Bad

by Michael Duffy

  ‘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.

  Terracini reprised the theme of paranoia. He read out a text Daley had sent Glen Browne in December 2002: ‘4 separate sets of fresh shoeprints in back fence . . . the chopper . . . lots of noises tonight and seriously strange cars tonight’.

  Daley agreed that he’d sent another text saying: ‘saw 2 huge Tongans jump out of a red Bongo van and run to the telephone box and wipe it down’. He acknowledged finding the word ‘Help’ scratched inside the metal door of his shed one day, and being sure it had not been there when he’d bought the house.

  WINSTON TERRACINI: Were there ever any discussions between you and the police where words like ‘irrational’ or ‘paranoid’ or ‘overanxious’ were used, or words like that?

  TOD DALEY: I believe the word ‘paranoid’ may have been used on occasions.

  WT: Did you ever consider you were?

  TD: Well, if I was, I’m still alive and if I was paranoid, and didn’t see what I thought I saw, that’s okay with me. I’m here today.

  Almost at the end of his cross-examination, Terracini introduced what at first seemed like it might be devastating new material. He said Daley had been desperate to get police protection to help avoid going back to jail and b
eing killed by Aboriginal men.

  WINSTON TERRACINI: The Aborigines got you [in jail] once because of what you did to a young Aboriginal male, wasn’t it?

  TOD DALEY: Not at all.

  WT: That’s not in club rules either, is it? [Daley had just been talking about some of the rules of the Rebels.]

  TD: What’s that?

  WT: Trying and succeeding to have sex with a young male prisoner?

  TD: I don’t have sex with males, thank you very much.

  Terracini referred to an allegation made in prison, and suggested Daley had been transferred from one jail for his ‘unnatural behaviour with a young man’.

  WT: That’s why you didn’t want to go back to jail, because you knew they’d fix you right up?

  TD: Not at all.

  WT: Because the other Aborigines found out what you did, didn’t they?

  TD: No.

  WT: That’s why you got stabbed?

  TD: It’s not why I got stabbed.

  Terracini ended his cross-examination soon after, without presenting any further evidence for the extraordinary claim.

  Daley’s cross-examination by Carolyn Davenport was along similar lines. After a few minutes she raised the reason for his going to the Crime Commission in the late 1990s. Daley said, and this was interesting, that ‘once I done that, that was the point of no return for me. No run to gang life, no return to nothing. That was it for me . . . Once I done that, there was no way I would go back, which is what I done from [an early age]. I’d always gone back. [To have a warrant issued by the Commission] was something I needed done so that I never went back to the clubs.’

  Davenport was uninterested in Daley’s desire for redemption. She spent a lot of time on more pragmatic matters, comparing what he’d told police during some of his more than fifty meetings (all of which had been recorded in police notes, which the defence had copies of) with what he had told them in his eighty-seven page statement, which was the basis for his answers in court. Many of these inconsistencies involved not the content of what he’d said but the time and place he’d said it. Davenport suggested the first time Daley had met Anthony Perish after leaving jail in 2001—the one during which Perish had asked him, ‘What can you do for the company?’—had been at the house in Bringelly and not at Newtown. Here, as many times elsewhere, Daley said the police record was simply wrong, and that he stood by his signed statement. This was potentially plausible as some of the police records alluded to by the defence were rough notes of rambling conversations early in their acquaintance with Daley.

  It was impossible to guess what the jurors were making of Daley’s evidence. Obviously it was less than ideal from the prosecution’s point of view, but would they conclude he was completely unreliable, or decide he was a man who’d been in very unusual circumstances and had tried to do the right thing, suffering terrible emotional pressure along the way? He did not break down at any stage under the prolonged and intense questioning, and continued to give the impression of someone trying to do his best. In response to yet more questions about his inconsistency, he told Davenport, ‘I can’t recall dates and stuff, I’m sorry. It was ten years ago . . . It’s been ten years of nightmare for me.’

  Davenport finished her cross-examination powerfully, getting Daley to agree to a summary of the most damaging points of his evidence, such as the incident with the ‘Hush’ putter. She concluded by proposing there’d been threats against his life from other sources, and that in order to get police protection he’d invented the story about his boat: ‘I want to suggest the whole of the evidence that you have given about your interactions with Anthony Perish are false.’

  To which Daley responded: ‘It’s your job to say that.’

  It was almost the only time he talked back in the face of considerable, if professional, antagonism over several days, and it was nicely judged. Tod Daley had done some terrible things, and terrible things had happened to him from an early age, but still he was a man of intelligence and spirit.

  The question in the minds of the Crown lawyers and police was just what effect the revelations about Daley’s state of mind would have on the jury. As the old saying goes, just because you’re paranoid doesn’t mean you have nothing to be afraid of, and Daley seemed to have had good reason to be terrified.

