29 April, 2010

Its all about saying sorry... Part II

Sheikh Islam said both Giri and Karki kicked the man on the ground. He maintained this both in evidence and in cross-examination.

Islam stated that “Jewel came out of the Illusions nightclub and those people rushed behind him, and I didn’t think that some thing is going to happen… they followed him … it was not less than five, six, ten peoples, I think… I saw that they started bashing to Jewel, when I came out of Illusions… they all was on him, especially [Karki, Giri and Nog]… they were bashing and kicking Jewel, and at the same time I saw Jewel fell down on the street, and it was bleeding, heavily bleeding, and the last I saw [Karki] who was kept kicking continuously.
Q: You say Jewel, you told us, fall down?
A: Yes.
Q: When he fell down, did you see him on the ground?
A: Yeah.
Q: Was he doing anything, or was he just lying there?
A: Already, he became unconscious… the last person, who was Karki, who was still kick him. I saw it very clear… he was unconscious, lying on the floor, and they guy, he was, just kept on kick his head…”
Islam said he also saw Giri kick Jewel.

Mahburbur gave evidence (through an interpreter) that he saw two to three men kicking Jewel after he fell to the ground. In his police statement he had said “a group of about ten males” had been assaulting Jewel. He was asked about this discrepancy in court and said he had never told the police it was a group of ten men. He said “I mention three, or four, a couple, like this, that come for the Jewel”.

“I said ‘Jewel, please, I want to go home’. And after we come out together, Jewel behind, [Islam] middle, I come first. And all of the guys follow us… After when we come outside and I try to the, cross the road, but they one who’s pushed the Jewel. They tried to - Jewel, just to walk away, and they try to catch for the Jewel, and started for the, his start for the fighting. Hit for the Jewel. And they take for the Jewel for the corner, close to the telephone booth, and there is a happening start… they short guy is jump, and because when he saw that the Jewel is just walking, and he jump and catch, and he start everythings.
Q: You say he jumped and caught Jewel?
A: Yes.
A: From behind?
A: Behind.
Q: Did the first man, the short man, did the short man take hold of Jewel?
A: Yeah.
Q: From behind?
A: Behind. They are hitting the Jewel, Jewel bleeding… suddenly I don’t know whose come and hit, hit for me… next is the guy, the both guys who’s start from the beginning, all come and start the fight, hit to the Jewel… all of a sudden Jewel fall down and they come and hit with the boot… they were punching, kicking.”

Mahburbur said that when Jewel fell to the ground, he was “senseless” and “groaning“. Mahburbur was hit himself during the melee and in his statement said he lost consciousness. In cross-examination he was not sure whether he did actually lose consciousness, but he was definitely knocked down, and had to be helped across to the other side of the road.

Jewel was rushed to St Vincent’s Hospital with severe head injuries, and lapsed into a coma from which he never recovered.

The post-mortem examination concluded that the primary cause of death was complications from injuries to Jewel’s head and face. In addition to numerous facial cuts and bruises to his face and head, Jewel’s cheek was fractured and he had brain damage from the trauma to the head. The medical examiner was not able to say which particular injury was fatal.

As a result, both Giri and Karki were charged with Jewel’s murder, on the basis of a ‘joint criminal enterprise’, or ‘common purpose’. This meant the jury could only convict both men if they were satisfied beyond reasonable doubt that they shared a common intent to assault Jewel, and that they were aware it was possible Jewel could be really seriously hurt, even killed. By relying on a ‘joint criminal enterprise’ the Crown did not have to prove who dealt the fatal blow.

Ivesh Karki, in his recorded interview with police, admitting striking and kicking Jewel “once”.

Neither gave evidence at trial.

Eyewitnesses had both men kicking Jewel after he fell to the ground.

Damien Disola was a security guard working at Hungry Jacks on Darlinghurst Road at the time.
He said that his attention was first attracted by the screams he could hear. In his statement to police he said that he saw Karki kicking Jewel as hard as he could, about three to four times. He then saw Giri pushing Karki away, but before they left, Karki “returned and kicked [Jewel] a further two to three times, hard to the head and face… these kicks also appeared to be very hard. He then stomped once on the side of Jewel’s head with his right foot, before kicking him once more in the face with his right foot. The last kicks seemed extremely hard.”

His evidence in court, was that he saw Jewel fall to the ground, but did not see how. He said he could not see whether Jewel attempted to get up. “They kicked him to death and they ran away”. He said both Karki and Giri were doing the kicking, “putting a lot of weight into their kicks”.

He was cross examined as to why he gave police a different version of events at the time, and he said that since it was three years and three months since the events, his memory at the time was probably better than it is now. In re-examination he repeated that he thought it was Giri who was mainly kicking and stomping on the deceased.

Jim Diamond was working as a doorman at the Pink Panther club, about two doors down from Illusions. He also described two men kicking Jewel on the ground. He said one man kicked once, and the other two or three times.

He said he saw four people emerge from Illusions, two of whom were arguing for about five minutes. They walked up the street, and then one man hit Jewel, who fell to the ground, about ten feet away from where he was standing. “It knocked him out, so it must have been a hard punch… the other fellow started kicking him in the head… hard.” Jim said as far as he could see, Jewel “just wanted to get away from him”.

Daniel Thompson, a Kings Cross resident, said that he saw Jewel trying to walk away, when one man approached him from behind, ran up and gave Jewel “an open sort of slap”. The second man then punched hi, and “a bit further up, basically en masse, the group sort of attacked this guy and he fell, he went down on the floor”. He said that Jewel was “not that interested in having a fight or anything like that” and did not fight back. “Basically the whole group… just really starting having a really frenzied kicking attack on the guy”.
“Q: When you say ‘started a frenzied kicking attack on the guy’, what did they do?
A: Just basically sort of going in and kicking him and then perhaps they’d sort of come back out and then sort of go back in and land another kick on him, sort of round his body, head, fairly indiscriminately - about twenty times. Some guy sort of made some comment about ‘I’m going to get the police’ and the guy, the guy who was in quite a bad way, and the majority of the group sort of basically moved away and started to, like, I think they probably realised this guy was pretty badly hurt and they sort of moved, the majority of them moved away from the guy, past Hungry Jacks, walked up off in that direction. It was basically two guys left standing over the guy who was on the ground, looking like he was unconscious at this point, and one of the guys basically just stomped on the guy’s head three times with his right foot.
Q: When you say ‘stomped on his head’, what did he do?
A: Just basically raised his foot up and pretty much with full force just stomped on his head.”

Under cross-examination, he agreed it could “possibly” be difficult to “realise whose feet were doing what”.

Simon Page was with Daniel Thompson. He gave a statement to police describing one man kicking Jewel on the grounds, and said the kicks “did not appear to be very hard”. In court, he said he arrived on the scene late to see one or two men kicking Jewel on the ground.

Orapai Tarai was the duty manager at Hungry Jacks that night, and also gave a statement to police. She said she saw some punching, and then saw Jewel fall to the found. She said she saw only one man kicking, and the others were trying to stop the fight. She repeated this evidence at the committal proceedings, but at the trial she said she saw two men doing the kicking, and each more than once. In cross-examination she was not able to satisfactorily identify which man did what, but in re-examination she repeated that she saw two men kicking, and one also stomping.

Anthony Bayes only saw one man kicking, while the other was trying to retrain him. He was unable to give a clear description of his attackers. In cross-examination he admitted he was a drug user/dealer, and that he had not been entirely truthful with police because it was not in his interests to do so.

The forensic pathologist was asked about injuries found on Jewel’s left hand. Dr Cala had described the bruising on his arm and hand as being caused by a defensive action, rather than a punch. He said if Jewel had struck somebody with a closed fist, the mark would most likely be over the area of the knuckles, not where he had found it. He did not think the bruising showed that Jewel was the aggressor. He was cross-examined on this:
“Q: What I’m saying to you is, if he struck somebody not with a closed first, but with the open back of a fist, or something of that nature, that bruise would readily be explained?
A: It could be.”

Nevertheless, while there was not enough evidence to show that Giri alone, or Karki alone, caused Jewel’s death, the Crown case was that this was a ‘joint criminal enterprise’. It only needed to prove both men were involved in the assault. The jury returned a verdict of guilty for both men.

The Judge found that each man participated in a savage and cowardly assault, having kicked to death a defenceless and eventually unconscious man. Each man had the required mental intent for murder, even without relying on a joint criminal enterprise - at very least, they showed a reckless indifference to human life.

Both men appealed their conviction and sentence. They argued that the defences of ‘provocation’ and ‘self-defence’ should have been left to the jury to consider. However the Appeal Court found that there was nothing in Jewel’s conduct that amounted to provocation. Both men had been drinking, there had been some mild taunting leading to a scuffle, which was broken up by friends. At one point when Karki challenged him outside the club, Jewel disappeared.

Self-defence was not established either, in the eyes of the Appeal Court. It found that on the evidence, it seemed that Jewel had been rushed at from behind by at least one man, and knocked to the ground, after which he never regained his feet, and quickly became unconscious and died. There was no evidence of any attempted retaliation by Jewel, and certainly nothing that would put either man in fear for his life.

Much was made of the discrepancies in the various eye-witnesses accounts, however the Court found that such differences were understandable, given the fact that they each saw events at different times from different places, with varying distances. Also, changes in evidence between the initial statement and the evidence given at trial is to be expected, particularly where there is a delay of up to three years, as in this case.

Nitin Giri’s lawyers argued that he was less guilty than Karki, as Giri only became involved when Jewel went back into Illusions the second time. However the Court felt that on the facts, Giri’s conviction was inevitable. Eyewitness descriptions showed he was prominent in the group that was menacing Jewel before he was hit by Giri. Giri was also present and intentionally assisting and encouraging (aiding and abetting) Karki in kicking Jewel. The kicking was obviously intended to inflict grievous bodily harm at the least. If Giri was in fact calling a halt to the kicking by pulling Karki away, it was most likely because he realised it was time to flee, rather than out of any concern for the victim.

