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.

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