  So did other witnesses—you could almost say fear was a theme of this trial, and in that context perhaps Daley’s fears did not appear as extreme as they might have in a different setting. And even if the jurors did conclude Daley had been paranoid, would they also conclude he was lying? The defence lawyers seemed to be hoping that would follow, but it might not.

  This was a particularly tough trial for the lawyers. The stakes were high, for the defence lawyers with their particular clients, and for Paul Leask, one barrister against three and carrying the weight of police expectations after an investigation of almost ten years.

  On the eleventh day of the second trial, Gary Jubelin gave evidence. A striking figure with his shaved head and smooth skin, he didn’t look like a typical fifty-year-old police inspector. If he was in a film you might have picked him, given his athletic build and straight back, as a military officer some years younger than that. He did speak with the slightly defensive delivery used by most police in the witness box, reflecting a desire to consider each word before it is spoken.

  Paul Leask asked him mainly about his contact with Tod Daley, and Jubelin agreed he had encouraged Daley to see a psychiatrist in mid-2003, as Daley had broken the code by which he’d lived since the age of fourteen and appeared to be under extreme stress. Daley had refused. Questioned by Davenport, Jubelin said Daley had been relocated and provided with a new identity at the expense of the state. (However, as had already come out, he was not on the witness protection program.) Jubelin said there had been fifty-eight meetings with Daley in 2002 and 2003, and countless phone calls and text messages. Davenport pointed to the many inconsistencies between the police notes of these meetings and what Daley had finally said in his signed statement, and suggested he’d had a long time to come up with his story. Jubelin acknowledged that considerable time had elapsed during which Daley had been able to think about past events, and said this was why the statement was more reliable than the notes.

  On the matter of Daley’s state of mind, to which Davenport devoted some time, Jubelin agreed he’d used the term ‘paranoia’ back in late 2002 but suggested it had been meant colloquially. Davenport read out a text message sent by Daley to Glen Browne at the time, at 3.38 one morning, reading, ‘Liar. You’re just using me for sex. The Professor also stated that physical gratification is but one form, gratification being individual, hence the term sex can come in myriad form.’

  It was a very strange message, of course, and indicated a certain facility with language not usually found in criminals. Davenport suggested it was unusual, and Jubelin agreed, and said he thought it was ‘an attempt at humour that has probably gone astray’. Davenport then read out the rest of the message: ‘PS—When we find good sex we hope to feel satisfied upon completion of the act. Didn’t anyone explain to the Professor that Murphy proved that you can’t please every cunt.’

  Jubelin suggested this was another attempt at humour. Questioned yet again about Daley’s state of mind, he said, ‘he was seeing threats in everything, but he was a person who was under stress and I believed the stress related to the fact that he breached the code that he lived by all his life’.

  •

  The next major witness was to be Brad Curtis. Tod Daley had been important in establishing that the accused had intended to kill Terry Falconer, and Jake Bennie had been present at the abduction. But Curtis was the only Crown witness who could give details of what had happened afterwards, including whether Falconer had been alive or dead when he reached Turramurra. But of course there was his cancer. The detectives and Paul Leask tried to find out his intentions, but Curtis wasn’t saying. He’d refused to see Leask the previous day out at Long Bay jail, and now, on the
morning of Thursday 4 August, asked to see his own solicitor. At a voir dire at 11 am, Leask told the judge the solicitor had relayed only this instruction from his client: ‘Put me in the box.’

  ‘What’s he going to do?’ Leask had asked.

  ‘Just put him in the witness box.’

  Winston Terracini asked the judge for documents from Justice Health, the health wing of the state’s prison system, that would show what drugs Curtis was on, if any. He said he was concerned they might be mood-altering, and thereby affect Curtis’ evidence. Justice Price called for this information, and said Curtis would come into the witness box in the absence of the jury, after Gary Jubelin had finished giving evidence, so the court could ascertain his situation.

  The jury came in and Stephen Hanley proceeded to cross-examine Jubelin. He began by asking if it was true that Terry Falconer had told Alan Morcomb, his friend and the boss of Wreck-A-Mended, that he feared his wife, his daughter and her husband, Rob Institoris, and Tod Daley were going to set him up for the murder of the Perish grandparents in order to claim the reward money. Jubelin said this was correct, and Tuno had talked to all those involved who were still alive, and had found no evidence for the claim. Hanley pushed him on other matters, including just how much evidence they had about Matthew Lawton.

  Then Terracini had a go, homing in for a while on the matter of the recording device that had failed on the day Daley claimed Andrew Perish had admitted to the murder.

  ‘Did you get a report from the scientific and technical branch about this?’ asked Terracini.

  ‘No, I didn’t.’

  ‘Anything about, “Oh gee, these listening devices are no good, we’d better get another brand.”—Anything about that?’