No Witness, No Case

by Bill Robertson

  The following morning Chief Magistrate, Julia Deschamps, ruled in favour of continuing Pescaro’s bail.

  And so the case proceeded with lengthy opening addresses from both prosecution and defence, an infrequent practice for a committal. Over the next days, weeks and months, the case against Pescaro was meticulously constructed. Yet for every ‘i’ dotted and ‘t’ crossed, either Magnus Wyvern or Lorton Sprite shone in their efforts to eviscerate the proof and offer counter explanations. Gifted destroyers in cross examination, they appeared to win many of the technical arguments. Their strategy was simple and effective – clever tactics to trip witnesses and tarnish credibility combined with reasoned argument to exclude damaging evidence on the grounds of it being highly prejudicial.

  As Donovan and Danniellson watched the sham day after day, concern grew and they wondered if the defence and prosecution were talking of the same defendant so different was the picture presented by each side. While Tavistock grimly reported progress to the Chief Commissioner and Force Command, he still believed that justice would prevail. Nothing could shake his faith that their prosecution would do anything other than succeed.

  Eventually, four months after proceedings had commenced, Teresa took the witness stand. Lorton Sprite was ferocious in his demand that she be brought to court to face the man who had nurtured, guided, employed and loved her; the man she now falsely accused of murder. Magistrate Deschamps dismissed his application and informed the court that witness Marchese’s evidence would, like several others, be delivered by video from a remote and secure court site.

  Sprite staged a livid and blustering attack upon her decision and threatened to obtain a ruling from a higher court. He subsided, however, when Deschamps made plain she had given deep consideration to Lord Hutton’s opinion that video evidence was required to be of such relevance and importance to the Crown that to proceed without it would be unfair, especially if the process itself did not prejudice the defendant’s interests. In reaching her decision Deschamps said she would be balancing protection of the witness against any unfairness to the defendant from video evidence. She remarked that if Counsel had bothered to read the case of R – v – Lynne from the Victorian Supreme Court of 2003 it was there noted that mere use of technology need not (and must not) be to the detriment of the highest standards of justice. Icily, Deschamps said since she was satisfied that those elements had been properly met, Marchese would not be brought into court. She would, as arranged, provide evidence from a remote site.

  Over the next three days, through a television screen, Teresa’s evidence-in-chief was delivered to a curious court in a calm, clear and impartial manner. Her presentation was detailed, logical and damning. And then came the surgical probing from an implacable, silver-tongued warrior at law, Lorton Sprite. Sprite, a short puffy little man with a shaved head and cherubic face dressed with such perfection that he gleamed like a freshly minted coin. His voice, like his appearance, was silky and mellow and disguised the sharpness of his interrogation.

  He began by asking questions about the work she undertook for Pescaro, by drawing her into the maw of Mafia life, by painting her as a willing, complicit member of the criminal underworld. He queried her about the money she managed for Pescaro, the investments and the profits from those investments. Sprite confirmed with Teresa that Pescaro trusted her financial and business skills to the extent that she had carte blanche to invest where she saw fit. She agreed that she knew and used secret banking accounts and systems in other countries, that monies in those accounts were the proceeds of crime and that, in truth, she was in charge of money laundering. She admitted under cross examination that twice she had broken into Aldrittson’s flat. Slowly and systematically, Sprite built a moat of admissions around Teresa for acts that were either outright offences or would make her an accessory, before or after the fact.

  ‘And tell me Ms Marchese, what charges have the police laid against you?’

  ‘None sir.’

  ‘None, yet you readily admit to these crimes in this court. Is that correct?’

  ‘Yes sir.’

  ‘Why is that Ms Marchese? Why have the police not charged you with all these offences?’

  ‘I have been indemnified against prosecution.’

  ‘So, you’ve made a cheap deal to avoid prosecution. What have the police paid you to give this evidence?’