The Appeal Court concluded that conviction was inevitable for both men. The attack on Jewel was obviously intended to cause grievous bodily harm, by its savagery alone.

Both men were sentenced to 17 years in prison, with a non-parole period of 12 years. They are both due for release in September 2011.

28 April, 2010

Its all about saying sorry... Part I

Nitin Giri and Ivesh Karki were born in Nepal in 1976. Both came from privileged backgrounds. The Giri family, owners of a tea plantation, were known as community benefactors, generous in their support of local projects. Ivesh Karki was the son of a prominent political figure, the Secretary of the Forestry Commission. He was educated at a prominent, prestigious boarding school in India. Giri came to Australia to do his HSC at TAFE in Granville, after which he worked as a trainee manager in fast food. Karki came to Australia to study a business diploma, and supported himself working in fast food, and as a cleaner.

Saj Haque, nicknamed “Jewel”, was a 27-year-old Bangladeshi on a night out with a group of Bangladeshi friends on 21st June 1996 at the “Illusions” nightclub in Kings Cross.

Giri and Karki were also out that night with some Nepalese friends, ending up at Illusions around midnight. It seems there was an altercation between Jewel and Karki, arising after Jewel apparently laughed at the way Karki’s brother was dancing.

Sheik Islam, one of the Bangladeshi group, described the event:
“Q: Jewel was dancing?
A: Yeah, after a while one guy came to him and started talking to him, it appeared they were arguing.
Q: What happened then?
A: When the man left the dance floor, I went to Jewel and asked him what happened? Then he just motioned to go away from here. ‘No worries about that‘… He kept dancing for another few minutes and then he asked to go out of the Illusions nightclub, and we went to the Kings Cross Hotel.”

Rahman Mahburbur, another of Jewel’s friends, also saw this incident:
“A: I saw the man push for the Jewel… two or three times he pushed.
Q: Could you see whether they were talking?
A: No. Just I see the push and I was thinking maybe is Jewel’s friend or something…”

Karki looked over and saw Jewel and his friends laughing at his brother ‘Nog’, who was on the dance floor:
“Then Nog went over to him and I think he said sorry and all these things, and I got mad with Nog, and I told Nog why he was saying sorry to him? 'Because its not your fault, its his fault’ …
And so I told him ‘What, what if he laugh? Don’t apologise him‘, and I took Nog like this, and I said ‘Don’t ever apologise. When you apologise‘…
I just took him on the front and said ‘Do not apologise. Its no use apologising to him because its not our fault, it’s the way he’s laughing‘.
Then being a really smart arse I went over to Jewel and said ‘What, what are you making so fuss about me? Why don’t you talk to me?’ and all these things and, and, after that I can‘t recall and I, then I don’t think, what I recall is, and he started saying ‘You want to fight?’ and all these things…
And I say, ‘Lets not fight, if you want to fight, I, I‘m alone. If I have someone, when, but I don’t want, its not going to be good‘ and another bloke step in who was a good person. He said ‘No, let‘s not fight. We are like brothers, why should we fight? We from overseas.’ I told him ‘OK‘. Then it, it, somebody start, then I went out and I went to the Kings Cross Discotheque.”

Karki, Nog and some of his group then left Illusions and went to the Kings Cross Nightclub, which was nearby. In his interview with police, Karki said that when he left the Kings Cross Hotel later, he ran into two of Jewel’s Bangladeshi friends, Mahburbur and Islam. According to Karki, he was just talking to the two men when Jewel ran up to them:
“[Jewel said] ‘You wanna fight? You wanna fight?’
I said ‘If you think you want to fight, why not’?
He goes ‘You wanna fight? You wanna fight?’ And he grabbed hold of me here… right here, like this, and to my oesophagus..
… I also grabbed him, but we didn’t throw any single punch at each other, but he was the one who attacked me, you know…
… and later on, all these guys were acting, and they were saying, ‘Don’t fight, Don’t fight, Guys, Don’t fight, Why are you fighting?’ and all these things…
… then he started running, you know…
I told his friend that ‘I don’t want to fight, take him home’, I said… these friends said ‘He’s gunna take that guy to home’…”

Sheik Islam also described the event:
“A: Then the same guy [who] was on the dance floor, and some other persons in front of the Kings Cross Hotel. The guy was leaning on the rail over there and he came forward to Jewel and just asked ‘Hey, you wanted to hit me there on the dance floor’ and I mean, the arguing just started again, and they hold each other, which I tried to, you know, separate them… they hold their neck and just trying to, trying to pull each other.
Q: What part of each other were they holding?
A: I think the collar of the shirts? I tried to push them away… At that time its fairly… in his hand, holding a small knife? The same man [from the dance floor]… Then I found a small cut in my finger by that knife.”

Marburbur wanted to go home at that stage and was trying to get a taxi:
“Next I saw the guy, which guy is pushed to the Jewel. He came follow for that place, and he start again for argue with the Jewel… They start to again, for the pushing… And they are for the pushing each other. At the time [Islam] is in, and [I] got it, for the man has it for the knife, who is the push for the Jewel.”

Witnesses confirmed that there was in fact a confrontation between the Bangladeshi friends and Karki’s friends outside the Kings Cross Nightclub. Jewel and Karki in particular grabbed at each other and held on, pushing and shoving.

Marhburbur and Islam then spoke with Karki and his Nepalese friends, and attempted to apologise for Jewel. Karki replied “I don’t have any complaint about you and your friend. You both are, is good. You can go back home. But I want to see him. I want to hit him.”
There was more conversation to the same effect. Jewel was nowhere in sight at this time, having returned to Illusions.

Karki said he then returned to Illusions, where he ran into Jewel once more: “[Jewel was still saying] ‘You wanna fight, You wanna fight?’ and all this, and I said ‘Why don’t you apologise to me?’
He goes ‘You started this, because you made fun’.
He goes ‘I’m not going to apologise. Lets go outside and fight’.
I go ‘Allright, lets go outside’, and then he didn’t wait outside."

Around this time one of Karki’s group was ejected from the club for being too drunk. After this, Karki went back inside Illusions, where he saw Jewel once more:
“Then we had a big… how to say this… like, big stand off, type of thing. Then he goes ‘No, No’ and he goes ‘Lets go out’.
I said ‘Lets’,
He goes ‘You want to settle down?’
I said ‘OK, Lets’, I told him ‘OK, we’ll settle down. This is not going to happen anymore, we’re going to settle down this, and lets go outside.’
And he goes ‘OK, Lets go outside,’ because being… he being more aggressive and more powerful than me on a build, I think so, he was more muscular than me, he goes ‘OK’ like this..
And I go ‘OK, If you want to fight, we’ll go‘.
And when we go upstairs, when two of his friends come, then we, we started talking to him, and he goes ‘You know what? In Bangladesh I live next to airport, and if you guys come there you will, the taxi will take you to my home without even asking. I’m so much popular and I’m such a guy‘, you know, all these things he starts saying.”

Islam then intervened, asking them all to be friends. He said Karki replied “Its allright, we don’t have any problem with you. You can leave. But we are not going to, I mean, spare that guy.”

Karki: “Then I think one of the guys was at the back and when he heard this, he goes ‘Why you, Why you making so big fuss? Whatever you are in Bangladesh doesn’t matter. We’re here. We are nothing. We are nothing here. Why you making so big fuss about everything?’ and he goes… all these things.
…And one of the guys was very good, you know. On that one, when we started having this stand up with him, and I go to those two guys, I tell him ‘See brothers? I’m, We not going to do anything, and we, we just had a fight‘…
I said ‘We just had a fight with that guy, your friend, not, not with you guys, you know?’,
I requested like this with two [hands], like, I told him ‘No, Please can you stay out of this? We just had a problem with that guy, not with you guys. Not with you guys. Why? Why should we have a problem with you? You, You are, You haven’t done anything. You haven’t said anything to me. I don’t want anything to do…’
He is just wanting, asking, he, he started saying, ‘I want to have a fight with you. That’s what, I just want to, if you want to settle down, lets go. It will be allright because later on in my life, or later on in his life…’,
I said, ‘Lets not regretting all these things, you know?’, then to make the matter more better, so that it doesn’t accident any more, so that those guys will take him home.”

Karki showed Islam his security officer ID card:
“[I was] saying that ‘You will respect a security licence’, so that he wont fight … if I’m involved in a fight, my licence goes… so he started laughing as if he didn’t believe me…
But on the heat of the moment he goes…
That guy was a really good guy…
He said ‘OK, We understand’…
So after that, I, I think I went downstairs and stayed there for a while.”

Both groups returned to Illusions, and Jewel went to play pool downstairs with his friends. Karki apparently went into the pool room also, and stayed there for a while. He said he spoke to Jewel’s friends:
“[I said] ‘Tell sorry to me. We’ll forget about it. What’s the big fuss? Because, Say sorry, my pride is still… because it wasn’t my fault’.”

Karki then spoke directly to Jewel:
“I told him ‘Just say sorry, we’ll finish this, bro. Whatever happened, we’ll forget about it’.
But he said ‘No’. He goes ‘I’m not saying sorry, I’m not saying sorry. You guys want to fight? Lets go outside’. These are his words. Then me, at the heat of the moment, I also, I think I said ‘You want to fight? Then why not, because I’m not going to lay down and take all these offences at me which you have directed towards me'.”

Karki said Jewel was drunk. Evidence supported this. Karki was also affected by alcohol, but was not considered to be drunk. When Security officers approached the group, Karki told them that Jewel had “started all these things” and asked them to kick Jewel out of the club. After some discussion, security decided to remove Jewel from the premises. Karki followed him out, along with his Nepalese friends.

Karki: “[I said to Jewel] ‘Come on, lets resolve this, this, we resolve all these things', and all these things… He goes ‘No, we’re going to have a fight’, and all these things…”

A fight broke out between the men.
Karki: “And out of the blue, nowhere, a guy comes running and they started charging, because the guy was… this guy was here, and one guy was here, run from my backside. He goes, he slapped the guy. I don’t know, whatever… what happened…
Then I go, I started running at that guy too. I started running at that guy, and that guy, and that guy.. I don’t know.
Then somebody hit him or something, and that guy was fallen down like this, on the road, and me being stupid, being what I am, I think I kicked him. That’s definite. I kicked him… He started coming at me and so I just go… hit him once. Yes, I did hit him, like this. He fell down on the ground. And he, soon as he hit, he was ready to come up, so I kicked him once."

