Bad

by Michael Duffy

  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 he
ard. 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.

  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.

  13

  THE SECOND TRIAL

  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 A
nthony 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’.