JUST ANGER

After a day of watching footy and drinking beer, two young men bash a couple of older gay men in a city park. They chase them through the park and pounce when one of the gay men falls. They punch or kick his head, side and hips. When the man’s partner shouts: ‘Leave him alone,’ the attack stops long enough for the man to scramble to his feet and flee to safety. His partner is not so lucky. Pins in his arms and legs – a legacy of falling off a roof eight years earlier – means that he runs like the tin man from The Wizard of Oz and the two fit, sports-loving younger men easily catch him. Then, according to a woman who happens to be watching from the seventh-floor hospital room where her cancer-stricken husband lies dying, the younger men punch ‘the crap’ out of the older man. He slumps unconscious on the road, and dies 11 days later without regaining consciousness.

The fatal bashing of 45-year-old Keith Hibbins just after 7pm on 25 April 1999 seemed to be a particularly gruesome and tragic case of a gay-bashing – but it wasn’t. The excuse 27-year-old John Edward Whiteside and 23-year-old Kristian Peter Dieber offered made it a far more bizarre and much trickier proposition for the justice system.

Whiteside and Dieber admitted bashing Keith Hibbins and his partner of 15 years, David Campbell, but insisted they had not done so because they were gay but because they thought they had just raped a woman. They said they had not meant to kill or even seriously injure Mr Hibbins. They had only hit him because he was trying to escape their citizen’s arrest, because they wear justifiably angry.

• • •

Like tens of thousands of footy fans on 25 April 1999, Whiteside and Dieber went to the big Anzac Day clash between the Essendon Bombers and the Collingwood Magpies at the MCG. Friends of friends, they met at the game by chance. A friend drove Whiteside to the game. Whiteside had woken up late after spending much of the night watching World Cup cricket on the television. Dieber and a group of friends took a train to the game.

Afterwards, Whiteside’s friend offers to drive him home but he decides to have a few more drinks at the nearby MCG Hotel and take the train with Dieber and co. About 7pm, they start walking along Wellington Parade towards the city to have a few more drinks at the famous Young and Jackson’s pub before catching a train to their outer-suburban homes – Whiteside to Stoda Street, Heathmont, and Dieber to Appleby Place, North Ringwood. They walk past the Fitzroy Gardens – home to Captain Cook’s Cottage, a model Tudor village, a conservatory, picturesque ponds, a ‘Fairy Tree’, a couple of fountains, Victorian-style rotundas and lots of brushtail possums. They cross Lansdowne Street and walk on the border of Treasury Gardens, home to a pond memorial to the assassinated US president John F Kennedy. A little way up the street is the Peter MacCullum Cancer Institute. As Whiteside and Dieber and their friends walk beside the Treasury Gardens their discussion of the footy (the Bombers beat the ’Pies 108 to 100) stops suddenly. In front of them is a hysterical, weeping 23-year-old woman – Euginea ‘Jenny’ Tsionis.

Tsionis is wearing tight black trousers and a flimsy white top. She has no shoes and only one sock. As Dieber and Whiteside’s group approach, she yells: ‘Are you going to rape me too?’ She throws her wallet at them, saying: ‘Just take it, and leave me alone.’ One of Dieber and Whiteside’s friends lends the distressed woman his Essendon footy team jacket. Whiteside puts his black-and-white Collingwood footy scarf around her neck. Then, with a jogger who comes to help, they discuss what to do. Inside Tsionis’s wallet they find $550 and hail a taxi but Tsionis tells them she wants the police. When the police are on the line, Tsionis is asked whether she has been raped. She doesn’t give a definite answer but when asked if she has been sexually assaulted, she says: ‘Yes.’ The jogger tells Dieber and Whiteside that not long before he had seen two men arguing with the woman. Amid all the hullabaloo, a senior park ranger talks to Tsionis.

Ranger: I asked her if she had been raped, to which she looked at me then she put her head down and gave what I thought was a false-sounding cry. I again asked her if she had been raped, to which the reply was again a false-sounding cry … I felt that she hadn’t been raped; however, I was very cautious in case I was mistaken.

The ambulance medic finds Tsionis curled up in a foetal position, weeping and crying out: ‘Why me?’ When the police turn up, she tells them she has been sexually assaulted. About two hours later, she tells a doctor that she was raped. In a police statement, she writes that a 28- to 30-year-old man ‘with a deep voice, dark short hair, one length straight-style’ grabbed her in the gardens, spun her around, forced her pants down – without undoing her zip – and that then she ‘could feel his semi-erected [sic] penis in between my legs near my upper thighs. He didn’t penetrate my vagina with his penis … All I could think of was: “Why me?”’

It was traumatic stuff, but it was all nonsense. Tsionis made the whole thing up. She hadn’t been raped; she hadn’t been molested in any way. The former tabletop dancer wasn’t a victim. What she was, was angry and stoned – and staggering, zigzagging drunk. She was in the Treasury Gardens that cool evening not because she had been raped, but because she had argued with her boyfriend, Tony Beck. She started that day with a bong of marijuana for breakfast. Then she and Mr Beck had gone rollerblading along the St Kilda foreshore. She had then had two bourbon and cokes and two ‘cowboys’ – Bailey’s and butterscotch schnapps – at the Esplanade Hotel before they walked along the St Kilda pier. After that, Tsionis and Mr Beck tried to get some lunch at a popular nearby restaurant but it was booked out so they sat at the bar drinking alcohol. They sat there drinking alcohol all afternoon. When she left in the early evening, Tsionis ‘felt quite drunk’; her head was spinning. As they were driving through the CBD past Flinders Street Station, Tsionis and Mr Beck argued. Mr Beck later said Tsionis had wanted to continue drinking at another pub and he thought she had had enough alcohol. Tsionis told police she couldn’t remember what they had been arguing about. She did remember being so furious that she threw her shoes at her boyfriend and stormed out of the car at Treasury Gardens. Mr Beck drove his car on to the gardens’ grassy verge, got out and tried to coax her back but Tsionis refused, and he drove off.