Karki was cross-examined about this. He was asked where exactly Jewel was when he started to attack: “He was just lying floor, and he was going to get up, so I just kick him, so that he doesn’t get up or kill me.”
He was asked with which foot: “I don’t know, because I was kicking so fast. He was trying to get up. I think he was like this, so I just kicked him so that he doesn’t get up, because everyone knows that he was the most strongest of all”.

There was no consistent evidence that Jewel was more powerfully built than Ivesh Karki - they were both around 170cm tall and well built.

Nitin Giri in his recorded interview with police admitting striking Jewel, causing him to fall to the ground. He initially denied kicking him, but later conceded that he may have “if someone else has seen me””
“Q: Nitin I suggest to you that you were seen by other people present near Hungry Jacks, that you kicked the Bangladeshi man on the ground as well. What do you have to say about that?
A: Me, I kicked?
Q: Yeah.
A: I don’t remember I kick him, no.
Q: You don’t remember?
A: No, I don’t remember, because the thing is, as I hit, struck a blow to him…
Q: Yes?
A: … I felt that it is too much for him because he was over drunk, but if I have kicked him I’m sure I’m not kicked him in his face, if I have kicked him, because I felt pity on him when he fell down, you know.
Q: You felt pretty…
A: Pity on him, like, I felt so much.
Q: You pitied him?
A: Yeah.
Q: So it, it, would it be fair to say that you may have kicked him but you don’t remember kicking him?
A: Yeah.
Q: Is that right?
A: Yeah. Maybe I have kicked him because it somebody else has seen me it means I actually have been kicked.”

He was asked about blood spots that were found on the pants he was wearing that night, and agreed that it may have come from Jewel when he was kicking him.

23 April, 2010

Minding his own business...

TJ and her boyfriend DK were at their friend Peter Wilson’s flat in Taree one Sunday evening in February 1998. They were all in their late teens, and were drinking together for most of the night. At some point in the early hours of the following morning, they all left with the plan of robbing somebody, to get more money for drinking.

Ernest Coles was a small 67-year-old man who was sitting on a park bench, quietly minding his own business, eating chips. The bench was near at ATM.

Wilson brutally attacked Ernest, punching him about ten to fifteen times around his head. Although he was clearly the main offender, DK also took part in kicking Ernest, and TJ joined in. Wilson eventually called ‘000’ and fled the scene with the others in tow.

When she was first spoken to by police, TJ denied any involvement in the fight, but she returned to police a few days later with her mother, volunteering to be interviewed a second time. On that occasion she admitted that she had joined in kicking Ernest, but had later pleaded with Wilson to stop the assault when she saw Ernest was bleeding profusely, and that she had been the one to convince Wilson to call '000'.

Later, she made a third statement, in which she said it was actually DK who did the kicking, and the only reason she’d confessed before was to protect him. However this was not accepted by the Judge, who found that she had actively taken part in the assault.

Ernest was found with his pockets turned out, and Wilson stole his brown leather coat, which he was wearing when he was arrested.

All three were charged with murder. Wilson pleaded guilty to manslaughter on the basis of diminished responsibility. Two doctors agreed that while his attack definitely constituted murder, in that he intended to kill or at least seriously harm Ernest, he suffered from schizophrenia, and was having an active episode of the illness on that particular night, since he had stopped taking his medication.

Wilson was 18 years old at the time, and sentenced to eight years in prison, with a non-parole period of four years.

TJ also pleaded guilty to manslaughter, but on the basis that she had committed an unlawful and dangerous act. This meant she did not intend to kill or inflict grievous bodily harm upon Ernest, but was aware that what she was a part of risked serious harm to Ernest.

TJ was sentenced to six years in prison, with a non-parole period of three years. She appealed the sentence on the grounds it was too severe, given her limited part in the killing, and the fact that she was only 16 at the time. Her defence also argued that the Judge had not taken into account her background, in that she was aboriginal, and from a large family where her father had been violent to her mother. She had been expelled from school at 14, and had been abusing alcohol and pot since she was around 11 or 12 years old, and indeed was drunk at the time.

The Appeal Court found the Judge did take these things into account, as well as the fact she had only a minor criminal record, and had been making improvements in Juvenile Justice since her arrest, studying TAFE course and excelling in arts and crafts. His Honour had also taken into account her good rehabilitation prospects, as well as her plea of guilty, and her assistance to police in (eventually) identifying DK as the third offender.

The Appeal Court pointed out despite all this she was on a good behaviour bond at the time of the offence, imposed for an earlier assault and robbery. Although she claimed to be heavily intoxicated, her record of interview shows she was well aware of what was going on at the time, and knew exactly what she was doing. Also, the value of her so-called assistance to police ended up being quite dubious, as she went back on her promise to give evidence against DK. As a result, all charges against him were dropped.

Furthermore, although Wilson was clearly the main aggressor, TJ took an active part in an attack that resulted in the death of an elderly man who was innocently going about his own business. The Courts are not inclined to take such actions lightly and as it stated “the community is entitled to regard offences of that kind with particular abhorrence”. Wilson himself would have received a more severe sentence had it not been for his mental illness.

TJ’s appeal was rejected. She was released in February 2001, aged 19.

21 April, 2010

A lesson for Mothers-in-law

At about 5am on the morning of 21 April 1998 Son Tran broke into the home of his estranged wife Minh Pham. He smashed the bedroom window where Minh, their son, and her mother-in-law Sahn Nguyen were sleeping. Sahn grabbed the phone to call the police, but Son managed to wrestle it from her grasp. She then ran into the hallway, but Son followed her and stabbed her repeatedly with a pair of broken scissors. His wife Minh attempted to pull him away from her mother, but she was also stabbed in the back of her left shoulder. Sahn managed to walk back into the main bedroom, but she collapsed there and died shortly after. She had received 25 stab wounds, four of which were lethal.

Son took his wife Minh and their son into the bathroom, and bound up their wrists and ankles. He tied Minh to the toilet, and put his son in the shower recess. He put a jacket over his son’s head, so that he wouldn’t see his grandmother’s body. He then untied Minh and attempted to treat her wound, after which he retied her wrists.

Son stayed in the house for another 12 hours or so, in a state of considerable distress. He thought of killing himself, and his wife. He wrote out a list of possessions that were to be given to his son. Minh eventually said that she would tell the Police she had been the victim of a home invasion. She told him to wipe down all the surfaces to get rid of his fingerprints, and then leave, so she could call the police.

Son did as she asked, and left the house. Minh and her son broke free of their restrains and went straight to a neighbour’s house. Minh was taken to Bankstown hospital to have her wound treated. She spoke to police there, and told them three men had broken into her home and stabbed her mother to death.

However two days later, Minh gave another statement to police, this time saying that her husband Son Tran was the killer. He was arrested shortly afterwards and agreed to be interviewed. He denied any knowledge of the killing, and gave police an alibi. This was quickly disproved.

He was charged with the murder of Sahn Nguyen, and the malicious wounding of Minh Pham.

Son was born in South Vietnam, and was 37 years old at the time of the killing. When he was 14 years old, the North Vietnamese government came to power in the South, and Son was placed in a labour camp. He was there for five years - once he tried to escape, but was caught and spent months confined alone in a small dark room with his legs chained.

He was eventually released from the camp in around 1984, when he met and married Minh Pham. They tried to escape Vietnam, but were arrested. Son spent one year in custody, while Minh was pregnant with their son. After his release, they attempted to escape again, this time on a refugee boat. They were successful, landing in Indonesia, where they were put in a refugee camp. Conditions here were poor, and they were detained for five years, before being returned to Vietnam. These hard years built a strong bond between Son and Minh, as well as their son.

Eventually they were sponsored to come to Australia by Son’s family. They arrived in November 1996 and stayed in Melbourne with Son’s relatives. After three months Minh left for Sydney, taking their son with her. She said she wanted to separate from Son, and stayed with relatives in Bonnyrigg.

After 10 days Son left Melbourne to join his wife and child in Sydney, and they were reconciled. They moved to Cabramatta and worked with a clothing manufacturer. Son worked the steam press, and Minh made garments. They were a hard-working couple.

In 1997 Son and Minh organised for her mother Sahn Nguyen to come to Australia. She arrived in November 1997 and moved into their Cabramatta home.

The clothing factory closed for Christmas, so Son went to Melbourne to visit his family. In that time, a man named Vanny So moved into the Cabramatta home, renting a room as a male boarder. This became a source of tension between Son and Minh when he returned from holidays.

Minh’s mother Sahn also began to undermine her daughter’s marriage, for a variety of reasons. A good friend of Sahn’s gave evidence that Sahn complained that Son did not buy her anything, while Vanny So was showering her with gifts. Vanny would openly take Minh and Sahn out from time to time, without any regard for Son.

Two months after Sahn arrived in Sydney, Minh and Son separated once more. In February 1998 Son moved out of the Cabramatta home and stayed with a friend in Canley Vale. Minh gave evidence that after Son left the house, she would sneak out after her mother and her son were in bed, so that she could meet Son. She said she still loved him, and cried in court that “my husband is the only man I love”.

There was evidence that Son had become depressed since separating from Minh. His productivity at work had declined. He was staying with his employer Doan. Doan returned to Vietnam to get married, and Son became even more lonely: “I just felt that I fell off from the sky to a very deep pit. I was agonising”.
Son would also come to Cabramatta each day, and sometimes slept outside the house. He repeatedly told Minh he loved her very much, and could not live without her. Minh felt torn between her love for her husband, and her loyalty to her mother. She told him to stay where he was for the time being, at least until her mother went back to Vietnam. After that, he could move back in to Cabramatta.

