Bad (28 page)

He told them the main witness against Andrew Perish was Tod Daley, ‘a man of violence, a man who used drugs' and indeed one who had been in a ‘befuddled state from taking
too many amphetamines'. Daley, said Terracini, ‘has zero credibility, he's completely unreliable'. Then, just in case the jury hadn't been completely reassured the first time, he again told them, ‘I don't want you to feel uncomfortable, because no one knows who you are. You're completely anonymous.'

On the morning of the trial's second day, Carolyn Davenport asked that photographs of the parcels containing Terry Falconer's body parts not be shown to the jury. The Crown opposed this, saying the parcels were evidence of the planning that had gone into the murder. Justice Price ruled that most of the photos could be given to the jury, but not two that showed open parcels, which ‘may produce an emotive response in the jurors'. This voir dire occurred before the jury was called in.

The first witness was Tuno OIC Glen Browne, who ran through practical matters such as a map showing the location of places that would be important in the trial, and estimates police had made of the driving times between Ingleburn and Turramurra, and from there to Girvan. The advantage to the Crown of having Browne give evidence first was that he would then be able to sit in the courtroom. Witnesses must stay outside until they give evidence: Jubelin, who was to go into the witness box later, stayed outside the courtroom for weeks. The police wanted Browne in the court every day, along with several other detectives, to provide moral support for their protected witnesses when they gave their evidence. This was symbolically important because most of the people at the front of the court—the three barristers plus junior barrister John O'Sullivan for Andrew Perish, plus at least three solicitors—were on the defence side. And as the
witnesses gave evidence they were only four or five metres from the accused, who sat facing them.

In a trial the Crown presents all its witnesses first. In this case that was expected to take a month or so. Each witness gives their evidence in chief, prompted by questions from the Crown prosecutor, and is then cross-examined by the defence barrister—or, in this case, three barristers. The next witnesses were Alan Morcomb and George Kaillis from Wreck-A-Mended. Then Daryl Faint of the Department of Corrective Services explained the day release program. Douglas Breakwell of the State Emergency Services described the recovery of the first six parcels from the Hastings River, and after lunch a forensic officer described the Luminol blood test inside the shed at Girvan, and the excavation of the pit and what had been discovered at the site of the fire near the house. Another witness recalled the discovery six months later of the anklet containing a transmitter that had been cut off Terry Falconer's leg at the grassy hill near Wreck-A-Mended.

The next day Bryne Ruse gave evidence. He was one of the detectives from Strike Force Seabrook, which had been reinvestigating the killing of the Perish grandparents at the time Terry Falconer disappeared. He explained there had been rumours of Falconer's involvement in the murders, including some provided by Andrew Perish, but Seabrook had been unable to confirm any of them. When Perish had been told this in July 2001, he'd ‘become aggressive and stated a police cover-up' had occurred.

Ruse said one of those who claimed Falconer had been involved in the murders was his wife, Liz. She had been in litigation with Terry over a significant number of properties
they owned together, and Terry had told him Liz wanted him to remain in jail so she could keep milking the rent from some of the properties. Questioned by Winston Terracini, he said Terry Falconer had been very suspicious of his wife and daughter, saying, ‘They're going to get me knocked, it's a known fact.' According to Ruse, ‘I formed the opinion Terry was a bit paranoid [because] he was due to get out of jail and there were risks ahead of him.'

After lunch the first major witness came into the box: David Taylor, Colleen and Anthony Perishes' former friend. This must have been difficult for him: the witness box is elevated and faces the body of the court. When standing in it you look across the bar table, which is much lower, to the dock, which is in the middle of the courtroom facing the judge and the witness. So Taylor was face to face with Anthony Perish, the man with whom he'd had such a complex relationship over many years. He told the strange story of his meeting at McMahons Point with Anthony Perish and Brad Curtis, when Curtis had produced a dictaphone and asked him if he'd considered suicide after breaking up with Colleen.

