Bad

by Michael Duffy

  ‘There were plenty of comments about what I thought about the listening devices,’ Jubelin said, ‘I can assure you about that.’

  ‘It must have been so frustrating and disappointing that out of all the tapes, that it just malfunctions when the confession is tumbling out?’ Terracini asked sceptically.

  ‘It’s happened to me on other murder investigations, and I was as frustrated then as I was on this occasion.’

  ‘Can you tell us one?’

  ‘Yes I can. The murder of Bob Ljubic . . . The device did not record it clearly at all.’

  ‘And that did not involve a confession that somebody claimed that they heard, did it?’

  ‘Yes, it did.’

  Terracini decided to push it: ‘And was that person an informer?’

  ‘Yes, he was.’

  One last try: ‘And he had the listening device on him or her?’

  ‘Yes, he did.’

  When Jubelin finished giving evidence, the jury was sent out and Justice Price told the court Brad Curtis was being ‘brought across’. Because he was high risk, two officers would sit with him while he gave evidence. Curtis, somewhat curiously and very unusually, would be wearing his prison hospital orange jumpsuit ‘as a statement’. Paul Leask prepared for the encounter, twitching the gown across his broad shoulders and adjusting his wig.

  When Curtis appeared in court he was indeed wearing a faded orange garment with the word VISITS across its back. It’s an item almost never seen in court, and the heavily guarded Curtis reminded some observers of Hannibal Lecter in the film Silence of the Lambs. Possibly this was the impression he wanted to give as he shuffled up to the witness box and took his place. Or maybe he thought it gave an indication of how brutalised he’d been by jail.

  He stared at Leask, unshaven and with his mouth half open, as though wanting to appear an idiot. He was uncooperative from the start. Leask took him through his sentence and Curtis claimed to have forgotten important points such as the date he was sentenced. Leask reminded him of the discount he’d received in return for his offer of future assistance to police, and said, ‘You understand if you don’t give evidence you could be resentenced.’

  ‘I understand your veiled threat,’ Curtis said.

  This was interesting—an expression such as ‘veiled threat’ is rarely heard from the mouths of criminals. In fact, you could go for several years in any Sydney criminal court without hearing anything like it from a prisoner or accused person. But more interesting than Curtis’ use of language was his reluctance to answer questions. He claimed to have no memory of the date when he’d made his recorded statement to police after his arrest, and excused himself by saying, ‘For the last so long, as long as I can remember, I’ve been in isolation twenty-two, twenty-four hours a day in a cell.’

  Cross-examined by Winston Terracini, Curtis said he’d had the left lobe of his liver removed and was due to start chemotherapy soon. He was not on any medication at the moment. Carolyn Davenport asked if being in isolation might have affected his memory.

  ‘Psychological wellbeing and memory,’ he replied, ‘yeah.’

  ‘Do you feel it has had an effect on your functioning generally, that is, your mental functioning generally?’

  ‘When you’re not talking to anybody, you’re not getting any stimulus,’ he explained. ‘I started a course, which Corrective Services tried to make it very difficult for me to have computer access. I only have library access . . . when I was at the Supermax and for two weeks I presented severe, acute symptoms, they just left me shitting blood and vomiting bile, and they just left me until I got peritonitis. My intestine split open. Yes, so it has an effect on your trust.’

  ‘Have you ever seen, for example, a psychologist or [had] any sort of counselling in relation to all that you’ve been through this year—the two major operations?’

  ‘So they can lock me up longer? . . . No. It will just put me in a worse position. They’ll just use that information against me.’

  Later Justice Price said to him, ‘Do you have any more comfortable clothes to come to court tomorrow?’

  ‘I’ll stay in these . . . I’ll stay in orange.’

  ‘That is your choice, that is how you would like to be seen in court?’

  ‘It is lying to the jury otherwise. It is a lie, isn’t it?’

  ‘Okay, you are free to come to court in—’

  ‘They are clean.’

