Killing Time

by Andrew Fraser

As soon as I was released the Homicide Squad swung into action. Dupas was taken from jail to the Supreme Court where he was directly presented with one count of murdering Mersina Halvagis at the Fawkner Cemetery.

  I had placed myself front and centre in one monumental bun fight. I have a well developed sense of the ridiculous and was only too well aware of the irony of my situation: here was Andrew Fraser, the lawyer heaps of coppers loathed and whose demise they had celebrated, now emerging as the Homicide Squad’s secret weapon against Dupas. The Homicide Squad had done a terrific job of keeping the lid on my co-operation and I had been released unscathed, no thanks to Fulham and the Office of Corrections. I could not help but ponder the fireworks that would erupt once Dupas was raced into the Supreme Court as I anticipated would happen. I didn’t have to wait long for the event!

  A direct presentment means that there is no preliminary hearing or committal. A committal is designed to supposedly sift through the evidence and ascertain if there is sufficient evidence that a jury, properly instructed, could return a verdict of guilty. There are, however, provisions to dispense with those proceedings and have the matter taken directly to the Supreme Court for trial – and this is what the Homicide Squad and the Director of Public Prosecutions chose to do. The Halvagis family had done more than enough waiting for justice.

  Dupas and his lawyers now had my Can Say Statement, which became public before it was included in the brief. It was now up to me to stick to my word and give evidence against Dupas. The media went into a frenzy. Only recently, after two years out of prison, have the media stopped prefacing my name with “disgraced former lawyer”. I became so sick and tired of the epithet that at one stage I was considering changing my name by deed poll to “Disgraced Former Lawyer Andrew Fraser” and saving journalists, particularly Greg Wilkinson of the Herald Sun (known in jail as the “Police Gazette” due to its obvious police bias), the bother of using any extra words every time they wrote a story on me. There were huge photos in the papers of me and Dupas, and the electronic media were beside themselves.

  The next morning I woke up to see Keith Moor’s article as the front page lead in the Herald Sun. It drew on our conversation of the day before and it was in lock step with my statement to the police.

  The committal proceedings that had been commenced the year before were abandoned once Dupas was directly presented for trial. In cases where additional evidence has come to light after an accused has been committed for trial, a practice has developed in the state of Victoria that allows a pre-trial examination of witnesses before the trial judge. This is called a “Basha inquiry” (after the 1989 case R v Basha). It now became apparent that I would have to give evidence in the Supreme Court twice, once at the Basha inquiry and once at the trial proper. This matter was going to trial, come hell or high water!

  A trial judge was appointed, His Honour, Mr Justice Phillip Cummins, a most experienced trial judge and one who is awake to every defence and prosecution trick in the book. He is scrupulously fair, even-handed and straight down the line. However, if convicted by him, you invariably receive a large whack.

  The furore that greeted my release died down and I was left alone for some time. The Homicide Squad were concerned about how I was travelling and checked on me. I was fine, if still rather shell shocked at the reception I received on release. I started working on my mate’s farm in the Otway Ranges, a couple of hours southwest of Melbourne. I was down there on my own, spraying weeds, fencing, helping out shearing and whatever else was required. I loved being there alone, with all the freedom to go into town if I wanted to go and get the papers and to work my own hours, no screws looking over my shoulder and noting my every move. Each day I was waking up very early and I revelled in being able to start work when I felt like it. I would often start at six o’clock in the morning and go through till three or four. Open a bottle of wine and sit out on the balcony and look at the Gellibrand River Valley and think that life wasn’t too bad after all.

  Jail has affected me in numerous small ways but I only notice these if I go looking for them. For example, before going to jail I couldn’t sleep, either during the day or at night, unless the curtains were fully closed. Even a small chink of light peeping in would keep me awake. It didn’t really worry me if the window was open or closed. Claustrophobia is something I developed in jail. It was after being banged up in a two-out cell with Andrew Davis for summer that I developed this problem. Our cell was downstairs facing west, with insufficient ventilation, and as a result it was like an oven. Now, before I can sleep, I have to have both the door and the curtains wide open, allowing any available light to pour in.