When Son would call in to see Minh at Cabramatta, Sahn would call the police. Sahn also intercepted Son’s phone calls to Minh. On two separate occasions, when Son was visiting, she assaulted him - once with a hammer, and once with the flat side of a metal cleaver.

Son persuaded Minh to leave the Cabramatta house, to minimise contact with Sahn. They moved to a house in Yagoona, but Sahn followed, and decided to move herself into Minh’s bedroom so could sleep with her daughter: “She moved to my bedroom and we stayed in one bedroom and I could not go out to meet my husband any more”.

Sahn persuaded Mihn to take out a restraining order (AVO) to stop Son phoning and visiting her at home: “My mum told me to go the Court to apply for the AVO so my husband would not be able to come see me anymore. I loved my mother but I also loved my husband, and I was in the middle of the two of them, but I loved my mother and I listened to her. Wherever she told me to go, I would go”.

On the 17th April Minh was granted an AVO at Fairfield Local Court. However she continued to contact Son. Vanny So also became a regular visitor to the Yagoona home.

On the night before the killing, Son had stood outside the Yagoona house, and while there he overheard a conversation between Minh and a friend. He heard her say that Vanny had taken her to Parramatta to file for a divorce. From this, Son guessed that his wife had begun a relationship with Vanny.

He left Yagoona, went to a friend’s place, and drank. He drank with his friend Lee and elsewhere in Cabramatta, and then returned to the Yagoona house in the early hours of the 21st. He managed to get into the garage, and tapped on the internal wall between the garage and the bedroom, hoping to wake up Minh. He wanted to talk to her, because he was thinking of going back to Melbourne and killing himself. He could get into the house through the door from the garage, but waited to hear from Minh.

Sahn was the one who heard the tapping, and got up. Son heard her coming, and left the garage. Sahn then picked up the phone in the bedroom to call the police, causing Son to smash the window and break through to grab the phone from her, even though he had already decided to leave.

He said his reason for grabbing the phone was only to stop Sahn calling the police, as he would be in trouble for breaching the AVO. When he followed her down the hallway, it was dark, and she struck him with something. He grabbed whatever it was from Sahn - it turned out to be the broken scissors. Son did not remember anything after that.

There was no evidence that Son had come to Yagoona armed. He had also been drinking, so his level of intoxication was taken into account when considering whether he really intended to kill Sahn. In addition to his depression and suicidal state, there was medical evidence that amnesia is not uncommon where people are in highly emotional or violent situations.

Psychiatrists gave evidence that at the time of the killing, Son had been suffering from a major depressive episode which was very severe. The various events leading up to the killing were considered to be psycho-social stressors, that had all contributed to the state of mind Son found himself in on that morning.

On the evidence, the jury found that Son lost control, as a result of a substantial impairment of mind. This allowed them to return a verdict of not guilty of murder, but guilty of manslaughter, on the basis of ‘diminished responsibility’.

He was sentenced to six years in prison for the manslaughter of Sahn Nguyen, with a non-parole period of three years and six months. He was sentenced to 12 months prison for maliciously wounding Minh Pham - to be served at the same time.

Son Tran was released on 22 October 2001.

20 April, 2010

"I didn't know if I'd killed him good enough"

42-year-old Steven Jarvis’ body was found on the morning of Sunday March 9th 1997 by a couple walking their dog, in a lonely public area reserve near the banks of the Richmond River.

It was obvious he had been stabbed several times in the neck, and a post-mortem examination revealed six such wounds. The majority were only a couple of centimetres deep but the major one was a zig-zag shaped wounds over 4cm long and over 5cm deep. It indicated at least two thrusting movements of the knife, severing the muscles of the neck and going through the back of the tongue to the front of the spine in two places.

There were also cuts on the left side of his neck and bruises to the right that were signs of choking or strangulation, as well as bruises to the chin, above the left ear lobe, and inside the mouth that were signs of punches to the head. There was also obvious bruising to his chest and left arm, plus cuts and scratches on his right arm that showed his arms were held down by somebody’s knees.

Steven also had considerable internal injuries. His chest wall was also bruised, and he had fractures to several of his ribs. These were accompanied by tears in the lining of the rib cage which would have allowed the lungs to collapse. The lungs themselves showed some tears and bleeding into the lower parts, and there were tears around the kidneys. All these showed he had been jumped upon by his attacker.

The medical examiner concluded that the cause of Steven’s death was the combined effect of the stab wounds to the neck, strangulation, and the blunt force injuries to his chest and trunk.

18-year-old Adam Bowhay and his 14-year-old girlfriend Rachel left their homes on the Central Coast in mid-February and travelled to Macksville, where they committed three break-and-enters on the night of the 19th. This included a break-in at the Macksville Trading Post, where Adam stole a number of Swiss Army and other knives. After that they stayed at Nambucca Heads for a few days, before heading up to Byron Bay.

The couple left Byron on March 3rd, deciding to steal a car and drive to Beaudesert, across the Queensland border. They stole petrol from an Ampol service station there on the 6th, then headed to Kyogle to stay with a friend of Rachel’s named Terri Leahy.

The next day they hitched a ride to Casino, arriving at about 9pm on the night of Saturday 8th March. They soon met Steven Jarvis at the Oxford Hotel, where he had had bought them both a drink. Once Steven became too drunk to be served at the Hotel, he gave Adam money to buy them all drinks.

Needless to say, Steven was known to be an alcoholic, a fact which was confirmed at his post-mortem. He has also previously been diagnosed as a schizophrenic, and had been living alone in his room at the Commercial Hotel for about two weeks.

They kept drinking together until around midnight and although Steven hadn’t met Adam and Rachel before this night, he invited them back to stay with him in his room at the Commercial Hotel. The three remained there for about an hour before heading off to the park area, where Steven’s body was eventually found.

Adam and Rachel went back to Steven’s room at the Commercial Hotel and ransacked its contents, taking a small amount of money and other items, including an ATM card.

They hitched a ride from the southern outskirts of Casino to Whiporie, a small village, where they stayed until Monday, when they hitched to Grafton. After that they made their way to Wauchope where they stole a car and drove to the Central Coast. Rachel phoned her mother, and Adam spoke to his step-grandmother, who told him to give himself up to police. He ignored this advice, and the two headed to the South Coast, to Jindabyne, then over the Victorian border to Tallangatta, where they were eventually arrested when their stolen car broke down.

When Adam was first asked by Detective Hunt in Tallangatta whether he knew anything about the murder of Steven Jarvis in Casino, he denied having anything to do with the killing, but said he was with “the bloke” who did it, and said “He wasn’t pissed but only half-pissed”.

He then took part in a lengthy recorded interview at Wangaratta (NSW) with Detective Campbell. This time he immediately confessed that he had been the one who killed Steven, staying he had stabbed him, strangled him, and jumped all over him. He said his reason for doing it was because Steven “pissed him off and kept on touching Rachel”:
“Q: And what happened then?
A: I looked, told him, I said ‘What would you do if I punched you in the mouth‘? He said ‘Id probably ask ‘Why‘? So I smacked him a good one in the head. I told him I was going to keep going, and he pulled out a knife. So I pulled out a knife as well. I know how to use a knife, he didn’t.
Q: What happened then?
A: Well, I stabbed him, strangled him to make sure he was dead, jumped all over him, dragged him down. I took his wallet first and his hotel keys, dragged him down to the side of the river, just left him there. Went back to his hotel, took what I wanted out of his room and left Casino.
Q: Were you alone at the time you say you killed Mr Jarvis?
A: Yeah. Me girlfriend was there but she wasn’t close enough to know really what was going on.”

Adam told how he and Rachel had met Steven Jarvis at the pub that night, and he had bought them between six and twelve beers over the course of the night. Adam said once they went back to Steven’s room at the Commercial Hotel, he began paying too much attention to Rachel. Adam said that Steven was touching her, putting his arms around her, trying to put her hands on her breasts and telling her that she was his. So Adam said he asked Steven to come for a walk with him to go to a party, but of course there wasn’t actually any party. Adam intended to take Steven out and “flog him”.

Adam said that when they got down to the reserve, he punched Steven in the face with force, at which point Steven pulled out a knife. Adam pulled out one of the Swiss Army knives he had stolen from Macksville, and put his arms around Steven’s neck to throw him to the ground. He then straddled him by pinning him down with one knee on each arm, and strangled him. After that he punched him to the head and finally stabbed him in the throat, on one occasion “hacking into his throat with it”. Still unsure whether he had “killed him good enough”, Adam jumped on his chest and head, and kicked him in the ribs. He said “I just schitzed right out on him … I never thought he could get enough, so I just kept on jumping on him”.

“Q: Why did you stab him then?
A: Because if I had of left him there he could have jumped up. He could have had a crack at me. I didn’t know if he was dead or what. I made sure he was dead. I stabbed him. He deserved it anyway. I’m not sorry I done it.
Q: Why did he deserve it?
A: Because mate, look at the way he talked to my girlfriend, touched her. He was probably a child molester …
Q: After you left Casino, lets say, when you were on your way to Whiporie, how did you feel about what happened with Steve when you stabbed him?
A: Didn’t worry me.
Q: Do you still feel that way?
A: Yep. I regret stabbing him, yeah. He probably still should be alive, but if he hadn’t pulled out a knife on me, if he had of treated my girlfriend with a bit more respect then he wouldn’t have got it, would he. Anyone who doesn’t treat her with respect will get the same thing.
Q: Is that the reason you stabbed him?
A: Yeah. I was only going to bash him to start with, but he wanted to pull out a knife, thinking he was a hero. He ain’t no hero now.”

Adam also gave evidence at his trial, in which he conceded that Steven Jarvis had never actually pulled a knife on him, so his actions were never in self-defence. Instead he said he had been provoked into taking Steven down to the park area and giving him a ‘flogging’, by the way Steven was talking to and touching Rachel, which Adam felt was unwelcome and inappropriate.

