Killing Time (17 page)

44)       In relation to paragraph 20 I want to mention that paragraph 33 also relates to this same conversation with DUPAS. I want to add that at the time of having this conversation with DUPAS and him stating there were no witnesses, he was sitting on his bed in his cell near the head of the bed. I was sitting on the bed at the foot. On the wall at the head of the bed is a loud speaker / panic button which is screwed into the wall, it is generally accepted by prisoners that this piece of equipment is used as a listening device by staff and often prisoners refuse to talk in their cells for this reason.

45)       I had read the brief and indicated to him the matters raised in paragraph 20. I wish to add that in addition to the verbal admission made that he left no forensics at the scene of the HALVAGIS murder, he was adamant there were no eye witnesses. He pointed at the speaker on the wall as if to say "no more talk" and with that jumped to his feet, turned and faced the bed and used a downward opening motion of his arms and indicated a person bending forward. He stood back and with an arm movement then indicated himself and further he indicated a raised right arm and then a downward stabbing motion. This indicated to me how he had killed HALVAGIS and why she would not have seen him.

46)      I have been requested by SCARLETT to remove paragraph 19 from this previously drafted statement as it relates to a matter not relevant to SCARLETT's investigation. I have requested that it remains in until directed by the Office of Public Prosecutions.

47)      Further to the above two statements, thereafter on the 24
^th
of June, 2005, I provided a further draft can say statement. It reads as follows:

Further statement of Andrew FRASER; further to previous draft statements made by me I wish to add the following which has come to mind after giving this matter further considerable thought.

48)      It has been annoying me that I have not been able to adequately describe the way DUPAS communicates. I have previously described it as speaking in grabs or snatches, the word I have been searching for is “disjointed”, in other words his conversations do no flow. In addition he appears to keep himself under a tight rein and occasionally things get the better of him and he will utter something that he almost instantaneously regrets and he clams up again.

49)       You can almost watch the pressure build, he becomes obviously anxious, commences to shake and little sweat around his temples. He then utters what ever it is he says and almost immediately you can see him check himself and the conversation is over.

50)      I have had many years dealing with criminals and I have dealt with many murder trials. It is my opinion based on that experience that DUPAS is probably the most dangerous and unpredictable person I have ever met.

51)      I have now recalled when on my run on Wednesday the 22nd of June, 2005, that in the garden at PPP DUPAS and I regularty found contraband hidden in the garden; drugs, knives and on one occasion part of what I would describe as an incendiary device. DUPAS always threw these items into the rubbish bin and instructed me to do likewise, otherwise the bringing of these items to the attention of Officers usually resulted in a lock down and search and you could be locked down for days as has happened on more than one occasion following items being located in the jail.

52)      On one day I recall clearly I was weeding a garden bed outside Serious West Unit and uncovered a substantial home made knife. The knife appeared to me to be made from a table tennis brace and was very professional. One side had been ground down (usually done on one of the concrete pathways) and had a taped handle. I called DUPAS over and showed him the item as was usual when we found something. He looked at the knife, he was on my left, and took it from me. He started to move the knife up and down as if feeling the balance of the item. He started to sweat and looked me with a very strange look on his face, I was apprehensive at this time and he uttered one word “Mersina” (I am unsure of the spelling) and handed the knife back. I put it in the bin but was shaken by the incident. I had no doubt that he was referring to the deceased HALVAGIS and had no doubt he was telling me he had stabbed and killed her with a similar instrument.

53)      I was so concerned by this that the next day I checked the bin had been emptied and that the knife was gone.

54)       My memory of this was prompted when I saw a couple of prisoners obviously secreting something in long grass last Wednesday as above mentioned.

55)       This should be part of my statement.

Statement taken and signature witnessed by me

At Sale Police on 28/06/05 at 12.35 pm.

P. SCARLETT

D/S/C 28414

I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.

Andrew FRASER

Acknowledgment made and signature witnesses by me

At Sale Police Station on 28/06/05 at 12.36 pm.

P. SCARLETT

D/S/C 28414

Chapter 11

Take a Deep Breath: The
Preliminary Hearing

Once more unto the breach dear friends, once more.

– WILLIAM SHAKESPEARE,
HENRY V

September 11 2007 was my release date. The irony of the date certainly has not been lost on me.

Every day of your sentence you calculate how long you have done and how long you have got until you go home. Everybody, even the homeless, refers to getting out as “going home”. Going home dominates your thinking and you wonder day in and day out what it will be like when your turn comes because, with a few exceptions, everybody's turn comes, no matter how long the sentence.

Year after crushing year, the time drags interminably. The only thing that keeps you going is the thought of what will happen on the day you go home. Judges, when they sentence you, recite a po-faced mantra about not imposing crushing sentences, about rehabilitation, about family, job prospects when you get out … on and on they rabbit.

All these pronouncements count for nothing. Sentencing is nothing more these days than a box-ticking exercise enabling a judge to cover his own behind in case of appeal by either defence or the DPP. There is nothing intuitive about sentencing these days because if a judge gives somebody a bit of a go, it is often the case that the Director of Public Prosecutions will then appeal against the leniency of the sentence and in the current political climate such appeal is often successful with the sentence being increased.