  Curtis began to give his evidence before the jury on 12 August. He explained how Anthony Perish had first talked to him about the deaths of his grandparents and ‘that the police botched up the investigation through their incompetence and he wanted to find out who could have been responsible’. Perish, whom he now referred to as ‘the client’, paid him to look over some documentation relating to the murders, and later it was decided to abduct Terry Falconer to question him.

  At this point Curtis’ answers began to fade. He said he could not remember anything about the planning of the abduction, including whose idea it had been. He couldn’t recall who had changed the number plates on the Commodore, or who had changed the wheels. He did say that when they arrived at Turramurra, Falconer had looked ‘pretty crook’ but he thought he was still alive. His answers became increasingly vague.

  PAUL LEASK: When you arrived at Turramurra did you arrive at a house?

  BRAD CURTIS: Arrive at a house?

  PL: Yes?

  BC: Yes.

  PL: Who was at the house when you arrived at Turramurra?

  BC: It was either Steve or Matthew.

  PL: Matthew, who was Matthew?

  BC: It is another guy that was sometimes at the house or it could have been Roy.

  Curtis wasn’t sure who’d been in the garage when the box was opened. He refused to say Anthony Perish had even been at the house. It was clear he was not going to give the evidence he’d promised in return for his discount.

  Paul Leask asked for the jury to be sent out. After they’d gone, he said to the judge, ‘The witness is not making a genuine attempt to give evidence about matters which it may reasonably be supposed would be within his knowledge. He is not identifying the participants in the enterprise as he has done previously at committal and in his statements.’

  Under Section 38 of the Evidence Act, this refusal enabled the Crown to present evidence the witness had given in the past. Leask proposed that the ERISP of Curtis’ original police interview be played to the jury. After some argument among the lawyers, the judge agreed, but this was postponed for a number of days, because the ERISP had to be edited to remove many sections relating to criminal activity other than the murder of Terry Falconer. The jury could not hear this material as it was irrelevant and might prejudice them against the accused.

  Meanwhile the next witness was one of Tod Daley’s former girlfriends, followed by Stephen Yeomans, a metallurgist who had retired from the University of New South Wales in 2009. He’d examined the pieces of sheet metal found at Girvan, at a site where there’d obviously been a fire, and said they came from a tool box. The design of the box was ‘some years’ older than the ones currently on sale, but he wasn’t asked to be more specific.

  On 15 August, as Curtis’ ERISP was still being edited, Glen Browne gave evidence again. Paul Leask got him to explain the process by which the detectives had taken notes of their conversations with Tod Daley over a long period. Then Browne was robustly cross-examined by the three defence barristers in turn. It was an intense experience, given the enormous scope of the investigation and the vast number of areas about which questions might be asked. Browne said Tuno had produced ten thousand Investigator’s Notes, each with an attachment of between one and hundreds of pages, and each entered into the eaglei database. The barristers as usual cut between different subjects abruptly, in this case relating to the specifics of an eight-year investigation, but Browne showed an impressive power of recollection. The few times he didn’t know something, he knew where it could be found.

  Win
ston Terracini was naturally interested in Tod Daley’s claim that he’d heard Andrew Perish confess to the murder but the recording had failed to capture this. He asked if Browne could point him to the Investigator’s Note that recorded this failure.

  ‘Not off the top of my head, no,’ said Browne.

  Terracini appeared to be sceptical about the existence of such a note, to which Browne responded, ‘I would like to think there’s one there.’

  Terracini asked that the note be produced, and an hour later it was, as was a note of the delivery of the recording to experts in Sydney who, despite sending it to Scotland Yard for further checking, had been unable to enhance its quality so that the words Daley claimed had been said could be heard.

  It took a long time to edit the Curtis ERISP, so the jury had a day off. When they returned the next morning, 17 August, they asked the judge if they’d be paid for the previous day, and he assured them they would be. Then Brad Curtis returned to the witness box and Paul Leask continued to question him for some time, but with no better results than previously.

  ‘Whose idea was it that Mr Falconer be taken to Turramurra?’ asked Leask.

