tragedy is not his indecision or his bad choice of action. It lies in his realisation that whatever he does next only doom and death will follow. That two juries made opposing responses to the spectre’s arrival demonstrates that the catastrophe of the common law is the realisation that, whatever it does, however it responds to the spectre’s challenge, an act of justice is always someone’s catastrophe.

Chapter 7

Your fantasy, my crime

Law has yet to come to grips with what photographs are, what they can do, and to whom. Captive Images has focused upon the trial of Mundarra Smith because of how this case interferes with our assumptions about ‘looking’ and ‘knowing’. In a society that endlessly invents new technologies for seeing everything, at some stage law needs to ask itself an ethical question: should we be permitted to look? When this ethical self-examination occurs, law needs to remember that our capacity to see remains obscured by our fantasies of nation, race and transgression. Once, during a visit with criminology students to the Metropolitan Reception and Remand Centre, part of the Silverwater prison complex in Sydney, we saw the implementation of a new technique for visual capture. Iris scanning was being introduction for prison visitors and on our tour we were shown how the process worked. The foyer was busy with women and small children waiting to visit prisoners, who waited in another compound wearing the special overalls required during visits, to limit the passage of contraband. A prison guard sat at a computer monitor and, one at a time, invited the women to come to his counter and look into a machine. The machine captured their iris, which then appeared on the computer screen. The guard assessed the image; if it was unsatisfactory, he rescanned it. Some women needed several scans before the machine was satisfied. Once completed, the image was saved onto the machine, together with details taken from the woman’s driver’s licence and the prisoner’s records. This formed a permanent record, and her iris would be scanned during all subsequent visits for comparison with the iris on the computer file. What was most striking about the group of women being scanned on that morning was that most of them wore strict Islamic dress, and the machine had captured the only part of their body that was not already covered: the eyes. The purpose of the technology, the rationale for this visual capture, is the pursuit of efficiency, certainty and security. The veiled woman becomes transparent through a form of photogenesis. The machine produces national fantasies: it sheds light upon otherwise dark spaces, using colourless technologies to capture the certain something that distinguishes one person from another.

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Yet, from the scholarship of Joseph Pugliese, we learn that these machines are calibrated to whiteness, and often also to men (2005: 5). Non-white and non-male individuals are less easily recognised by biometric technologies; whenever a scan fails, these people are said to have ‘failed to enrol’ (2005: 4). Pugliese’s argument is about racialised exclusion co-existing with racialised scrutiny. His point is made even more poignant when he notes that the hardware for these technologies is primarily made by Third World women, the very group whose bodies often disappear in the face of the machine that fails to enrol them (2005: 10). For the women visiting the prison, this form of visual capture – or enrolment – might signify loss (of privacy, of dignity), dismemberment (detaching their iris from their body), and trauma (reminding them why they are here, in the hot industrial outskirts, visiting their husbands and sons). It also signifies return. These are permanent computer files, kept for comparison with subsequent scans. Once-only visitors do not enter the system. These women have entered an imaging cycle, tethered inseparably from crime. And, for those women for whom imagery itself is proscribed, whose faith resists the urge to represent, these scans are more invasive still. Images are never neutral; the machines that capture them operate on a differential scale, with impacts that may be exacerbated by race, culture, age, class and location. Recent findings by the Australian Institute of Criminology state that, in 2005, 9 per cent of local government authorities used some type of CCTV system in public spaces (Australian Institute of Criminology, No 42, 2 February 2006). It is the experience of people who live in these areas that these technologies more closely supervise young, often minority, people whose recreation is conducted in public areas. Other CCTV systems operate on public transport, in shopping areas, in commercial premises and in car parks. For the people who install these systems, their significance may be straightforward: these images are democratic and honest. The pictures will set us free. But for the courts, for ethicists, and for the individuals under surveillance, we may not be ready for these machines. If we permit ourselves to be led by technology, we unsettle concepts in which we had begun to believe: privacy, property, safety, crime. In a world where everything is visible, it becomes impossible to see the boundaries. New technologies produce new ways of seeing and, with them, new ethical problems. Photogrammetry is the process of measuring photographed objects. Using the principles of perspective – wherein three-dimensional objects are represented in two dimensions – and using the measurements of known objects, unknown objects can be measured in photographs. For instance, David Wayne Johnson was on trial for robbing a bank in Kansas City.1 Security photographs were tendered, and Johnson argued that he was not

1

United States v David Wayne Johnson (1997) 114 F.3d 808.