When I say it is a box-ticking exercise I mean it literally. All the criteria for sentencing are enumerated in a handbook. The judge's handbook is needed because gone are the days when every judge is appointed with sufficient experience and knowledge in a given field for them to run a court by experience. These days there are judges and more particularly magistrates who are appointed and have never conducted a case in court off their own bat. The judge's little helper (the handbook) sets out the various aspects of sentencing that must be addressed when a judge passes sentence and as long as he/she has ticked all the boxes, then on appeal by the accused, providing the judge has covered himself adequately the appeal will fail, it won't matter whether the penalty is unnecessarily heavy; the Court of Appeal wheels out its favourite old chestnut that the sentence is “not manifestly excessive”. See you later!

Not only are some judges and magistrates inexperienced in court when appointed (which one would have thought essential for being appointed), the real problem is a judicial officer's inability to empathise with the man in the street. A quick scan of the background of most appointments is private school, university and the legal profession. Such are the pressures stupidly imposed by the tertiary establishments that students have no, or very little, life experience outside this cosseted existence. How, then, can they even begin to understand how circumstances dictate the common people's actions?

I wonder if sentencing would be the same if all judges were required to serve only one day's imprisonment. Not five years, just one day. My bet is that the reality check in that one day would be sufficient for judges to be far more humane in their sentencing. In my view the court system has lost touch with not only the very community they are supposed to administer but with reality itself. You only need to read some judgements to grasp this argument very quickly. The law truly has become an ass!

Every day of the week in the popular media you hear people screaming about sentences being inadequate. The reality is that sentences have increased exponentially, particularly in relation to drug and violence offences. I can remember when I was a junior solicitor handling a culpable driving trial in Bendigo. The late, great Brian Nettlefold QC appeared for the accused. We went to a trial, the accused pleaded Not Guilty and was convicted. Because the young man was a university student from a good home and highly unlikely to transgress again, he was given a suspended sentence. These days such a penalty would be unheard-of and immediately appealed by the DPP if it were imposed.

The young man concerned had been driving home from university for the weekend with a mate in the car. They were drinking while driving. He was on the wrong side of the road passing another car when a motor cyclist came over the brow of the hill in the opposite direction and there was a head-on collision. The motorcyclist's face was embedded in the roof of the car just above the windscreen – you could see the deceased's face print. The reason the young man didn't see the motorcyclist in time was because he had his head tilted back drinking beer from a can. The speedo jammed on impact at 80 miles per hour – approximately 140 kilometres per hour. Both of the young men in the car walked away with relatively minor injuries. The motorcyclist was killed on impact. These days he would be a certainty to receive a sentence somewhere in the vicinity of six or seven years; if he did well, maybe three or four.

That is merely an example of what sentencing was like in the good old days, by contrast with now. The other penalty that has increased out of sight, but far more quickly, is that for murder. If you have a look at murder sentences fifteen years ago, the average domestic murder received a sentence of somewhere in the vicinity of ten to twelve years. These days, twenty years is common. Who says sentences haven't increased? Who says sentences are inadequate? And these days judges hand them out willy-nilly – and frankly, in my view, with little regard for the wreckage they cause.

And so it is that you wait for the day. You wait and wait. Finally it has arrived. What's it going to be like? Believe it or not, even though I battled against institutionalisation, I still think that I probably was to some degree institutionalised as a result of the period of time I spent inside and the circumstances in which I spent it.

I was marched out the door unceremoniously, sent on my way with a typical farewell from one of the screws. It was over. I stood with my back to the fence, a little like a rabbit caught in the head lights, and wondered what awaited me. I knew I had let myself in for plenty of publicity and I was ready for whatever came my way in that respect; I just wasn't expecting it quite as soon as it hit.

I jumped into a friend's car and we headed off towards Melbourne. Fulham is a good couple of hours from the city and not much was open at that hour of the morning. We found a McDonald's and had a coffee. Compared to the jail coffee, this tasted like nectar. We had to wait until nine o'clock for the shops to open so I could get some clothes. I refused to wear one item that I had worn in jail. Apart from what I was wearing, I gave everything away to crooks still inside who were worse off than I was.

We drove to Chadstone Shopping Centre and arrived in time for David Jones to open. There I purchased new socks and jocks, bolted into the changing room, changed, threw the last vestiges of my jail attire in the bin and was away. I already felt like a new person.

Because I was out early and unexpectedly, I had nothing planned for the day or the week ahead. My marriage had failed, so I had to set up a completely new home from scratch. Off we trotted to the supermarket, where I used borrowed money to buy all the basics – enough to get me going. I was going to live in a house offered by a friend in Canterbury Road, St Kilda, back in my old stomping ground. So we drove to Acland Street where we had another coffee – a real one this time. Fantastic. Back in the real world. I must say, I received a lot of assistance from friends on that first day out, and I will be eternally grateful for that assistance.

Although I was enjoying myself I still felt extremely strange. Even now, after two years, I can't adequately describe the feeling I had that day. It was sort of a numbness but at the same time quite a buzz. It certainly was not the euphoria I had anticipated when I had endlessly imagined this day. I have read Peter Carey's book
Bliss
, where the main character almost dies and suffers an out-of-body experience. This is exactly what the first day was like, I can see me standing away from myself and observing, it was quite a weird feeling watching what was taking place.

I didn't have a job or an income, so my next priority was to visit the dole office. While I was in jail at Fulham, there was one officer whose title was the oxymoronic “prisoner welfare officer”. About two weeks before I was released I went to see this officer and told him that I was likely to be released shortly, maybe even early. I filled out all the forms and when I was released all I had to do was present at the dole office with a slip of paper which he gave me and all would be fixed: the unemployment benefit would be waiting, as would be the Medicare card.