Chapter 2
Love is an act of endless forgiveness. — Peter Ustinov [Note 4]
WHEN KRISTINA first saw Brendan, she was struck by how spunky he was. He was tall, dark and dangerous, the black sheep son of a wealthy family. She was a preppy tennis-playing blonde with braces and an eye for mischief. They were both 17, both far from their Sydney homes.
There are more romantic settings than the football oval at Kinross Wollaroi School in Orange, NSW. On the eastern verge of the State’s western plains and some 300km from Sydney and the sea, Orange has many virtues but it is no Excitement City. Essentially, it is a small town that has grown beyond its rural roots into an uneasy alliance with urbanity. Its attractions are sedately comforting: it is administrative central for plains agriculture, a civilised safe haven for selective boarding schools, a town that blossoms in spring and hunkers down in autumn against the scouring cold to come.
Even though it was late winter, the sun was shining under a high blue canopy as the rugby teams ran onto the oval. Orange’s battalions of grand European trees had long shed the last of their gold and russet leaves, and the air, tinged by wood smoke from household fires, carried its own chill despite the sun’s shine. That nippiness tinted the girls’ cheeks as they drifted into casual clumps around the footy field. Not many of them were genuine rugby fans but most still turned out to watch the school’s First VX play. Especially a local derby like this game against Scots College. The two towns were traditional rivals and the boys at Kinross took the challenge seriously. For many of the girls, the boys from nearby Bathurst were the attraction: they had two virtues — they were boys from somewhere else, and they were there.
As the teams lined up for the kick off, Kristina Brodie found her eyes drawn towards the tall prop forward on the Scots team. He seemed to radiate a mysterious sense of vitality. ‘I looked up what number he was on the program,’ she recalled, ‘to see who he was.’ Brendan Moran, it read, vice-captain. She tried to concentrate on the game but found herself watching him more as it progressed. She mentioned him to her girlfriends. One of them was going out with a boy in Brendan’s Year 11 class, and promised to find out ‘who he is’ and report back.
Brendan also noticed Kristina that day when she was loitering among well-wishers at the after-game farewell. And when he phoned her later that night, prompted by the friend-of-a-friend network, his first question was direct: ‘Are you the girl with the blonde hair (and) braces standing near the bus?’ After that the call went well, well enough at least for them to arrange to meet in Sydney during an imminent term break.
UNTIL that winter’s day in 1982, Kristina Brodie’s life had been essentially suburban, if with disruptive edges. She had been born in Vancouver on May 3 1965, the youngest in the family and only daughter. At the time her builder father was working on construction sites in the Canadian city, and she was five before her parents returned to Australia.
They were both originally from Victoria — they’d met at a dance when her mother was 19, her father a couple of years older and they had married soon after. The atmosphere at home was comfortable, secure and highly supportive. Alison Brodie was strong-minded, emotionally volatile at times, and devoted to her children. And as the baby, Kristina was doted on: she was a bright girl, levelheaded with a roguish humour who made friends easily. Her brothers had been 13 and 15 when she was born, which meant she grew up effectively an only child, especially after both of them stayed on in Canada.
When Kristina was 11, her father David died of a brain tumour. They had been very close, having similar personalities, and the trauma of his death was scarring. Money became an issue: Alison and she were never penniless but often struggled. After her husband’s death, Alison owned a couple of women’s dress shops, then moved into importing clothes before opening a coffee shop in the Macquarie Centre in Ryde. She placed a high priority on education; she sold the family home and moved into rental accommodation so Kristina could continue attending the best schools. Kristina, however, was not naturally academic — she enjoyed art history, ancient history and English, was shocking at Maths and science. As a girl she was more interested in horses, tennis, animals, Elvis and art than in schoolwork. Her ambition was two-fold: to become an Egyptologist and to have lots of babies.
She had started school at SCEGS then moved in late primary years to Queenwood School for Girls in Sydney’s prosperous and leafy harbour suburb of Mosman. After she sat her School Certificate there, she was enrolled as a boarder at the co-educational Kinross Wollaroi for the final two years of secondary schooling. Her mother had felt boarding school would be beneficial for those public exam years, and Kristina was keen enough because she loved the country and they had horses at the school. Once she was at Kinross, it was inevitable she and Brendan would meet, if not that day at the football then on another like it. Because the world of private school pupils around Orange, with its mix of the sometimes problematic children of urban professionals and the sturdy sons and daughters of farmers and graziers, was small and inward-looking. They might have crossed paths at a school social or an open day. But perhaps then, with Brendan not starring at his athletic best, the attraction may not have been as immediate.
