Bad

by Michael Duffy

  ‘At the time they were being dismembered?’

  ‘Yes.’

  ‘No.’

  Detective Glen Browne was again recalled to give evidence, mainly verifying miscellaneous dates and facts. He said Matthew Lawton had only ever been convicted of a few driving offences and one minor offence of assaulting police (a $300 fine, withdrawn on appeal). Anthony Perish had only ever been convicted as an adult of swearing in public.

  Possibly frustrated by Browne’s pleasant, deadpan manner, an increasingly irascible Winston Terracini had one last go at him, first saying he was the ‘2IC’ of the investigation (instead of the OIC) and then suggesting he was lying over a certain date, even though ‘you’ve portrayed this image that butter wouldn’t melt in your mouth’.

  ‘Wait one minute,’ said the judge. ‘Don’t be offensive, Mr Terracini . . .’

  ‘I withdraw butter wouldn’t melt in his mouth . . .’

  ‘Mr Terracini,’ said the judge. ‘Keep your shirt on please.’

  The Crown case concluded and the defence called amost no witnesses. None of the accused went into the witness box. This is their right, and no one—not the judge nor the Crown prosecutor—was allowed to suggest this reflected badly on them. The right to silence is often described by Australian lawyers as one of the bulwarks of Anglo justice—although in Great Britain itself, since the 1990s lawyers have been able to point to a refusal to give evidence as a possible indication of guilt.

  Of course it is, and it is regrettable that the right still exists in its raw form in New South Wales. Most ordinary people—including many members of the families of murder victims I’ve spoken with—find this incomprehensible. There were many facts in this trial that only the accused could have provided, and it was absurd that they could not even be asked about them in front of the jury.

  •

  Paul Leask gave his summing up on 29 August, explaining to the jury that ‘to satisfy you that Anthony Perish and Matthew Lawton are guilty of murder, the Crown must prove to your satisfaction that they did an act which caused his death and that act was caused and done with an intention to kill or with reckless indifference to Mr Terrence Falconer’s life.’

  He described the Crown case as like a jigsaw puzzle of a picture of the Sydney Harbour Bridge: ‘Some parts may not fit and perhaps some parts are missing: a bit of sky is missing, one of the pylons is missing, some of the water is missing. But even if some parts are missing and some parts do not fit, you can stand back and say, “That is a picture of the Sydney Harbour Bridge” . . . So it is in a criminal trial.’

  There was, he pointed out, no need for the Crown to prove motive, ‘But there is a motive, and the motive is a strong one, it is a motive rooted in emotion, it is a motive rooted in family, it is a motive that does not recede during the passing of time: it’s personal, very personal . . . it goes back to the death of their grandparents in 1993.’

  He reviewed the evidence and spent the last part of his speech talking about the key witness, Tod Daley, conceding his state of mind had been nervous when he was telling police his story, piece by piece, in the years 2002 and 2003. At that time the police knew Falconer’s body had been found in the Hastings River, but had no idea of the significance of a place named Girvan, well over a hundred kilometres to the south. Nor did Daley, yet he told police he’d been asked to bring his boat up the Karuah River, part of a water system that runs within ten kilometres of Girvan, the place where, police would only learn seven years later, Falconer had been dismembered. This could not be a coincidence, Leask suggested: it indicated Daley must have been telling the truth. The case came down to Daley. If the jury accepted his account beyond reasonable doubt, everything else the Crown claimed flowed from there.

  The defence barristers and then Justice Price gave their summings-up, and the jury retired to consider its verdict. They were out for a week, which caused some of the police concern: the adage goes ‘Quick to convict, slow to acquit.’ But in this case there was a great deal for the jury to work their way through: five charges, three accused, several major protected witnesses whose motives had to be considered. Some on the prosecution side took heart from the fact that the jury didn’t ask the judge one question, which is unusual when they’re out so long. It suggested the jurors were not confused, just busy.

  For the week the jury was out, Paul Leask and Gary Jubelin remained on the court premises, doing other work but ready should any questions be asked. Relatives of the accused and of Terry Falconer came to court each day, sat on the benches outside for six hours, then left.