Nearly a month after her hysterical ‘cry wolf’, Tsionis formally admitted she had made it all up. On 15 October 1999, she was sentenced to a two-month intensive corrections order after pleading guilty to making a false report to police, possessing amphetamines and breaching a community-based order. The magistrate heard that in the past she had been a victim of domestic violence, and that she cared for both her mentally ill five-year-old son and for her schizophrenic mother at her Ringwood home. A month later in a fiery cross-examination at Dieber and Whiteside’s murder committal hearing, when asked why she had lied to police about being raped, Tsionis replied: ‘I cannot answer that question.’ When quizzed about lying to Dieber and Whiteside’s group, Tsionis said: ‘I have been punished already for that.’ Upon being reminded that two men were facing murder charges as a result of her lie, Tsionis retorted: ‘I didn’t go and tell them to do that … It didn’t give them the right to do what they did.’

• • •

Back in Treasury Gardens on 25 April, Dieber and Whiteside know none of this. They only know that the sobbing woman in front of them is saying that two men have just raped her. Nothing in their lives has prepared them to suspect that she may be lying.

Whiteside grew up in Ferntree Gully, then a semi-rural suburb. Brussels sprouts and beans grew across the road from his home. The Whitesides were a big, close, hard-working, sports-loving family. Whiteside was the youngest of five children. His boner/butcher father played district cricket and football; he had been the captain/coach of the Canterbury football club. His mother also played cricket. Later she played lawn bowls for Victoria. When he was 14, Whiteside’s father died. He then helped his mother make ends meet by mowing lawns. She died in 1998 – a year before Mr Hibbins did. At school, Whiteside struggled academically but thrived at sport, especially cricket. He left Knox Technical School after Year 10 and took up an apprenticeship with an airconditioning firm. He eventually got a full-time job there and developed a reputation for his skill and know-how in the area. Psychologist Elizabeth Warren found Whiteside’s propensity for rage was low compared to other men of his age. She found him a ‘warm, friendly sort of chap’.

Like Whiteside, Dieber loved sport, especially cricket, and had a supportive family. While Whiteside had struggled academically at school, however, Dieber had excelled. For four years in a row, he came in the top five per cent in a national mathematics competition. By Grade 3, he was the school chess champion – even beating the principal. In Year 11, he was on his school’s student representative council and learnt to play the piano. His final-year school mark put him in the top 10 per cent in Victoria. Dieber also represented his school in football, athletics, table tennis and cricket. He captained the North Ringwood cricket club’s 3rd eleven and coached their under-14 side. He was known as a quiet student of the game, enjoying the tactical finesse of spin bowling. At Monash University, Dieber got distinctions or credits in his Bachelor of Economics but knocked back an offer to go on to Honours. He wanted to start earning money to help support his family. He got a job working on the accounts of a security guard company and by 1999 he was a trusted and respected employee responsible for several workers. Dieber’s father was a retired butcher. He had migrated to Australia from Austria in 1969, at the age of 26. In 1999, 23-year-old Dieber was living with his parents, his 27-year-old sister Jodi and her five-year-old son. For the young boy, Dieber was not just an uncle – he was a father figure.

Dieber and Whiteside’s lives had not prepared them to treat a distressed woman’s rape claim suspiciously, or even cautiously. The alcohol they had drunk that day may also have had something to do with it. Before the footy, Whiteside had drunk two cans of full-strength beer and Dieber had downed four or five pots. During the game, they had both drunk beer. Afterwards, in the hour or so they were at the MCG Hotel, Whiteside had five or six full-strength beers and Dieber had five drinks – beer and spirits.

Whatever the reasons, upon hearing Tsionis’s rape claim, Whiteside and Dieber have none of the park ranger’s doubts and race off into the park, determined to catch the rapists and hand them over to police. They are so fired up with their ‘citizen’s arrest’ mission, they do not even find out what the ‘rapists’ look like.

In their semi-drunken search, Whiteside and Dieber advise a family to leave the park as there has been a rape. The family thank them and do just that. Dieber and Whiteside ask some others whether they have seen ‘two guys’ recently. Then they come upon two guys – Mr Campbell and Mr Hibbins.

Up until that moment – like Whiteside and Dieber before they met Tsionis – Mr Campbell, 47, and Mr Hibbins had been having an enjoyable day. Life partners for 15 years – they called each other Davo and Keitho – they had spent the day up country in Marysville visiting a waterfall and had bought a nice red at a winery. On their way back to the inner-suburban Collingwood home which Mr Hibbins had architecturally designed and Mr Campbell had landscaped, Davo decided he needed some olive oil to cook the dinner to go with that red. To get the money, they went to the ATM at the Peter MacCullum Cancer Institute but, because of the big footy game, they had to park quite a distance away. As Mr Campbell told Steve Dow for his book Gay, on the way back to the car, he said to Keitho: ‘Oh, let’s go and look at the possums.’ Mr Hibbins and Mr Campbell liked walking through the park and watching the wide-eyed brushtail possums. But that night Mr Hibbins and Mr Campbell never see the possums. Instead, they meet two aggressive-looking younger blokes reeking of alcohol who tell them a woman has just been raped.

Mr Campbell: They both came towards us and said in an aggressive voice that a woman had been raped in the gardens. At that point, I felt that there was going to be trouble judging by the aggression in the males’ voices. Keith and I said in unison: ‘We’ll call the police.’ They replied that they had already called the police. I said: ‘What does the guy look like?’ The first male [Whiteside] said: ‘We don’t know.’

That’s when Mr Hibbins makes his fatal mistake. As well as being known for its possums, a part of the gardens is known as a gay hangout. Knowing this and noting Dieber and Whiteside’s aggression, Mr Hibbins and Mr Campbell jump to a tragically wrong conclusion.

