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Paul Leask opposed this, saying the comment had been ‘fairly vague', but Winston Terracini supported Davenport's request, pointing out that the comment implied Andrew had been aware of the whereabouts of a wanted man, which didn't look good for him either. Terracini said he'd originally asked for a separate trial for Andrew precisely to avoid the risk of ‘the onflow of prejudicial material' and this had been refused. What had just happened, he said, was ‘a burden we shouldn't have to bear . . . that we have an association with someone who's on the run . . . in effect harbouring him.'

Leask said the judge could direct the jury to disregard the comment and not speculate about it, to which Davenport responded, ‘He said it and it can't be unsaid.' She pointed out that the jury might already be wondering why Anthony had so many pseudonyms—they'd heard him called Rooster, Steve and now Mate. Stephen Hanley joined his client to the request for a new trial, saying Matthew Lawton had been close to Anthony Perish, so the fact that Perish was on the run would
reflect badly on him too. None of the barristers was denying the truth of what Daley had said. They just didn't want the jury to know it.

Fighting to the end, Paul Leask offered to tell the jury Anthony Perish was a person of good character, to which Justice Price responded, ‘That wouldn't help.' He had the jury brought back in and discharged them. After they'd left, Leask apologised and said he and Victoria Garrity had at length warned Daley and all their other witnesses about the danger of giving such answers, but that this trial was like ‘walking on eggshells'.

Daley was brought back into the witness box and admonished by the judge for giving a ‘non-responsive' answer (meaning one that went beyond the scope of the question).

‘I thought I was, your Honour,' he replied, ‘with all due respect.'

To which his Honour replied, ‘It's not wise of you to debate this with me.'

He announced a new trial would begin in two days.

Tod Daley was shattered by what had happened, although Paul Leask met him soon after and said it was his own fault. It was in effect the second time the trial had been postponed, and again increased the pressure on all the witnesses who'd prepared themselves to give evidence. Those who'd already gone into the box had to decide if they were prepared to do it again.

Gary Jubelin was worried about what this might do to the prosecution's chances. There was the question of whether all the protected witnesses would come back, in some cases from distant places to which they'd now returned. There was also
the possibility the defence barristers would be able to take some advantage of the fact they now knew how some of the witnesses would behave in the box.

Tod Daley was the main concern. If anyone else dropped out, they might still have a case. But if Daley refused to come back to Sydney, the prosecution would collapse.

The way of transgressors is hard
.

The second trial began on 20 July, and fortunately Jubelin's concerns were largely unrealised. Tod Daley did come back. I won't repeat the evidence already described from the first trial, which was very similar the second time round, and will take up the story from the point in Daley's evidence where we left it.

Soon after Paul Leask finished playing the listening device recordings, he sat down and Winston Terracini began his cross-examination. As Daley was almost the only witness against his client, Andrew Perish, it was crucial for Terracini to demolish his credibility. He proceeded to do his best over many hours to encourage Daley to reveal himself as a man of confused thinking, poor memory and paranoia. It's worth looking at what occurred in some detail as it reveals a wily barrister of considerable experience at work on a worthy opponent.

Terracini was aggressive, as always, and relied heavily on the old technique of launching a series of attacks from slightly different angles. Generally the hope is that this might rattle the witness and hence cause him to respond in some way that strikes the jury adversely. The witness, for example, might become confused or angry. One of Terracini's themes was the location of the restaurant where Daley claimed to have had a meal with Andrew and Anthony Perish in 2001 to discuss his boat. Daley had already said he was unfamiliar with Newtown.

WINSTON TERRACINI
: What restaurant is it in Newtown?

TOD DALEY
: I don't know.

WT
: What street is it in Newtown?

TD
: I don't know.

WT
: What cuisine do they serve, or sorry, did serve?

TD
: I don't know.

WT
: What does it look like?

TD
: Rustic. Old-looking, small building in the middle of the street.

WT
: No doubt you would have pointed this restaurant out to the police?

TD
: If I could have I would have, yes.

WT
: You were unable even to find it?

TD
: . . . I was driven in such a manner I couldn't tell where I was.

WT
: Yes, but you get out of the car, you don't take the car into the restaurant.

TD
: No.

WT
: When you get out of the car and you walk into the restaurant you had dinner, apparently?

TD
: Yes . . .

WT
: Having thought about it, did you think you were in Newtown or not?

TD
: I only know what I was told at the time. I don't know the area so I cannot give an answer to that.

And so on. To someone who's never been in a witness box, this might seem petty and even pointless. But remorseless questioning of this nature over many hours can confuse witnesses and cause them to flush, to stumble and hesitate, even to forget things and possibly appear unreliable to the jurors. There is, of course, absolutely nothing improper in a defence barrister using such a technique.

Presently Terracini turned to the matter of Daley's fears for his safety when he'd been dealing with the police. Daley described how he'd been observed at times by three different helicopters. He'd taken some photos of the helicopters and other objects and had them in court with him on a thumb drive. On another occasion he'd told Glen Browne how he'd found four Jatz biscuits floating in his swimming pool one morning, which ‘indicated to me at the time somebody had been in my yard when I was asleep in my bed and put those biscuits in the pool'.

‘Any photographic evidence of the Jatz biscuits?' asked Terracini.

‘I think they disappeared into the pool pretty much, they disintegrated in the water.'