  Jail did seem to leave me more easily shaken, though. One night I was asleep in my house in St Kilda on my own. I didn’t have the kids that night. At about one o’clock in the morning, someone started bashing on the front door, ringing the doorbell, bashing again. This went on incessantly for quite some time. I tried to ignore it. In fact, I was so panicked by it that it didn’t occur to me to ring the police. Whoever it was would not answer when I yelled out “Who’s there?” There was no way I was going to open the front door to see. Who knows what might have happened. I was totally spooked by this incident and finally grabbed the phone and rang the local police. They arrived quickly, to find nobody there. The banging had stopped just as the police car arrived in the vicinity. The coppers interviewed me but it was pointless. I didn’t know who it was and I hadn’t seen anybody, so I wasn’t of much help to them.

  The second time I received a visit, it was far worse. As I said, I can’t sleep with the curtains or the door closed. The house had a balcony and a very short backyard facing the light rail line that ran from St Kilda to the city and beyond. The view from my balcony looked across the light rail to Albert Park and the city – a beautiful sight indeed, with a huge area of parkland and the lake so close to the CBD. The added bonus was that it was an expansive view, after having been in such cramped confines for so many years. I delighted in just sitting out on the balcony looking, watching people walk their dogs and kids playing cricket, and I started running around the lake everyday. It was fantastic.

  However, on this particular night, I was asleep when a beam of light flashed into my bedroom. I thought it was odd because the clock told me it was about three o’clock in the morning, and there are no trams running at that time. I lay dead still and looked across the balcony to my back fence and the light rail. I could see somebody standing on the rail of my back fence shining a torch into the backyard. It was not an indiscriminate flicking around of a torch; the person holding the torch was moving it methodically almost in a grid pattern over the backyard and across the back of the house, as if looking for somewhere to get in. I was scared stiff. However, as there was only one bloke, I barged in where angels fear to tread and raced out onto the balcony, yelling “Oi, you. Fuck off!” The bloke didn’t move a muscle. He looked straight up at me but I couldn’t see his face. Then I realised he was hooded – not a good omen. With that, two more blokes stepped out from behind a bush. They both had hoods on as well. All three of them stood with their arms crossed, looking straight at me. Nobody said a word but I was clearly being given a message. I don’t think I have ever had such a fright, including all the time I spent in jail. I nearly fainted.

  That night I had my son, who was fifteen at the time, and my daughter, who was thirteen, sleeping over, with three of my daughter’s girlfriends. I was beside myself with fear. I grabbed the phone and went to the linen press, closed the door and rang the coppers. I didn’t want the light from the phone screen to signal to these people what I was doing. I then crept back into bed and saw that they were still standing there. After a few minutes, the three of them stepped back and walked towards the city along the light rail. Not hurrying, not looking back, just walking.

  I thought: Thank Christ for that – they are gone. I went into the bathroom, which faced away from the light rail line and overlooked the main road running parallel to it. I glanced
out the window and couldn’t believe my eyes. There were the same three hooded men coming back from the direction in which they had left my house. They had clearly walked up to the first light rail station, exited and walked back down Canterbury Road. They were now standing under a light in the small park directly opposite my house. All standing there with their arms folded.

  Even in jail, I never thought I was going to be killed. On this night I did. I thought to myself: Andrew, you are now about to find out what it’s like to die. I was scared stiff for the kids in the house. Four teenage girls … what would befall them should these men break in. The front door was deadlocked but it would be nothing against three blokes wanting to kick it in and I had no protection other than a carving knife. Not much of a weapon against three blokes who may or may not have been armed.