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the bandit in the images. A photogrammetry expert from the FBI Special Photographic Unit testified that he had taken measurements of various objects in the bank, using them to measure parts of the bandit. He testified that the bank robber was 6 feet 4 inches tall and wore a size 15 shoe. These measurements matched Johnson’s height and shoe size. The expert also testified that only 0.3 per cent of men’s shoes sold in the United States were size 15 (at 811). (The photogrammetry evidence was not the only evidence against Johnson.) On the other hand, a plastic surgeon testified for Johnson, saying that the ear of the photographed bandit did not match Johnson’s. Another FBI agent rebutted this evidence, saying that ‘the photographs were of too poor quality to make an accurate ear identification’ (at 811). Here, the image is scrutinised in order to yield its secrets. Some of the secrets surrender themselves to open view, some of them do not. The law permits one expert to trump the other without ever establishing which of a bandit’s body parts may be compared with a photograph. There are no clear bright lines around what we can see and what we cannot; what one person sees is what another says is invisible. The limits of the image cannot be drawn, and what is within its frame is often unpredictable. The Mundarra Smith case contains a scene that reminds us of the contingency and instability of photographic images. Where we may have become complacent about the conjoining of race and deviance, and photographs and evidence, Mundarra Smith himself says something that is utterly unanticipated. We cannot know what – if anything – Smith knows about the bank robbery in Caringbah. Nevertheless, what he says about the photograph is surprising, forcing us to accept that every image is in the eye of the beholder. Smith’s only remarks were made in his police record of interview, which he gave voluntarily and without legal advice. The transcript was included in the police brief and Smith did not testify at his trial. After his arrest, Smith was questioned at Redfern police station by Senior Constable Rotsey, who showed him a photograph taken from the bank security camera: Rotsey: Can you tell me who that person is? Smith: No, I can’t. His face is all scrunched up. Looks like he’s cryin’ . . . Rotsey: Well, I suggest to you that the person in that photograph is in fact yourself. What can you tell me about that? Smith: Doesn’t look like me. Rotsey: Do you have any clothes similar to that? Smith: No, I haven’t got any clothes similar to that, see I’ve only got two sets, three sets of clothes, I’ve hardly got any clothes myself. (Police record of interview, 22 July 1997, in Appeal Book: 282) Inviting Smith to look at the image is a scene that is rich with significance. What role does Smith play in this fantasy? Homi Bhabha asked rhetorically: ‘have our fables of identity ever been unmediated by another?’ (1994: 57).

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In this scene, Mundarra Smith and the hooded bandit are looking at each other. But Smith is also looking into the scene of a colonial fantasy, and as he looks into it, it looks back at him. For Bhabha, ‘the exchange of looks between native and settler’ sets the scene for the ‘paranoid fantasy of boundless possession’ (1994: 44). It is a moment that is ‘always poised uncertainly, tenebrously, between shadow and substance’ (Bhabha, 1994: 49). Whatever Smith has to say about this photograph, his fate is always and already determined before, in another scene in which he played no part and in which the fantasy was imagined, and after, in yet another scene, in which he did not speak. Nevertheless, in this one short moment, Smith says something that hints at some other narrative to which we have no access. It is the fantasy of the Other. For Bhabha, that fantasy is ‘to occupy the master’s place while keeping his place in the slave’s avenging anger’ (1994: 44). But for Ari Hirvonen, the Other’s fantasy must always be inaccessible: ‘What confers on the other the dignity of a “person” is . . . precisely what is “absolutely particular” about him, his fantasy, that part of him that we can be sure we can never share’ (1998: 156). In Terry Threadgold’s analysis, there remains open the possibility that there can be an autonomous Other, not produced by and for the colonial Self. If we acknowledge such an existence, she wrote, ‘it becomes possible to imagine the native looking back (returning the gaze), not after the colonizer has imagined her, but before that image has been formed’ (Threadgold, 1999a: 279). This inaccessible, uncontrollable zone is the excess of the Other. And the more we dwell upon its possibility, the more we destabilise the fantasy that gives authority to our own pursuit of desire. For an image purporting to represent a bank robbery in progress, Smith’s comment is startling, and suggestive of some other scene upon which our methods of discursive interpretation have no effect. The conversation between Smith and Rotsey certainly occurred, but it is unlikely that meaning was exchanged. This recalls Derrida’s analysis of Kafka’s The Trial. In that novel, K confronts the various representatives of the law. For Derrida, these were men who ‘demanded from him an account which he could not give, although it is the very one he puts forward in order to relate the impossible’ (1992: 207). If we break Smith’s answer down into three parts, we start to see this impossibility: 1. 2. 3.