Mr Campbell: I thought they might have been gay bashers. I look gay and so does Keith … I don’t know the exact words Keith said, but he was asking why they were so aggressive with the two of us. Keith then said we were going off to get the police.

Keith then said to me, ‘We’ve got to get out of here. Run!’…

It was obvious just before Keith said ‘Run!’ that both males were getting more aggressive and that Keith and I were the subject of that rage. When Keith said, ‘Run!’ we ran. When we started to run, I knew that the two men were chasing us…

I can recall tripping on something. As I was getting up off the ground, something hit me on the mouth and nose; I am unsure whether it was a fist or foot. I was then pushed back down on to the ground, front first. Whilst I was on the ground, I was being struck a number of times to the legs and face … I heard a voice say, ‘I’m gonna fucken kill you’…

I recall Keith saying, ‘Leave him alone.’ I knew Keith had come back to help me … I was able to get off the ground and started to run again.

Mr Campbell makes it to Lansdowne Street and hails a car. He begs the couple inside it: ‘Somebody help us please. I’ve been bashed.’ When the car stops, Dieber abandons his chase and goes back to help Whiteside deal with Mr Hibbins.

From the quiet of her dying husband’s room on the seventh floor of the Peter MacCullum, Beverley Skinner sees the bashing of Mr Hibbins against a parked car. She thinks he’s hit about 20 times.

Ms Skinner: He [Whiteside] just started beating into him … He was just punching the crap out of him. He was using fists and elbows … but I did not see any … kicking. He was not stopping. He wouldn’t stop for no-one. It was an outrage. He was a bloody animal – savage.

A witness on the ground – Ross Junor – calls for an ambulance as he watches the assault and hears Mr Hibbins screaming for help. As he speaks to the ambulance service operator, Mr Junor’s voice rises as he realises how serious the assault is: ‘They’re getting stuck into someone up here. Make it quick!’

With Mr Hibbins unconscious, Dieber and Whiteside look for Mr Campbell. The man and woman he flagged down a few moments earlier – Paul and Michelle Rogers – are consoling him at the hospital’s entrance. When Dieber and Whiteside rush at him, Mr Campbell flees inside the hospital and Mr and Mrs Rogers block the bashers’ path. The taller, more aggressive one (Whiteside) tries to push past them to get to Mr Campbell. Both men loudly tell the Rogers that a girl has just been raped in the park. Whiteside asks: ‘What would you do if you approached two guys, you told them that and they ran off?’ Ms Rogers tries to tell the angry, slurring, alcohol-reeking young men how wrong they are. When they tell her the man she’s protecting in the hospital is a rapist, she replies: ‘Don’t be silly, he’s gay.’ Whiteside sneers: ‘Well, he would say that, wouldn’t he.’ Dieber snorts: ‘That’s a likely story.’

Dieber and Whiteside stay near Mr Hibbins’s unconscious body until police arrive. Still certain he’s in the right, Whiteside tells police he punched Mr Hibbins four or five times. When asked why, he tells the police officer: ‘You know, they know.’

Lying unconscious on the street, Mr Hibbins has two black eyes, a badly bruised left ear, extensive bruising down the left side of his neck up to his jaw and a badly bruised chest. Worst of all, there is bleeding into his brain.

• • •

In interviews with police into the early hours of the next morning, Whiteside and Dieber gave very different versions of what led to the fatal bashing of Mr Hibbins. Dieber said he and one of his friends were ‘pretty stunned’ when a distraught woman screamed at them, ‘Do you want to rape me too?’ and then ‘just collapsed and just dropped to the ground’.

Dieber: Johnny has said to me: ‘She said she got raped by two men’ … So basically me and Johnny just walked through the park trying to find, you know, two guys and we spoke to people and just asked them: ‘Have you seen two guys running through here?’ … We were as calm and rational as you can get … I mean it’s not like we were a head full of steam and, you know, ‘someone had to pay’: that wasn’t what it was about.

Dieber said after a few people calmly denied seeing two guys running by, they saw two guys ‘just hanging around’ in there.

Dieber: Johnny might’ve said: ‘Hey, you blokes, have you seen any two blokes running through here or hiding in here?’ And they said something along the lines of: ‘Why?’, or something, and Johnny said: ‘Because a girl’s been raped,’ and I think they said: ‘Why don’t you call the police?’ and Johnny said: ‘Well, the police have been called,’ and that’s when they sort of just started heading off … Johnny said: ‘What are you going for?’ and that’s when they started running and that’s why I guess me and Johnny were pretty convinced that they knew something about it [the ‘rape’] … They just absolutely sprinted away … Johnny said to me: ‘Catch him. Catch him’ … and he chased the other guy.

His version of the first time they caught up with Mr Campbell and Mr Hibbins did not include Mr Campbell tripping over; Mr Campbell getting kicked or punched; and certainly nothing about anyone yelling ‘I’m gonna fucken kill you’, or Mr Hibbins telling them to ‘Leave him alone’.

Dieber: We just grabbed ’em like 10 metres away and just said: ‘What are you doing?’, you know, ‘What are you running for?’ … I just grabbed the guy and said: ‘Look, wait here, we’ll let the police ask the questions, all right,’ and then he just pushed us and sprinted away.

According to Dieber, what happened the second time they caught Mr Hibbins – on Lansdowne Street – was nothing like the ‘savage’ beating Ms Skinner said she saw.

Dieber: I chased the shorter one [Mr Campbell] but I couldn’t catch him and then I looked up the street and Johnny had caught the other one and I went up there…

I thought I’d help Johnny because I was dead set convinced that they knew something about this girl getting raped. Johnny … was just trying to hold him … So I came up and just said: ‘Listen, mate just fucken … stay there and wait for police’…

Johnny was just, you know, arguing with him: ‘Just wait here, wait for the police to get here. They’ve been called. Let them ask the questions.’