THE SIXTH CHILD and third son of Doug and Greta Moran, Brendan Paul Moran was born five months later than Kristina Brodie on October 13, 1965. His parents and five siblings were then living in a two-bedroom house in Fox Valley Road, Wahroonga, and the presence of the new baby stretched facilities beyond acceptable discomfort. Soon after Brendan’s birth the family moved in to the spaciousness of the Wahroonga mansion Redleaf, built in 1899 to a design by British-trained architect Howard Joseland. Originally it had been a four-bedroom, two-storey, brick-and-shingle structure with a sweeping veranda set in an expanse of grounds. But its previous owners, the Sisters of Mercy, had altered it until it became labyrinth of 13 cloistered bedrooms. It remained that way while the children grew up, an anarchic maze to explore and colonise.
Brendan went to the local Warrawee Public School, then followed his elder brothers Peter and Shane as a boarder at St Joseph’s College, Hunters Hill. According to his mother, he was ‘a normal, very happy little boy’ who ‘tended to have more accidents that the other children, more broken bones’. He was never a potential nuclear physicist — school was a trial for him, and he may in fact have had a mild form of ADD. He certainly chaffed against the restrictions and discipline of lessons, but he was intuitive and sentimental and happiest when playing sport or climbing trees or just rumbling around. Football was his passion, and he was good enough at it to impress rep selectors. But he was willing to try any physical activity. There was a wild streak to him as well, a daredevil hedonism that became more pronounced in adolescence. He was, as Kristina conceded in court, ‘a handful’ when he was a teenager. He ran away from St Joseph’s twice, had not settled at two other high schools — Scots was effectively his last chance at formal education.
BRENDAN AND KRISTINA’S assignation confirmed their initial attraction. They had arranged to meet at Circular Quay and Kristina caught the ferry over from Mosman. But she was nervy, and worried that Brendan might not appear. So she persuaded a friend to accompany her as protection. When they docked Brendan was waiting, and her friend slipped away amid the hustle of tourists and commuters to catch the next ferry back. Brendan had not even known she had come. Brendan and Kristina walked through the CBD to Hoyts Cinema in George Street, where they went to see Sylvester Stallone in Rocky. After the movie, as they were coming out of the theatre, they ran into Brendan’s elder brother Peter, who was there by coincidence. He dropped Kristina home in his white Porsche, and then drove Brendan home.
When they returned to their schools, Brendan would ring her most evenings. And he started to write letters with the regularity of the besotted. Kristina would pore over his letters after dinner when the mail was handed out, and then spend her evening hours writing back. Fuelled by hormones and the hothouse atmosphere of boarding school, they became as close as young lovers can, exchanging dreams, fears and aspirations. Brendan told her of his segregation from his family, that his parents had been to Bathurst to visit him only once while he had been there, and then only because they had a commercial interest in the town. At the time, Kristina says, he was ‘very fit, very into football. Everything was about football training and he played for a few different teams. He had a lot of trophies, a lot of jerseys, and he sent me a jersey to my school after a game. He was very proud of all those things.’
At the next holidays, Brendan took Kristina home to Wahroonga to meet his parents. She was extremely jumpy about it and as they walked towards the house, they passed a Rolls Royce parked in the driveway. Brendan told her to test the weight of the angel on the bonnet, that it was amazingly heavy. So she did. But as she pulled on the mascot, a klaxon started to blare and Doug Moran rushed out of the house to investigate. Brendan was rolling about laughing — the prestige mascots were popular targets for thieves and this one had been alarmed. But not as much as Kristina.
Brendan did not finish his final year at Scots. There had been a fight at football training, he was considered a disruptive influence on his Year 12 classmates, and he was asked to leave about a month or so before final exams. He did sit his Higher School Certificate after receiving private tutoring but performed badly. As did Kristina, who was, she says, ‘a bit distracted at the time with Brendan’.
After high school, they continued to go steady. Kristina went home to live with her mother, Brendan alternated between hanging out with mates in shared flats and holing up at home when his finances ran low. In those days, says Kristina, ‘he was very extroverted, the joker... he loved going out.’ In court, Kristina said Brendan was her first boyfriend, and they used to speak and see each other every day. They’d go to the beach in summer, the footy in winter, out to dinner or just hang out. They had ‘a lot of fun, a lot of plans’. Brendan was always active, and he loved going out to restaurants and eating. He even liked shopping. Mainly it was just the two of them, although sometimes they would see separate friends. Kristina worked at odd jobs after she left school, waiting in her mother’s coffee lounge, serving in a deli in Mosman and nannying on the Northern Beaches to save money to go overseas. She also picked oranges on a girlfriend’s parents’ property in Narromine, where they worked all week and spent the weekends at B&S parties. Brendan did some casual labouring and worked at the Regent Hotel filling mini-bars. Kristina remembers him then as ‘a big, funny person (who) did some funny things.’ He was just like any other young guy, she said, ‘into going to the pub, the football... he used to get a lot of speeding tickets.’ He was also aware his family’s wealth meant he could escape responsibility with relative impunity.