Denial (‘No.’) Distortion (‘His face is all scrunched up.’) Trauma (‘Looks like he’s cryin.’)

1. When asked if he will participate in this fantasy (‘Can you tell me . . .?’), Smith declines: ‘No, I can’t.’ This denotes inability. Even if it is him in the photograph, the image of himself is taken from him. The violence of the camera – ‘it sharpens its teeth in readiness’ (Flusser: 2000: 21) – separates

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the image from its referent. Christian Metz described this as ‘abduction’, where a piece of bandit has been cut off – his image – and becomes a fragment that cannot be returned (in Kibbey, 2002: 163). Equally, in asking Smith to look at the photograph, a piece of him – his look – is recruited by the policeman, and Smith becomes separated from his own capacity for unmediated vision. Smith’s ‘No’ also marks his refusal. Asked to look from the perspective of his oppressor (‘I suggest to you . . .’), Smith’s answer raises the possibility that he is invoking Flusser’s call to ‘outwit’ the apparatus in the name of freedom. For Flusser, the counter-vision can be practised in several ways: one can ‘smuggle human intentions’ into the technical process; one can ‘force the camera to create the unpredictable, the improbable’; or one can ‘show contempt for the camera’ (2000: 80). By his ‘No’, Smith has done all of these. He has refused to direct his sight to what the policeman shows him. Shown the purported scene of his own downfall, Smith looks away. 2. Describing the photograph before him, Smith says the face of the bandit is distorted. Whether contorted out of anguish, emotion or camouflage, the distorted face is unnatural. It tells us something from beyond the face. It is a sign. Alison Young wrote about the effect upon the body of its being rendered a criminal spectacle. She wrote: ‘the body that suffers under the weight of imagination is a spectacle to be consumed, disciplined, repressed. As such, the moments seized for analysis implicate the body in extremis: moments in which the body is in pain, in pleasure, is dying or dead’ (Young, 1996: 17–18). The distorted face is performing; it narrates the body’s message to an audience that watches the performance seeking a particular meaning. In the process of facial distortion, the audience also cannot be neutral. If the face is trying to tell us something, we must try to learn something from it. Meaning is exchanged, although the intended meaning may alter between the act of transmission and the act of reception. The distortion requires interpretation. From the earliest days of admitting photographic evidence into law, interpreting distortion required care and protection. In 1841, in Philadelphia, the applications of photographic techniques in criminal law were considered. Taking a cautionary approach to Daguerre’s method of ‘painting with sunbeams’, the pitfalls were noted of daguerreotyping offenders into a catalogue of mug-shots in France: ‘The rogues, to defeat this object, resort to contortions of the visage and horrible grimaces’ (in Scott, 1969: 2). Distortion was the offender’s weapon against the photographic apparatus. In 1995, in a case factually similar to the Smith case, the Queensland Court of Appeal considered the question of facial distortion in security photographs taken during an armed robbery.2 In that case, the perpetrators’ features were distorted by wearing stockings over their faces.

2

R v Griffith (1995) 79 A Crim R 125.

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Police officers testified that they recognised the appellants from the photographs, although conceding they had never seen them distorted in that way. The court left open the possibility that a person could acquire expertise in making identifications where features were distorted: ‘I would not entirely rule out the possibility of a person becoming an expert by experience, and perhaps experiment, in the distortions of features produced by the placing of a stocking or similar constricting material over the head’ (at 128). Nevertheless, in that appeal, they held unanimously that those police witnesses were not able to give their evidence. The distortion that occurs in the exchange of looks is explained by Slavoj Zˇizˇek, when articulating the reason for naming his 1992 book Looking Awry. The title comes from Richard II: For sorrow’s eye, glazed with blinding tears, Divides one thing entire to many objects; Like perspectives, which rightly gaz’d upon Show nothing but confusion; ey’d awry Distinguish form . . . (Act II, scene ii) Zˇizˇek’s distortion refers to the act of looking, and not to the object of the gaze. He wrote that the viewing process requires ‘interested’ or motivated viewing, in order to see clearly. A neutral or objective look reveals nothing. An object ‘assumes clear and distinctive features’ when one’s look is ‘supported, permeated, and “distorted” by desire’. For Zˇizˇek, we can only see the objet petit a, the object of desire, through a gaze distorted by desire. The object does not exist for an ‘objective’ gaze, because the object is produced by, it is the ‘embodiment’ of, our desire (Zˇizˇek, 1992c: 11–12). 3. If Smith is aware that this picture shows a bank robbery, his suggestion that the man in the photograph is crying raises the possibility for a visual interpretation that either the man is not a perpetrator but a victim, or else that his participation in the robbery is somehow traumatic.3 Or else that the man in the photograph, the hooded bandit, has been overcome by some inexplicable sadness. For Lacan, trauma is located always in the unconscious, erupting often to remind us of itself, and of our unconscious desires. He wrote, ‘The trauma reappears . . . frequently unveiled. How can the dream, the bearer of the subject’s desire, produce that which makes the trauma emerge repeatedly – if not its very face, at least the screen that shows us that it is still there behind?’ 3