And the guy, you know, is obviously yelling at us, you know, the usual: ‘I’m gonna kill you, you dobber,’ and whatever…

The guy was saying some violent things – I can’t repeat what he was saying without swearing – he was saying basically ‘Get lost’.

When the police tell him to ‘feel free’ to say what was said – not to worry about saying swear words – Dieber says: ‘I don’t know exactly what he said.’

Dieber: We wanted to keep him there, and he was resisting. Like, Johnny probably hit him a couple of times. He was still struggling and I threw a couple of punches. I am not sure if any landed…

Later in the early-morning interview with police, Dieber says he hit Mr Hibbins ‘three or four times’ and that probably two of the blows hit Mr Hibbins around his nose. But he also said: ‘I’ve never hit anybody so … I am not a particularly good puncher or anything.’

Dieber: He, me and Johnny were just grappling with each other and we obviously wanted to keep him in that place, like for the police … I hit him then and, yeah, basically he wanted to get away at all costs…

I thought if he’s raped someone, you know, who knows, he might have a knife – anything. So I have thrown a few punches…

Anyway, he ended up falling over and we went to find the other guy and we just went round the corner. There was this couple there and they said: ‘The police are on their way that guy is over there.’

We said, you know, ‘Excellent,’ and just sat down on the ledge. Me and Johnny just voluntarily sat down and waited for the police.

Dieber tried to make the police understand why he and Whiteside were so convinced Mr Campbell and Mr Hibbins were rapists.

Dieber: If I told you a girl’s been raped, what are you gonna do? You’re gonna go: ‘Really! No I haven’t seen anyone … I’ll keep an eye out’ … and when I say: ‘The police have been called,’ you’re not gonna just sprint off, are you?

It was pretty weird. I mean, we weren’t aggressive to ’em. It’s not like they sprinted because we were assaulting ’em. That’s not the case at all…

She got raped by two males and they were two males in the park who happened to absolutely sprint when we asked them about it.

He denied that either he or Whiteside held Mr Hibbins while the other punched him, or that they hit Mr Hibbins 20 times, although he admitted they could have hit his head ‘something like’ 10 times.

Dieber: It’s pretty hard to hold someone if they don’t want to be held … Johnny hit him a few times, not overly hard, just sort of trying to, you know, make him realise that he’s not getting away. He just kept on fighting and stuff and trying to get away…

I am a security guard, so I know you can use like reasonable force to make a lawful arrest … I thought it was pretty much reasonable force. I think the real injury must have been done when he hit the ground.

My objective wasn’t to hurt him … But what else can you do? Like, I didn’t have handcuffs, or anything like that. I thought, you know, you could use a bit of force to make a citizen’s arrest…

It all happened so quickly, but he either got punched or pushed to the ground and obviously must have hit his head to have … the injuries that he’s got which I am obviously sorry – sorry – about, but that wasn’t our intention, just to bash someone. I mean, I have never done anything like that in my life.

Whiteside told police that when they came upon Tsionis she threw her purse at them and screamed: ‘Take whatever’s in it.’

Whiteside: She was just that frightened, it wasn’t funny … It was pretty scary … You could see something had happened to her majorly and she just said she had been sexually assaulted … Like, we heard plain as day she just said: ‘Two blokes sexually assaulted me … I have been raped.’

I have said: ‘OK,’ like sort of shocked because … like that’s not every day you would walk down the street and a woman has just been raped…

I should have probably stayed put and stayed with my friends and probably stopped being a bit of a hero and left the police to catch the blokes who did it … but at the time, I just thought it might be the safest thing to do to just have a gander around, have a look around, so that’s what I did.

He said that after talking to two or three groups of people, he and Kristian Dieber came upon ‘these two gentlemen’.

Whiteside: They got very nervous and started walking the other way saying they’ll ring the police themselves when we said the police were already at hand, but then they started to run – which was pretty suspicious – and we ran after them to find out, you know, why they were running.

The two gentlemen just acted very, very strange and when they started to run off that just wasn’t a good look. It looked like they did it…

As we were chasing them, I remember shouting out to them, you know: ‘Why are you running?’ It was pretty strange: two blokes just start running as soon as you mention police and they just couldn’t wait to get out of the park as quickly as they could hightail it … They just done a bolt on us.

Contradicting his mate’s story, Whiteside said that Dieber [not he] caught Mr Hibbins on Lansdowne Street. Dieber, he said, dive-tackled Mr Hibbins on the street and that he only arrived as Dieber was struggling to his feet.

Whiteside: I grabbed him [Mr Hibbins] … The guy’s actually taken a swing and I have gone bang, bang and hit him a couple of times in the jaw … He chucked a swing at me and I hit him a couple of times … It wouldn’t have been more than four times. He wasn’t knocked out with any of the punches. It was just basically a clout…

I happened to hit him four times. It was just short sharp hits. It wasn’t like I stood there and king-hit him four times. It was fast. It was just: whack, whack, whack, whack. You know what I mean? … I was chucking the swings basically in self-defence to some sort of degree…

I was shaking him at the time saying: ‘What’s going on?’ Basically: ‘How come you’re running away? You obviously know something that’s going on’ … We got into a wrestle … I got my shirt ripped and stuff like that … I don’t know where the other half of my shirt is … He nearly got on top of me and that’s when Kristian hit him because I was in trouble … I called out to Kris ‘I need help’ … Kris hit him and that’s when basically he was unconscious, I daresay … He hit the deck.

Like Dieber, Whiteside did not mention anything about Mr Campbell tripping, or being kicked, or having his life threatened. He also strongly denied that Mr Hibbins’s head was punched anything like 20 times.

Whiteside: No, that’s not true. If he took 20 blows to the head, he must have one hell of a jaw. I don’t know too many people who could take 20 blows to the jaw.