He had other things to say, and Paul Leask had to be extremely careful when leading him through his evidence. Taylor knew an enormous amount about Anthony Perish's criminal and other disreputable activities: none of this could even be hinted at in court, lest it prejudice the jury. But Leask managed to get to the end of Taylor's evidence-in-chief without disaster.

When Carolyn Davenport cross-examined Taylor, she pointed out he'd not mentioned the McMahons Point meeting in a 2007 statement he'd made to police, and suggested he'd
invented it in another statement made the following year. He said he'd just forgotten it the first time.

‘You're making it up as you go along, aren't you?' she said.

Taylor denied the suggestion, and said he was in a state of post-traumatic stress at the time he made the first statement and was not remembering things as well as usual.

The next witness was the eagerly awaited Liz Falconer, who did not disappoint. A woman of below average height with a haggard face topped by short blonde hair, she wore sunglasses because, she told the court, she'd had cataracts removed from her eyes ten days earlier. She recalled how she'd first met Terry in 1976, and when he went to jail she'd visited him every week until the last year of his incarceration, when their relationship had become very strained. In 1996 she'd found the police running sheet suggesting Terry would give evidence to police about the Rebels' drug dealing, and in 2001 she'd shown it to various people, including Andrew Perish at a hotel in Penrith. She said she'd also told Andrew details related to the grandparents' deaths, which she'd heard from Terry.

Cross-examined by Winston Terracini, who suggested she'd invented her meeting with Andrew Perish, she said she could not recall the name of the pub where they'd met—‘I've had severe head injuries, I can't recall.' She said she showed the running sheet to five or six people because ‘I was getting death threats about me being an informant, and I was supposed to have killed Andrew's grandparents.' (This was the only time this suggestion was raised during the trial.) Showing the running sheet to people was her way of responding to Terry's attempts to brand
her
as an informer when she wasn't. ‘I thought it might cause him a little bit of trouble,' she
conceded, ‘I thought it might get him a little smack in the ear or be told by someone to pull up.' Asked if it had in fact caused him any problems in jail, she said she thought not, because ‘Terry could handle himself.' As for his murder, ‘No one deserves what Terry got.'

One of the problems the jury faced with Liz Falconer, as with David Taylor, was that she had done a number of interviews with the police and the Crime Commission and been inconsistent in what she said. She too had originally not disclosed a meeting that now played an important part in her evidence (the pub meet with Andrew Perish). In later statements they'd admitted the meetings, and naturally the defence made a great thing of this, suggesting they were lying when they'd added to their account of events.

The next witness was Jake Bennie, who, as we've seen, had pleaded guilty to helping kidnap Terry Falconer and was in jail, so he appeared wearing standard prison greens and Dunlop Volley sandshoes. He said Falconer had been unconscious and snoring the last time he saw him, when the toolbox was closed inside the white van at the grassy hill near Ingleburn on 16 November 2001. He described how Curtis had later told him that he'd chopped Falconer's head off. ‘Brad could see I was upset [by this],' he recalled, ‘and dropped the topic.'

Bennie came across in court as young, big and gormless. He gave some hints about the character of his former friend Brad Curtis, who, he said, ‘Doesn't like taking no for an answer . . . He's a very persuasive person, he's a very forceful character.' Bennie had looked up to him as a big brother figure (a type of relationship common in this book) and admired his leadership qualities, although he'd come to see some flaws over time. For
example, he agreed with Lawton's barrister, Stephen Hanley, that during the robbery of the Surry Hills TAB in April 2001, despite telling Bottin and himself how important it was to stay calm, Curtis himself had screamed and pointed his gun at a young woman's head. ‘He did get upset,' Bennie said.

On the fifth day of the trial, Tony Martin gave evidence. He recounted how he'd first met Brad Curtis on the door of the Bourbon and Beefsteak, and they'd become friends. After the kidnapping of Terry Falconer, Curtis had told him he'd hit Falconer too hard and he'd died. ‘Brad said he'd fucked up,' Martin recalled. ‘He was only supposed to be taking him to somebody to be tortured.'