  Where are the coppers? I rang over half an hour ago and still no appearance. The Homicide Squad had assured me that the local police station at St Kilda had been told I was to be given priority if I rang, and if there was any drama all stops would be pulled out to ensure my safety. If this was how priority looked, I didn’t like it much. The men continued to stand with their arms folded, staring straight at my house. I didn’t know what to do. Thirty, thirty-five, forty minutes had gone by before the coppers finally arrived. As the police pulled up outside the house, the men just turned and walked off slowly towards the beach, never to be seen again. The police jumped back in their patrol car and drove around the streets and, what a surprise, found nothing. All I could say by way of description was their height and their build and that they appeared to walk as younger men – somewhere, I would say, in their twenties.

  Don’t think that because blokes are locked up that they can’t have a go at you. It’s not hard to organise a mate or three on the outside to give someone a going over.

  The next morning the Homicide Squad arrived and Paul Scarlett was unamused, to say the least, that it had taken so long for the local coppers to arrive. This was now being treated extremely seriously. I had been passively threatened in my home by people who obviously knew where I lived and were obviously sending me a message. No prizes for guessing what the message was. If I gave evidence, I was going to end up in plenty of bother. During the court proceedings these incidents were not referred to because to mention them would have been highly prejudicial to Dupas.

  The police wanted to put me into witness protection. I refused. Bugger that for a joke – I had suffered enough confinement and restrictions. Instead they asked me to find other accommodation for the two weeks before I gave evidence at the Basha inquiry. I moved to another suburb on the other side of town and felt like I was in jail all over again. Each day I went home to get clothes, collect mail and go for a run. Each day I rang the local coppers and met them at home. Each time I had to identify myself. They would wait while I went for my run and then they would leave when I left the house. It was like being in jail all over again, with my every move being monitored whether I liked it or not. I understand it was for my own benefit but it badly destabilised me. I stayed at a friend’s house until the day of the Basha inquiry.

  I had steeled myself for plenty of media coverage but even I was surprised at the size of the media contingent at the Supreme Court the morning I arrived to give evidence. I was also extremely anxious and apprehensive because I knew from years of cross-examining witnesses that the witness box is a very lonely place. You are stuck up there like a cocky on a perch with no one to help you. You stand or fall by your performance and I was under no misapprehension that I was on trial as well as Dupas. This trial was essentially a one-issue trial: believe me, and Dupas was convicted; disbelieve me and demolish me, and he walked. I had better be on my mettle.

  At a preliminary hearing, you do not give “evidence in chief”. Evidence in chief is where you recite the contents of your statement, usually without reference to your statement or any notes you may have made. It is a memory test, not a search for truth. Cross-examination by Counsel for the defendant is the cross-examination that you always see on TV shows, where some smarty-pants lawyer rips an unsuspecting witness to pieces, reducing them to tears in the witness box.

  Before the trial I read my statement over a number of times. There was no real need to because the circumstances surrounding the incidents, together with the incidents disclosed in my statement, were so startling and so shocking that they were burnt into my memory forever, in particular Dupas’s pantomime of murdering Mersina Halvagis. Little did I know then that he had told me something that nobody else knew and only the killer could have known: that Mersina had been kneeling when she was attacked from behind. Often the coppers deliberately withhold particular salient pieces of evidence to stop people constructing a trumped-up story to seek any reward that may be on offer. Another incident that was burnt into my mind and will be forever was Dupas standing on my left in the garden at Sirius East shaking and sweating, weighing up the shiv that I had found and repeating to himself “Mersina, Mersina.” How could anybody ever forget those incidents? I certainly can’t and to this day they come back to haunt me regularly.

  The big day arrived. I was asked to wait outside the court while other preliminary witnesses were dealt with, and I can remember standing in the bluestone-flagged courtyard of the Supreme Court in Melbourne looking up to an office building towering over the court building and thinking to myself: Why in heaven’s name did I volunteer to do this? I am going to have everything about my case and my past raked over and thrown back in my face.

