ALREADY DEAD

The ‘unusual’ death of Lindsay Jellett – a brain-damaged man who died while on a walk to find pink golf balls for his twin sister – turned out to be a bizarrely tough riddle for the justice system.

Mr Jellett’s bloodied and crushed body was found on the grassy edge of a dirt road about 2km from his home in the western Victorian town of Ararat. Someone had dragged him off the road and then reversed a car over him – twice.

Lindsay’s body was found on 11 May 1994 – the morning after he failed to return from his walk in time for dinner at the house he shared with four other intellectually disabled people.

Before setting out on his fateful walk, Lindsay had kissed his twin sister Judith Anne Cengiz goodbye. They had just spent a happy five hours together – lunching, playing the pokies, shopping, and going to two meetings to discuss Lindsay’s progress. As she usually did on her six-weekly visits, Cengiz had brought her brother clothes, cigarettes, lollies and drinks. During her visit she bought Lindsay arch supports to ease the pain of walking. She also forked out the $30 he blew on the pokies, and gave him another $25 cash. The very different twins returned to Lindsay’s home about 3.30pm and a few minutes later Lindsay set off on his walk.

Cengiz: I was standing there talking to Rod [a staff member at the community services–run unit] and Lindsay kissed me goodbye and said he was going to the golf course. Lindsay goes to the golf course all the time in order to collect golf balls and he later sells them. I remember he told me he was going to get me some pink golf balls … I gave Lindsay a bottle of Coke, a jar of Nescafé and chocolate-chip biscuits, and he put these in his room and left … That would have been about 4pm…

Lindsay seemed to want to get away as soon as possible and that was the last I saw of him. I spoke to Rod for about five minutes and then drove to Melton.

Cengiz refused a staff offer of a cup of tea, saying she needed to get back home to pick up her seven-year-old son and three-year-old daughter.

About four hours later, a worried worker at the Ararat home phoned Cengiz at home to tell her that Lindsay had not returned from his walk. Nobody answered the call and she left a message. Half an hour later – about 8pm – Cengiz got home and returned the call. She phoned several times that night asking if Lindsay had been found and suggesting where he might have gone.

Cengiz: I was very worried and hadn’t hardly slept and I thought he may have gone to Aradale [the Ararat institution Lindsay had recently moved from] and she told me to wait and they would notify me when he came in.

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Just before he died, things were looking up for Lindsay Jellett. For the first time since his brain was injured at the age of two when a car crashed into his pram, the 41-year-old was getting the chance to live in a house instead of a big institution. He could not read or write, but had learnt to feed, dress and shower himself. He could also go on long walks by himself, safely crossing roads. He had epilepsy but that was controlled with twice-daily medication. Lindsay’s share in the house was going to cost him $15,000 but that wasn’t a problem for him. He still had $105,000 of the compensation he was awarded after the car crashed into his pram.

Even though everybody praised Cengiz as a caring sister, police quickly suspected she killed her twin to inherit his $105,000 – that she had been spurred into homicidal action when she feared her inheritance was about to be cut by $15,000. Cengiz had made it clear to her eldest son Greg that she felt entitled to inherit her brother’s money. She told him she planned to buy a new car with it and when the 25-year-old asked if she could also buy him a $10,000 car, she said: ‘No. It’s my money.’

Detectives believed that after kissing Lindsay goodbye, Cengiz picked him up a few hundred metres into his walk. An Aradale nurse who knew Lindsay well told them that about 3.45pm on 10 May 1994 he saw Lindsay get into a Ford car with an LPG sticker on its number plate – Cengiz’s car was a Ford and it had an LPG sticker. The nurse, however, also said the car was blue or brown and the woman driving it had dark hair – Cengiz’s car was ‘burgundy and champagne’ and she has fair hair. Police, however, put these discrepancies down to typical mistakes made by witnesses.

Detectives also suspected Cengiz of murder because of the long time it took her to get back to her Melton home on Melbourne’s western outskirts. Sticking to the speed limits, the 170km trip can be done in about two hours, but on 10 May 1994 it took Cengiz 4½ hours to reach her Dunvegan Drive home. She later explained that her car had overheated on the way back from Ararat and she had had to wait for about 40 minutes to let it cool. A car expert said Cengiz’s car would have been prone to overheating.

Cengiz also said that before going home she had picked up her two young children and put the car through a car wash. She denied doing this to remove evidence of running over her brother, saying she usually washed the car after visiting Ararat. Greg Cengiz, however, did not back this claim. He said that while his mother was awaiting trial, she said to him: ‘You know I always wash my car, and I wash underneath the car when I return from seeing Lindsay.’

Greg Cengiz: It was like she was asking me to confirm that.

