Killing Time (15 page)
I gave Scarlett a very scant oral outline and he left our first meeting at Fulham with a few notes and nothing more. I was now highly excited yet apprehensive at the prospect of an early release. But I was most concerned about the involvement I would have to have with the police in giving evidence at a trial and about all the attendant dangers. The reward was not a major part of my thinking. Obviously the prospect of a large sum of money, when I had lost everything, was attractive but as I write this book, I have been home for more than two years, my parole has expired and I have not received one cent from anybody as a result of giving evidence because Dupas, after his conviction, appealed.
I contacted my lawyer immediately and received a visit during which we discussed the matter and particularly the prospect of my going home early. Later I discussed with my then wife the prospect of coming home early but having to stick my neck out. The general consensus was that it was something I should do and they would support me. I contacted Scarlett and he came and saw me again and I told him I was prepared to make a “Can Say Statement”, which means that the contents of the document are indicative of the sworn evidence I could give if I were called upon to do so but it is not a formal statement. The only basis on which I participated at all in the Can Say Statement was that the Petition of Mercy to get me out early could not be considered until there was evidence before the Director of Public Prosecutions that would indicate that granting that Petition of Mercy would be beneficial to the trial.
A third visit to Fulham was organised for me to finalise my Can Say Statement. I told the police that having coppers wandering in and out of the jail to see me was far too dangerous. I didn't care what pretence they used; news spreads like wildfire in the jail environment and I was trying to avoid having any awkward questions asked of me. The screws talk and loose lips can land you in all sorts of bother.
To cover my tracks, the Homicide Squad issued an application pursuant to Section 464 of the Crimes Act, which, as I've mentioned before, allows them to remove a prisoner from jail to make an application to a court for the prisoner to be questioned further. This application was made to a magistrate at Sale and was made suggesting I had been involved in a fraud. Only the magistrate and the Homicide Squad knew that the 464 was merely a ploy to get me out of jail. I was taken to the court and then directly to the Sale Police Station, where the Homicide Squad were waiting for me. I then spent some time making my Can Say Statement.
Once the statement was finished and I had signed it, a copy went to David Grace QC, my lawyer, and he made an application for a Petition of Mercy to the Attorney General but it had to be the Attorney General in Canberra because I was charged with a Commonwealth offence. For the Petition of Mercy to have any hope of success the Victorian Director of Public Prosecutions, Paul Coghlan QC, also had to support the petition being granted. The Can Say Statement was finalised on 28 June 2005.
I asked to be released in November 2005, one year early. Nothing happened. It then turned out that the coroner had been given a brief of evidence for the Halvagis murder a year before and had gone no further because there was insufficient evidence to potentially support a finding of guilt against Dupas. All the witnesses who ultimately gave evidence had come forward by then and it was considered that the brief of evidence wasn't strong enough to secure a conviction. November 2005 came and went. I wasn't getting out a year early. Then the Homicide Squad told me that I would probably be out in February 2006, as that was when the inquest was starting into Halvagis, and Dupas was the only suspect.
The inquest began in February amid a media frenzy and Coghlan himself was prosecuting. He made the unusual statement in open court that he was sure that Dupas was the killer but there was insufficient evidence for him to be charged. The inquest came and went. I was still not released. I was really starting to wonder whether all of this was a windup. Each time the Homicide Squad spoke to me they said I would be released yet I wasn't. I'm not blaming them but I'm most unhappy with my treatment by the Director of Public Prosecutions.
Matters became so protracted that the Attorney General's office in Canberra rang Coghlan wanting to know what was going on with the DPP's support because they were ready to grant the petition. All that was required was a letter from Coghlan. I'd love to know why it was delayed for a year when it was clear that nothing was happening until such time as I was out and about.
I spoke to David Grace regularly and it got to the stage where, with a couple of months to go, he told me that I might as well get my head around doing the lot and that there would be no discount. The question for me then was whether I would still be prepared to give evidence. The Homicide Squad were justifiably anxious that I might change my mind if I got no reduction in the sentence. I was still prepared to give evidence and told the police so on a number of occasions.
You cannot receive calls in jail unless they are from lawyers or the police. Late in the evening on Thursday 5 September 2007, David Grace called the jail and asked to speak to me. The screws couldn't find me, so Grace left a message that I should ring his office urgently, which I subsequently did. He said “You are going home on Monday, a mere two months early but better than no early release at all.” I hung the phone up and cried, the wait and speculation was over.
I was to be released on 9 September 2006, a mere two months before my due release date of 11 November 2006. Coghlan had sat on my application for twelve months. This whole thing had been held up inexplicably for over a year by the DPP's reluctance to say that I should be released early. The Homicide Squad were among the losers: they knew full well that I would not give evidence until I was released. And they could not charge Dupas until I was released.
What followed was a complete and utter bun fight. My release was supposed to be, as arranged with the Homicide Squad, what is known as a “controlled extraction”. This means nobody was to know that I was going. My parole papers were to be faxed through to the jail to the intelligence section. That was run by Ms Kaye and she is about the only person at Fulham who seems to know which way is up. I was supposed to be taken from my work in the property store to my cell, pack up and be put out the door without talking to anybody or anyone being any the wiser until I was gone. This was all designed to minimise any chance of harm befalling me on the way out.
Instead, on the Friday about lunchtime, I was called to the Shift Office, which is right in the hub of the jail, next to the canteen, the library and the medical centre. At this time on a Friday there are hundreds of prisoners milling around the area waiting for their weekly canteen visit. As I walked down to the Shift Office a couple of prisoners said to me, “You're going home on Monday. Good on ya, well done. What's happened?” Blah blah blah. I was horrified.