  ‘Objection.’ Prosecutor Dougal McIntosh leapt to his feet and interjected vehemently. ‘Your Worship, my learned colleague is accusing the witness of accepting bribes from the police. This is patently untrue. We explained to this court in our opening address that she is under protection; in that context she is receiving police care and support. That is not a bribe.’

  ‘Your Worship,’ said Sprite patiently, ‘my point is that this witness is nothing more than a common informer receiving a gratuity from police to give evidence. It is my contention that evidence presented by police in this manner is tainted and therefore, fully open to question. In my view, questions of the kind I am putting go to the very heart of this witness’s credit.’

  ‘I understand your argument Mr Sprite,’ said Deschamps coolly, ‘but unfortunately for you, Parliament has seen fit to legislate a Witness Protection Scheme into being, and this witness is part of that scheme. As such, she must receive protection and that will take the form, at minimum, of shelter and sustenance. Are you suggesting more than that Mr Sprite?’

  ‘Your Worship, what I am suggesting is that anything of value given to a witness in return for testimony is a bribe. It matters not whether that “valuable” is provided by some private person or the state, it is purchase of testimony. I say that is tainted and I say the state, through its Witness Protection Scheme is party to perverting the course of justice.’

  ‘Answer me this Mr Sprite: what is your alternative? Do you consider witness protection unnecessary? You already know from the Prosecutor’s opening address that one witness in this case has been attacked three times and sustained horrific injuries. In your view, does state provided protection counter the validity of evidence from such witnesses?’

  ‘Your Worship I must agree, in light of what you say, there are times when protection is necessary. However, I am arguing that the very principle of providing protection is an inducement. Because it is an inducement I am entitled to fully explore this witness’s credit. That is all.’

  ‘Mr Sprite, you may test the witness’s credit but you will not do it through the medium of the Witness Protection Program. That is a legislated Program and I take judicial notice of its intent and functionality. You will desist in this line of questioning.’

  ‘Very well your Worship.’ Sprite was not in the least rebuffed. ‘Ms Marchese, would you outline for us please the agreements you have made with the police for compensation to appear here?’

  ‘Objection. That matter is confidential between the Chief Commissioner of Police and the witness; it is a matter protected by law. My colleague knows that your Worship. I submit that in spite of your instruction, he is clutching at straws in trying to discredit a very credible witness.’

  ‘Sustained Mr McIntosh, but save me your speeches. Get on with it Mr Sprite. Stick to the instruction I just gave you. If you continue in this manner I shall be forced to take action against you.’

  ‘As your Worship pleases. I put it to you witness that you are a woman of the Mafia, you are motivated by revenge and you were fully aware of the criminality of the acts in which you participated. Is that not correct Ms Marchese?’

  ‘No. I am not strictly of the Mafia and I am neither lying nor motivated by revenge. I was given information about the death of my father which I believed was a crime. I told the police about that crime. That is the responsibility of every person.’

  ‘Tell me witness, why should any credence be placed on your evidence when you have knowingly committed criminal acts?’

  ‘It’s quite simple Mr Sprite, I am telling the truth. And we in this Court all know that you too have done thi
ngs for Pescaro that are not lawful.’

  ‘Enough Ms Marchese!’ Deschamps’ tone lashed Teresa. ‘Stick to the facts, answer the questions and keep your private opinions to yourself.’

  And so it continued. Sprite with his probing, McIntosh with his objections and Teresa unruffled, predominantly respectful and always believable.

  Chapter SEVENTY- TWO

  February, 2007

  On Thursday, February 22, 2007 the remote video site for that day was in the eastern suburbs. It was an old Court House of red brick with thick chunky bluestone steps leading to a foyer from the street; entry was through two huge, heavily panelled wooden doors. When Teresa and her Special Operations Group escorts entered the foyer, a tall uniformed Constable was waiting for them. From previous sites, Teresa knew the Constable’s presence was unusual and sensed instant wariness among her escorts. The Constable walked towards them holding a slim document satchel and said, in a firm voice, ‘I’ve got some papers here from the Prosecutor that you will need to refer to in evidence today.’