Prosecutor: Did you know anything about her usually washing under the car after she went to visit Lindsay?

Greg Cengiz: No.

Despite the car wash, investigators found human blood, human hair and bits of fabric on the underside of Cengiz’s car. The hair was the same colour as Lindsay’s, the fabric matched his trousers, and DNA tests of the blood and hair found that the chance of them coming from anybody other than Lindsay Jellett was one in 4500. At her trial the only answer Cengiz’s barrister Daryl Wraith had to the DNA evidence was to warn the jury that DNA examiners had made mistakes.

Mr Wraith also told the jurors that even if Cengiz’s car had run over her brother, they should not assume she was driving it at the time. Greg Cengiz told the court what his mother suspected might have happened.

Greg Cengiz: She told me that she thinks someone had taken her motor vehicle from the driveway and driven it to Ararat and did what they decided to do, and then returned the car back to her driveway.

Mr Cengiz, however, said he had fitted an alarm in his mother’s car, which turned on 30 seconds after the ignition was turned off and the doors were closed – even if they weren’t locked. Prosecutor Colin Hillman derided this stolen car theory as ‘absurd’. He said even if someone had taken Cengiz’s car without triggering the alarm and without her realising it had gone, by the time they had driven it to Ararat they would have to have found – and reversed over – Lindsay Jellett while police and about 15 other searchers were combing the area.

For police, it looked like a clear case of murder by a greedy sister fed up with caring for her brother.

Then came the bizarre twist: the pathologist found that Lindsay Jellett had died before a car was reversed over him. The injuries caused by the reversing car would have been bad enough to kill him – but they hadn’t. The car had twice reversed over a dead man.

The pathologist could not say how Lindsay Jellett had died.

Still, Cengiz was charged with her brother’s murder.

In opening the prosecution case at Cengiz’s trial in the Victorian Supreme Court in August 1996, Mr Hillman told the jury: ‘What she did to kill him is not known, but kill him she did.’ He said the prosecution did not have to prove how Mr Jellett died, just that Judith Cengiz had killed him.

Mr Hillman: The evidence will establish that after this charade of saying farewell, Ms Cengiz received her twin brother Lindsay into her car and … took a sinister diversion onto a lonely country road and killed him…

When the car was used to run over his body, Lindsay Jellett was already dead. Either she was following through with her murderous plan to kill him, or she was masking what she had already done to make it look like a motor-car accident.

He said a pathologist would not have been able to detect how Mr Jellett had died if, for instance, he had been smothered with a pillow.

The prosecutor said that if Mr Jellett had died as a result of his epilepsy and Cengiz had realised this, she would have taken him to hospital – not ‘run over the body and then lie about the last time she had seen him’. He also said it was ‘stretching human experience too far’ to believe that Mr Jellett had ‘conveniently’ died naturally just before his sister, not realising he was dead, reversed her car over him.

Mr Hillman: The use of the car to run him over … is only explicable upon the basis that she did kill him, and that she intended to kill him.

In his opening address, Mr Wraith warned the jurors it was a ‘highly unusual’ case. He stressed that Cengiz denied driving over or killing her twin brother but told them that even if they were convinced she drove over Lindsay’s body, that did not mean she murdered him. Mr Wraith said there was a very real possibility Mr Jellett died of a well-known complication of epilepsy called ‘sudden, unexpected death in epileptic persons’, or SUDEP. After the prosecution ended its case, the trial really did become ‘highly unusual’ when Justice Tim Smith ordered the jury to acquit Cengiz of murder.

The judge said that even though it would have been a ‘remarkable coincidence’ for Mr Jellett to die of epilepsy just before a car was reversed over him, the jury could not rule it out. He said the incidence of epilepsy sufferers dying suddenly and unexpectedly was frequent enough for it to be a recognised syndrome.

It was not, however, a complete win for the defence. Justice Smith said the jury could still consider whether Cengiz was guilty of attempted murder. In a ruling that was not heard by the jury, he said the jurors could still decide that Ms Cengiz had tried to murder her brother and had only failed because he died just before she could succeed. He said that as unlikely as it was that Mr Jellett was alive when he was dragged to the side of the road, but died naturally in the time it took the car driver to go back to the car and start reversing over him, it was ‘bordering on the fanciful’ to think his killer knew he was dead and thought dragging his body off the road and reversing over it twice would make it look like a hit–run.

The ruling turned the trial on its head. It led to the prosecution trying to persuade the jury that Cengiz had not killed her brother and to the defence highlighting the possibility that she might have killed him (even though she denied it). It opened the way to an extraordinary defence: ‘You can’t find me guilty of attempted murder because I may have murdered him.’ In a perverse way, if the jury thought there was a reasonable possibility that Ms Cengiz had killed her brother before running him over, it would have to acquit her of attempted murder. People don’t try to kill people they know are dead. No-one tries to kill a corpse.