  Finally the jury came back and announced its verdict. All the accused were guilty of all the charges, with one exception: the jury was hung on the question of whether Matthew Lawton was guilty of conspiracy to murder. As the foreperson announced these verdicts, the jurors did not look at the accused. There was no reaction from the men in the dock. Justice Price sent the jurors back to try to reach a majority verdict on Lawton and the conspiracy charge, meaning eleven votes out of twelve would do.

  News of the verdicts had gone out across the city, by phone calls and text messages, and journalists converged on Darlinghurst Road. In the lobby outside the courtroom, the detectives were doing a good job of restraining their relief, and their exultation. As he prepared to face the waiting cameras, Gary Jubelin, the hard man of few words, was asked how he felt.

  ‘It’s sweet.’

  14

  THE COMPANY OF KILLERS

  From going to and fro in the earth, and from walking up and down in it.

  Sentencing of the convicted three was delayed considerably because of the serious illness of a relative of one of the lawyers and the long Christmas break. As in many trials, some of the relatives of the victim were suprised at the enormous delays that are taken for granted by those who work in the justice system. The court next sat on 16 March 2012 to receive and hear sentencing submissions. Not much was said by the defence. Terry Falconer’s son James read a moving victim impact statement, in which he said his father had died with less dignity than an ‘animal in an abattoir’ with ‘no dignity, no respect and no mercy’. The end, he said, had been ‘like a lion being pulled down by a pack of sniffing hyenas’. The statement was much more aggressive than most heard in court. Falconer read with his head down for much of the time, but occasionally lifted his eyes to the convicted men in the dock. He concluded by saying he was haunted by dreams of the killing, which took his ‘heart, mind and body to a dark place . . . I can’t go any deeper into the pain they’ve caused.’

  Justice Price went away for a month to consider the material he’d been given, and decide for how long the men would go to prison. There were reports from psychologists who’d interviewed them after their convictions. Their purpose was to assist the judge in determining a few matters relevant to sentencing, such as the remorse of each man (if any), and his prospects for rehabilitation.

  Matthew Lawton’s psychologist found him still asserting his innocence (the jury had found him guilty of the conspiracy charge too) and intending to appeal. Lawton, now forty-five years old, recounted how his parents had divorced when he was twenty-one, and he had not seen his father for the next twenty years. His father, like himself, had been a heavy drinker. Lawton ‘described a restless disposition and although constantly employed never lasted terribly long in one fixed job. He has worked in the transport industry for the past twenty years as a truck driver, with his job ending at the time of his arrest.’

  Lawton has two sons from a former relationship, and had been with his current partner, Sharon Miller, for seven years. He told his psychologist at his first interview that he was ‘actively involved in a Koori Art Class, stating that he has some Koori heritage on his mother’s side. He reported always being artistically inclined.’ By his second interview, in March 2012, he was in protective custody in Nowra jail, apparently due to a false rumour that he had turned police informer.

  Justice Price was also given a number of testimonials from Lawt
on’s relatives. His father, George, wrote that his son was ‘a very kind and compassionate man, who devoted his life to his sons, and family . . . Matthew has never been a lawless person.’ Lawton’s aunt, Leone Davidson, who had attended the trial regularly, recorded that he had always been a polite and considerate boy with a strong sense of family responsibility, so much so that she and her husband had appointed him their executors. ‘My family and I,’ she wrote, ‘are still unable to fathom that my nephew has been charged with [these] crimes.’ Sharon Miller told the judge, ‘It has been a great shock and has deeply saddened all Matthew’s friends and family about his current situation. Disbelief would be the general feeling of those who regard Matthew as a dear friend, loving devoted father and a respectful, considerate partner.’