In dealings with the District Court Registry, I spoke to an officer about the photographs that the court had kept in the Smith file. I asked her to describe the photographs. ‘You can see the victim in both photos.’ ‘Which victim?’ ‘Well, he’s next to a big box and he’s got a cap on in one photo and a hood on in the other.’

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(Lacan, 1977: 55, emphasis added). If we apply this analysis to Smith’s examination of the photograph, we see that he is traumatised by the face of desire. If the Self and the Other compete for the same desire – the pursuit of control, money, unconditional freedom – it is the scene of the desire’s realisation – the bank robbery – that is traumatic. It is not that the desire itself is a source of trauma. It is only when it is revealed to us (‘unveiled’), when we look directly at it, when we see its bold face looking back at us, that we recognise the painful trauma of realising our desire. The point, of course, is that the act of looking can never be neutral. It is always motivated by the viewer’s managerial fantasy or their unconscious desire. We recognise this, as Zˇizˇek wrote, in ‘the anxiety that automatically arises in the viewer’ when we are suddenly reminded of our desire (1992b: 223). In that moment, we recognise our solidarity with one of the key characters, either the hooded bandit or the manager. When Smith looks at the photograph, it becomes his ardent wish that the bandit gets away with it. When the policeman looks, he hopes to catch the thief. But, when we look at these images, what are we looking for, and what do we hope remains invisible? These images are staged for us. We collaborate with their makers. Our gaze was ‘included in [the scene] from the very beginning’ (Zˇizˇek, 1992b: 223). What have we come to see? Zˇizˇek, in his reading of Kafka’s parable ‘Before the Law’, interpreted the meaning of the country man coming to see the Law and being asked to wait indefinitely by the door-keeper. Zˇizˇek analyses the significance of the door-keeper’s explanation to the man, just before he dies: ‘he tells the man from the country that the thing that fascinated him was, in a way, gazing back at him all along, addressing him. That is, the man’s desire was from the very start “part of the game”. The whole spectacle of the Door of the Law and the secret beyond it was staged only to capture his desire’ (Zˇizˇek, 1992c: 114). Whether our wish is to recognise the bandit as Mundarra Smith, or to let this crime go unpunished, we have one settled desire. This desire motivated us to stage this scene in the first place. Our fantasy is this: that in our vision vests our authority, our capacity to be in charge. There is a fourth element to Smith’s answer: ‘Doesn’t look like me.’ Here we find him examining his own appearance, wondering what he looks like, confronted by an image in which he does not, or does not wish to, recognise himself. Regardless of whether or not it is him in the photograph, being invited to look at it invites him to consider what he looks like to himself. He wonders what he might look like robbing a bank. Sontag wrote, ‘To photograph people is to violate them, by seeing them as they never see themselves, by having knowledge of them they can never have’ (1971: 14). Is this what I look like robbing a bank? Roland Barthes offers an ideal reading here. For Barthes, photography was enlivened by the element of candour or surprise that accompanies the ‘perfect’ image, which captures a gesture ‘when it is performed unbeknownst to the subject being photographed’. Barthes wrote that the element of ‘shock’

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in photographs ‘consists less in traumatizing than in revealing what was so well hidden that the actor himself was unaware or unconscious of it’ (1981: 32). Another instance of trauma giving way to the candour of recognition is the case of James Smith and Jason Mack,4 described earlier. In that case, Smith and Mack attempted to rob Christine Crandall outside her home in Baltimore. She identified both men from photographs, and her background as an art teacher and portrait painter was admitted into evidence. When testifying about how she identified Mack from the photograph, the following exchange occurred: Crandall: Counsel: Crandall:

May 8, from the photo they gave . . . he looked more intense, I realized . . . and this picture is not actually becoming as he is. What do you mean by that? I don’t understand that term? I think he’s better looking than this picture shows him.5