A family acquaintance who knew him at the time remembers him as being ‘very personable, very likable.’ In looks and figure, he says, Brendan was ‘quite like his father, but he didn’t have the entrepreneurial outlook Doug had. And he’d had his older brother Peter over him all his childhood, which seemed to have affected his confidence a bit. I always felt he would have been better off being born into another family.’
Work to Brendan at this stage was little more than a minimal interruption to the stuff of real life: having a good time. And the odd car accident — there was one in late 1984, another at Easter 1985. In the former he was coming home from work at about 2 in the morning when he drove his car into a telegraph pole at Turramurra. He was trapped for two hours with the handbrake embedded in his leg before the police rescue squad could cut him free. He suffered internal injuries, and later needed plastic surgery on his leg.
Throughout 1984 and into ‘85, Brendan and Kristina remained close. Brendan was becoming very intense about their relationship and when he started to talk about how they could get married, she became a little spooked. She was then just 20, thought they were too young for marriage and wanted to travel. They had a trial at seeing other people, and she went with another guy on and off for seven months. (He was killed in a plane crash near Thredbo when she was married and the mother of Dougie.)
In 1985, the same year Brendan started at Moran Health Care Group as the messenger boy, Kristina went overseas. She lived much of the time in England, working in bursts until she saved enough to travel further afield. She had a job for some time at a furniture place in a Surrey village, toured the British Isles, cycled in France, idylled in the Greek Isles, journeyed to Italy and Spain and also flew to Canada from London with a girlfriend. During the three and a bit years she was away, Brendan continued to phone her frequently, wrote constantly and would visit Alison Brodie regularly.
The day Kristina arrived home in late 1988, Brendan was on the phone; that night, they ‘went to a restaurant for dinner and just talked about what we both had been doing.’ They started seeing each other again and she found work as a child-carer in Mosman, looking after 20 three-year-olds. Brendan proposed soon after while they were on holiday in Thailand — he’d asked Alison Brodie’s permission that day at lunch (she’d gone with them) then popped the question ‘out on the river in Bangkok’. When they returned to Australia, he gave her an engagement ring during a celebration dinner at the upmarket Bilsons restaurant in Circular Quay. That was Brendan’s style, says Kristina: he was always a ‘romantic’ who loved giving her flowers and chocolates and playing special songs for her.
‘To fall in love,’ Borges noted, ‘is to create a religion that has a fallible god.’ [Note 5] Brendan and Kristina were married on November 24, 1990 at St Phillips Church in the city, and during the service and later at the reception at the Sebel Town House, they impressed everyone as being very much in love. Guests remember Brendan’s speech for its unexpected eloquence, and for the heartfelt sincerity with which he spoke of his bride.
Throughout their relationship, Kristina was the driving force, keen for Brendan to achieve success in his own right. Her loyalty appears to have blinded her to some basic flaws in his make-up. But if his earlier escapades had not disturbed her, she may have had at least a subconscious twinge over an incident just prior to the wedding when Brendan’s laissez-faire approach almost scuttled the ceremony. His father discovered that Brendan had misappropriated petty cash to pay for the wedding cars. Brendan maintained it was a simple mistake, that he had been caught up in the wedding rush and hadn’t had time to get to the bank before he needed to pay a deposit. So he had borrowed accessible funds at the office, intending to replace the money next day. Doug took a dim view of the whole episode; according to Kristina, he threatened to veto the service.
How real such a threat could be is debatable, given that Kristina and Brendan were adults who did not require parental consent. But Kristina at least took Doug’s threats seriously — she begged her father-in-law to reconsider. His relenting came at a cost; she alleged he cancelled his intended gift of an overseas honeymoon. Instead the couple had to honeymoon ‘up the coast’. More significant, perhaps, the trip was allegedly delayed because the family was ‘commanded to attend’ the Doug Moran National Art Prize opening at the Opera House. And everyone, Kristina said, always did what Doug and Greta told them.