  After that, all hell broke loose.

  Much later, Teresa would recall events in slow motion. The Constable had seemed relaxed and held the satchel in front of his right hand. When he was about nine paces from her two things happened. First, the SOG man on her right yelled, ‘You! Stop right there!’ Second, the Constable fired through the satchel and shot her twice in the upper body. In the same instant, he dropped the satchel, fell to one knee and kept shooting. The SOG men on Teresa’s left and right were felled. The third SOG officer behind her fired three shots at the Constable who jerked, spun to the right and fell to the floor, blood darkening his uniform.

  Stunned, shocked and bruised, Teresa and the two SOG officers lay breathless, praising the inventor of Kevlar and bullet proof vests.

  A frightened, pale-faced video operator stuck his head timidly into the foyer. Dazed by what he saw, he slowly became aware of an SOG member bellowing: ‘Get off your arse and ring for ambulances; at least three. And tell the Magistrate what’s happened. Tell her that Marchese is okay and so are the SOG men. Don’t come out here again – it’s a crime scene.’

  When the video operator relayed his brief account of events to Julia Deschamps in the Hearing Court, she ordered the video screen turned off in response to consternation from the press and public gallery. Without success she tried to regain order. Suddenly, the court room was bristling with police and the hubbub subsided.

  Deschamps, pale and upset, addressed the Prosecutor. ‘Mr McIntosh, you will see that an enquiry into this incident commences immediately. Please inform the Chief Commissioner. Mr Sprite, I advise you that as of now, bail for Mr Pescaro is revoked. For the rest of this hearing, however long it takes, he is remanded in custody. If you disagree with my order, take it to a higher court. This court stands adjourned to one week from today when it will resume at 10:00 a.m.’

  There had not been such a brazen attack upon a witness since the murder of Raymond “Chuck” Bennett at the old Melbourne Magistrates’ Court on November 12, 1979. Bennett, involved in committal proceedings for charges of armed robbery, was being transferred from one court to another when he was assassinated inside the court building.

  ‘All rise!’ The Clerk of Courts commanded those in attendance to pay attention while announcing the appearance of Chief Magistrate, Julia Deschamps. She entered the court, arranged herself and without further ceremony asked, ‘Mr McIntosh, what do you have to report?’

  Prosecutor Dougal McIntosh rose and said gravely, ‘Your Worship, police have the investigation of this shooting well in hand. Firstly, I can report no injuries other than heavy bruising to the three people shot by the deceased. Secondly, I can report the deceased was not a police officer but a man in the employ of one of the co-defendants before this court, Mr Eduardo Masseria, a man associated with Mr Pescaro. The man masquerading as a police officer has been identified as Nino Costello. Thirdly, I can advise that police are very close to discovering just how it was that Costello: A, identified the remote court site; B, obtained a police uniform and firearm; and C, penetrated the security perimeter established at the remote site.

  Finally, I can report, without going into detail, that stringent security has been arranged for protected witnesses throughout the remainder of this committal. If anything further comes to light, I shall keep both your Worship and my learned colleagues informed.’

  ‘Thank you Mr McIntosh. Mr Sprite, do you wish to add anything to what has been said?’

  ‘Only this your Worship. My client, Mr Pescaro, had no prior, or subsequent knowledge of that event and is deeply distressed by its occurrence. It was a shocking tragedy and most awful slur upon the sanctity of this court. In spite of the fact that this committal has at times been heated, I have to say we are all diminished by events of this kind. Thank you your Worship.’ Sprite resumed his seat. He appeared contrite and seemingly, had spoken with sincerity.

  ‘Very well Mr Sprite. If I am not mistaken, before the adjournment you were cross examining Ms Marchese were you not?’

  Sprite rose again. ‘I was your Worship but, under the circumstances, I believe no further cross examination is necessary.’