Once he'd finished, the jury must have been looking forward to what Brad Curtis had to say. They'd now heard three versions of Terry Falconer's death: the Crown's opening, suggesting he'd died in the toolbox between Turramurra and Girvan; Bennie saying Curtis had cut his head off (although not where this had happened); and Martin saying Curtis had killed him in the car during the kidnapping. In his opening address, Paul Leask had told the jury they would not have to be sure about every piece of evidence in the prosecution case in order to find the accused guilty. But they did need to be convinced beyond reasonable doubt of the general picture, and by the end of the first week they'd been confronted with some competing versions.

Perhaps for this reason, the jury asked if they could have a transcript of the Crown's opening speech. In a voir dire the following Monday morning, the defence opposed this, pointing out that it conflicted with some of the evidence that had been heard. Justice Price decided to give it to them
anyway, because the jury had been told at the start of the trial that the opening set out only what the Crown expected the evidence would show, and that it was the evidence itself they would need to use to reach their decision. Therefore they should be able to deal with any inconsistency.

Carolyn Davenport then complained to the judge about some admissions Anthony Perish had wanted to make to the jury since the start of the trial, and which had been delayed because the Crown had not yet signed off on them. She was concerned the delay in presenting them to the jury might suggest they were being made only as concessions in the face of the evidence that had been heard. The judge pointed out that the admissions could be presented without the Crown's signature. When the jury was called in, it was told that Anthony Perish admitted the following: he had resided at the north Turramurra property from December 2000 to August 2002, although he was not the lessee; he did have ‘access to' the property at Girvan; and Terry Falconer's body had been dismembered there on 16 November 2001.

Stephen Hanley then made a set of admissions on behalf of Matthew Lawton: he had known Anthony Perish in 2001; he had visited him at Turramurra and Girvan; and Terry Falconer's body had been dismembered at Girvan. The judge told the jury it had been intended to make all these admissions from the start of the trial, but this was the first opportunity there had been to do so.

Why did Anthony Perish and Lawton make these admissions, especially the last one, which at first blush appears so damaging? Presumably so that, later in the trial, their lawyers could argue there was no need for the Crown to produce
detailed evidence of the dismemberment, as the accused had already admitted it happened and the Crown had accepted this. But by not signing, meaning accepting, the admissions, Leask had made it unlikely this would happen. The jury would get to hear the gruesome details.

The next witness was to be Tod Daley. Before he was called, Carolyn Davenport asked for the jury to be sent out and then urged the judge to exclude the detectives from the room because Daley was paranoid, at one time even suggesting Gary Jubelin and Glen Browne had kidnapped Terry Falconer themselves. Justice Price rejected this expression of concern for the witness's wellbeing, and the jury came back, followed by Daley.

He gave evidence over several days, and we're already familiar with most of what he said. At the end of the trial's sixth day the jury was sent home early because of technological problems. These affected the intended playing of the listening device recordings that had been made by Daley when speaking with Andrew Perish at South Western Produce. In a voir dire the next morning, Winston Terracini asked the judge if two parts of the conversations could be deleted, one a reference to Rebel chief Alex Vella and the other an exchange relating to a handgun. Presumably he thought they might be prejudicial to his client. The judge agreed to both requests and the jury was sent home again, at 10.50 am, so the editing could be done.

At the start of the trial's third week, on 18 July, the jury were soon listening to the third wire tap recording. There were some smiles as Daley was heard to ask Andrew Perish, ‘Where's the dunny?' The sounds of the witness urinating and flushing the toilet were much clearer than most of the speech
on the tape—although to help with this, the jurors had been provided with transcripts.

Next the jurors heard Daley asking Perish if Anthony was in Sydney—‘Mate didn't come down?' Paul Leask asked Daley who ‘Mate' was, and Daley replied that it was Anthony Perish, saying they called him Mate ‘because he was on the run'.

Carolyn Davenport rose to her feet. She asked the judge if the jury could leave the room. When they were gone, she requested they be discharged because of the prejudicial nature of Daley's comment: Anthony Perish might not get a fair trial now the jury had been told he'd been on the run, therefore possibly involved in criminal activity.