I’m guilty for hitting him – if that’s what you’re saying – but, I mean, he chucked the first one…

I’m the last person that normally goes out looking for a fight and stuff like that and trying to knock blokes’ heads off and stuff like that … Listen, I don’t get into fights. I am not a fighter. The last time I had a fight it was with my brother and he kicked the snot out of me…

I don’t have a criminal record at all so, you know, what’s happened I am not happy about it but if this guy’s got hurt, well, you know, I’d be the first bloke to say sorry but it’s just the way they came across. It was very sus.

Given that it was after 3am and he had had a very long dramatic day, it probably wan’t surprising that Whiteside came up with some contradictory responses to what he had done.

Whiteside: When I look back on it now – I have had a bit of time to look back again – I probably would still have done the same thing, to be honest…

I wouldn’t have probably tried to knock their block off or anything like that – which I wasn’t intending to till he threw a punch – but probably I wouldn’t have gone off. I think I would have just maybe rung the police straightaway and say there are some sus people in the area instead of going chasing them myself. So, I think that was probably the stupidest idea I have ever had … I don’t know. To me, mate, I jumped the gun – probably might have. I mean, it seemed very odd, very strange why two people would just sort of run…

I’m not a thug … Whatever’s happened, you know, this is going to be a blemish on my record for, probably, the rest of my life and I am not real proud of it … What’s happened is a mistake, and that’s basically all I can put it down to. It was one of those things that it just got way out of hand…

I’m sorry what happened to that bloke and I mean it 100 per cent. I didn’t mean to hurt him and I don’t even think Kristian meant to hurt him. I think Kristian would be in the same boat as me. If we could take that last half an hour away … If we had stayed in the pub for another half an hour, none of this would have happened, or if we had left half an hour earlier.

I was just in the wrong place at the wrong time … I was helping out the lady, but.

• • •

While Dieber and Whiteside tell their stories to police, Mr Hibbins fights for his life. At first, doctors think he will pull through. Once, during his long bedside vigil, Mr Campbell is certain Keitho hears his name and turns towards him. Then on 6 May – 11 days after the bashing – Mr Campbell gets the call: ‘Hurry, Keitho’s going.’ He gets to the hospital just in time for the partner he thought he would grow old with to die in his arms.

• • •

In the weeks and months after Mr Hibbins’s death, Mr Campbell fell into a deep depression. He had post-traumatic stress disorder. A psychologist said of him: ‘In all my years of working, I have not witnessed such excruciating suffering in a bereaved person … I have not encountered a more severe grief reaction.’ One of Keith and David’s many friends, Lindy Marshall, said: ‘Keith was so gentle and fun-loving and always wanted people to be the best they could be. He was the sort of person who would lift the spirits of others … David is so hurt; Keith was his world. It will be very, very hard for David to pick up the pieces and go on.’

In jail, the news of Mr Hibbins’s death also hit hard. Dieber and Whiteside were shattered that their misplaced chivalry had ended in the violent death of a gentle man. That, and – when the Office of Public Prosecutions quickly upgraded their ‘intentionally cause serious injury’ charges to ‘murder’ – they faced the nightmare prospect of spending a significant part of the rest of their lives in jail. Neither of them was coping well with jail. Whiteside whispered to a visitor that the night before a prisoner had hanged himself. When told Mr Hibbins had died, Whiteside broke down weeping.

Jodi Dieber, a financial adviser, said that when her mother first told her that her younger brother had been arrested for bashing a man, she struggled to believe it – not her quiet, shy, clever little brother; not the brother who had beaten her at chess ever since she taught him how to play. She visited Kristian in jail a couple of days after the bashing.

Ms Dieber: He was extremely shocked – disbelieving of what he had done; the result of what he had done, with such serious injuries. He was very concerned about how Mr Hibbins was going, whether we’d heard any news of whether he was going to be OK.

Ms Dieber said her brother’s hopes rose a little when it was believed Mr Hibbins would pull through, but were dashed at the news he had died.

Ms Dieber: He was absolutely shattered. He was shocked and upset, just couldn’t believe it … A few days later … Kristian asked me whether our family could make contact with Mr Hibbins’s family to express our condolences but I thought it was appropriate not to make this move.

• • •

Just days before their murder trial was to start the prosecution accepted Dieber and Whiteside’s guilty pleas to manslaughter, accepting that they had not intended to really seriously injure Mr Hibbins. Mr Campbell was devastated, telling a psychologist the decision was ‘an enormous breach of trust and a travesty of justice’. It was a major legal victory for Dieber and Whiteside, but they still faced significant jail time – perhaps 10 years maximum with eight years minimum – if Justice Philip Cummins was persuaded that they had committed a ‘bad’ manslaughter.

Prosecutor Bill Morgan-Payler QC acknowledged that Tsionis’s ‘state of distress’ meant it was reasonable for Dieber and Whiteside to believe she had been raped. He also agreed it was unfortunate but reasonable for Mr Hibbins to wrongly believe Dieber and Whiteside were out to bash gays.

Justice Cummins: The fact that his mistake was reasonable brings shame on us all: shame that our society for so long has been so inept in eliminating violence or the risk of violence against homosexuals, and shame that by our failure homosexuals have become inured to violence or the risk of violence against them.

The prosecutor also acknowledged that Dieber and Whiteside had impressive character references, but said they had lied to police to minimise their roles and tried to put some of the blame on Mr Hibbins. He especially quoted Dieber’s ‘unquestionably false’ claim that Mr Hibbins had said: ‘I’m going to kill you, you dobber.’

Mr Morgan-Payler: There is an air about what happened – the ferocity of the assault on the deceased man that was in effect punishment – of almost a sense of righteousness.

What may have commenced with honourable motives degraded into simply a desire to punish. Punishment was inflicted on the deceased in an assault which was brief but furious…

If that be the case, then this offence is a serious example of manslaughter.