  Magnus Wyvern and Lorton Sprite resumed their double act of cross examining alternate witnesses and once again, the committal slipped into a regular pattern well known to the courts and media. The sting, previously so abundant in their spirited defence, seemed blunted. Tavistock, who attended court at least twice weekly, believed that for all their bravado, for all the shonky activities in which they participated, concocted or concealed, the shooting was probably the first time they had seriously dirtied their hands or been close to the truth of their client’s business. They didn’t like it. Well, so much the better for us, he thought.

  Drummond, Judd, Aldrittson and the remaining protected witnesses came and went without a hitch as did Christmas, New Year and the 2007 summer break. On February 26, 2007, Julia Deschamps committed Pescaro for trial on all main charges and a host of lesser ones. She said there had been considerable replication among lesser charges and ordered a significant number struck out. The Tavistock team was jubilant and relaxed for the first time in months. Base camp had been established and now the true ascent could begin.

  First, however, important actions regarding Drummond and Marchese had to be completed. Immediately after events at the remote court site, Chief Commissioner Jim Scott, Assistant Commissioner Tavistock, Director of Public Prosecutions, Mitchell Blomberg and the new Attorney General, Andrew Chalkley met. It was agreed that before the trial the two witnesses should be moved overseas, change their names and complete the necessary enabling formalities as quickly as possible. Chalkley, mindful of a previous messy and protracted overseas witness resettlement – an example of federal insularity – undertook management of the federal-state aspects personally.

  Tavistock, privy to the preferred country of resettlement, pushed the group to serve notice for trial evidence to be given through an overseas video link rather than risk returning the pair to Australia. His motivation was powerful – Masseria had infiltrated the Justice Department and bribed an official having knowledge of the remote video sites. And, while investigators could not directly tie the attack upon Teresa to Pescaro, Tavistock and senior Justice Department officials nevertheless suspected Masseria had acted on his instruction.

  On Sunday, May 6, 2007, Sinead and Finnbar O’Donnell, formerly Teresa Marchese and Andy Drummond, quietly departed from Sydney airport en route to Dublin. Tavistock had learned Dublin Airport was expecting up to fifteen million people through its gates between April and October that year. As he saw it, those numbers would help camouflage the arrival of their protected witnesses.

  The only person to see them off was Aleisha Campbell and all three were awash with tears – strong friendships had been forged. With promises to meet again and aching with emotion, Teresa and Andy walked through the Departures Gate. Their Qantas flight would take them to Heathrow from where
they would fly to Dublin and begin a new life.

  Behind them lay their close and dear friends the Mauds, Andy’s farm and Teresa’s grey and grainy past. For both it was a past that wrenched at the core of their being, yet for each, the reasons were different. Now they had each other and believed a bright future was ahead.

  Four months later, on a warm, Saturday afternoon in mid-September, Pescaro was enjoying the sunshine and strolling the exercise yard among a group of prisoners. Men on remand changed constantly as some were bailed, some went to trial, some moved on after sentencing and and still others exited on Community Service Orders. Few were acquitted outright. Peter Simons was there for aggravated assaults and burglaries – he had entered remand on Friday afternoon. A surly, ominous man exuding attitude, he had been watching Pescaro as he lounged against the wall. The strollers ignored Simons having picked him as a loner. As the group passed, he suddenly lurched from the wall and cannoned into Pescaro. The men rippled apart.

  ‘I don’t think you should have done that friend,’ rumbled Pescaro. ‘Do you know who I am?’

  ‘I know exactly who you are old man,’ Simons hissed, his voice thickly accented, ‘more to the point, do you know who I am?’

  ‘A nobody, that’s who you are. Nobody,’ barked Giuseppe.

  Simons smiled lazily, his eyes flashing dangerously. ‘Not a nobody. I am somebody with a message and I have waited patiently to deliver it. I am Pyotr Asimovich – I am the one you missed at Bayswater. My message is from Valentin Chernamenko. He wanted you to know he always keeps his word.’ Asimovich watched Pescaro intently. Pescaro’s eyes widened fractionally in recognition. Then, without warning, Asimovich stepped forward and struck Pescaro twice.