He said that when he and Rachel got to the Oxford Hotel Steven had introduced himself to them, and early on Steven told Adam that he used to be an ASIO agent, and had been banned from a number of hotels in Casino. Adam said Steven told him he was going to take Rachel away from him. He said Steven had put his arm around Rachel within ten minutes of them walking into the hotel, and she had pushed it off. Adam told him he shouldn’t be doing that.

More beer was drunk, and after that Steven invited them both to go back to the hotel where he was staying. Adam said that on the way back to the hotel, Steven moved from walking alongside him, to around the other side to Rachel and put his arms around her, with his hands on her breasts, rubbing them. Rachel moved away, to Adam’s other side. Adam said this happened about four or five times, and he got really angry, as he had warned Steven several times not to do it. Adam said the thought that Steven was “off the planet, drunk and crazy”.

Despite all this both Adam and Rachel went back to Steven‘s hotel room and drank more. Adam said he took two Seranace tablets that he found in Steven’s room. He said Steven again put his arm around Rachels neck and touched her breasts, and after that became “quite angry”. He said that he decided that he would take Steven out and “flog him“. “It crossed my mind he may have been a child molester or a rapist or something of that nature.” Adam said he told Steven “This is the last time I’m going to warn you. You shouldn’t be touching her like that.”

Adam said he then made up a story about a party, and got the three of them to leave the room. He said once they got to the reserve he punched Steven about three or four times, then threw him to the ground where he started screaming and yelling, so Adam sat on his chest. Steven was still screaming and trying to scratch his face, so he told him to shut up, and pinned his arms down with his knees. Steven still didn’t stop screaming, so Adam put his hands around his throat to make him stop, but every time he released his grip Steven would scream again. Adam said at this stage, Steven “didn’t look too healthy in the face”. Adam asked Rachel for a knife so he could threaten him and scare him into keeping quiet. Rachel, who was nearby, opened the blade of the Swiss Army knife and handed it to Adam.

Adam then told the court he had no recollection of what happened next, but he realised he must have stabbed Steven because he saw lots of blood, and the knife was in his hand. He said he then lost control, and jumped on Steve’s chest a number of times. “I didn’t know if he was dead or not proper - didn’t know if I had killed him good enough, so I jumped on his chest, jumped on his head, kicked him in the ribs. I just schitzed right out”. He insisted that he had no memory of the actual stabbing.

He was asked why he and Rachel didn’t just leave Steven’s company, if they were so offended by his behaviour as Adam claimed. He replied “I don’t know” and said that he now regretted the killing, saying that when he planned to fight him, he did not want him to die and that he wished he was still alive.

Adam said he was very drunk on the night of Steven’s death, and had also been smoking pot, doing speed, and also heroin, which he’d been doing constantly since leaving the Central Coast over three weeks beforehand.

He also insisted that he had been threatened by police in the cells before he took part in the recorded interview, and that he had not been fed properly between his arrest and interview. He claimed that he lied in the interview because he was just saying the first thing that came into his mind, and because he thought it was what the police wanted him to say.

The trial Judge however thought Adam was a “most unsatisfactory witness”, and after reviewing all the evidence surrounding Adam’s arrest, detention and interview, was “most strongly convinced” that he had not been threatened in any way before the interview, and had been properly fed whilst there.

The Judge did not accept Adam’s claims of the amount of drugs he was using at the time. Despite Adam’s claim that at the night before, at Terri Leahy’s place in Kyogle, he had injected himself with a large dose of heroin, smoked about seven or eight cones of pot, and did a good deal of drinking, Terri‘s statement to police said that before they left for Casino, only Rachel had smoked some pot, and Adam had not done anything. He did not seem at all drug affected by the couple who gave them the lift from Casino to Whiporie, and despite his claim that he was ‘out of it’ when he was interviewed, he seemed lucid and intelligent in all his responses.

In addition, during the ‘spree’ leading up to the killing, neither Rachel nor Adam had any money, apart from the proceeds of their break-ins in Macksville, which did not seem to be much. They had no money to pay for petrol at Beaudesert. Yet Adam claimed he was constantly buying and using hard drugs, describing two incidents - one at Ballina where he said he sold some people crushed panadol to rip them off, and one at Byron Bay where he said he ripped off a dealer and got away with it. The Judge rejected this evidence.

At trial, Adam’s claims of provocation, and a defence of diminished responsibility (the ‘loss of control’ when stabbing Steven) were clearly rejected by the jury when they returned their verdict of murder.

Steven was just a lonely drunk who wanted some company. He may well have made some inappropriate comments about Rachel, but he was so drunk he would have been incapable of doing any real harm. The Judge found that even if Steven had in fact touched Rachel’s breasts, his Honour did not believe that this was the real cause for the bashing and murder that followed. Adam and Rachel could have got up and left at any time.

The Judge was of the view that Adam saw Steven as a helpless drunk who was an easy target for his own aggression, and that Adam thought he could have some fun at Steven’s expense. However his Honour doubted that Adam had decided to kill Steven when the left the Commercial Hotel, and may well have only intended to belt him up. Nonetheless, Adam clearly found himself enjoying bashing Steven up, and during this decided to kill him, which he did by stabbing, strangling and stomping on his victim until he was sure he was dead. The way he answered his questions in his interview left little doubt that Adam knew what he was doing, he did it because he wanted to, and that he was proud of it, boasting about it in the interview. Adam never showed any genuine remorse for his actions - any regrets he expressed seemed to be more about his own predicament, than for Steven Jarvis’ lost life.

Alcohol and possibly pot may have made him less inhibited, but this did not reduce is responsibility for his actions. “This was a deliberate and callous attack on one of the less fortunate members of the community, who was quite incapable of defending himself”.

In sentencing Adam, the Judge took into account his background. His parents were separate before he was born, and his mother had married his stepfather. When he was four she deserted the family, taking one of his sisters. His upbringing was left to his step-grandmother, who was not a blood relative, but took him and his remaining sister in with her.

He got into trouble at school, often being suspended. He began drinking and smoking pot at 13, and after New Years Eve in 1995-96 he started using heavier drugs such as speed, pills, cocaine and heroin.

His criminal record showed two arrests in January 1996 for violent disorder, and four charges of malicious damage and stealing. He was also arrested in January for cruelty to a dog, and having stolen goods. He was sentenced in the children’s court to a ‘control order’ which is time in a juvenile justice institution. After his release he was arrested again in Coffs Harbour in August 1996 for stealing a car, driving dangerously and failing to stop after an accident, among other traffic offences. He was imprisoned for four months, during which he was charged with four other break, enter and steal offences.

As the Judge noted, “he does not appear to have learned anything beneficial from his time in custody… He appears to have embarked upon a life of crime and to have decided that Society’s rules do not apply to him.”

Adam Bowhay was sentenced to 23 years in prison for the murder of Steven Jarvis, with a non-parole period of 16 years, making him eligible for release on 19 March 2013.

Adam appealed his conviction and sentence. In handing down the Appeal Court’s decision, one Judge stated “Reflection on [Steven’s] injuries alone is chilling. So also is a consideration of [Adam Bowhay’s] actions. So also is viewing the video record of his interview with police where, at least unemotionally, he talks of what he did. Even were I to set aside the findings of the [trial Judge] that [Adam] set out to have fun and enjoyed some of his actions, and in the ERISP was boasting, I would nevertheless regard the sentence imposed as a proper one. But for [Adam’s] youth, the sentence could well have been considerably longer. One can but hope that before [Adam] is released, he will have taken the opportunity to learn and accept the standards of behaviour required in any civilised society.”