Both Philip Dunn QC for Whiteside and Ian Hill QC for Dieber urged Justice Cummins to reject Ms Skinner’s evidence of Mr Hibbins being hit savagely about 20 times. Mr Dunn said what Ms Skinner saw seven floors up out of the window of hospital bedroom of her dying husband must have seemed a ‘Kafkaesque nightmare’. He said that in the wrestle with Mr Hibbins his client’s shirt was torn and he had broken his thumb. They also urged the judge not to believe that one of their clients had threatened to kill Mr Campbell. Mr Dunn told Justice Cummins he should have ‘some misgivings’ about Mr Campbell’s evidence because he had been ‘very distressed, depressed and hysterical’. Both barristers acknowledged that their clients had tried to put themselves in the best light in their police interviews but stressed they had answered questions after no sleep, a traumatic day, and in the very early hours of the morning.

Mr Dunn: What happened on this night was a real example of cruel chance and fate … It was a classic, shocking misunderstanding.

He said when Whiteside had mused to police, ‘if only things had been changed by half an hour’, he had been ‘talking in almost a Shakespearian way about the cruel blows of fate’. Of his client’s claim that he was ‘just in the wrong place at the wrong time’, he said: ‘If ever a true word was spoken by somebody at 4 or 5 o’ clock in the morning at a police station, that’s it.’ At this, the judge interrupted.

Justice Cummins: No-one forced him to chase the poor deceased man and to bash him.

Mr Dunn: No … Your Honour, it was like two cars heading down the roadway in opposite directions to one another on a wet road, on a dark night…

Justice Cummins: A car doesn’t think for itself. That is not an analogy.

Mr Dunn: It’s not a good analogy, I will leave it … This is the unintended consequences of what he told police was his own stupidity.

Mr Dunn said Whiteside had not been a vigilante but an ‘over-zealous … citizen who was trying to do the right thing’, but who had overreacted and made a mistake. Mr Hill said it was ‘a very sad and tragic happening where best intentions went wrong and it’s caused much harm and much tragedy to many people’.

• • •

In his sentencing of Dieber and Whiteside on 23 June 2000, Justice Cummins told them that they had ‘downplayed the extent of your aggressive behaviour and wrongly sought partly to blame the victims’, but he said he did not believe they had deliberately tried to mislead the police: ‘Rather, you gave your answers as you perceived in your state of high emotion … in the shock of finding yourselves in police custody.’ He said he did not believe Mr Hibbins had been hit on the head 20 times but did accept most of the rest of Ms Skinner’s evidence of a savage beating. The judge said he wholly accepted Mr Campbell’s evidence – that Dieber and Whiteside had been running frantically in the gardens in ‘a panic state’ and that they were ‘very angry’ and reeked of alcohol when they confronted Mr Campbell and Mr Hibbins.

The judge said he believed Dieber and Whiteside felt genuine remorse, would not be in criminal courts again and that there was no need to make their sentence stern to deter others.

Justice Cummins: The cruel confluence of events in this case surely serves for general deterrence. If persons are not deterred by this case from taking the law into their own hands, nothing I say and no penalty I impose will deter them.

He said that he felt ‘nothing but sympathy for Mr Campbell, a decent and honourable man who has lost his life partner’; and that ‘one would have to have a heart of stone not to be moved’ by the grief of Mr Campbell, as well as of Mr Hibbins’s mother and sister. But the judge said the DPP was right to accept a plea of manslaughter because Mr Hibbins’s death ‘unintended and unlikely’.

He told Dieber and Whiteside that if they had bashed Mr Hibbins because of his homosexuality, their drunkenness or as vigilantes, they would have been jailed for a long time.

Justice Cummins: This was not a citizen’s arrest because you punished the suspect, not apprehended him. But neither were your actions the actions of vigilantes. Vigilante conduct is premeditated, purposive conduct wherein the actor takes the law into his or her own hands having eschewed due process of law. Such conduct should be punished substantially both to uphold the rule of law and to deter others from following such a path. But your conduct was not that of the deliberate, process-eschewing vigilante. Yours occurred because of an unplanned, spontaneous upsurge of emotion in each of you. That immediacy and lack of premeditation distinguish you from vigilantes. Yours was not vigilante conduct…

Your aggressive and excessive conduct towards Mr Hibbins is to be condemned. It caused the death of a human being. But the categories of manslaughter range widely in culpability. Yours is in the least culpable…

Yours was the conduct of two young men of good character not looking for trouble, not looking for a fight, not bent upon violence; who truly and reasonably believed a woman had been raped and who without reflection or premeditation sought to ensure the perpetrators did not escape before the summoned police arrived; who then, in a rush of emotion, believing you had found the perpetrators, severely but briefly assaulted the victim. Finally, there is the rare and perverse confluence of events which channelled you towards this tragedy: the false cry of rape, your decent belief in its truth, and the socially induced fear of the victims for which we all share blame. You are, of course, responsible for your actions. No-one suggests otherwise: ‘Men at some time are master of their fates; The fault, dear Brutus, is not in our stars, but in ourselves…’

But you, and the victims, were under a malevolent star that Anzac night.

After that quote from Julius Caesar – just before pronouncing his sentence – Justice Cummins quoted another Shakespeare play – The Merchant of Venice: ‘Mercy seasons justice.’

Justice Cummins: Each of you has spent six months in pre-sentence detention: in your case, Mr Whiteside, a period of 165 days, and in your case, Mr Dieber, a period of 193 days…

That is enough detention. I propose to order that each of you be released immediately from further custody … In a few moments you will both be able to leave the court and return to your families.

At the judge’s words, Dieber and Whiteside’s families and friends hugged each other and wiped away tears of joy and relief. The relief was also obvious on the faces of the two accused. The murmur of joy was such that their actual sentence – three years with thirty months suspended in Dieber’s case and 31 months suspended in Whiteside’s case – was almost drowned out.

Justice Cummins: Accordingly … each of you is now released from custody to serve the balance of your suspended sentences as citizens in the community. You are free to leave the court.

