Killing Time (19 page)

I thought: Thank Christ for that – they are gone. I went into the bathroom, which faced away from the light rail line and overlooked the main road running parallel to it. I glanced out the window and couldn't believe my eyes. There were the same three hooded men coming back from the direction in which they had left my house. They had clearly walked up to the first light rail station, exited and walked back down Canterbury Road. They were now standing under a light in the small park directly opposite my house. All standing there with their arms folded.

Even in jail, I never thought I was going to be killed. On this night I did. I thought to myself: Andrew, you are now about to find out what it's like to die. I was scared stiff for the kids in the house. Four teenage girls … what would befall them should these men break in. The front door was deadlocked but it would be nothing against three blokes wanting to kick it in and I had no protection other than a carving knife. Not much of a weapon against three blokes who may or may not have been armed.

Where are the coppers? I rang over half an hour ago and still no appearance. The Homicide Squad had assured me that the local police station at St Kilda had been told I was to be given priority if I rang, and if there was any drama all stops would be pulled out to ensure my safety. If this was how priority looked, I didn't like it much. The men continued to stand with their arms folded, staring straight at my house. I didn't know what to do. Thirty, thirty-five, forty minutes had gone by before the coppers finally arrived. As the police pulled up outside the house, the men just turned and walked off slowly towards the beach, never to be seen again. The police jumped back in their patrol car and drove around the streets and, what a surprise, found nothing. All I could say by way of description was their height and their build and that they appeared to walk as younger men – somewhere, I would say, in their twenties.

Don't think that because blokes are locked up that they can't have a go at you. It's not hard to organise a mate or three on the outside to give someone a going over.

The next morning the Homicide Squad arrived and Paul Scarlett was unamused, to say the least, that it had taken so long for the local coppers to arrive. This was now being treated extremely seriously. I had been passively threatened in my home by people who obviously knew where I lived and were obviously sending me a message. No prizes for guessing what the message was. If I gave evidence, I was going to end up in plenty of bother. During the court proceedings these incidents were not referred to because to mention them would have been highly prejudicial to Dupas.

The police wanted to put me into witness protection. I refused. Bugger that for a joke – I had suffered enough confinement and restrictions. Instead they asked me to find other accommodation for the two weeks before I gave evidence at the Basha inquiry. I moved to another suburb on the other side of town and felt like I was in jail all over again. Each day I went home to get clothes, collect mail and go for a run. Each day I rang the local coppers and met them at home. Each time I had to identify myself. They would wait while I went for my run and then they would leave when I left the house. It was like being in jail all over again, with my every move being monitored whether I liked it or not. I understand it was for my own benefit but it badly destabilised me. I stayed at a friend's house until the day of the Basha inquiry.

I had steeled myself for plenty of media coverage but even I was surprised at the size of the media contingent at the Supreme Court the morning I arrived to give evidence. I was also extremely anxious and apprehensive because I knew from years of cross-examining witnesses that the witness box is a very lonely place. You are stuck up there like a cocky on a perch with no one to help you. You stand or fall by your performance and I was under no misapprehension that I was on trial as well as Dupas. This trial was essentially a one-issue trial: believe me, and Dupas was convicted; disbelieve me and demolish me, and he walked. I had better be on my mettle.

At a preliminary hearing, you do not give “evidence in chief”. Evidence in chief is where you recite the contents of your statement, usually without reference to your statement or any notes you may have made. It is a memory test, not a search for truth. Cross-examination by Counsel for the defendant is the cross-examination that you always see on TV shows, where some smarty-pants lawyer rips an unsuspecting witness to pieces, reducing them to tears in the witness box.

Before the trial I read my statement over a number of times. There was no real need to because the circumstances surrounding the incidents, together with the incidents disclosed in my statement, were so startling and so shocking that they were burnt into my memory forever, in particular Dupas's pantomime of murdering Mersina Halvagis. Little did I know then that he had told me something that nobody else knew and only the killer could have known: that Mersina had been kneeling when she was attacked from behind. Often the coppers deliberately withhold particular salient pieces of evidence to stop people constructing a trumped-up story to seek any reward that may be on offer. Another incident that was burnt into my mind and will be forever was Dupas standing on my left in the garden at Sirius East shaking and sweating, weighing up the shiv that I had found and repeating to himself “Mersina, Mersina.” How could anybody ever forget those incidents? I certainly can't and to this day they come back to haunt me regularly.

The big day arrived. I was asked to wait outside the court while other preliminary witnesses were dealt with, and I can remember standing in the bluestone-flagged courtyard of the Supreme Court in Melbourne looking up to an office building towering over the court building and thinking to myself: Why in heaven's name did I volunteer to do this? I am going to have everything about my case and my past raked over and thrown back in my face.

I can remember feeling physically sick – not scared of being cross-examined but physically sick at having to face Dupas again, because he was going to be in court for the trial, and at having to face the media, who were harsh critics indeed, notwithstanding the fact that I had literally put my life on the line to give this evidence. Some media, like some coppers, delighted in my demise and refused to move on, returning time and again to my past at every opportunity. And they don't let the facts get in the way of a bigoted, factually wrong piece of editorial comment!

My name was called and I walked up to the witness box. The oath was administered. The Crown prosecutor handed me my statement and asked me whether it was true and correct. I said “Yes.” He sat down.

It was now time for the defence to cross-examine. I've known the defence barrister, David Drake, since he was a university student – he is a friend of my sister. That didn't deter him for a moment. David, or “Baldrick” as he is jokingly known, was out to make a name for himself by demolishing me. (Drake's nickname comes from the character in the BBC series,
Black Adder
, because Baldrick always has a cunning plan which invariably fails to materialise.)

