Killing Time

by Andrew Fraser

  One contentious issue that continues to cross my mind in these cases and has done so on many occasions is whether a judge in such a trial should declare his or her position as to drugs. For instance, if a judge has a son who has a drug problem, is that relevant to him or her sentencing and the question of his impartiality? Does it affect the quantum of their sentencing? Does it affect their attitude to drugs? Does it affect criminals generally? Does that judge conduct a trial differently? No doubt the judge’s little helper, otherwise known as the judge’s handbook, will help there! What if a judge has had a brother die of a drug overdose? Should that be declared to the court? I’ve always found this concept worrying. I think that the answer is “Yes”. Judges should declare such issues. For instance, before dealing with a culpable driver they should declare if they have had a loved one killed or maimed in a car accident. Or before dealing with an armed robber they should declare whether they have been in a bank when it was robbed. These are all examples of how judges are human and are subject to human frailty and prejudice. I know for a fact that a couple of these examples have arisen and not a squeak was uttered.

  Sitting there in my own case, I took a keen interest in proceedings but everything was being done for me. This was, believe it or not, the easiest of the three roles in which I have found myself. Easily the most distressing and difficult was being a Crown witness. But not just any Crown witness. Upon Dupas’s direct presentment, the then Director of Public Prosecutions, His Honour Mr Justice Coghlan, described my evidence as “the coat rack by which all other coats hang; no coat rack, no coats”. In other words, without me there was no case against Dupas. Therefore, for Dupas to be acquitted, I had to be demolished in the witness box. I knew that, the prosecution knew that and it was bleedin’ obvious to the defence. I steeled myself for the onslaught, which inevitably came. Be under no misapprehension: Peter Dupas was on trial for murder but I was on trial as well. My entire credibility, which I had worked hard to re-establish after my sentence and for the few months since I had been released, was on trial. I had plenty to lose should I not be believed. However, for Dupas to be convicted, I had to be believed by the jury and that was yet to come.

  I made a mistake in my cross-examination with Baldrick on the Basha inquiry when I said I had not spoken to any newspaper people when I was first released. As I have already said, I did speak to Keith Moor and had forgotten that. Yes, forgotten; not deliberately hidden or omitted.

  As things transpired, the Basha inquiry went according to plan and I felt reasonably comfortable in the witness box. Needless to say it was the full court room drama with robes, wigs, the judge and barristers. Only the jury was missing. There were certainly no surprises and not much dirt was thrown at me. At the conclusion of the Basha inquiry the matter was adjourned for the trial. The procedure is that a written transcript is made of all of the evidence given at the Basha and this is given to all parties. The transcript is particularly of benefit to the defence because then they can see whether there are any inconsistencies between the written evidence in the form of the statement and the oral evidence given at the Basha inquiry.

  Committal proceedings are a vexed question in the law and it is my view that they are a complete and utter waste of time. A lot of the trial is a waste of time as well. It is a constant bone of contention in the media and in law reform commissions how the cost and the length of trials have blown out in the last fifteen or twenty years. Once upon a time a murder trial went for a week; now they can go for months. There is too much waffle and most of the time-wasting is caused by inexperienced and/or gutless judges who fail to intervene; they allow the most experienced counsel, who are usually the main offenders, to question witnesses around and around in circles and to keep asking the same question multiple different ways. The old adage is that the question doesn’t get any better for the repetition, nor does the answer. Counsel is stuck with an answer a witness gives, so you need to be very careful how you pose a question!

  In trials, the only thing that matters is the sworn evidence of the witnesses and, if called, the accused, and their cross-examination. To understand this better, let’s have a look at the basics of how a trial runs.

  Jury selection takes place. These days this can take some considerable time because, if the trial is a sensational one, people might say the media coverage has caused them to form a view likely to be prejudicial to the accused. These people are always excused. Also people who are sick or infirm or who have pressing business engagements or child commitments are usually excused as well.

  Once a jury has finally been selected, an opening by the Crown prosecutor outlines the case from the Crown’s point of view and this too can go for a very long time. Following the Crown’s opening, the defence opening outlines the case from the defence’s perspective and how the defence will run its case.

  Then comes the trial proper. This is where all sworn evidence and cross-examination of witnesses take place. Once the evidence is concluded the Crown sums up the prosecution’s case. This is called a final address. The defence also gets to make a final address to the jury. After the final addresses comes the judge’s charge to the jury. The judge has a lash at reiterating the facts for a third time just in case the jury have not understood plain English. The learned trial judge charges the jury as to the law. During this aspect of the trial the jury is obliged to listen and apply the law according to the judge’s direction.

  The jury then retires to consider its verdict according to the evidence. Remember that in our legal system the jury is the only arbiter of the facts, so it is logical that they need to listen to the facts and only the facts.