Outside the court, surrounded by beaming, tearful friends and family, Dieber told the media: ‘I just feel sorry for everyone involved.’

• • •

In the following days, Mr Hibbins’s friends strongly campaigned and petitioned for the Director of Public Prosecutions to appeal the leniency of Dieber and Whiteside’s sentences. Mr Campbell said: ‘I want an appeal because I want justice for my Keith.’ Susan McDermott, the general manager of Melbourne Independent Newspapers, where Mr Hibbins worked as the supervisor of the advertising department, told the Age that her staff were shocked that Keith’s killers had been freed.

Ms McDermott: There’s a very strong feeling in the community and people want to have justice prevail in this case. Keith was such a gentle man. Both David and Keith wouldn’t hurt a fly and they did not deserve this.

Fellow worker Darren James said: ‘It does not seem right that two people who admitted killing someone else can be allowed to walk free.’

• • •

The Director of Public Prosecutions, Geoff Flatman QC, did not need much persuading. In five weeks – double-quick time for law courts – his appeal against the leniency of Dieber and Whiteside’s sentences was being heard by the Victorian Court of Appeal. In Victoria, DPP appeals against the leniency of a sentence are fairly uncommon – there were just 10 others in the year 1999/2000. Appeal Court judges are not supposed to just sentence a person to what they think he or she should have got in the first place. First they have to be persuaded that the sentence is obviously too low, is ‘manifestly inadequate’. Then, they must reduce the sentence they would have given if they had been the sentencing judge so the person is not a victim of ‘double jeopardy’ – being judged twice. Appeal Court judges are also normally more reluctant to change the sentences given by experienced judges such as Justice Cummins.

On 4 August 2000 – six weeks after the sentence – the Appeal Court president Justice John Winneke and two long-serving Appeal Court judges, John D Phillips and Robert Brooking, gave their verdicts to another packed courtroom. Things did not look good for Dieber and Whiteside when the president went against them strongly.

Justice Winneke: Whilst I would normally hesitate to interfere with the sentencing discretion of this very experienced judge – particularly in a Director’s appeal – I am satisfied … His Honour has misconstrued the gravity of the offences … and, in doing so, has imposed sentences which are so disproportionate to the objective seriousness of these crimes that intervention by this court is warranted…

The gravity of the circumstances in which the innocent victim was beaten and killed cannot, in my opinion, be obscured by seeking to portray those circumstances as an unfolding tragedy in which the respondents became inevitably entangled. Their final assault on the 45-year-old deceased was, as His Honour found, deliberate and vicious and carried out with a desire to punish. It ceased only when the victim fell senseless to the carriageway of Lansdowne Street. Their acts were not those of well-motivated citizens seeking to apprehend and detain a person whom they had reason to believe had committed violent sexual offences. They had no such reason: they asked no questions and made no investigation. They made no attempt to hold and detain a much older man until the police arrived. They simply concluded guilt because their victim had sought to flee before their patent aggression.

The viciousness of the assault and its lack of foundation, in my mind, smacks far more of a desire to avenge and punish by two persons disinhibited by liquor consumed than, it does of misguided chivalry … A decent life had been taken because the two respondents, hitherto of good repute, decided to take the law into their own hands and became, without proper justification, the judges and punishers of the deceased. Whatever good intentions may have existed when they chose to remove themselves from their own group and enter the gardens had dissolved by the time they aggressively confronted Hibbins and Campbell and then assaulted Campbell in the park, proclaiming that they were going to ‘kill him’. Thereafter, their good intentions were replaced, as I see it, by an unjustified desire to catch and punish.

Any suggestion that they were acting as citizens concerned for the rights of the distressed woman became, in my view, little more than a pale excuse for their unlawful conduct. Although His Honour acquitted them of being vigilantes (in the sense that His Honour used that term), the fact that he found they had taken the law into their own hands, and had acted out of a desire to punish, suggests to me that their conduct did have within it an element of the vigilante as that term is popularly understood. In this regard, it is somewhat revealing that when Whiteside was asked at the scene by Senior Constable Bowman why he had punched the deceased he replied: ‘You know, they know’…

In my opinion, these offences were … serious examples of the crime of unlawful and dangerous act manslaughter … The bashing was of an innocent person whom the respondents desired to ‘punish’. Such conduct was not the result of a ‘cruel confluence of events’, but very much of the respondents’ own choice.

Things were looking grim for Dieber and Whiteside, but there were still two judges to go. Justice Brooking, however, very quickly snuffed out any hope they had of holding on to their liberty.

Justice Brooking: ‘Yours was not vigilante conduct’, His Honour said to the respondents. In a sense this was true. The police had been sent for; there was no organised group formed to deal with lawbreakers with entire disregard for the public system of law enforcement. But on the judge’s findings – inevitable on the evidence – this was ‘vigilante conduct’ in the sense that both men were motivated by a desire to punish a supposed rapist. They wanted to administer corporal punishment to an innocent, inoffensive and defenceless man whom they believed (quite unreasonably) to be a sexual offender … The deceased … was attacked by two men acting in concert. The victim was 45, with physical disabilities. His assailants were two young men in their 20s, both well built (especially Whiteside), both affected by drink and both out of control.

Vigilante enterprises must be suppressed…

The … attack on Hibbins’s companion, Campbell, and the angry threat to kill him … helps to show that both were out to punish from the moment they gave chase.

The judge noted that the defence barristers tried to persuade Justice Cummins not to believe Mr Campbell but did not put their clients in the witness box to face cross-examination.

Justice Brooking: It’s striking that so much effort should be directed to putting before the judge evidence of background and character and self-serving, second-hand descriptions via psychologists of the events of the night, but not a word from the respondents themselves about their own state of sobriety and state of mind and their own roles that night…

It does seem to me that the judge was led into passing altogether too lenient sentences by his strongly held view that the respondents had been borne along by the tide of events and were the victims of misfortune…

Dieber’s claim to police that Mr Hibbins had said: ‘I’m gonna kill you, you dobber,’ came back to haunt him, with Justice Brooking using it twice to illustrate the ‘highly improbable accounts given to police’.