Chapter 3
You cannot do justice to the dead. When we talk about doing justice to the dead, we are talking about retribution for the harm done to them. But justice and retribution are two different things.
— William Shawcross [Note 6]
MEMBERS OF THE JURY... such an innocuous phrase, almost clichéd given TV familiarity. But in the early afternoon of that last day in January, in a year reckoned by most as the first of a new millennium, the words electrified the NSW Supreme Court. ‘Just under five years ago,’ continued Peter Semmler, his eyes meeting the rapt gaze of the three women and one man who had been empanelled less than an hour earlier, ‘a young man committed suicide in the driveway of a house at North Epping. He was 29 years old. He connected three garden hoses to the exhaust pipe of a car, he fed them into the interior of the vehicle, he got in, he turned on the ignition and he inhaled the fumes. And he died of carbon monoxide poisoning.
‘The reasons why he took this terrible course, the events which led up to it, the consequences for his family, those are the things about which these cases are concerned.’
In dramatic terms, those few short sentences had moved proceedings from an amble through Sleepy Hollow to a fast ride down a precipitous slope. Where they were to remain in roller-coastering turmoil for another 37 days of hearing, spreading into nine weeks. This was why the courtroom would be wall-to-walled daily with lawyers, media hacks, allies and enemies of the participants, and voyeur loads of the just curious. It was why Australians around the land became fixated on this one small room: what was unveiled here was so horrific and so hypnotic that it became like witnessing a tragic accident every day. It was impossible to drag your eyes away from the emotional carnage.
Yet until this point, Day One had been a slow doze for action junkies. The morning session had been taken up with a dignified bustle of preliminary housekeeping — notices of motion, questions of subpoenas, argument over lodgement of documents, discussion on how the trial would be conducted. It was like watching experimental theatre where the actors double as self-conscious stagehands, scene setting in full view of the audience. And just as exciting. It was only after lunch that the jury was sworn in. And the curtain really rose.
SMACK IN THE HEART of Sydney’s traditional legal precinct, the New South Wales Supreme Court is not a naturally welcoming place — few would enter its high-roofed lobby on a whim. And if by accident you had, its marble-hearted coolness and head-office reserve would soon repel you back outside. It is an ugly building, toweringly out of character with its pedestrian mall-sharing neighbours, the colonial St James’ Church and the old Supreme Court building. As point guard for the hustle of high-rise behind it, it endures like an arms-folded bouncer facing off the remnants of historic Sydney — the fountained follies of Hyde Park, the ochre-stoned grandeurs of the nearby Cathedral, the lovingly-restored Mint and wall-encircled Barracks just across Macquarie Street, or further down the wooden idiosyncrasies of Parliament House. And neither the ground-floor recesses of geometric windows nor its strategic artworks disguise the court’s Bauhaus functionality. There are few bleaker places in Sydney to loiter than outside its doors. And when the weather is squally, the wind shrills around, and through, the structure with hurricaned effect — more umbrellas are shredded here than anywhere else in the city. As, inside, are reputations.
Yet it was purpose-built just 20 years ago on what was the site of the Crown Law Offices and Queen’s Club building that housed the NSW Department of the Attorney General and of Justice. It was a building whose time had come. And by 2000, virtually gone again. The original Supreme Court had not even been completed when the charter establishing jurisdictional sovereignty was proclaimed on 17 May 1824. And it wasn’t so long in history’s haste before its business began to outgrow its structural confines: a straggle of separate buildings were pressed into service to conduct its affairs. By the late-1970s, the court was an organisational shambles. That was when the State government decided to amalgamate its disparate functions in one contemporary, dignified edifice. Modernity hasn’t held its value well — the 15 floors that house some 34 courts, judges’ chambers, interview rooms, court registries, a law library and a restaurant is straining at its pillared seams.
If the external aesthetics are dubious, the architects did excel in one area: nearly half the courts were constructed to a hexagonal design custom-developed for quality acoustics. All but the most reticent witnesses can be clearly heard throughout the courtroom. Which is a bonus, given the hushed decorum and intense emotion that often colours proceedings here.