  In all of this, there are only two aspects of which the jury is obliged at law to take any notice: the sworn evidence together with cross-examination, and the judge’s charge as to the law. A juror can, if they like, go to sleep or stare at the ceiling. They do not have to take notice of any of the other stuff that is said in court, so all the waffle of addresses becomes so much hot air. Everybody dances around this issue and nobody is prepared to meet it head-on. But the fact of the matter is that lawyers stand up and waffle for five-sevenths of the trial, none of which the jury is required to take the slightest bit of notice of. Why do we have a Crown opening? Why do we have a defence opening? Why do we have a Crown closing? Why do we have a defence closing? Well, it’s very simple. It is the skill of the barrister that gets you across the line in most jury cases. There is no doubt about it: the better the counsel, the better your chances of a good result. The old adage of paying peanuts to get monkeys is never truer than in a criminal trial. Philip Dunn QC is an old friend and a skilled advocate as well as a terrific raconteur. Philip always says “Justice is something you get when your money runs out!” Very funny but also true.

  Recently, in this state, there was a trial of a man who was charged with very serious crimes and briefed Robert Richter QC to appear on his behalf. The Crown did not take the advice given to it to brief a senior prosecutor and instead briefed a more junior prosecutor, notwithstanding that he was senior counsel. Robert Richter is probably one of the best half dozen trial lawyers in this country and consequently made mince meat of the Crown prosecutor. The result: the defendant was convicted of a much lesser penalty. The community and media were in uproar over this result. The fact is that Richter is good and apparently on this trial he was at his absolute best, convincing the jury by sheer power of speech to accept his version of events. That is not, with all due respect to Robert Richter, judging a case on its merits. The jury was clearly convinced by a super salesman – which is, after all, what barristers are.

  Therefore, if we want to shorten criminal trials and stop juries being bamboozled (“if you can’t dazzle them with brilliance, baffle them with bullshit”), then the two openings and the two closings, together with the judge’s summing up of the facts, should all be dispensed with. Impanel a jury, have the evidence and have the judge charge as to the law. Everything else is superfluous and wastes time and money.
Committal proceedings are in the same boat. All committals do is give the defence another free kick at a witness, and you have all the statements that witness made to the police, plus what is said in the witness box at the committal proceedings, plus the cross-examination at the committal proceedings. You can then sit there and compare and contrast all of the evidence and it’s amazing how many inconsistencies, albeit small, that you find in that evidence. On trial, stand up and painstakingly take any witness through each and every inconsistency or contradiction and try to blow it out of all proportion. That’s your job, that’s what you do. But it is most certainly not having the jury decide the issues on the facts and the evidence alone.

  The long and short of it all is that, in my view, drastic trial reform is long overdue. Of course all those with a vested interest will say that is not right; but the reality is that nobody is required to listen to one word except the sworn evidence and the judge’s charge as to the law, so why have the rest? The answer is inescapable. It ought be abolished.

  Justice, if delivered properly, is a relatively simple, quick and cheap way of deciding on disputes between people or between the state and an individual for a transgression of the law. King John signed the Magna Carta at Runnymede to establish a justice system that was accessible to all. Unfortunately, since then, economic rationalism has largely taken over. Local courts have been closed, so justice is no longer taken to the people; rather, the people must come to the justice – the exact opposite of King John’s thinking. What has happened to our most basic of rights? On the other side of the coin, trials in superior courts have been allowed to blow out and drag on at infinitum.

  My cross-examination at the Basha had lasted only a few hours and I emerged unscathed. But I knew that this was only a test run for the trial proper and that Baldrick would be keeping his powder dry on a few issues in order to try to surprise me when next we met.

  Chapter 12

  The Trial: Not a Nice Day

  at the Office

  That he which has no stomach to this fight, let him depart.

  – WILLIAM SHAKESPEARE, HENRY V

  The Basha inquiry had hardly concluded when, on my daily run around Albert Park Lake, I realised that I had in fact had a conversation with Keith Moor immediately after my release and that he had written the story up but in the shock of the new I had forgotten about this. There had been so much to adjust to and catch up with, a lot that happened in those first few days was a blur. But this was no big deal. People do forget and are allowed to forget. It doesn’t mean they are lying, notwithstanding what a defence lawyer might assert.

  I immediately contacted Senior Detective Scarlett and told him of my oversight. He was not particularly perturbed about it either and said it would no doubt be a matter of some heated cross-examination at the trial – which I knew to be highly likely because if I had been the defence counsel I would have been onto this point like a shot. I would have been carrying on that it was all a lie, a fabrication, I’d made it up, I was chasing the reward, and anything else that I could think of to discredit me. And so it was to be!

  Now that the Basha inquiry was out of the way I returned home. I am pleased to say there were no further incidents because once you have given your sworn evidence, even if you are “brown bread” (dead) or no longer around, that evidence can later be used at the trial as your evidence.

  After many anxious moments and sleepless nights, the day of the trial arrived. I realised again how much the jail experience had changed me. The thought of seeing Dupas again made me feel physically ill. I wanted more than anything not to have to endure this experience again but I knew there was no escape from my obligations. I had purposely not read anything about the trial in the media and as I hardly ever watch commercial television I hadn’t seen any of those news services, which apparently gave the case blanket coverage.

