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Court in the Act
4 August, 2006  
Something rotten in the state of WA

The ABC’s Australian Story ran a wonderful series about the latest instance of questionable criminal justice in Western Australia. Police, prosecution and appellate conduct in the wild west has a disturbingly rotten record. Ginger Snatch reports

imageThe good burghers of that most isolated and reactionary of cities, Perth, must be getting worried.

Over the past few years the ABC has exhibited a terrier-like fascination with the unlovely workings of the West Australian criminal justice system.

A television special about the gross miscarriage of justice that was the Andrew Mallard debacle was screened earlier this year. It exposed a litany of lies, cover-ups and crucial evidence deliberately withheld by the police.

These “omissions” ensured Mallard’s 1995 conviction for the murder of Perth jeweller Pamela Lawrence and the failure of his two appeals.

It was only a High Court appeal in November 2005 that saw Mallard’s conviction quashed and a retrial ordered. By that time he had spent more than 10 years behind bars.

The High Court pulled no punches in its criticism of the WA police, the DPP and the WA Court of Criminal Appeal. In February WA’s DPP, Robert Cock, decided he really didn’t have enough to send Andrew Mallard to trial, again.

See Justinian’s Mallard report

Since then five senior police officers have been stood down pending a WA Corruption and Commission investigation.

imageWhat took them so long? According to high-profile defence lawyer Tom Percy QC (pic), the WA criminal justice system has had a dangerously free run for decades.

“We’ve seen cases where there’s been massive non-disclosure, or simple failure to properly investigate. When they thought they had their man, no one else mattered. Once the juggernaut starts to roll, even in cases as far back as Beamish and Button in the 1960s, then there’s no pressing the button to say, ‘Stop, hold on. Whoa, boy. We might just be on the wrong track’. I don’t see any of that in the current, or in the past, police culture in Western Australia. Nor do I see it in the prosecuting authorities.”

In 2002, Australian Story did a piece on John Button, another hapless victim of the WA “justice” system who spent five years in jail for a crime he didn’t commit – the hit and run murder of his girlfriend Rosemary Anderson.

In all probability it was serial killer Eric Edgar Cooke who ran Anderson down in 1963, but the police and the courts ignored Cooke’s 1964 confession. They also suppressed vital forensic evidence about the damage to Button’s car.

Thirty-eight years after Button’s manslaughter conviction the Court of Criminal Appeal determined that there had indeed been a miscarriage of justice.

Cooke’s gallows confession to the vicious 1961 tomahawk murder of chocolate heiress Jillian Brewer was similarly ignored in the rabid police pursuit of 18 year-old deaf-mute Darryl Beamish.

He served 15 years after his death sentence was commuted to life imprisonment.

It took an incredible 45 years for Beamish’s murder conviction to be overturned by the WA Court of Criminal Appeal, again as a result of evidence that had been suppressed.

Now Australian Story has run a three part series about the 1998 death of Phillip Walsham, and the three young men who were found guilty of his murder in May this year.

Salvatore “Sam” Fazzari, Jose Martinez, Carlos Pereiras and a juvenile who cannot be named, admit they kicked a very drunk Walsham in the head and upper body after a night of drinking and clubbing, but deny they beat him with a tyre lever. The Crown said they killed the victim by throwing him off a pedestrian bridge onto the Mitchell Freeway.

In 2001 Fazzari and Martinez pleaded guilty to assaulting Walsham and were fined $,1500 each.

They thought that was the end of things, but five years after Walsham’s death all four were charged with wilful murder. (The juvenile was acquitted early in 2005.)

At the first trial in 2005, the jury failed to reach a verdict. At the second trial, which started in March this year, the jury found them not guilty of wilful murder, but of murder. They were sentenced to life with a minimum of 10 years.

imageThe three part ABC series “Beyond Reasonable Doubt” takes a long, hard look at the evidence through the eyes of a band of supporters, including forensic experts, a local newspaper editor and Fazzari’s girlfriend Mirella Scaramella (pic).

It questions many of the key players, including DPP Cock and WA’s media-savvy Police Commissioner Karl O’Callaghan.

The police commissioner made some disturbing admissions about items of evidence in the possession of the police that, in the time-honoured manner, went missing.