Behind an imposing bench and beneath the wall-plaqued emblem of the court’s mandate, Justice David Kirby was on duty in Court 10E. And everyone in that court understood how critical his legal and personal dispositions would be in the weeks ahead. Judges don’t age, playwright Enid Bagnold observed once, ‘Time decorates them’ [Note 7]. If so, Kirby has been decorated well: beneath the always-aging wig, he bore an air of benign authority. At 56, the younger brother of high-profile High Court Justice Michael Kirby had written his own impressive CV. He had been a Fort Street High boy in the tradition of legal luminaries like H.V. Evatt, Garfield Barwick, Percy Spender, John Kerr, Neville Wran and his own brother. He had been a secretary of the Council for Civil Liberties, a lecturer in law at his alma mater, the University of Sydney. And he had won admiration for his persistence and skill as counsel assisting the ICAC inquiry into Waverley Council and inquiries into the Gretley mine and Seaview air disasters, among many others. All his acuity and experience would be needed in Moran v Moran if it were not to degenerate into its own disaster.
To Kirby’s left, a door led to his judicial chambers. Above it was an illuminated sign that read Exit. An invitation, I couldn’t help thinking, that many would probably wish they could take before we were through. On the judge’s left was the witness box, to his right the raised dais where the jury sat. And before him were the tiered line-ups of the contending forces. For the plaintiff, Kristina Moran, barristers Peter Semmler QC and David Baran commanded the jury side; to their right sat their adversaries, Ian Harrison SC and Lorna McFee for the Moran family. Between the frontline silks and their support crews of solicitors, a convoy of three-tiered trolleys laden with folders crowded the communications zone. And behind and to the side of the legal teams were the hoi polloi, the media, spectators and participants sardined into three-rowed sections.
First by luck and then by logic, I learnt where to position myself. Right beside the jury box, but one seat higher. This had several advantages — I could see the jury’s reaction up close, if over the shoulder; I could stickybeak at any exhibits as the jurors passed them along; I had a frontal view of Kirby when he was addressing the jury. As well, I could see Semmler’s responses in intimate detail, Harrison’s slightly less so but still vividly. Directly across the court I had an uninterrupted view of the witness box, a half-head to the right the solicitors’ tables, another half head to a full view of the bleachers and the phalanx of Morans, the isolation of Kristina Moran and the guillotine-side-sitting court-watchers. It was the best seat in the joint, for the best show in town.
Mindful of the legal minefield ahead, Kirby took some time to cross every ‘t’ in his instructions to the jury. Their function and his, he spelled out, were ‘completely different. I am the judge of law... you are the judges of the facts. It is your responsibility to reach a view as to which evidence you accept and believe, and where the truth lies...’ The jury looked suitably awestruck, the four blinking in that suspended disbelief that envelops you when something extraordinarily out of the ordinary occurs. A few hours earlier they had been breakfasting in their normal routines, now they were principal players in a theatre of pomp, pathos and intimidating seriousness. It was obviously disconcerting.
Kirby continued to coach them in their roles: they would have to assess each witness, he said, watch their demeanour and ‘assess them in the way you would people in your everyday lives’. And from that they were to determine whether they accepted them as a witness of truth. He also cautioned that it was important to appreciate the difference between honesty and accuracy: one was an attitude to truth, the other depended on memory or a capacity for observation.
And he stressed that in judging the facts, they would have to respond ‘dispassionately, putting to one side any prejudice or bias’ against any particular party. Nor could they allow themselves to be overridden by sympathy. Finally, because the case had already received considerable media exposure and would attract even more over the weeks ahead, he emphasized how critical it was they should put out of their minds ‘any publicity... because it is utterly irrelevant. You must act simply upon the evidence, and only the evidence.’
It was a textbook introduction. And an almost impossible task. Kirby more than anyone must have realised the extreme difficulty of the jury’s duty. The matter had been in the public domain for just shy of five years: the first newspaper reports had appeared less than a week after Brendan Moran’s funeral in February 1995 under emotive headlines such as ‘Heir dies cursing his family name’. And these articles included dramatic extracts from his suicide note alleging malice and maltreatment by his parents, amid précised details of a civil action taken by his parents’ company, Doug Moran Holdings Pty Ltd, against Brendan and his wife for repayment of an alleged loan.
It was just the type of story to titillate and appal. And to be discussed and remembered. How could it not be? A feud within a family considered among the wealthy elite. A furious falling-out over money. Accusations of impropriety, and of persecution. And there was the son, who had become so desperate as to kill himself, and leave a note incriminating his parents.
Then there was the father, the multimillionaire Doug Moran, Australia’s biggest private operator of hospitals and nursing homes, a brash self-promoter who basked in his rags-to-riches role as patron of the arts, who claimed leading politicians among his friends and boasted of his position on Australia’s Most Rich list...
There was Greta Moran, the mother whose refinement softened the hard-school reputation of her spouse, who was fêted for her loyalty and dedication to her husband and children — and pitied by some for the same thing...