  The psychologist for Andrew Perish, who was now aged forty-one, said his wife had recently separated from him because ‘she was not coping very well with him being convicted of the offence’. Perish had told the psychologist, ‘My time in jail has given me a long time to reflect on my life, and a chance to focus on my life and what I want to achieve. I’ve worked on myself in jail and I have become physically and mentally stronger. I realise the effects it [my offending] had on my children—they have really suffered.’ Tests conducted by the psychologist found Andrew ‘is not likely to be influenced by antisocial friends and associates’ and ‘he is not likely to have impulse aggressive behaviour’.

  But the strangest report was for Anthony, forty-two, who ‘was co-operative and responded to questions in a seemingly frank manner’. Despite his ‘limited but adequate social and intellectual ability’, he seems not to have done so badly in the leg-pulling department. In his youth, apparently, Perish had ‘earned extra funds by buying and selling cars’, progressing into ‘buying and selling excavating equipment and operated his own business in this field until his incarceration in January 2009. He reported that he had been financially stable throughout his life.’ Indeed.

  Perish, the psychologist went on, ‘reveals a history of relationship stability and positive interpersonal relationships prior to his incarceration’ and ‘told me that his peer group for most of his adult life have consisted of pro-social peers who do not endorse criminal attitudes’. The psychologist reported optimistically that Perish ‘intends to return to operating his own excavating equipment business upon his release from jail’. In her opinion, the sooner this happened the better, because prolonged incarceration was ‘unlikely to offer as much rehabilitative opportunity to him compared to supervised, supported residence in the community where he can pursue stable employment, participate in pro-social activities and better draw upon his family and social supports’.

  Justice Derek Price delivered his judgment on 13 April 2012, in Court One at Darlinghurst. He was obliged by law to sentence the convicted men according to sentencing standards at the time of the crime, which helped them a little as standard non-parole periods had been shorter back then.

  Two motives had been presented to the jury: the desire to avenge the Perish grandparents’ deaths and the desire to kill Terry Falconer because he was a police informer. While briefly acknowledging the second motive, Price said the genesis of the murder lay in the killing of Anthony and Frances Perish in June 1993.

  In general the judge agreed with the evidence produced in the trial, with a few exceptions. He found that there was a reasonable possibility Terry Falconer was dead when he reached Turramurra, despite the fact that the only person there who gave evidence in the trial—Brad Curtis—said he was alive. ‘I am not satisfied,’ his Honour said, ‘that his account of events at Turramurra was honest and reliable.’ Anthony Perish and Matthew Lawton, he continued, were to be sentenced on this basis, although he later said that in terms of the objective gravity of the offence, ‘It matters little that [Falconer] died unexpectedly in Curtis’ white van.’

  His Honour also refused to accept Brad Curtis’ claim that he had been forced almost at gunpoint to accompany the others to Girvan. He remained Perish’s friend, which is not what you’d expect if the experience had been as he described it. ‘It is evident that Curtis maintained a close relationship with Anthony Perish,’ Justice Price said, ‘which included an invitation to his wedding in 2008. They were together at McMahons Point on 19 January 2009 [when they were arrested].’

  Andrew Perish was guilty of conspiracy because of his involvement in attempting to recruit Tod Daley. So too was Matthew Lawton, although Price noted that, ‘It is plain from the evidence that the offender was under the influence of and subordinate to Anthony Perish, with whom he had a long association. His culpability for the conspiracy to murder is less than that of the other two offenders.’ The judge accepted that Lawton had been at Turramurra when the toolbox arrived.

  In general, his Honour said, ‘The Crown does not submit that this case falls within the worst category of murder and therefore attracts the imposition of a life sentence. There is no suggestion of future dangerousness.’ As for Anthony Perish, his Honour accepted the account relayed by his psychologist that he’d lived in Queensland until the age of thirty-five, dealing in cars and later running his own excavator and bobcat business. But he was less sanguine than she about the convicted man’s future prospects.

  ‘As [Anthony Perish] refuses to accept responsibility for the murder,’ Justice Price said, ‘his prospects of rehabilitation remain guarded. I am unable to make a positive finding on the balance of probabilities that he is unlikely to reoffend or has good prospects of rehabilitation. Nevertheless, in the circumstances of the present case, I conclude that the offender’s motive to avenge his grandparents’ murders lessens the need for personal deterrence and protection of the community. The offender’s lack of a prior criminal history of violence and good behaviour in custody re-enforces this conclusion.’