  ‘Um, I don’t remember.’

  ‘Did anybody say anything about the contents of the box once the box was opened?’

  ‘I, I don’t recall the conversation.’

  And so on.

  After the lunch adjournment and before the jury returned, Justice Price said to the lawyers, ‘I should disclose that I have received a communication a few moments ago from Mr Curtis which I will read so there is no mystery about it. “To your Honour, I have an assignment due in a week for a course in ‘Exercise’ that I am doing at Charles Sturt by distance. Could you please write something saying how many days I have attended this court so I can get an [extension].”’ His Honour said, ‘We will see what we can do to assist him.’

  Then the jury and Curtis were called in, and the ERISP played. It was part of the seven-hour interview Glen Browne and John Edwards had conducted with him at Parramatta Police Station on 22 January 2009, three days after his arrest. The Crown had edited it down to material relevant to the trial, to a length of about two hours, with the shortened version viewed by the defence lawyers. Arguments had been conducted before the judge, in the absence of the jury, over whether a few sentences should stay in or out.

  The results were gripping viewing. They showed Curtis in his prison greens, sitting at a white table in an interview room and recalling the abduction and murder with animated expression and the occasional vivid movement of his hands and arms to illustrate some of the things done to Falconer in his last hours. In the interview Curtis speaks fluently, as we have seen, his vocabulary indicating he is an educated and intelligent man. It is also clear there is something missing from his personality, possibly the ability to tell right from wrong. He boasts several times about his careful planning, as though still proud of this and completely unaware of its incongruity in the context of the terrible events he is describing.

  The contents of the ERISP gave the jury the description of Falconer’s death as described in Chapter 9. With their details of Falconer’s appearance in the toolbox at Turramurra, and the dismemberment of his body and cleaning of the concrete floor with acid at Girvan, they were extremely moving. Curtis insisted throughout that he thought Falconer was to be questioned, not killed: ‘We were paid five grand each, for God’s sake, to just take a guy to be questioned about their grandparents’ murder.’

  Once the ERISP had been played, the jury went home. The next day Paul Leask, who seemed to have a cold, questioned Curtis one last time, but with no more success. At one point Curtis referred to ‘the movie you played yesterday’. Later he asked Leask to repeat a question, and when this was done, Curtis turned to the judge and said, ‘I object, your Honour. He is trying to lead me.’ (Leading is where a barrister asks a question in such a way as to encourage a particular response.) At another point he said, ‘Is that a rhetorical question?’ It was provocative dumb insubordination and Leask was provoked, raising his voice and looking angry at times.

  ‘Mr Crown, please allow the witness to answer the question,’ the judge said.

  ‘He goes off in other directions, your Honour.’

  ‘Take it gently, Mr Crown.’

  After Leask finished, Stephen Hanley had a go, and Curtis relaxed a bit. He still expressed a weird pride in his ability as an organiser, agreeing with the proposition he was a ‘careful planner’: ‘What I can say, just knowing myself from nature, if I was going to go for a job interview, I would want to know, like, where the nearest parking station was, or if it was public transport, so I would not be late.’

  But, as Hanley pointed out, ‘This was a kidnapping, not a job interview?’

  ‘I think the same principle applies.’

  His other theme cropped up in an answer to a question from Hanley later on, when he declared, ‘I have never tried to hurt a decent member of the community.’ Terry Falconer, he said, was ‘an undesirable’.

  Hanley suggested he had exaggerated Matthew Lawton’s role in events to make himself look better, but Curtis wouldn’t give him anything, as these exchanges show.

  STEPHEN HANLEY: I suggest between the arrest and your ERISP [three days later] that you decided you were in big trouble, didn’t you?

  BRAD CURTIS: Sorry, what was that?

  SH: And I suggest that you decided to enter into this record of interview and give a version of your involvement in Mr Falconer’s abduction and subsequent death that was most favourable to you as possible, is that correct?

  BC: I don’t recall taking the interview, but after seeing it there are peculiarities with it.