15 April, 2010

The night nurse - Part II

Brendan then took police to the dam where the machete had been thrown and 'buried by Vester':
"Q: Will you just show me again where Vester took the girl’s pants off - underpants?
A: Under a tree near No. 2 oval.
Q: And had he assaulted her in any way at that point?
A: No, he didn’t. No.
Q: Did she walk with him to the tree at No. 2 oval?
A: Yeah. ‘Cause she had no other choice.
Q: Why didn’t she have any other choice?
A: He had the blade pressed to her throat and, and he had her by the head, and his hand over his mouth, over her mouth.
Q: So was he dragging her at all?
A: No, she co-operated and that, and we could lead her.
Q: Which way do we go now?
A: Keep going.
Q: And where did he take her bra off?
A: At the same place where he took her pants off.
Q: And then after he took the bra and pants off, what did he do then?
A: He told her to lay down. She laid down.
Q: Yeah. What happened then?
A: He told me to hold both her legs.
A: Did you hold them?
A: I had no other choice, so I grabbed them.
Q: OK. Now, um, you held her legs. Did he have sexual intercourse with her?
A: Yeah.
Q: And how long did he do that for?
A: Ah, five, ten, fifteen minutes, maybe?
Q: And where did you have the knife when he was doing that?
A: He had it up against her throat still.
Q: What part of the hospital did you go into? Where was the car?
A: Right on the other side.
Q: On the other side. Are you prepared to walk up this way with me? Walk up this way here?
A: No.
Q: On the other side of the hospital, was it?
A: Yeah.
Q: And that’s on actually the Walgett side?
A: Yeah, in the car park there.
Q: And what room did you go into to get the nurse?
A: In the, what’s that ward, the maternity ward, I think it is. It used to be the maternity ward.
Q: Can you see that room from here?
A: No, you can’t.
Q: Right. Well, just indicate to me over there where you, where the car was?
A: Right over the other side.
Q: Right, and which way did you take the girl out?
A: He took her out the back door.
Q: And where were you?
A: I had to follow him. I was in front of him.
Q: You were in front of him?
Q: Yeah.
Q: Yeah. And what, she went, er, around which way of the hospital did you go?
A: And started walking around on the grass.
Q: Right.
A: And took her back inside then.
Q: He took her back inside?
A: Yeah.
Q: Why was that?
A: Eh?
Q: Why was that?
A: I don’t know. They can come back out this way and go back that way.
Q: Right.
A: Over towards No. 2 oval.
Q: And whereabouts, whereabouts, where’s No. 2 oval?
A: On the other side of the old Walgett Rd.
Q: On the other side of the old Walgett Rd?
A: Yeah.
Q: Are you prepared to take us down there?
A: No.
Q: Eh, just to indicate some things to me?
A: No.
Q: Well, in which direction was the tree that, er, the girl was under when he had sex with her?
A: Well, straight across there from where I’m standing now.
Q: Straight across. Alright. And when, um, after he had sex with her, what happened then?
A: We went for a walk and towards the airport. That over there. Straight across there…
Q: And did he have sex with her again?
A: No, he just started walking around.
Q: Where was she?
A: Ah..
Q: Yes, go on, sorry.
A: She was still in the ground. He still had the blade to her throat.
Q: He had the what to her throat?
A: The blade.
Q: The blade?
A: Yeah.
Q: Mm?
A: And he was walking around, talking to himself..
Q: What was he saying?
A: He was saying ‘What am I going to do, what am I going to do?’. And he was asking me - worthless shit - ‘I can’t tell you what to do‘.
Q: Mm?
A: ‘You got us into it cunt, you get us out of it‘.
Q: And then what happened?
A: And then he started walking again and then he spotted the police, and he told us to jump down and we all jumped down there and then he was there talking for a while, waiting for you fellas to go. When the police left, ah, they went up that way for a walk, went up that way for a drive and we got up again and I just kept walking and I got about from here to the phone booth away and I heard her scream then.
Q: How many times did she scream?
A: Once.
Q: Did you hear any other noise?
A: Just Vester saying…
Q: Sorry?
A: Just Vester saying ‘You gutless cunt. Come back here and help me’.
Q: And when did you see Vester again?
Q: When we got over here at the rest area. The rest area back there now.
Q: So you walked down to the rest area?
A: Yeah, I met him up there.
Q: And when you last saw the girl, what was she wearing?
A: She was wearing blue, blue jeans on. Woman’s jeans and that was it.
Q: When Vester… Sorry, blue jeans?
A: Yeah, them woman’s jeans, what nurses wear.
Q: And, ah, she had those on when you last saw her?
A: Yeah.
Q: What did she put them… Did you put them back on after Vester had intercourse with her?
A: Yeah, we put ‘em back on her.
Q: Alright. And, um, ah, when you, when you saw Vester, where did he have the machete?
A: When?
Q: When you last saw him over here at the rest area.
A: He had ‘em both down his shorts, down the side of his tracksuit.
Q: What do you mean both?
A: He had, he had the, the, ah, I can’t…
Q: The scissors?
A: The scissors on his shoulder, pulled it out, put it down the side and put the machete there too.
Q: Did they have, did the scissors have blood on them?
A: No, not the scissors, no.
Q: Did the machete have blood on them… on it?
A: I don’t know, I couldn’t see. It was right over there in the dark.
Q: How do you know the scissors didn’t have blood on them?
A: Eh?
Q: How do you know the scissors didn’t have blood on them?
A: Well, when he ripped if off, he just ripped it off like that, there.
Q: What, over here at the rest area?
A: Yeah - them too, with the machete.
Q: Right, um, what, what, at what point did, um, did Vester take her underpants off?
A: At the point where he was going to have sex with her.
Q: At the tree?
A: At the tree.
Q: Alright
A: Mm.
Q: Did you see the old man that was in the hospital at all?
A: I heard him…
Q: What was he saying?
A: He was singing out for the nurse.
Q: Mm. Do you remember what he was saying?
A: He was just saying ‘Nurse, Nurse, where are ya?’ and Vester grabbed her and took her back to the old fella, and Vester was standing around the corner and he had the blade behind the nurse.
Q: Mm?
A: And she was talking to the old fella.
Q: Yeah.
A: And he was saying he wanted to go to the toilet and she was saying ‘yeah‘, she was saying what Vester was tellin her to say, then when he went to the toilet - the man walked up the - ‘What doin?’ He said ‘Hold her just here’. So I grabbed her the way he was holding her.
Q: Did you have the knife in your hand then?
A: No, he had it. He must have knocked him on the head with it. He must have knocked him in the head with it. I just heard this ‘toonk, toonk, toonk’, and then a crash on the ground.
Q: Right.
A: And then, we come back then. Got the girl off me and went back outside again and started to talking around, goin on stupid, talking to himself. He was spinning me out bad, so that’s when we cut across there.
Q: Yep. Alright. OK, now you’re sure you wont indicate from this road, from this road, where you went if we drive down a little bit further?
A: -
Q: Will you indicate the No. 2 oval to me if we drive?
A: I’ll point it to you. But…
Q: Well, if we walk down there now, will you indicate it to me?
A: No, not walkin’
Q: Righto, drive, OK. Will you hop into the back of the car then?
A: -
Q: Now just indicate to Detective Adams which way you want him to drive.
A: Straight down.
Q: Did you discuss, um, with Vester what you were going to do before you got to the hospital?
A: Yeah, we were just comin up to get a car.
Q: What were you going to do with the car?
A: We were, he wanted me to take him up to Mungindi.
Q: Right.
A: Stop here.
Q: Stop here. OK, if you just hop out of the car for me and just indicate to me where you went on No. 2 oval..
A: -
Q: Alright, well just indicate to me what direction.
A: We went from the car over there, straight across.
Q: Sorry, just say that again?
A: Went from that car, went straight across the back of the, where the car sittin, come down that isle there, that, whatever it is, that stair thing anyway, and went from there, went straight across that - to No. 2 oval, the goal post that standin up…
Q: And all, and, ah, did Vester have the knife to the woman’s throat during all that time?
A: All that time.
Q: And, er, what did he, what did he say to her about the knife?
A: He said, said “You scream bitch, you going to get it. I’ll cut your throat you cunt. Simple as that, you slut”.

Brendan’s defence claimed that he had an intellectual disability, and was also too drunk to have agreed to anything that night. If he agreed to anything, it was just to stealing a car. A psychologist who conducted tests on Brendan said his level of intellectual disability meant he was “more vulnerable” to police questioning, more likely to yield to pressure, and “more susceptible” to any leading questions put to him by police. She said he would be “slow on the uptake” and take a while “to work out what was going to happen”.

The Crown called another psychiatrist who felt that if Brendan’s disability was as severe as the defence said, there would have been obvious signs that it would have been easy for others “to pick up”. Constable Mayers, who had dealt with Brendan often in the past, and Gary Trindall, the Aboriginal Community Liaison Officer who also regularly dealt with Brendan, also gave evidence. Mayers said “I think Brendan Fernando’s very intelligent, and especially within the population of Walgett, he would be right up there so far as being one of the most intelligent people there”. He had seen Brendan give lengthy answers to difficult questions in the past.

Trindall knew 95% of the Aboriginal population in Walgett and had known Brendan for 16-17 years. He had had hundreds of conversations with Brendan, and had never had any difficulty understanding him, or being understood. As far as his intelligence was concerned, he said “he is average of anybody in Walgett”.

Mick Jackson gave evidence at the trial, and stated that he had been with the Fernandos, but they all just smoked some pot and then he went home. This evidence came as quite a surprise to the Crown, given his earlier statement to police (that he had left them on the street after Vester went to get a screwdriver). The Crown was given permission to cross-examine him on this:
“Q: Michael, you have a copy of your statement with you?
A: Yes.
Q: Might I take you to paragraph 5? You mentioned in that paragraph that you ran into a number of people near the tyre service. See that?
A: Yes.
Q: You started talking to Lindsay Morgan?
A: Yes.
Q: While you were doing that you saw Vester and Brendan Fernando walk out of the laneway opposite the tyre service?
A: Yes
Q: You said that in evidence, did you not?
A: Yes.
Q: You said at paragraph 6 ‘Vester and Brendan walked straight past me at first.’ See that?
A: Yes.
Q: ‘Down Fox Street in the direction of the hospital.’ Do you see that?
A: Yes.
Q: You also said ‘They then called out to me.’ Do you see that?
A: Yes.
Q: And ‘Vester said, ‘Hey Mick, do you want to come and steal a car with us?’. Do you see that?
A: Yes.
Q: Then you said ‘They were not very far away when they called us out. Just at the far end of the tyre service.’
A: Yes.
Q: Then you said ‘I reckon that Lindsay would have heard them call out this to me'.
A: Yes.
Q: Then you said ‘I then left Lindsay and started walking towards Vester and Brendan who had stopped and were waiting for me at the end of the tyre service.’
A: Yes.
Q: Then you said in paragraph 7 ‘At the beginning when I got to where they were standing I said ‘No, I do not want to go.’ You said that?
A: No.
Q: Did you say in the statement, ‘No I don’t want to go.’
A: Yes.
Q: Then you said ‘Then Vester said ‘Don’t worry about anyone grabbing you Mick. I’ve got a machete here’?
A: Yes.
Q: Then you said ‘He then pulled up his shirt, which I think was a white T-shirt, and showed me a blade of what looked like a machete, which was sticking upwards out of his pants.’
A: Yes.
Q: Then you said ‘The machete was actually tucked inside his track pants that he was wearing, and was covered over the top by the shirt.’
A: Yes.
Q: Then you said ‘I can’t remember anything else about the track pants because I didn’t pay attention to them.’
A: Yes.
Q: Then you said ‘The blade was silver and black in colour and was about this long.’
A: Yes.
Q: You indicated about 20 to 30 centimetres?
A: Yes.
Q: Then you said ‘The blade was straight but it curved around towards the end.’
A: Yes.
Q: Then you said ‘I didn’t see the handle of the machete.’
A: Yes.
Q: Then in paragraph 8 you said ‘Vester then went on to say ‘If anyone grabs you I’ll kill them.’
A: Yes.
Q: Then you said ‘I didn’t say anything in reply but Brendan said, ‘We will go up to the top end. There should be some good cars up there.’
A: Yes.
Q: And the top end was where the hospital was, was it not, and the airport, is that right.? A: Yes.
Q: Vester said, ‘When we steal the car, we’re going to go up to Queensland. We’ll be right, Mick, I’ve got people up there’?
A: Yes.
Q: Then you said, ‘We then started walking off along Fox Street towards the top end of the town which is where the hospital and the airport is’?
A: Yes.
Q: Then you said, ‘Vester then said, we are going home to get a jumper first, do you want one’?
A: Yes.
Q: Then you said, ‘I said, no, I will be right’?
A: Yes.
Q: Then you said, ‘We then turned left into Sutherland Street and kept walking down to Peel Street where we turned right and walked down to the corner of Peel and Dewhurst Street’?
A: Yes.
Q: Then you said, ‘Vester walked into his sister, Wendy Fernando’s house on the corner’?
A: Yes.
Q: Then you said, ‘I know Vester stays there because I have been to the house before and seen him staying there’?
A: Yes
Q: Then you said, ‘While we were walking along, Vester and Brendan were talking, but I wasn’t listening to what they were saying’?
A: Yes.
Q: Paragraph 9: Then you said, ‘When Vester walked into the house I kept walking down to Dewhurst to Cynthia Hickey’s house which is only two houses down from Wendy Fernando’s’?
A: Yes.
Q: Then you said, ‘I just wanted to get away from Vester and Brendan because I didn’t want to get involved with them in stealing the car’?
A: Yes.
Q: Then you said, ‘I just jumped the back fence of Cynthia’s place and walked the back way home to Dundas Street’, is that correct?
A: Yes.
Q: Then you said, ‘The back way, I mean back across Dewhurst through some paddocks, a church on the corner of Sutherland Street, then through some flats before walking up Arthur Street?
A: Yes.
Q: Then you said, ‘I arrived at about 1 am so it would have been about twelve midnight when I last saw Vester and Brendan’?
A: Yes.
Q: Then you said, ‘I last saw Brendan walking back down Dewhurst towards Fox Street while Vester went inside his sister’s house’?
A: Yes.
Q: Paragraph 10: You said, ‘While we were walking towards Wendy’s house in Dewhurst Street, I also remember Vester saying something about getting a screwdriver from his sister’s to break into the car’?
A: Yes.
Q: You said, ‘He actually said to me, ‘do you want the screwdriver?’
A: Yes.
Q: Then you said, ‘I said, ‘no’, because I did not want to go with them to steal the car’?
A: Yes.
Q: Par 11: You said, ‘I don’t remember anything that Brendan was wearing that night, I only remember the white T-shirt and track pants that Vester was wearing’?
A: Yes.
Q: Then you said, ‘I wasn’t really paying much attention to how they were dressed’?
A: Yes.
Q; Par 12: You said, ‘I thought that Vester and Brendan –
DEFENCE: This has never been an area which he went into in examination in-chief. He has never given the witness an opportunity to give evidence about this.
HIS HONOUR: I withdraw that question.
CROWN PROSECUTOR: Q: You said, Michael, that you had seen Vester Brendan coming out of the laneway opposite the tyre service?
A: Yes.
Q: You said you spoke with them?
A: Yes.
Q: And did you notice anything about them, about their sobriety?
A: Yes.
Q: What did you notice?
A: They were a bit drunk, they were staggering a bit.
Q: What about when they were talking to you, could you understand what they were saying?
A: Yes.”