There were the six siblings, all heirs to the empire: one had political ambitions and networks, one was a high-flying lawyer and man about town, another was a businessman of some standing...
And there was Kristina Moran, the young and grieving widow, the disinherited daughter-in-law with two young children who claimed she was being hounded into bankruptcy and forced to survive on a pension...
Intrigue was stimulated even more when towards Christmas 1995 Kristina went to the NSW Supreme Court to seek damages against Doug and Greta and her brother-in-law, Peter Moran. Her accusations were scandalous, her action unprecedented: she alleged that Brendan’s parents and brother had intentionally inflicted physical and emotional harm on him, which ultimately led to his suicide. She was seeking damages on behalf of her sons and herself under the Compensation to Relatives Act 1897, and damages in her own right for nervous shock. She also sought to have the Morans’ court proceedings against her dropped. Their actions, she asserted, had been undertaken ‘to inflict mental distress’ on her, were ‘malicious in nature’ and were an abuse of the court’s process.
Four months later, a two-page article in Woman’s Day, complete with wedding snaps and a portrait of a pensive Kristina and her children, reiterated her claims. If it had been designed that way, it could not have been a more evocative appeal to the maternal heart of Australia. In September the next year, headlines again drew attention to the imbroglio when Kristina’s lawyers applied for her parents-in-law’s case against her to be struck out for lack of prosecution. They alleged that the Moran’s action was ‘vexatious’, and that an undue delay in bringing it to court had caused Kristina to suffer ‘definite financial prejudice’. That action failed when Master Harrison allowed the Morans a further two months’ grace to serve the affidavits upon which their case would rely. But, unexpectedly, Doug Moran did drop the suit, amid hostile headlines (‘He’s worth $250m but wants $255,000 back from his son’s widow’) and claims that his family had been ‘horrified by bitter and hostile anonymous phone calls and faxes’ [Note 8] it had received over the case. A statement issued on his behalf said the action had arisen out of ‘an unfortunate disagreement’ following his son’s resignation from the family business in July 1994.
Over the next two years, lawyers for both sides attempted to broker a settlement on Kristina’s claims but negotiations collapsed irretrievably. In August 1999 the parties were in court again when the Morans sought to have Kristina’s request for a jury hearing rejected. Their request for a judge-heard trial was unsuccessful. Three months later the parties were again in the Supreme Court when the defence sought to have Kristina Moran’s nervous shock claim separated from the compensation claim, with the former to be heard by trial judge alone after the compensation case had been determined by a jury. This too was unsuccessful. The trial date was set.
PETER SEMMLER had spent four weeks writing and polishing his opening address. In the context of his preparation for the whole case, it was a substantial outlay of time. Yet no one knew better understood its importance to her case: without doubt, it was his best opportunity to make a decisive, possibly winning, impact on the jury. Should proceedings get that far, his closing address might be as critical but the likelihood was that by that stage the jury would have already decided its verdict. Semmler’s challenge was straightforward: to make the opening so convincing and so evocative that the jury would be compelled to see everything that followed from the plaintiff’s perspective.
The trouble was, nothing about the case itself was straightforward. It was legally and factually complicated, its history was convoluted, its cause of action — the facts that entitle someone to sue — was novel. Semmler knew he would lose the jurors if he overloaded them with technical and legal qualifications. At the same time, he could not be simplistic or patronising towards them. He was confident that when she appeared in the witness box, Kristina Moran would present as a person who was telling the truth and who was deserving of a large damages payout. So he decided on a straightforward approach. He would tell a story, the story — he would carefully unfold the whole saga in a narrative way. That way, he reasoned, the jury’s focus would remain on the human drama, with all its tragic and emotional influences.
The defence team was expecting him to open ‘high, wide and handsome’ and he didn’t disappoint. He was known as a showman, and in the court context he delivered an extravaganza. This was total package territory, with everything on the line and geared towards The Message — every pause, gesture, look and inflection, without histrionics but with empathy. It set the tenor for what was to come, and it is useful to deal with it at some length because it clearly outlines the case put by Kristina Moran.
THIS CASE WAS TRAGIC, Semmler told the jury, ‘because three of the defendants are close relatives of the deceased’. And they were the people Kristina Moran said were responsible for ‘acts, words, representations and correspondence’ calculated to inflict harm upon Brendan Moran. They succeeded in their purpose, he observed quietly, to such an extent ‘that Brendan developed a condition of major depression and committed suicide.’