From Crandall’s evidence, the shock of the photograph is not the trauma of the victim facing her attacker, but her surprise that he is not photogenic. Her testimony acknowledges the distorting effect of the camera. When she described the men who robbed her, she said they ‘looked great. They looked fine’, and one of them was ‘really handsome’ with ‘nice teeth’ and ‘strong posture’.6 For Crandall, the good-looking bandit’s best features are lost in the photograph, but it remains nevertheless him. Jennifer Mnookin studied the 1859 play The Octoroon by Dion Boucicault, which turns upon a murder which is solved by the timely intervention of a photograph. Here the camera becomes a deus ex machina; Mnookin wrote, ‘The camera is explicitly an agent of heaven, producing its image without any earthly creature’s intervention. No person works the apparatus: It is the finger of God that operates the machine’ (1998: 15). In his essay on the gaze, Miran Bozˇovicˇ also invoked God. Here, he cited Nicholas of Cusa’s pronouncement when he saw an icon of God: ‘I am because Thou dost look at me, and if Thou didst turn Thy glance from me I should cease to be’ (Bozˇovicˇ, 1992: 176). This returns us to Justice Kirby’s suggestion, above, that ‘the fact is known to God’, adding the inference that the fact is known to the camera. In showing the camera’s ‘knowledge’ to Mundarra Smith, the intention is to ‘shock’ him into an admission. Instead, it prompts him to offer a surprising reading of the image. Of course, applying Barthes’s reading of ‘shock’ and Mnookin’s and Bozˇovicˇ’s formulations of ‘God’ into Smith’s own interpretation of the photograph opens out (at least) three possibilities. Either Smith is able to 4 5 6

James Smith and Jason Mack v State of Maryland (2004) 158 Md. App. 673 and James Smith and Jason Mack v State of Maryland (2004) 388 Md. 468. 158 Md. App. 673 at 687. 388 Md. 468 at 474.

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identify a crying bandit in a photograph that to other observers represents a bank robbery, which already serves to undermine the assumptions about authority, agency and violence that accompany criminal offences of this nature. Or Smith, recognising himself in the photograph, describes or deflects that recognition by inferring sadness or regret or vulnerability in the bandit. Or Smith, realising that he only exists for the policeman as long as he is the hooded bandit, toys with the idea of playing along but wilfully disobeying the rules, to frustrate the omnipotence of the panoptic police gaze. The scene in which Smith inspects the photograph can be compared with the scene in which Roland Barthes was shown a photograph of himself which he did not recall being taken. Barthes recognised himself and his clothing, but he did not remember the moment of photography: ‘And yet, because it was a photograph I could not deny that I had been there (even if I did not know where). The distortion between certainty and oblivion gave me a kind of vertigo’ (1981: 85–87). We cannot know if Smith saw himself in the photograph; we do know that he has denied being there. And we may speculate that, since someone else has ‘recognised’ him, he experiences nevertheless the vertigo that Barthes located between certainty and oblivion. It is a sensation familiar to anyone who has unwillingly surrendered themselves to the operations of the criminal justice system, wavering precariously, often arbitrarily, between certainty and oblivion. Barthes’s ‘shock’ has an analogy in Jacques Lacan’s analysis of the gaze. Lacan examined the effect upon the gaze of seeing oneself seeing oneself (1977: 80). For Lacan, a gaze cannot see itself. As soon as the gaze encounters another gaze, one of them becomes something else. It is crucial to remember that the hooded bandit in the bank robbery plays the role of the look-out. His purpose is to see. But he subverts his given role. Instead, he looks directly into the camera. He gives himself to be seen. And if he is Mundarra Smith, then Smith – after his arrest – looked into his own eyes, captured by the camera in the act of looking. Of such a scene, Lacan wrote, ‘A gaze surprises him in the function of voyeur, disturbs him, overwhelms him and reduces him to a feeling of shame. The gaze in question is certainly the presence of others’ (1977: 84). The purpose of this photograph is to shame Smith into a confession; he is to be shamed by the knowledge that others can see what he has done. But, in the police station, the ‘other’ employed to shame him is himself. And Smith refuses to play along. In the moment when the hooded bandit looks into the camera, he sees the gaze of the manager. He is conscious of being gazed at. In the moment of realising that he is the subject of the gaze, the hooded bandit recognises himself as its object. He sees himself through the eye of his examining other. For Bozˇovicˇ, ‘If it is true that once I apprehend the gaze I cease to see the eye looking at me. . . then I have eyes so that I might not see that the other is gazing at me’ (1992: 168). Instead, he becomes himself looking at himself, the ‘transformation of the voyeur into the picture, of the spectator into the