Jackson was then cross-examined by the Fernandos’ defence barrister, and he denied that the things he said in his statement actually happened, including many of the comments made to him by Vester Fernando. He said he had “made up” these things because he was afraid of being charged by police for having been a “cockatoo” for the Fernando cousins.

However the Crown Prosecutor then put to Jackson that he had been asked at the preliminary committal hearing in Dubbo whether he had been worried about going to the police on the day he made the statement, and he was forced to agree that he had said No.

There were also the statements of Muriel Dennis, Janette Dennis and Tanya Murphy, who all spoke to Jackson on the night of the 10th December. They all said that Mick had told them that on the 8th he had walked to the hospital with the Fernandos. Jackson denied ever having said this to the three girls.

In relation to an accused person’s right to silence and the right not to give evidence at trial, the Judge gave the jury what is known as the Weissensteiner direction. This applies where there is incriminating evidence against an accused person, and that person continues to maintain his or her silence, when it is obvious that he or she personally knows exactly what went on. In that situation, the jury can infact hold it against the accused person, contrary to popular belief (probably caused by too much American television!). The UK have also done away with the right to silence, so the failure of an accused person to say anything about the charges against them, will be held against them.

Both cousins were charged with the murder and aggravated sexual assault of Sandra Hoare. They were tried together in lengthy proceedings, and eventually both were found guilty of her murder, and sentenced to life imprisonment. Brendan was also found guilty of aggravated sexual assault, and Vester was found guilty of aggravated assault with intent to have sexual intercourse. They each received 10 years prison for the sexual assaults.

Both Ferandos appealed both their convictions and their sentences, on numerous technical points, in particular the conflicting evidence of Mick Jackson, the Judge‘s direction regarding the right to silence, the nature of the police interviews, a request for separate trials, and many other issues. In a long judgement, the Appeal Court rejected all their appeals. The Court also found the life sentences were appropriate, given the heinous nature of the crime.

The cousins then took their appeals to the High Court. Once more, all points were rejected.

Both Brendan and Vester Fernando are currently in prison for the term of their natural lives.

UPDATE: In 1999 Vester Fernando murdered his cousin Brendan at Lithgow Jail. He is now serving double life sentences.

14 April, 2010

The night nurse - Part I

Brendan and Vester Fernando were cousins, both in their late 20’s. In December of 1994 Vester was staying at Orana Haven in Brewarrina, a drug and alcohol rehabilitation centre, and Brendan was staying with his girlfriend near Walgett.

Sandra Hoare was a young nurse on duty at Walgett District Hospital. Her fiance saw her dress for work before he drove her to work. She wore a white shirt and blue slacks, with a bra, panties, white sockettes and shoes. Her hair was pulled back in a pony-tail.

In the very early hours of 9 December 1994, the Fernando cousins abducted her from the Peg Cross Ward at the hospital, sexually assaulted her, and finally killed her.

Sandra’s body was found in a paddock about 400m away from the hospital. She was naked except for her slacks, shoes and sockettes, plus some material around her neck. The zippered fly of her slacks was undone, and they were held together with a single button. Her bra and panties were never found.

She had some cuts on her jaw, and two very severe wounds on her neck. One wound was more than halfway around her neck, mainly to the left back side, severing several muscles, the jugular vein and vertebral artery. That alone would have caused her death, but the second wound was across the front of her neck, passing through the larynx and into the voice box. No semen was found on or inside her body.

Many witnesses saw Vester and Brendan that night in Walgett. Vester’s sister Wendy said he turned up at her house in Walgett at about 6pm with his overnight bag. He was then driven to a pub and was last seen there at about 10pm. The next time she saw him was at her house the next morning.

Robert Walford saw the Fernandos around midnight, and remembers getting involved in a fight with Vester that went on for about half an hour. During the fight, Vester grabbed him by his shirt with his left hand, and Robert saw he was holding a machete in the other.

Sharada Morgan saw Brendan and Vester in a Walgett street early in the morning of 9 December. Sharada was with her brother Lindsay and another person, when she saw a police car approach, and then saw Brendan throw a knife into the bush as the car passed. After that she saw Brendan go and get the knife back and give it to Vester, who put it down his shorts. Later she saw both Fernando boys and their friend Mick Jackson walking towards the hospital.

At the trial she was cross-examined:
“Q: Remember you said, or it was suggested to you, that you said at the hearing at Dubbo, the preliminary hearing at Dubbo, that it was Vester you saw with this knife and not Brendan. Do you remember those questions a minute ago?
A: Yeah.
Q: Do you remember at the preliminary hearing suggesting that the thing you saw was shaped like a knife. Do you remember answering like that, page 49.40, 15 August 1995. Do you remember giving an answer like that?
A: Can you say that again?
Q: Do you remember when you gave some evidence at Dubbo. You went along to the court at Dubbo and some people asked you some questions there. Do you remember that?
A: Yeah.
Q: You were asked some questions about what you had seen and about this knife. Do you remember those questions?
A: Yeah.
Q: Do you remember saying there ‘It was shaped like a knife, that’s all I know’. Do you remember giving an answer like that?
A: No.
Q: You do not remember that at all?
A: I said it was shaped - I said - when he said to me ‘How do you know it was a knife’, I said ‘Anyone knows a knife when they see one’. That’s what I said.
Q: You also said ‘It was shaped like a knife. That’s all I know’?
A: Yes.
Q: Do you mean there that what you saw was something that was shaped like a knife?
Q: Do you mean there that what you saw was something that was shaped like a knife?
A: Yeah.
Q: Well, do you agree you answered in that way at the hearing at Dubbo?
A: Yeah.
Q: I am sorry, what was that?
A: Yeah.
Q: Are you really saying that what you saw was not a knife but something that was shaped like a knife?
A: It was.
Q: You then assumed, it must have been a knife because it was shaped like that, is that right?”

The Crown then took the witness back to her evidence in the Dubbo hearing:
“Q: Is this what was said at the lower court. This question was put to you: ‘Q. Is that the time that you say you saw Vester throw…
A: Yes.
Q: … a knife into the bushes‘?
A: Yes.
Q: Could it have been something else?
A: It was shaped like a knife, that’s all I know.
Q: It was shaped like a knife?
A: Yes.
Q: So it may have been something that was shaped like a knife?
A: How can you get something shaped like a knife?
Q: I don’t know. You answer the question.
A: Uh, no.
Q: So you are saying that ‘what you saw’ and you answered ‘Was a knife‘. Is that right?
A: Yeah.”

Lindsay Morgan agreed he saw the Fernandos in the street at 1am or 2am on the 9th. He saw Vester holding a machete in his right hand, and Brendan was walking beside him. He heard Vester ask Brendan to go back to the hospital and steal a car, and they both asked Mick Jackson to come with them. He then saw them head towards the hospital.

Mick Jackson told police on 11 December that he had seen the Fernando boys in the street on the night of the 8/9th, and Vester asked him to come with them to steal a car. Vester said “Don’t worry about anyone grabbing you Mick, I’ve got a machete here”. Vester then pulled up his shirt and showed him a blade and said “if anyone grabs you, I’ll kill them”.