  SH: I want to suggest you made up this story about Mr Lawton having a gun whilst you drove from Turramurra to Girvan, to suggest to the police that you were acting under duress and could not be responsible for what may have happened to Mr Falconer in that journey, that is correct, isn’t it?

  BC: I can’t recall if it was Matthew that drove up.

  Later Hanley suggested Curtis was a good actor and had been acting in the ERISP and also at home, where his wife apparently had had no idea she was married to a violent criminal.

  BRAD CURTIS: Well, I guess I was leading a double life from everyone that thought I was on the straight and narrow, not just my wife.

  STEPHEN HANLEY: This went on for years and years and years, didn’t it, the leading of this double life?

  BC: Yes.

  SH: And volunteering for the local PCYC [Police-Citizens Youth Club] was another part of the façade, wasn’t it?

  BC: No. I object to that strongly.

  SH: It was done to suggest to the people in the Newcastle area where you were living with your wife that you were a nice guy interested in helping those less fortunate in the community, wasn’t it?

  BC: That was not my motivation, you are out of line.

  SH: There were two Brad Curtises, weren’t there? The one that pretended to be the family man, good member of the community, and the other one who was the violent man. That is correct, isn’t it?

  BC: It is one person with two different behaviour sets, you might say.

  Towards the end of his cross-examination, Hanley ran through all the crimes for which Curtis had been convicted. ‘You committed a lot of crimes, didn’t you?’ he said.

  Curtis had a grievance about being lodged in the Supermax; he’d mentioned it not long ago and now returned to the theme: ‘There are a lot of worse people not in the Supermax.’

  ‘During that period of time you were a walking one-man crime wave, weren’t you—there are a lot of crimes there?’

  ‘There are a lot of crimes.’

  Next Curtis was cross-examined by Carolyn Davenport, who also proposed he had downplayed his own role in the murder. She then outlined an alternative scenario for what had happened, which is interesting because presumably it came from her client, Anthony Perish, and is the only reflection of events he has ever given. ‘I s
uggest to you,’ she said, ‘that [when you arrived at Turramurra] Anthony then said to you, “What’s he doing in the box? Let’s get him out?” . . . I suggest to you that [when the box was opened, Terry Falconer] was well beyond gasping, and that Anthony said to you, “Give him CPR” . . . And you said, “I’m not touching him, he’s been in jail, who knows what he’s got.” . . . after it was determined that Mr Falconer was dead, Anthony said to you, “It’s your mess, you better clean it up.” . . . And that you begged him to help you get rid of Mr Falconer’s body?’

  Davenport further suggested that although Curtis had said Matthew Lawton was at Turramurra when he arrived, this wasn’t true, and that Anthony Perish had called Lawton for help when he realised Falconer was dead. To which Curtis replied that he couldn’t remember either man being at Turramurra when he arrived (which contradicted what he’d said in the ERISP). She suggested the three men had driven to Girvan where ‘you all sat down and had something to drink, some strong drink, and talked about what you could do to cover up what had happened to Mr Falconer . . . various options were discussed about how he might be got rid of, how his body might be got rid of, remember discussions about the possibility of burying him on the property?’

  ‘No.’

  ‘Discussions about the possibility of burning his body in the fire?’

  Curtis did not reply.

  ‘I want to suggest to you that you were the one who suggested chopping him up then disposing of his body in pieces.’

  ‘I don’t remember.’

  Finally Curtis’ evidence was completed. The question in the prosecution’s mind was whether the jurors felt his presence in the witness box had compromised the compelling ERISP.

  •

  The next witness was Penelope McCardle, a forensic anthropologist from John Hunter Hospital in Newcastle. She confirmed that cut marks on certain of Terry Falconer’s bones could have been made by some of the saw blades found at the site of the fire at Girvan. She was cross-examined by Winston Terracini, who asked one particularly gruesome, if convoluted, question. ‘Ma’am, just so it can be put to rest, you cannot tell as a forensic anthropologist whether the person who was once alive was the subject of these cuts or saw marks, whether alive or dead?’