I walked into the Shift Office and rather than seeing Kaye for a controlled extraction, a prison officer started reading out all the stuff about what I'd had to say and that I'd been granted a Petition of Mercy by the Commonwealth and I was to be released early on twenty-six months' parole. I told him that this was highly sensitive and he shouldn't be reading it out in front of all these other officers and crooks. He said “Bad luck. That is the way it's being done.” I then had to sign the form and wandered off. For the remainder of Friday, all of Saturday and until late on Sunday, I was left in the mainstream prison population. If, during that time, the slightest whisper had got out that I was giving Crown evidence, I would have been dead.
The operations manager, Andy Walker (aka The Barrel), then came and saw me on Sunday and said that he was going to slot me until Monday morning as I was in danger. In the entirety of my sentence, I hadn't been in solitary and I jacked up and refused to go. He said “If you don't go, I'll drag you.” I still flatly refused. By this stage, there was a constant stream of blokes in and out of my cottage enquiring as to how come I was going home early. The story I put about was that I had got two months off because of the length of my sentence and a Petition of Mercy had been successful.
I demanded to know why I had been left in the prison population since Friday lunchtime when it became general knowledge that I was going home and why there hadn't been a controlled extraction. Amazingly, in relation to my going home early, he said “I didn't know.” I was flabbergasted. I had nothing to lose now. I leant across the desk and I said to him, “That is a bloody joke. You are supposed to know.” With that he said, “I'll do a deal. I'll put you in the hospital rather than the slot. The hospital is next to the slot. And you will be released at 5 am to avoid a media scrum because let-out time is usually 7 am.”
I was unceremoniously escorted to the hospital where I was placed in a single room, which may as well have been a solitary cell. I was finally given a small television to watch. I asked for dinner. Dinner time came and went. I am still waiting. I then asked for a cup of tea. I am still waiting. At five o'clock the next morning, after a sleepless night, the screws came and got me and took me to the discharge. I was unceremoniously shoved out the door with the words “Fuck off” ringing in my ears.
Four years and ten months were now over and I was a free man. The party was about to start.
Never write anything down unless you are prepared to
have it read out in court.
â OSCAR WILDE
The purpose of a statement is to set out formally and under oath the evidence you would be able to give if called upon at trial. This document forms the basis of your evidence and that is what's referred to in the law as evidence in chief. When and if you are called at trial, that is the initial sworn evidence you give in response to prosecutors' questions.
You may then be cross-examined by the defendant's lawyer as to any inconsistencies, omissions or lies that the defence allege arise from the statement. My statement was compiled over three sessions with Paul Scarlett and I reproduce the statement in this chapter to give you a flavour of just where my thoughts were and how a statement is made and comes to be given in evidence. The statement is scanned straight into this chapter so you can read it in its entirety.
In paragraph 19 I refer to Kathleen Downes's murder and in paragraph 20 I refer to my discussions with Dupas about similar fact evidence against him in the Halvagis case which arose from his murders of Maher and Patterson. The police said both of these comments should not be in the statement as their prejudicial value outweighted their probative value. That particular objection is commonly made in the legal process and it results in a statement being edited before it goes to the jury. I objected to having those phrases deleted because they were an integral part of my statement and if they were to be deleted then that could be done after a defence application.
The trial began and as expected defence counsel made application for those paragraphs to be deleted. That application was successful and those two pieces of evidence did not go before the jury. On this occasion those two paragraphs were removed from the statement that went to the jury. In other words, the jury never knew about that evidence.
You will note my statement is made up of three separate discussions as I have stated above. I wished the statement to properly reflect each conversation that had taken place with the police so there could be no suggestion of invention on my part. Of course, the standard allegation of fantasy was thrown at me when I gave evidence on Dupas's trial.
When I stepped into the witness box, my statement, complete with the passages later deleted, was tendered as my evidence in chief by the Prosecutor, Colin Hillman QC.
Andrew FRASER
STATES:
1.      My name is Andrew Roderick FRASER. date of birth 5 April 1951. I am currently a prisoner at Fulham Correctional Centre, Sale serving a term of imprisonment for being knowingly concerned with the importation of a commercial quantity of cocaine and trafficking cocaine.
2.      I was imprisoned on 13 November 2001 and was moved to Port Phillip Prison (“PPP”) in February (
date to be confirmed
) 2002. I was placed against my wishes into the protection unit, Sinus East at PPP. There I remained until being finally moved to mainstream at PPP on 12 June 2003 and thereafter on 6 January 2005, I was moved to Fulham Correctional Centre.
3.      White at Sinus East, I met Peter Norris DUPAS and became close to him. We were the two gardeners for the protection units and spent a large proportion of each day together working in ihe garden. We also undertook education together studying horticulture and used to watch gardening and associated programmes together on TV.
4.      I have been approached by Detective Senior Constable Paul SCARLETT of the Homicide Squad who enquired as to whether as a result of my association with DUPAS I knew anything of the murder of Mersina HALVAGIS and further whether I would be prepared to give evidence against DUPAS. I am able to say that DUPAS discussed HALVAGIS with me and made certain admissions, voluntarily and against his interests and subject to certain preconditions being met, I am prepared to execute a formal statement and give evidence if required.
5.      By way of background, I say that in jail the etiquette is that you never ask another prisoner what they are “in” for, or the circumstances surrounding their incarceration; to be nosey is to invite violence and I have witnessed such attacks.