  Andrew Perish also ‘has neither expressed nor shown contrition for the offence . . . He, also, has not accepted responsibility for his actions, and his prospects of rehabilitation remain guarded . . . Nevertheless, as in the case of Anthony Perish, I conclude that the offender’s motive to avenge his grandparents’ murders lessens the need for personal deterrence and protection of the community.’

  His Honour acknowledged James Falconer’s victim impact statement, noting this could not affect the sentences, and also said the court acknowledged ‘the grief and distress of the deceased’s family, and express on the community’s behalf its sympathy and compassion for them’. He sentenced Anthony Perish to a total of twenty-four years with a non-parole period of eighteen. Matthew Lawton received twenty years with fifteen non-parole, and Andrew Perish got twelve years, of which he must serve nine.

  The courtroom was packed, so most of the Tuno detectives who were there sat in a bunch in the business part of the room, off to the left side and only a few metres from the accused. As if to indicate the distance that existed between Jubelin and himself, Glen Browne stood down the back by the door. Anthony and Andrew Perish and Matthew Lawton listened to the judge’s comments without showing any emotion, and when he was finished they calmly left the dock. There was only one exception, when Justice Price referred to the police’s inability to find the people who had murdered Anthony and Frances Perish in 1993. At that point, Anthony Perish turned and stared at Gary Jubelin, long and hard. Maybe he still thought, despite all that had happened since, that the killing of Terry Falconer had been a job well done.

  There were plenty of journalists outside the court, but the family members just wanted to get away. Tracey Perish walked off quickly, as did Sharon Miller and Matthew Lawton’s aunt Leone Davidson. Liz Falconer headed in one direction, James in another, and Terry’s brother Barry, who’d attended both trials, in a third. These days none of the Falconers speaks to the others.

  Also in court that day was Janet Draper, mother of Ian, the barman who had made a statement in a matter involving Andrew Perish and later disappeared. She was grateful for all the effort Strike Force Tuno had put into trying to discover her son’s fate
, and for their regular meetings with her. But at the moment she just felt numb.

  These people cared deeply in their own ways about whether Terry Falconer’s killers were brought to justice, but all they wanted to do now was to escape and grieve in their own private worlds. As a wise detective once said, it is necessary to solve homicide cases, so that people know they cannot kill with impunity. But even in successful murder investigations, there are no winners.

  Meanwhile, in the labyrinth of low-ceilinged, concrete corridors beneath the old Supreme Court building, the convicted killers were led back to their cells to await the truck that would take them away to their own wretched futures.

  •

  The story of which Tuno was a large part was extraordinary. Putting all the pieces together, from the murders of Anthony and Frances Perish in 1993 to the sentencing of two of their grandchildren in 2012, this seems to have been the longest active inquiry in Australian history. Along the way there were three police investigations, a number of New South Wales Crime Commission references, two coronial inquests, one major murder trial, and much other legal and judicial activity.

  Strike Force Tuno charged fourteen criminals with offences including murder, kidnapping, attempted murder, shooting, conspiracy to murder, firearms offences, armed hold-up, arson, break and enter, the large scale manufacturing and distribution of illegal drugs, and fraud. Every charge resulted in a conviction. Although one sometimes sees stories in the media about a large number of organised criminals being arrested and charged, it is rare to see such a successful outcome in the courts.

  Someone who’d followed Tuno’s progress with great interest for eleven years was Paul Jacob, who’d led the on-call team when Terry Falconer’s body was found in the Hastings River back in November 2001. ‘Tuno was the most amazing job I ever came across,’ he recalls. ‘It struggled from day one to get the support needed—no one realised back then how big it would become. Organised crime murders are rare, and they can be very difficult to uncover because of the nature of the criminals. In this case you had the management of the rollover informants, and then the way the arrests were managed at the end. I’m in awe of what was achieved.’