The what established, he turned to the how. Brendan had been working in the family’s real estate section, headed by his brother Peter. Their relationship was ‘unfortunately very poor...You will be hearing evidence about how Peter over the years preceding Brendan’s death used to insult, humiliate, taunt, tease and call his brother names on a repeated basis at work. You will hear how on a number of occasions Peter Moran physically assaulted Brendan, (which) had a profoundly distressing and depressing effect on him.’ Despite Kristina complaining to their brother Shane Moran, a director of the company that employed Brendan and Peter, and despite Shane’s assurances that it would not happen again, it did. And this last assault ‘was particularly vicious’, marking as it did a terrible turning point in Brendan’s life.
Peter Moran, Semmler said with cold emphasis, beat his brother so badly while attempting to strangle him using Brendan’s tie as a noose ‘that Brendan suffered severe respiratory distress, asphyxiation (and) facial injuries.’ Work colleagues had to drag Peter off his brother. And when Brendan returned home from his office, he was ‘sobbing inconsolably’. His face, his widow would tell them,
‘was bright red. One of his eyes was completely red... the white red like it had been coloured in. He had scratches around his eyes and down the side of his neck, large red welts around his throat, blood in his ear and splattered on his shirt.’
The jury was agog, as were many in the court. Even the more seasoned were losing their habitual poker-faced presence; some people were wincing, others were stifling inadvertent gasps. A couple of the women jurors looked tearful. But the defendants, sitting across the court from a red-eyed Kristina Moran, remained impassive, even as Semmler moved to ratchet up the tension. After that assault, he confided, Brendan Moran became terrified of his brother: not only had he suffered physical wounds that caused him to cry inconsolably for some hours... ‘it would seem he had suffered deep mental scarring from this behaviour, by the repeated assaults (and) humiliation.’ So much so that the Moran Group had paid for him to receive psychological counselling.
Brendan had discussed his problem with both Shane Moran and his sister Kerry Jones: she in turn had discussed it with his mother. After that, Brendan was moved to another floor in the group’s offices, but his fear and distress was so great that he decided he had to leave the family company, ‘effectively the only job he had ever had’, and find work elsewhere. An arrangement was made for him to leave on full pay, ‘eventually hopefully to return once Peter had been moved out of the real estate section’.
Semmler then turned to the first defendant, Doug Moran. The evidence we will present, he intoned, will lead you to infer that Doug Moran had a very controlling influence on his businesses and his family. ‘And you may well infer that he was prepared to stop at very little to get his own way... to ensure that people in his family behaved in a way acceptable to him.’ In the office, Doug insisted on being called Chairman or Mr Moran by his own family, never ‘Dad or Daddy’. And after Brendan left to work for somebody else, his father ‘effectively excommunicated his son not only from the Moran Group but also from himself and his wife Greta and the rest of the family.’ His father, Semmler asserted, ‘proposed to teach him a lesson’. Soon after, Brendan and Kristina began to receive letters stating that money that had been given to them through one of the Moran companies was not a gift at all but a loan.
We say, said Semmler, that Doug Moran began a crusade ‘of vicious and vitriolic verbal and written harassment, humiliation and coercion of his own son.’ Among many instances, he cited a few. There was the seminar Brendan organised in support of a charity with which his father was connected — initially Doug had congratulated him on it but soon after berated him publicly for coordinating a ‘colossal fiscal failure’. There was the refusal by the Moran company to release Brendan’s financial details to a bank from which he was seeking a loan. There was the withdrawal of funding for his post-attack psychological treatment ‘at a time when it was patently apparent that he was needing it the most’.
And there were the letters, two of which Semmler read to the court. Formal in tone, they berated Brendan for his behaviour and threatened dire financial repercussions. The second, dated July 1, 1994, gave notice that all funding to him was now ended, demanded the return of company-provided cars and threatened that if instalments were missed on his mortgage, that would
‘force me to have the property sold and the return of the deposit supplied by me to you. My relationship with you is at an end as it is not my wish to become involved with you or your family affairs ever.’
The deposit mentioned was a gift, Semmler asserted, given by Doug Moran to Brendan and Kristina shortly after their first son, Douglas jnr, was born so that they might buy a family home. But in November 1994 a writ was served seeking recovery of $255,000 allegedly loaned to Brendan and Kristina. The claim included the deposit for their home, $13,300 given for the purchase of another property, ‘and items as minor as $193.10 spent on hardware and locks for the home’. At the time, Semmler said, Brendan had no job, no assets and was moving into a state of hopelessness ‘characteristic of a psychiatric illness or major depression’. He and Kristina had to sell their home.