Daley told the story of how in 2003 he'd been on his way to Channel 9 with his girlfriend, hoping to talk to a current affairs program to express his dissatisfaction with the police of
Strike Force Tuno, whom he still didn't trust. He had stopped at a chicken shop and, while waiting for his food, a man had come in holding a golf putter and ‘stared at me with a smile on his face'. Daley had gone out back to the toilet. The man had handed the putter to the person behind the counter and left. When Daley came back into the shop he saw the putter, which had the word ‘Hush' written on it. He took that as a message: ‘Shut the fuck up.' His girlfriend had been so scared she'd burst into tears, and Daley had called the police and told them this was a sign he was being watched.

‘Were you taking anything at this period of your life?' asked Terracini.

‘No, I wasn't.'

He said that he'd seen the television presenter Ray Martin outside the Channel 9 complex in Willoughby and had a word with him, and Martin had told him to speak to the gatekeeper. Daley had done this and security had rung someone and put Daley on the phone. They'd had a conversation, but the television people didn't want to talk with him. He'd also gone to Channel 7, without success there either.

WINSTON TERRACINI
: On the previous day at two o'clock in the morning, did you ring Detective Jubelin and speak to him—it was Saturday 19 July 2003?

TOD DALEY
: Not that I recall, no.

WT
: Well, you would agree that ringing a police officer in circumstances such as that at two o'clock in the morning would be a bit unusual?

TD
: Not in the circumstances I was in, no.

WT
: Well, were you obviously distressed when you made the call?

TD
: I was in a state of hyper-vigilance from the word go; not distressed. I was hyper-vigilant, yes.

WT
: I suggest to you that you were very, very distressed and agitated about a registration plate you had seen on a car?

TD
: I've written down many registration plates over the years.

WT
: Because this one you thought was of special interest because it had the letters DNA?

TD
: Actually it was HSV-DNA, I believe was the number plate.

WT
: . . . In fact, you thought, during this period, that people were getting into your home secretly and leaving and they were endeavouring to get DNA from hair follicles and cigarette butts?

TD
: I don't know what they were trying to do in my house. I had photographic evidence of the house being entered. I believe, not a hundred per cent, that I supplied that, or showed it, to police at some stage.

WT
: Yes, you did.

Daley said he was in ‘a highly stressed environment' and agreed he'd also called Gary Jubelin once to tell him he'd seen three ladders in the yard of a house in his street and, on another occasion, when he discovered part of a keyring in his driveway that he'd last seen in a restaurant, to tell him, ‘I'm being set up.'

Later Terracini returned without warning to Newtown.

WINSTON TERRACINI
: Did you tell the police that you might be able to recognise the restaurant again?

TOD DALEY
: If I was taken to Newtown and, yeah.

WT
: Well, did they take you?

TD
: No.

WT
: In all this time. All right. You told them it was a little restaurant located in a side street near the railway station; and did you tell them that?

TD
: No.

WT
: What are you suggesting, I just made it up?

And so on. Daley was good in the box, especially given the oddness of some of his past behaviour that was revealed. He made no attempt to apologise for it, generally sticking to short answers and refusing to be provoked by the barrister's constant needling.

WINSTON TERRACINI
: You told Mr Jubelin that whoever was in the helicopter was also monitoring your mobile phone, because when you spoke over the phone, or said things over the phone, that you intended photocopying the helicopter, the helicopter left?

TOD DALEY
: Taking a photo of the helicopter. It'd be hard to photocopy.

WT
: I'm sorry, you're quite right . . . have you ever taken prohibited drugs in large quantity?

TD
: I don't know about large quantities, I've taken prohibited drugs over the years.

WT
: Taken a lot of amphetamines over the years?

TD
: I've taken amphetamines over the years.

WT
: You were still smoking marijuana up until the end of this investigation, weren't you?

TD
: Not as a rule, no.

WT
: Well, what does ‘not as a rule'—

TD
: Well I mean I may have smoked a cone of marijuana to help put me to sleep at times that I couldn't sleep, yeah.

WT
: And—

TD
: Through stress and so on and so forth.

WT
: And you know from your own experience that giving amphetamines a decent going over makes you paranoid, doesn't it?

TD
: It can do, yes.

WT
: . . . You would agree that just listening to these events being recorded [meaning Daley's fears of DNA theft and so on] it sounds pretty bizarre, doesn't it?

TD
: Well of course it would. To any normal person it would.

WT
: Yeah, well you can assume that we are. It sounds very odd, very odd, doesn't it?

TD
: Of course it would. If you don't live that life, it's all going to sound odd.

Terracini pushed Daley hard, exposing what appeared to be a multitude of minor contradictions between things he'd said at different times to the police or in court. Sometimes Daley would blame a contradiction on the police, saying they'd recorded what he told them incorrectly. Other times he just said, ‘I can't recall.'

‘You're not very reliable, are you?' the barrister said at one point.

To which Daley replied, ‘I believe I'm telling one hundred per cent truth here today.'

Daley claimed, as we saw earlier, that Andrew Perish had admitted to involvement in the death of Terry Falconer in one of their recorded conversations at South Western Produce, with the words, ‘nobody knows we done it'. The only problem was he'd whispered these words, and on the tape they were drowned out by the noise of a compressor running in the background. Apparently, Daley had been wearing two recording devices at the time, but the main one had stopped working. Terracini had the relevant piece of recording replayed to the court and afterwards asked Daley if it was possible to hear the alleged admission.

‘I heard whispered conversation,' Daley said.

The barrister made much of the coincidence of the fact that the listening device had apparently failed only in the conversation in which, Daley claimed, Andrew Perish had confessed.