Baldrick launched into me at a million miles an hour, all indignant that I should have the temerity to give evidence, that I was a liar, a publicity seeker, a gold digger and a generally disreputable piece of work. I was rather relieved at this tirade because it was heading precisely in the direction I had anticipated – there were no surprises. Shouting and gratuitous abuse did not unsettle me one iota.

For many years, in my first incarnation in the legal system, I was a defence lawyer myself and, like Baldrick, could not wait to try to demolish somebody in the witness box. I admit I went too far on occasions and reduced people to tears. I had witnesses jump out of the witness box and race across the court to try and “get” me, before the police wrestled them to the floor. I had a woman faint in the witness box many years ago, and I had another wet her pants. Now I was on the receiving end!

Being a defence lawyer is in fact a bit of a coward's castle. You stand there manufacturing questions you know the witness can't answer and when the witness hesitates you badger them by saying “Answer Yes or No” and try not to give them an opportunity to explain their answer or elaborate on their answer. If you can keep to a yes or no answer, all the better. The first rule of being a barrister is never ask a question you don't know the answer to, and later we will see how critical this is, because Baldrick did ask one question that he did not know the answer to and it ruined any shred of a defence he may have had.

By the same token, it is not easy being defence counsel. You usually have a client whose neck is on the line, and you have a client who reckons he is paying you too much and is generally unhappy about the state of play. You attend court, you have a prosecutor who is not always scrupulously fair with the facts, coppers who are careless with the truth and, often, a judge who doesn't like his/her job. All in all it's a fairly thankless task. And yet, in the scheme of things, it is a very easy job standing there having a free kick at some poor bugger in the witness box who you reckon you can run rings around. You can make fun of them, you can belittle them, you can shout at them, you can suggest they are lying, making their evidence up or anything else that may get them to put a foot wrong. It's quite alright to cross-examine a person to the point where they lose their temper, because if you can get them to do that then they are likely to say something rash which may be beneficial to your client.

This time the boot is on the other foot, there I stood being cross examined by Baldrick up hill and down dale.

The second incarnation for me in the court system was as a defendant in my own criminal trial. Now, while many people would say that is the most stressful, in fact it's not. Yes, you are worried sick about the potential outcome and what penalty may befall you. From the moment the coppers ran in my front door all those years ago I had a very bad feeling about my fate. That feeling of dread was not helped when a now-retired solicitor Chris Piesse contacted me warning I might cop a seven with a five. And what I did cop? You guessed it: a seven with a five!

When you are a defendant Counsel appears on your behalf and a solicitor acts for you. All this is designed to insulate you from all that is swirling about you in the court room and outside. Even to the point where you don't make statements to the media – your legal team does. You sit tight, say nothing, look suitably admonished and that's about it. Where I had to sit in the court, I couldn't even hear properly what was going on at the front of the court, save to say that there were no prizes for guessing that the judge was clearly unimpressed with me and my co-accused, particularly as it was a drug case. My counsel, Con Heliotis QC, even made submissions that were factually wrong and I was powerless to correct them from where I was sitting at the back of the court.

One contentious issue that continues to cross my mind in these cases and has done so on many occasions is whether a judge in such a trial should declare his or her position as to drugs. For instance, if a judge has a son who has a drug problem, is that relevant to him or her sentencing and the question of his impartiality? Does it affect the quantum of their sentencing? Does it affect their attitude to drugs? Does it affect criminals generally? Does that judge conduct a trial differently? No doubt the judge's little helper, otherwise known as the judge's handbook, will help there! What if a judge has had a brother die of a drug overdose? Should that be declared to the court? I've always found this concept worrying. I think that the answer is “Yes”. Judges should declare such issues. For instance, before dealing with a culpable driver they should declare if they have had a loved one killed or maimed in a car accident. Or before dealing with an armed robber they should declare whether they have been in a bank when it was robbed. These are all examples of how judges are human and are subject to human frailty and prejudice. I know for a fact that a couple of these examples have arisen and not a squeak was uttered.

Sitting there in my own case, I took a keen interest in proceedings but everything was being done for me. This was, believe it or not, the easiest of the three roles in which I have found myself. Easily the most distressing and difficult was being a Crown witness. But not just any Crown witness. Upon Dupas's direct presentment, the then Director of Public Prosecutions, His Honour Mr Justice Coghlan, described my evidence as “the coat rack by which all other coats hang; no coat rack, no coats”. In other words, without me there was no case against Dupas. Therefore, for Dupas to be acquitted, I had to be demolished in the witness box. I knew that, the prosecution knew that and it was bleedin' obvious to the defence. I steeled myself for the onslaught, which inevitably came. Be under no misapprehension: Peter Dupas was on trial for murder but I was on trial as well. My entire credibility, which I had worked hard to re-establish after my sentence and for the few months since I had been released, was on trial. I had plenty to lose should I not be believed. However, for Dupas to be convicted, I had to be believed by the jury and that was yet to come.

I made a mistake in my cross-examination with Baldrick on the Basha inquiry when I said I had not spoken to any newspaper people when I was first released. As I have already said, I did speak to Keith Moor and had forgotten that. Yes, forgotten; not deliberately hidden or omitted.

As things transpired, the Basha inquiry went according to plan and I felt reasonably comfortable in the witness box. Needless to say it was the full court room drama with robes, wigs, the judge and barristers. Only the jury was missing. There were certainly no surprises and not much dirt was thrown at me. At the conclusion of the Basha inquiry the matter was adjourned for the trial. The procedure is that a written transcript is made of all of the evidence given at the Basha and this is given to all parties. The transcript is particularly of benefit to the defence because then they can see whether there are any inconsistencies between the written evidence in the form of the statement and the oral evidence given at the Basha inquiry.