Justice Brooking: Causing death by administering a vicious beating in concert in order to punish an unofficial suspect (unconvicted, uncharged, and not identified by a complainant or by any description) for a supposed crime must be viewed very, very seriously. When it turns out not merely that the victim was entirely innocent, but that the supposed crime had not even been committed, the case becomes very striking.

Justice Phillips made it 3–nil to the DPP when he agreed with the other two judges that the sentences were too lenient.

Disappointed as they must have been at their loss, Dieber and Whiteside’s lawyer had probably tried to prepare them for such a possibility. What they almost certainly hadn’t been prepared for, however, was what came next.

As Justice Winneke read out the new sentences, six years with a minimum four years before they could apply for parole, Dieber and Whiteside’s family and supporters gasped and then sobbed openly – this time from shock and sadness. But, they weren’t the only ones: Mr Campbell also wiped away tears.

Outside the court, Mr Campbell said he had cried because he heard a woman – a friend or member of the Dieber or Whiteside families – sobbing inconsolably. He was sorry that she had lost someone, too.

Mr Campbell: Nobody won. I do not get my Keitho back and two people were taken into custody. I am not glad it happened, but I wanted it to happen. I don’t hate them [Dieber and Whiteside], I don’t feel anything for them.

Also outside the court, Whiteside’s lawyer said his legal team was considering appealing to the High Court. He pointed out that the new sentence was an extraordinary eight times more severe than Justice Cummins’s sentence. The ‘double jeopardy’ Appeal Court sentencing rule meant that the judges probably thought the original sentences should have been a maximum of about eight years. Dieber’s lawyer said his client and the whole legal team were shocked and distressed at the new sentence.

• • •

Nearly a year later – in June 2001 – lawyers for Dieber and Whiteside got the chance to ask the High Court to grant them a full hearing. The main point their barrister Jeanette Morrish QC tried to get across in the 20 minutes allotted to her was that the Appeal Court should have thrown out the DPP’s application without even considering whether the sentences were too short because the prosecution had made a fundamental and unfair change of tactics. She said in the trial the prosecutor had agreed with Justice Cummins that there was no need to make the sentence a deterrent to others, but had told the Appeal Court this is exactly what should have happened. She, however, agreed with Justice Michael Kirby that the prosecution’s ‘general deterrence’ concession at the trial did not deprive either Justice Cummins or the Appeal Court of hearing enough evidence to come up with a just sentence.

Justice Kirby: So … if the Court of Appeal were of the view that the concession was wrong … they were in as good a position as the sentencing judge when they found error to substitute the sentence they thought was appropriate.

When Ms Morrish tried to argue that Dieber and Whiteside had reasonably believed a woman had been raped, she had to dodge a barrage of legal bullets from High Court judges Ian Callinan and William Gummow.

Justice Callinan: But Ms Morrish, the big problem about everything you say, it seems to me, is that when one of the victims escaped, the two applicants continued to pursue the unfortunate man who was killed. They pursued him out of the park, into the street, for some considerable distance. He was a much older man who could easily have been restrained; they made no effort to restrain him, they systematically bashed him … It got beyond the stage of being vigilante, it was just a senseless and irrational bashing, far removed from the scene of an imagined crime.

Ms Morrish: … We say that to have made such a finding was contrary to the findings of the learned sentencing judge and…

Justice Callinan: The learned sentencing judge found, in effect, that it was an almost inevitable consequence of an ‘unfolding tragedy’. Now, with all due respect, I find it very difficult to accept that finding.

Justice Gummow: It was not inevitable at all.

Justice Callinan: It is a perverse finding, I would have thought, and the Court of Appeal was, therefore, entitled to interfere with it. How could you say that it was an inevitable consequence when the man was on his own by this stage and being pursued down the street, held by two much stronger and younger men and senselessly bashed to death? Nothing inevitable about that.

Ms Morrish tried to get her appeal back on track by pointing out that Justice Cummins had said Dieber and Whiteside were responsible for their actions.

Justice Gummow: His Honour fixes on this word ‘inevitable’. It is just nonsense, to put it in colloquial language.

Ms Morrish: Well, true, His Honour had a particular literary style but His Honour accepted the gravity…

Justice Gummow: It is not a question of literary style. There is much more involved here than literary style.

Ms Morrish: We say His Honour correctly balanced, taking into account the concessions that were made, the factors personal to the accused, against the factors that he was required to take into account under general sentencing principles. That, notwithstanding the gravity of the offence, and … true it is that there was a bashing…

Justice Gummow: It is not a bashing; there was a killing.

Ms Morrish: Yes, but the killing was unintended and unexpected and the Crown accepted that … In this case, what the sentencing judge gave weight to was the state of mind, namely why did the applicants do what they did, and they each entertained a belief that the victim had, in fact, raped Tsionis.

The DPP Geoff Flatman QC had a much easier time. Rather than tackling him on why an Appeal Court had given a sentence an extraordinary eight times sterner than the original judge, Justice Kirby even suggested Dieber and Whiteside got off lightly.

Justice Kirby: Upon one view, the sentence imposed by the Court of Appeal in re-sentencing was at the low end of what might have been imposed by a primary judge taking the view of the seriousness of the offences that you are urging upon the Court, and that would be consistent with the principle in Crown appeals?

Mr Flatman: Yes, Your Honour.

It was no surprise when, moments later, Dieber and Whiteside lost their last legal hope of freedom when the judges rejected their applications for a full High Court hearing.

In all, six judges had disagreed with Justice Cummins that at least part of the reason for Mr Hibbins’s death was that there was a ‘malevolent star that Anzac night’.