  I can remember feeling physically sick – not scared of being cross-examined but physically sick at having to face Dupas again, because he was going to be in court for the trial, and at having to face the media, who were harsh critics indeed, notwithstanding the fact that I had literally put my life on the line to give this evidence. Some media, like some coppers, delighted in my demise and refused to move on, returning time and again to my past at every opportunity. And they don’t let the facts get in the way of a bigoted, factually wrong piece of editorial comment!

  My name was called and I walked up to the witness box. The oath was administered. The Crown prosecutor handed me my statement and asked me whether it was true and correct. I said “Yes.” He sat down.

  It was now time for the defence to cross-examine. I’ve known the defence barrister, David Drake, since he was a university student – he is a friend of my sister. That didn’t deter him for a moment. David, or “Baldrick” as he is jokingly known, was out to make a name for himself by demolishing me. (Drake’s nickname comes from the character in the BBC series, Black Adder, because Baldrick always has a cunning plan which invariably fails to materialise.)

  Baldrick launched into me at a million miles an hour, all indignant that I should have the temerity to give evidence, that I was a liar, a publicity seeker, a gold digger and a generally disreputable piece of work. I was rather relieved at this tirade because it was heading precisely in the direction I had anticipated – there were no surprises. Shouting and gratuitous abuse did not unsettle me one iota.

  For many years, in my first incarnation in the legal system, I was a defence lawyer myself and, like Baldrick, could not wait to try to demolish somebody in the witness box. I admit I went too far on occasions and reduced people to tears. I had witnesses jump out of the witness box and race across the court to try and “get” me, before the police wrestled them to the floor. I had a woman faint in the witness box many years ago, and I had another wet her pants. Now I was on the receiving end!

  Being a defence lawyer is in fact a bit of a coward’s castle. You stand there manufacturing questions you know the witness can’t answer and when the witness hesitates you badger them by saying “Answer Yes or No” and try not to give them an opportunity to explain their answer or elaborate on their answer. If you can keep to a yes or no answer, all the better. The first rule of being a barrister is never ask a question you don’t know the answer to, and later we will see how critical this is, because Baldrick did ask one
question that he did not know the answer to and it ruined any shred of a defence he may have had.

  By the same token, it is not easy being defence counsel. You usually have a client whose neck is on the line, and you have a client who reckons he is paying you too much and is generally unhappy about the state of play. You attend court, you have a prosecutor who is not always scrupulously fair with the facts, coppers who are careless with the truth and, often, a judge who doesn’t like his/her job. All in all it’s a fairly thankless task. And yet, in the scheme of things, it is a very easy job standing there having a free kick at some poor bugger in the witness box who you reckon you can run rings around. You can make fun of them, you can belittle them, you can shout at them, you can suggest they are lying, making their evidence up or anything else that may get them to put a foot wrong. It’s quite alright to cross-examine a person to the point where they lose their temper, because if you can get them to do that then they are likely to say something rash which may be beneficial to your client.

  This time the boot is on the other foot, there I stood being cross examined by Baldrick up hill and down dale.

  The second incarnation for me in the court system was as a defendant in my own criminal trial. Now, while many people would say that is the most stressful, in fact it’s not. Yes, you are worried sick about the potential outcome and what penalty may befall you. From the moment the coppers ran in my front door all those years ago I had a very bad feeling about my fate. That feeling of dread was not helped when a now-retired solicitor Chris Piesse contacted me warning I might cop a seven with a five. And what I did cop? You guessed it: a seven with a five!

  When you are a defendant Counsel appears on your behalf and a solicitor acts for you. All this is designed to insulate you from all that is swirling about you in the court room and outside. Even to the point where you don’t make statements to the media – your legal team does. You sit tight, say nothing, look suitably admonished and that’s about it. Where I had to sit in the court, I couldn’t even hear properly what was going on at the front of the court, save to say that there were no prizes for guessing that the judge was clearly unimpressed with me and my co-accused, particularly as it was a drug case. My counsel, Con Heliotis QC, even made submissions that were factually wrong and I was powerless to correct them from where I was sitting at the back of the court.