  I knew I was going to be in for a torrid time in the witness box and as a result I slept particularly badly the night before. It’s funny how life changes. Once upon a time, going to court was like water off a duck’s back to me. It’s something I did – all day, every day – for a living. Yes, you get nervous, but it’s the kind of nervousness you might feel before a race or a football match. It’s a good nervousness: it helps you perform at your best. The nervousness I felt the night before the trial and as I was heading to court was different: it was a feeling of dread. It took me back to my brief time as a defendant and what it subsequently lead to, not to the great days when I was practising as a lawyer. Funnily enough, the last matter over which I had appeared in the Supreme Court as a lawyer was a manslaughter case and it was before His Honour, Mr Justice Philip Cummins the judge on this case. Another one of life’s little parallels.

  At the Basha inquiry I had purposely not spoken to the Halvagis family, but when I arrived at court for the trial the look of sheer desolation and deep sorrow on the faces of the entire family was gut wrenching. I don’t think I have ever seen anybody more devastated by a bereavement than George Halvagis. As he walked towards me in the hallway outside the court, I merely extended my hand to him. At the same time I kept walking and did not say a word to him. I was not giving Baldrick any ammunition if I could possibly help it.

  It must be said that this prosecution had come about almost exclusively because of the efforts of George Halvagis and his family. He refused to let go of the fact that his daughter had been murdered and he wanted some answers – he wanted closure. He had been single-minded in his purpose since the day of Mersina’s murder. He petitioned the government, constantly kept in touch with police as to developments and was vocal in the Victims of Crime organisation.

  Until the police contacted me and I came forward, there was insufficient evidence to prove Dupas had murdered Mersina. It was well known in police circles, and well known to the Halvagises, that Dupas was the man responsible but at law knowledge is insufficient to constitute proof. Hard evidence that has been tested under cross-examination is the acid test of whether an accused is guilty beyond all reasonable doubt.

  The Halvagis family are typical of the post-war European migrant families that have made our multi-cultural society so great. The Halvagises have a wonderful work ethic and they had worked hard to establish themselves and be successful in Australia. The same work ethic had been instilled in Mersina. She was engaged to be married and had bought a house. By another of life’s coincidences, she had a part-time job working for a friend of mine in one of his service stations at Nunawading. She worked there as a console operator, and when my friend found out that I was giving evidence in the prosecution of Dupas he volunteered to me what a wonderful person Mersina had been. She was good with the customers, hard working, honest, a delight to have at his workplace. Everyone loved her, and my friend’s final comment about her was: “She was the type of employee that every employer aspires to have work for him.”

  On the day of her murder Mersina had visited Fawkner Cemetery to tend her grandmother’s grave, another example of the sort of person she was. She would often put flowers on graves that appeared unkempt because she couldn’t stand the thought of those people being interred there with nobody caring for them.

  The trial began in a blaze of publicity. I stayed away from the Supreme Court until it was my turn in the hot seat. Paul Scarlett gave me a couple of hours’ notice of roughly the time I would be facing the music.

  I was not the first witness called in this trial, and there had been a substantial body of evidence given by the time I reached the witness box. One thing I did see in the media was that an identification witness has come forward with evidence about a person who had stalked her at the Fawkner Cemetery at about the time when Mersina had been murdered and this witness prepared a photofit identification with the police. A photofit is a process whereby you sit in front of a computer and an operator constructs the shape of the face, the type and colour of hair, glasses if any, shape of the nose, all the facial features until you have somebody you say looks like the offender.


  When I picked up the newspaper the morning after the identification witness’s evidence I nearly fell over. Looking back at me from the front page was Peter Dupas. Not a question of degree of likeness; it was him! It was the best and strongest piece of photofit identification evidence I had ever seen. This woman’s recall was extraordinary to say the least, and would have been a big factor in Dupas’s conviction. Except for the fact that merely being sighted at the Fawkner Cemetery around the time of the attack was insufficient. It didn’t prove that Dupas was the killer and, in the absence of any forensic evidence to corroborate the witness’s observations, the prosecution could go nowhere.

  When I attended court I was met by Scarlett and ushered into a little ante room outside the court. There I was to sit, trying to read the paper (without success because I was too nervous to concentrate), until my name was called. Each day in the countdown to the trial since the Basha inquiry the feeling of dread in me had mounted, and all I wanted now was for it to be over.

  People had warned me that this was going to be difficult. They asked if I really wanted to go ahead with it and have a bucket load of shit poured on me but I gave my word and I was determined to follow through. I was always taught to confront the issue. The day will come and the day will go – better to face the music and get on with it.

  “Call Andrew Roderick Fraser!” called the tipstaff (judge’s assistant). Here we go young fella, once more unto the breach, dear friend, once more! This is it, Sydney or the bush!