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spectacle’ (Bozˇovicˇ, 1992: 175). Smith is invited to be the agent of his own examination. He resists the temptation. Yet emerging technologies of visual capture produce new temptations to see and be seen. In 2005 in England the ‘happy slapping’ craze was reported in the press. Primarily practised by teenagers, who were also its main victims, a person would run up to a stranger in public and slap them, whilst another person captured the assault on their mobile phone camera. The images, or short videos, were then distributed to other phones, or posted onto the internet. These crimes were perpetrated explicitly for the camera. Indeed, some school principals and police officers argued that the technology actually produced this previously unknown crime, and students were required to surrender phones in some schools. One commentator, Graham Barnfield, argued that perpetrators were staging these crimes to replicate certain television programmes, achieving the thrill of celebrity through the commission of telegenic crimes. Barnfield said, ‘What we see the kids watching these shows doing, is thinking, “Well, maybe I could stage my own scenes of pain and humiliation along these lines” ’ (in Cartwright, 2005). The voyeur enters the image, becoming an actor in crime’s scene. This phenomenon reached its lowest point when a mobile phone was used to film the killing of a teenager by another. Triston Christmas died after being punched by Gary Roper, both of them 18 years old. Christmas’s head hit a concrete floor. Roper’s friends filmed the attack, later sending the images to fellow pupils. Christmas’s father also received the images on his phone. Christmas’s mother said: The film was downloaded to other people’s computers and mobiles. It was just too devastating to look at. Triston was lying there with blood coming out of his mouth and his ear, and he was trying to speak. It sounded like he was trying to say ‘Mum, Mum’, but he couldn’t get the word out properly. It’s absolutely heartbreaking and it will haunt me for the rest of my days. (in Dodd, 2005) Here, crime’s victim looks into the eye of his killers, behind the lens of the camera. He addresses his killers, his mother, and the camera. He sees himself seeing himself dying. He becomes a spectator to the spectacle of his own death. In a different context, we see the photographs of Enrique Metinides, the Mexican crime photographer and accident chaser, whose corpse-filled portfolio has moved out of newspapers and into international art galleries. Having photographed his first corpse at the age of 12, Metinides attributed his interest in the genre to gangster movies (in Searle, 2003). Haunting in their beauty and terror, Metinides’s photographs challenge us to look, and then remind us that we have seen a spectacle, participated in the voyeurism and

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violence that instinctively we condemn. The victims of suicide, car accidents and murders are captured in the image, showing us that this is what happened. But in this moment of grief, trauma and pain, should we continue to look? The capacity for capture in these emerging technologies can be directed towards confirming other, more hidden, social phenomena. In one case, a mobile phone camera was used by a 16-year-old Iraqi Kurdish boy who had been arrested by police in London. Sitting in the back of the police van, the boy recorded the police officers saying they would ‘smash his Arab face in’, calling him a ‘robbing, rapist arsehole’, and threatening to ‘write [the charges] up properly’ to ensure he was convicted. When played before the court, District Judge David Simpson dismissed the charges against the boy, stating that he could not accept the police evidence (in Bale, 2005). In this instance, new techniques of representation have captured old methods of police brutality, reminding us there remain still more ways of wrapping together race, crime and photography. Writing about the doctrine of terra nullius, Paul Patton argued that it was part of a wider institutional mechanism for erasing the Aborigine, implicated ‘in the whole complex of measures which give effect to the legal invisibility of indigenous peoples’ (1999: 64). Along similar lines, Ian McLean wrote, ‘Aborigines have always played a very important part in the picturing of (white) Australian identity.’ In imperial texts, Aborigines are ‘the figure of exclusion or oblivion, the nothing or negative term from which an identity can be made’ (McLean: 1999: 107). But Captive Images takes a different view. The Aborigine has never been invisible under law’s examining eye. ‘Invisibility’ is an incomplete term through which to describe the complex of anxiety, fear, desire and guilt that characterises colonial dealings with indigenous people. Morally and legally, Aborigines are far from invisible. They exist permanently in the colonial gaze, imagined when they are absent, reimagined when they are present, inspected, classified and supervised. And it is because Aborigines cannot, or will not, be accommodated seamlessly into the colonial project, because the native is always necessary, and necessarily difficult and elusive for the colonist, that Aboriginality is the troubling excess of colonialism. The native may be sometimes unseen but never invisible. As the unmovable obstacle that stands between the nation we live in, and the nation as a fantasy space, the Other (the native) is the kernel that infects the logics of property, family and sovereignty that are the component parts of the fantasy (see also Biber, 2004; Biber, 2005). And, as the Mundarra Smith case reminds us, the black man is never invisible when our cameras capture him robbing our banks. The fantasy nation is constructed from a compendium of legitimacies: history, cartography, law, landscape, property, text, image, memory. The Other becomes the locus of danger, problem, crisis and panic. The indigenous subject becomes deviant, mutant, insoluble problem, inexplicable aberration, silent black man waiting in the dock.