As further evidence of the ‘campaign of harassment’, Semmler mentioned an article in Business Review Weekly about the Moran family in which ‘Doug Moran went so far as ensure (it) recorded that he had only six children when in fact he had seven’. The only child missing from an accompanying photograph, labelled ‘The Moran Family’, was Brendan. The magazine article, delivered anonymously to Brendan, had ‘a devastating effect upon him’.
Then there was the role of the second defendant, Greta Moran. It was Kristina Moran’s case, Semmler said, that Brendan’s mother was well aware of what both Peter Moran and her husband were doing in relation to Brendan’. And that ‘she knew of the assaults (and) consented to, aided, abetted, counselled, assisted and helped procure some of the acts and representations of her husband’.
Conscious that the defence would raise Brendan’s character as an issue in the trial, Semmler launched a pre-emptive strike. Like all of us, he revealed, Brendan Moran
‘was a human being. And because of that he was vulnerable. He made mistakes — a lot of mistakes — over his short life. You may take the view he was, in many respects, an irresponsible, immature man of limited personal resources. You might regard him... as a feckless young man, an errant wayward black sheep who refused to toe the family line.’
He had grown up within a wealthy family and enjoyed many privileges, some of which he abused. He did not have a lot of respect for money, and he made mistakes, including cheating in a real estate examination. He had a very chequered work history after he left the Moran group, ‘although you may take the view that that had something to do with what the defendants were doing... to him at that stage.’ And he annoyed and hurt friends and family alike. But, Semmler stressed, none of these mistakes justified what he was obliged to endure: Peter Moran’s attacks and his parents’ actions
‘went far, far beyond accepted competition between brothers, far, far beyond reasonable attempts to teach an errant son a lesson... What they did was so extreme, so beyond the pale, that it amounted in law to a civil wrong for the tragic consequences of which these defendants are liable in damages. What they did was not only negligent... it was calculated to cause him considerable harm. And it did so — it had catastrophic consequences.’
AS THE YEAR progressed, Brendan Moran became more and more depressed, erratic and unpredictable. From mid-year he began disappearing from home for long periods. He was distressed about his financial situation, worried about losing his home. After he was sued, he transferred his interest in it to Kristina. But the pressure and his absolute depression, Semmler said, caused him to ‘behave in a particularly uncharacteristic way’. On December 15, ‘he did something which he regretted deeply over the next two months (until) he died’: during an argument with Kristina about how he was going to pay to defend the proceedings against him, he assaulted her.
Following the attack, Kristina took out an apprehended violence order against him, and soon after took the children to stay in a friend’s house in the Blue Mountains. ‘She will tell you that she never stopped loving Brendan; that she at no stage had intentions of divorcing him. She simply wished to have some breathing space, time for her to think and for him to, hopefully, sort out his problems.’
And there is no doubt from his perspective that until the day he died Brendan Moran never stopped loving his wife and their two children, Semmler continued. Their love for him, and his for them, ‘were the only things that appear to have given him a modicum of pleasure in the last desperate days of his life’. He wrote letters to Kristina indicating how strongly he regretted having hit her, he wrote to the magistrate hearing the AVO application that ‘what happened was a tragic accident, a mistake that I have... to live with for the rest of our lives.’ And he told the magistrate that his father had ‘shattered both of our lives, and continues on his path of pure evil’.
In those last few months, Semmler observed, Brendan sank to an extraordinary depth of depression. And it was the plaintiff’s case that the major factor in his decision to commit suicide was the behaviour of the defendants. ‘We do not have Brendan... to sit there in the witness box and tell us, ‘Well the reason why I took that step is because of the way they were treating me.’ But we do have letters that he wrote... and they provide an overview of our case.’ To illustrate, Semmler read from one sent to his mother, dated 6 September 1994:
‘Somewhere in the distance today I faintly heard a voice saying my name. Unfortunately I don’t hear the voices of people who only have hate beneath their evil faces. An old saying goes ‘Never kick a dog while it’s down’. For me, I have had eight family boots to the head and body... The eyes of justice are always watching you!’
During the last few sentences of the letter, Semmler slowed his reading. His pauses were significant, his eyes raking the jury’s hazed gaze. It was a stunned court that then heard Justice Kirby adjourn the hearing until next day. As the jurors were led away, most there sat with the blinking disorientation of cinemagoers surprised mid-film by the lights turned on. There was a momentary pause then the media stampeded doorwards with ‘hold the front page’ determination. As it turned out, only The Australian ran it there under the restrained heading: ‘Tycoon drove his son to death, says widow’. Such moderation was not to last long.
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