Residents at Orana Haven had seen Vester with machetes in the previous days, including David Doolan, Bruce Scott and Derek Pitt.

Jackson told police that Vester said he was going to his sister’s place to get a screwdriver to break into the car. Jackson left them after this.

Mrs Wells’ car, parked in the hospital grounds at around 10:45pm by her boyfriend Adam Jackson who worked as a nurse at the hospital, was broken into that night. Adam went over to the Peg Cross ward where Sandra worked (and where the car was also parked) at around 2:45am to visit her, but she wasn’t there. He did find a patient with a head-wound, and noticed blood in the building. On his way back he saw the broken window on the car, and saw damage to the lock and ignition. He also noticed tapes and sunglasses were missing from the glove box, plus a photo of Mrs Wells’ children.

When police later searched Wendy Fernando’s house, where Vester claimed to have spent the night, they found a clear cassette cover with part of a cassette tape inside, with ‘Bon Jovi Bed of Roses’ printed on it. The other part of the Bon Jovi tape, and the cardboard insert from the cover, were found at the base of a tree near the levee bank of the dam. Police also found a bag in the boot of the car Vester travelled in shortly after Sandra’s death. It turned out to be Vester’s bag, and contained the photo of Mrs Wells’ children (torn) plus other items from her glove box.

Two machetes were found in a dam near Sandra’s body, and medical experts agreed either one could have been used in the attack. A screwdriver was found near the machetes. Bruce Scott from Orana Haven said he saw Vester showing a black-handled machete to other residents, and agreed it looked like the one that was found in the police search. Derek Pitt also stated that Vester had shown him three knives while at Orana. When shown the two machetes police found, he said they were “similar to the ones I have seen”. Vester denied all of this.

At an area the police investigated Mrs Wells identified her stolen sunglasses.

It had rained heavily at about 2:30am in Walgett on 9 December, and the soil there was heavy, tending to be sticky when wet and sticking to the soles of shoes. There were muddy shoe-prints in the hospital ward where Sandra had been abducted, and around Mrs Wells’ damaged car. There were shoe prints in the soil across the front of the hospital building and near a set of steps at the end of the ward.

The Crown case was that whoever broke into the car, headed to the hospital afterwards.

There were also three sets of footprints leading away from the hospital to the place where Sandra was attacked. At that point, a timbered area near a rugby oval, the ground was disturbed. Specifically, at one end there were two distinct impressions about 30cm apart, and at the other end there was a single larger impression, where police found a black hair elastic. Also found were a pair of scissors with ‘Sandra’ on them, a lens-cleaning cloth, and a small metal button with a thread identical to those on her blouse.

Three sets of footprints led away from that area to where Sandra’s body was found. From there, two sets of prints continued on, about 1m apart. They led to the levee bank where the tape and screwdriver were found. A single set of prints crossed the levee and looped back, then two sets moved onto the street, where they disappeared.

Police took careful impressions of these footprints, and the size matched the size of the shoes Vester said he was wearing that night. The cast of a print taken from near the rugby oval matched impressions from inside and outside the hospital ward where Sandra was working.

However, Vester claimed to be wearing black shoes, while Lindsay Morgan described him wearing brown shoes that night, and Robert Walford described him wearing hobnail shoes or work boots.

Vester gave evidence and denied going anywhere near the hospital, or possessing any machetes. He admitted running into Robert Walford, but said he was only holding a small iron bar that he found. He said that after leaving Walford he ran into Mick Jackson, and all three of them had gone to his sister’s place to have a smoke, and Vester stayed there the rest of the night.

Detective Sergeant Pollock and other police arrived at Brendan Fernando’s sister’s house where he was staying with his sister and her de-facto Colin Morris early on 10 December. He was woken up and asked to go to the police station for questioning.
Det. Sgt. Pollock asked Brendan if he wanted to be electronically interviewed and Brendan declined. Pollock told him he’d have to record that refusal electronically. Before that, Brendan was asked generally about the machete Vester had been seen with the night before:
“Q: Where is the machete now?
A: Vester threw it over the levee bank.
Q: Are you prepared to show us where you threw it?
A: Yeah.
Q: Are you prepared to go with us to show us what happened with the woman and we will have a video made of what you show us?
A: I don’t want to go too close to where it happened.
Q: Are you prepared to go with us to that area?
A: Yeah, but not too close.
This exchange was recorded in Det. Sgt. Pollock’s police notebook, before they arrived at the station to start the electronic recorded interview (ERISP).

“Q: Do you agree to be electronically interviewed?
A: No
Q: Is that no?
A: No, I don’t want to do it.
Q: Right. Are you prepared to be interviewed by way of a typed record of interview. Do you understand that question?
A: Yeah I do, but -
Q: Sorry?
A: I don’t think I can handle an interview at the moment.
Q: You don’t think you can handle an interview at the moment. Do you agree that while I was talking to you earlier I wrote the questions and answers I my notebook?
A: Yeah.
Q: Are you prepared to read this notebook to me, and, um, tell me whether the questions and answers entered there are correct?
A: Yes.
Q: Or do you want… I may have to help you read them. Are you prepared for me to do that?
A: Can’t understand that writing.
Q: You can’t?
A: I can’t understand that writing.
Q: Are you quite happy for me to read those questions and answers to you?
A: Yes.
Q: Well, what I’ve got written there is you, 12:25am at the house where you were, then your name. You gave an address of 7 Hammond St Goodooga. Right, and your girlfriend’s name. Then my introduction to you and as I told you I am enquiring into the death of Sandra Hoare and I gave you a caution that you didn’t have to answer my questions unless you wanted to, as anything you did say may be later used in evidence. Did you understand that?
A: Yes.
Q: And you said ‘Yeah’. I said I told you, sorry, “I have told you that you were in town with Vester Fernando early yesterday morning. Do you want to say anything about that?’
A: Yes.
Q: And you said ‘No, I only got here this morning’.
I said ‘Is Vester your brother?’
You said ‘No, my cousin’.
I said ‘I’ve been told you were seen with a machete near Fing’s house’
You said ‘No’.
I said ‘Did you go to the hospital yesterday morning about 3am?’
You said ‘No, I didn’t get here until 7am… 7 o’clock‘, I should say.
I said ‘Is Vester in Walgett at the moment?’
You said ‘No, he’s in Brewarrina at a drying out centre’.
I said ‘I have been told you are…’, sorry, ‘I have been told that you have been identified by hour people in Walgett after midnight yesterday, what do you say about that?’
You said ‘I only went there to get the car’.
I said ‘What happened then?’
You said ‘I looked in through a window and said ‘There’s a sheila there’.’
I said ‘What happened then?’
‘Vesta grabbed her and I said ‘What are you fucking doing man?’’
I said ‘Did you assault the old man?’
You said ‘No, he told me to hold onto the girl and he hit the old man’.
I said ‘What happened then?’
And you said ‘He took her and started going scrub’.
I said ‘Did you have sex with the girl?’
You said No, I already had sex. Vester had sex, had it with her’.
I said ‘Were you there when he had sex with her?’
You said ‘Yeah’.
I said ‘What happened to her underpants?’
You said ‘He took them’.
I said ‘What happened to her bra?’
You said ‘He took them too. He put them in his pocket’.
I said ‘Who hit the woman with the machete’
You said ‘He did, I had my back turned walking away’.
I said ‘Did you see him hit her?‘
You said ‘No, I heard screaming but’.
I said ‘Did you try and stop him?’
You said ‘He was the man in control, he had the blade’.
I said ‘Where did he get the machete?’
You said ‘Near the church under a building’.
I said ‘Where did he carry it?’
You said ‘Up his sleeve. He had scissors taped, taped to his shoulder too. This shoulder’ and you pointed to your left shoulder. Is that correct?
A: Mmmm.
Q: I said ‘Were you carrying a screwdriver?’
You said ‘No’.
I said ‘How did you smash the car window?’
You said ‘Vester did that with a machete… With the machete’, I should say.
I said ’Were you drinking yesterday?’
You said ’I was pretty full, I’d been drinking all day’.
I said ’You seem to be able to recall everything though’
You said ‘How could you forget it? It was bad’.
I said ‘Was Vester drinking?’
You said ‘No, he didn’t look it’. Is that all correct?
A: Yes.
Q: Are you prepared to sign that?
A: Yes.”

Brendan was then asked if he wanted to be interviewed any further about what he said, and he replied “I can’t handle the pressure”.

Further ERISP:
“Q: Do you agree that I asked you earlier if you were prepared to show us where you threw, where Vester threw the machete?
A: Mmm.
Q: Are you still prepared to do that?
A: Mm.
Q: And you are prepared to show us where you went, um, when you went to break into the car early yesterday morning at that hospital?
A: You want me to take you back up there?
Q: Yeah.
A: No -
Q: Hey?
A: No.
Q: Then could you show us where you went at the hospital and where you went with the girl? Not prepared to do that.
A: No, I couldn’t do that.
Q: OK, well, are you prepared to show where Vester threw the machete?
A: Yeah.”

The interview was then suspended. Immediately after that, Det. Sgt. Pollock asked Brendan (unrecorded) “Listen, why don’t you show us where you went up at the car, eh?”
Pollock agreed in cross-examination that he was trying “to have him change his mind” about refusing to show police where they took Sandra.

Brendan was then taken in the police car to show them where the machete was disposed of. This was recorded on video, in what is known as a ‘runaround’:
“Q: Now Brendan, do you agree I just spoke with you a little while ago that, um, we are going to now go and you are going to show me where Vester threw the machete?
A: Yes.
Q: Yes. Do you agree that I asked you whether you agreed with having our conversation during this trip recorded on tape?
A: Yeah.
Q: And you do agree with having it done that way?
A: Yes.
Q: And do you understand that on our trip along this way, um, I will have to ask you some questions?
A: Yes.
Q: Now I want you to understand that you don’t have to answer any of those questions or say anything unless you wish to, but whatever you do say will be recorded and later given in evidence. Do you understand that?
A: Yes."

To be continued...