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If one’s home, one’s national space, is circumscribed by things that are secret or hidden, then the power not to see is a tool in the management of entitlement. The High Court instructed the policemen that they were not permitted to see Smith in the photographs. The second jury, when shown the photographs, were unable to see him. And Smith himself, when invited to look at the photographs, refused to see himself in them. His refusal is his only authority, but he is entitled to his refusal, and it offers him a narrow, blinding moment of power. In that juncture, our managerial capacity ruptures, and what leaks out is the Other’s gaze. It is a gaze, and its examining eye exposes our fantasy to scrutiny. Under this scrutiny, we begin to realise that the Other can never be invisible, because our fantasy is staged for our Other; for him alone. We have become compelled by the elaborate systems we invent to generate our own sense of legitimacy but, as Zˇizˇek wrote, ‘we could say that the function of fascination is precisely to blind us to the fact that the other is already gazing at us’ (1992c: 114). We exist under the Other’s inspecting gaze, performing over and over the gestures that we ardently wish will legitimate our presence on the stage, as if being under the spotlight were analogous with sovereignty. Richard Feldstein wrote, ‘[W]e stage ourselves where the gaze becomes a conduit for light’s reflection in the eye. In its glint, as the light flickers, we become subjects of the symbolic – beings who are looked at and act for the Other-as-audience’ (1996: 52). Law’s Other is both the hooded bandit and the silent black defendant, both of whom constitute the audience for – and subject of – law’s managerial strategies, from surveillance through prosecution to incarceration. The Other is simultaneously abused, affronted and ignored by the law. But law’s captive has one chance for liberation. It is the black man’s secret. As he leafs through the catalogue of race, crime and photographs, he knows that he is looking at the white man’s fantasy.

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Index

Aboriginal Housing Company 83, 84 Aboriginal Legal Service see Sydney Regional Aboriginal Corporation Legal Service Aborigines: criminalisation 8, 11, 12, 13, 39, 54, 77; dispossession 7, 29, 83, 103–4, 111; families 73–4, 77, 82, 97 see also motherhood; in national identity 10, 12–13, 31, 46–7, 49, 73, 106, 123; oppositional practices 10, 35, 39, 83, 93–4; photographing 106, 109–10; see also clothing; see also Redfern Abu Ghraib 14 actuarialism 38; see also risk Anderson, Benedict 29, 32 banks: banking practices 27, 37, 43, 89; in national identity 27, 32–3, 38, 88–9, 111 bank robbery 27, 37–8, 42, 43; drugs in 27, 43, 44; policing and prosecution of 10, 18–19, 38–9, 50–2, 56, 59, 62, 92, 114–15; see also Dog Day Afternoon; see also Idiot Box; see also Kelly, Ned; see also Two Hands Barthes, Roland 13, 14, 16, 109, 111, 119, 120, 121 Beaubois, Denis 77–8, 90 Benjamin, Walter 11, 12, 13, 14, 92, 104 Berger, John 11, 110 Bhabha, Homi 33, 34, 35, 48, 49, 73, 111, 115, 116 biometrics 113, 114 Birmingham School see Centre for Contemporary Cultural Studies Bourdieu, Pierre 13, 14, 76, 77 Brecht, Bertold 42, 43

Butler, Judith 11, 20 21, 25 Byrne, Paul S.C. 51, 59, 60, 65, 69, 70, 79, 80 Campbell, Beatrix 7, 72, 79, 86, 87 Caringbah 9, 18, 26, 27, 33, 38, 39, 62, 92, 94, 111, 115 Carrington, Kerry 75, 79, 81 Centre for Contemporary Cultural Studies 84–6, 105 clothing 66–8, 115 colonialism 31–6, 48–9, 73, 116, 123 Cop It Sweet (documentary) 93 Crocodile Dundee (film) 109 Cronulla see riots cross-racial identifications see identification evidence Derrida, Jacques 32, 89, 92, 100–4, 108, 116 dispossession see Aborigines; see property Dog Day Afternoon (film) 40–2 Durkheim, Emile 50, 89 Eco, Umberto 13, 14, 51 ethics 11, 26, 36, 100–2, 105, 108, 113, 114 eyewitness evidence see identification evidence family 7, 13, 31, 72–82, 86–9; see also motherhood Fanon, Frantz 33, 34, 48, 49, 58, 106 Flusser, Vilém 16, 116, 117 Foucault, Michel 33, 104, 106 Freud, Sigmund 36, 50, 73, 101