The prosecution had a big problem. It had opened the case strongly arguing that Cengiz had killed her brother and then run over him to try to hide what she had done but, after the judge’s ruling, it had to make sure the jury did not believe this – or even accept it as a reasonable possibility. In his closing address, Mr Hillman had to convince the jury that the possibility he had called ‘stretching human experience too far’ in his opening – that Cengiz tried to kill her brother by reversing over him because she hadn’t realised he had ‘conveniently’ already died – was, in fact, what happened.

Mr Hillman: The running over of the body only makes sense if it was done with the intention to kill him, and being unaware that he was already dead.

In his closing address, Mr Wraith told the jury they had to be convinced beyond a reasonable doubt that ‘whoever drove the car over that dead body at that time believed it was alive’. He highlighted how the prosecution had changed its argument.

Mr Wraith: If the Crown doesn’t really know what happened in Down Road and doesn’t really know what was in the mind of the driver of the vehicle, then why should you?…

He stressed that his client denied killing or driving over her brother but told the jurors the case was far from over even if they thought she did.

Mr Wraith: You may … find the conduct of driving over a dead body is abhorrent and despicable but … despicable conduct is not a legal offence.

He said that as odd as it might seem, they would have to find Cengiz not guilty of attempted murder if they thought there was a reasonable possibility she knew her brother was dead before reversing over him because she had just killed him.

On 26 July 1996, after deliberating for about seven hours, the jury tackling this topsy-turvy trial decided Cengiz had tried to kill her already-dead brother and declared her guilty of attempted murder.

A few weeks later, Justice Smith acknowledged Cengiz had overcome an ‘appalling’ childhood (including a stepfather who tried to gas her in a murder–suicide attempt) and three violent marriages to become a caring mother of four. He said for many years she had also helped Lindsay. He said, however, that she had done all she could to kill her vulnerable brother for the basest of motives – greed. He jailed her for at least six years and set a maximum term of 10 years.

Almost a year later – in June 1997 – Victoria’s Court of Appeal rejected Cengiz’s appeal against her conviction and the length of her sentence. Her lawyer’s main argument was that the jury should not have ruled out the possibility that Cengiz might have known Lindsay was dead before running him over. Not only did all three judges reject the appeal against her conviction, two said they thought that Cengiz was lucky Justice Smith had ordered the jury to acquit her of murder.

Justice William Ormiston said he did not believe it was completely fanciful that Cengiz may have killed her brother and then dragged him to the side of the road and reversed over him to make it look like a hit–run. He said this would have been irrational behaviour but one should be ‘cautious … to impute an entirely reasonable or logical chain of reasoning to a person involved in the killing of a relative’. He said, however, that he did not believe the jury had been wrong to find that it was not a reasonable possibility.

Justice Ormiston: Indeed, commonsense suggests that their conclusion on this issue was entirely appropriate.

The judges all also rejected Cengiz’s appeal against the severity of her sentence. Justice David Harper noted that Mr Wraith had told them the sentence was one of the highest in Victoria for the crime of attempted murder.

Justice Harper: This appears to be true, but the applicant would be guilty of murder had not death intervened.

Unlike most of the other accused people in this book, Cengiz not only continued to say she was innocent of the crime she was convicted of, she continued to claim that somebody else had done it. She denied that she had been interested in inheriting her brother’s money, pointing out that a few years before her brother died the Guardianship and Administration Board had offered her control of her brother’s money but she had refused the offer because she hadn’t wanted the responsibility. She also told Herald Sun reporter Geoff Wilkinson that if she had really wanted to kill Lindsay she had had plenty of chances to do so in ‘much simpler and less suspicious circumstances’.

Cengiz: We used to go for walks in Lerderderg Gorge. I could have easily just pushed him over a cliff and said it was an accident.

Lawyers campaigning to have Cengiz freed called on a coroner to re-open an investigation into Mr Jellett’s death, saying new evidence cast doubt on the DNA tests linking Cengiz’s car to the running over of Mr Jellett. They also claimed a violent man who knew of Cengiz’s movements, had spare keys to her car and had moved interstate could have killed Mr Jellett and ‘set up’ Cengiz as the killer.

In March 2000, however, Coroner Iain West refused to re-open the case, saying it was an abuse of process. He pointed out that even if the DNA testing of Cengiz’s car was discredited it would not help him find out how Mr Jellett died, because everyone agreed he had died before being run over. Before being taken back to prison, Cengiz hit out at the judge’s decision.

Ms Cengiz: I don’t believe it. I’ve been accused of abusing the system, but it’s the system that’s abusing me. I think it’s wrong. It’s so unfair.