“Well theoretically, they should exist and they should have been properly managed, and properly stored. So if we went looking for them we should be able to put our hands on them. But I have in some past reviews, since I have been commissioner in the last two years, been surprised that some of these things have gone missing in the system. And we have to do better, we are in the process of repairing that, so that future exhibits are more carefully guarded and more carefully preserved.”

Among the vanished evidence were scrapings from under Walsham’s fingernails that might have revealed fibres or DNA, X-rays of his legs, photos of him at the time of his admission to hospital and all the police notes.

Also, the place of death was not declared a crime scene until some time later, which meant that further forensic material was either destroyed or disappeared.

According to Robin Napper, a former UK Detective Superintendent interviewed by Australian Story, the Crown case was built around one witness who thought she saw a body flip off the overhead footbridge and land on the road at a time when other unidentified people were on the bridge.

Napper’s theory that a car hit Walsham is confirmed by Dutch forensic medical examiner Dr Selma Schieveld who found the deceased’s injuries inconsistent with a blow by a tyre lever. Her opinion was that the traumatic nature of Walsham’s injuries indicated a hit and run.

“It’s clear that this is a miscarriage of justice,” she told the ABC.

Long time campaigner, Bret Christian, editor of Post Newspapers, said:

“What seems to happen is that a terrible crime takes place, or a terrible event in this case, it might not have been a crime. A terrible event takes place, someone becomes fixated on an alleged perpetrator and the whole system closes ranks to make sure that they go inside.”

DPP Cock gave an unprepossessing performance on the program. Initially he said it was “a circumstantial case with sufficient strength to justify the charge at the time the charge was laid”.

Later he conceded that the four young men were charged before he received a physicist’s report examining whether Walsham fell, was pushed or thrown. The results, released four weeks before the first trial, were inconclusive.

The police also conceded that there was no investigation into the distinct possibility that the victim was hit by a car after drunkenly falling from the footbridge onto the road below.

The programs certainly ruffled a few crow-like feathers. Commissioner O’Callaghan was reported in The Australian as saying that the Australian Story had crossed the line. “It’s not journalism, it is advocacy.”

It may surprise the commissioner that some of the best journalism is advocacy.

Then someone who claimed to be a juror popped-up in Crikey to say Australian Story had it all wrong, the three lads were definitely guilty and the ABC series “reinforced” the certainty of their guilt.

Whether this person was truly a juror we’ll never know, nonetheless the assertion was that the jury had all the facts, although tellingly this certainty later shifted:

“It’s the only trial I’ve ever been on and I thought it was very fair, I couldn’t see that things were withheld … obviously I wouldn’t know, but things seemed fine.”

In the past few years a string of convictions have been overturned in WA – including those of Len and Dean Ireland and Clark Easterday and Ray and Peter Mickelberg.

The program also alluded to Rory Kirk Christie who was found not to have a case to answer after two trials, an appeal and three years in prison. As Tom Percy said:

“The percentage of cases, the merit-less cases, that go to trial here, in my experience, it’s just bewildering.”

imageDPP Cock (seen here) had a roundabout way of expressing his denial:

“I reject the assertion that I’m not assiduous in ensuring that we only prosecute those cases with merit. I’m not responsible for the outcomes as long as I ensure the trials are prosecuted fairly and that’s where I seriously take my responsibilities.”

Almost the last word in the series goes to Police Commissioner O’Callaghan.

“My mind is never closed to these things, and I have shown a willingness in the past to have independent oversight of cases where people think there’s a perceived injustice and there’s no reason to think I wouldn’t do that in the future.”

The police and the prosecution trot out these noble sentiments on a regular basis in the west, yet the facts show a disproportionate number of crook prosecutions and questionable verdicts, not to say inadequate appellate reasoning. The number of miscarriages is getting into endemic territory.

Roll on the Corruption and Crime Commission.


Reader Comments

Posted by: Anonymous
Date: August 24, 2006, 1:30 pm

Justinian, did you happen to catch the Media Watch review the other night on Australian Story's treatment of the Walsham case? If not, I suggest you get a tape from the ABC. And then amend / remove this article.