136

Index

Gaudron, Justice Mary 19, 53, 62, 91 Gleeson, Chief Justice Murray 60, 62–6, 68, 72, 98 Governor, Jimmy 39, 40 Gummow, Justice William 61, 62 Hage, Ghassan 8, 28, 29, 31, 49, 73 Hall, Stuart 48, 49, 84 Hamlet (play) 7, 88, 98–112 happy slapping 122 Hayne, Justice Kenneth 108 Hickey, T J 10 identification evidence 7, 8–9, 25, 50–5, 57–66, 69–71, 95, 117–18; cross-racial identification 9–10, 22–4, 55–6; eyewitness evidence 17–20, 45–50, 54–6, 120; racial identification 21–2, 45–50, 69, 114; rogues gallery effect 17, 52 Idiot Box (film) 85–6 indigenous Australians see Aborigines insurance see risk Jameson, Fredric 40–2 Kafka, Franz 116, 119 Kelly, Ned 39, 87, 96 King, Rodney 21, 24, 25, 99 Kirby, Justice Michael 19, 61, 70, 90, 91, 98, 99, 101, 103, 104, 111, 120 Kracauer, Siegfried 20, 61, 76 Kristeva, Julia 31, 36 Lacan, Jacques 28, 29, 30, 89, 101, 105, 118, 119, 121 Langton, Marcia 50 Latham, Judge Megan 50, 58, 68, 69, 75, 93, 94 Levinas, Emmanuel 101, 102, 104 Macquarie Fields see riots Matthews, Bernie 37, 39, 43, 88 Menezes, Jean-Charles de 15 Metinides, Enrique 122, 123 Mnookin, Jennifer 16, 17, 21, 26, 79, 90, 120 Morris, Meaghan 14, 33, 50, 125 motherhood 7, 35, 63–4, 72–82, 96–7, 122; see also family

nation 8, 27–33, 38–40, 44, 99, 103, 110, 123; sovereignty 31, 98–9, 103, 110–11, 123 national identity 8, 28, 38–9; see also Aborigines; see also banks nationalism 8, 28–9, 31–3, 73 Nicholas, Jason 9, 50, 51, 52, 92–5, 97, 120 photogrammetry 114, 115 police 9–10, 17, 18–19, 21–2, 24–5, 50–5, 58–60, 69–70, 83–5, 92–7, 115, 118, 123; see also bank robbery property 15, 27, 29, 31, 32, 44, 73, 89, 109, 111, 123; dispossession 32, 33, 44, 73, 83, 103, 109, 123; see also Aborigines Proust, Marcel 61, 76 psychoanalysis 28–31, 50, 81, 89, 105, 106–7, 118–19, 121; see also Freud, Sigmund; see also Kristeva, Julia; see also Lacan, Jacques, see also Zˇizˇek, Slavoj Race – The Power of an Illusion (television series) 22 racial identification see identification evidence Redfern 9, 74, 75, 83–97; riots 10, 83–4 see also riots; The Block 83, 84, 93, 94 Richard II (play) 118 riots 9, 10, 21, 83, 85, 93 risk 16, 37, 38, 44, 105 Rogerson, Roger 38–9 rogues gallery effect see identification evidence Sekula, Alan 15, 16, 105 Sexton, Michael 19, 68, 98 Simon, Taryn 57 Simpson, O.J. 20, 123 Smith, Kevin 74, 88, 102 Smith, Lisa 72–82, 96, 97 Smith, Mundarra 1–124 Smith, Neddy 38–9 Solomon-Godeau, Abigail 15, 70, 108, 109, 110, 119 sovereignty see nation surveillance 8, 11, 12, 20, 32, 33, 71, 77–8, 81, 82, 88, 90, 91, 105–6, 107–8, 113–14

Index Sydney Regional Aboriginal Corporation Legal Service 8, 9, 39 Tagg, John 11, 16, 64, 70, 107, 111 terra nullius see Aborigines, dispossession Two Hands (film) 87, 88

137

Young, Alison 11, 71, 75, 79, 89, 92, 94, 107, 117 youth 7, 72, 84–7, 94, 96–7 Zˇizˇek, Slavoj 28–30, 36, 50, 81, 89, 92, 99–101, 105, 106–7, 108, 118–19, 124