There is always more than one victim of a one-punch accident.

‘KILLER COP’

Mike Garrett* doesn’t look like an ex-con, but he does look like an ex-cop. He’s lean and fit for a man on the wrong side of 45, with short, spiky hair, greying at the sides, and black wrap-around generic-brand sunglasses.

We had arranged to meet in Hobart’s Salamanca Place at a café, not a pub. ‘I’m still on parole, which prevents me from attending licensed premises,’ he told me on the phone. It was unseasonably sunny for April in Tasmania and I chose an outside table, thinking that as he’d just done seven years for murder, he was likely to smoke.

People who’ve committed one murder in their lives, usually in a moment of high emotion, pay the same price as multiple killers or guns for hire. A single murder of passion may be the first and last time a person breaks the law, but the law doesn’t differentiate. So jilted lovers, unloved sons, and greedy siblings all face the same penalty. If found guilty of murder, no matter what the motivation, they go to jail. But Mike Garrett, who was found guilty of murder and sentenced in 2001, says he is innocent. He did punch his wife’s lover, who died five days later, and it was certainly manslaughter, but Mike says it was a terrible accident. He is desperately sorry for the victim’s family, who lost a loved husband and father, but he didn’t kill Greg Markham on 26 September 2002, and he denies that he knew, or ought to have known, that his action was likely to cause death.

This is Mike Garrett’s story.

‘Garretty’, as most of his friends call him, went straight from school into training as a police officer. He was blond, tall, fit from playing high-school football, and keen to do his bit for the community. After graduating, he served at Launceston, Deloraine, and smaller one-man stations along Tasmania’s north and north-west coasts. He says he enjoyed the familiarity with people in the smaller towns and had an easy arrangement with them. ‘They knew if they broke the law, I had to take notice,’ he told me. ‘But there wasn’t any big crime in those towns — just a bit of over-the-limit driving home after the pub, or some dodgy grass growing in a back yard. I got on well with the townspeople, and I really enjoyed the community aspects of being the town copper.’

Early in his career, during a stint in Deloraine, he and another young constable suspected a few rorts were taking place higher up in the ranks. (Being fairly new to the job, he didn’t realise this was pretty widespread.) The two idealistic young officers made an appointment with a senior officer they trusted and ‘suggested he have a look at a few alleged improprieties’, Mike recalls. As a result, an inquiry was set up and the officers in question were investigated. Mike believes this ‘dog act’, which caused a bit of grief to two fellow police officers, dogged his future in the police force — and later, in the events following Greg Markham’s death. Knowing personally how the police deal with ‘dogs’ who tell on their mates, I reckon this belief may be well founded.

Mike married and fathered two children early in his career, but the job wasn’t good for his private life. He spent long hours at work and became emotionally detached as a way of dealing with his job. The change in his outlook started undermining his marriage and destroying his confidence in his career. ‘At some point, about 13 years into the job, I felt I was starting to become nasty. I was a bit anxious about the person I was becoming, or might become, if I stayed on,’ he told me. ‘I was around 30, so if I was going to build any sort of future in any other occupation, I had to make some decisions.’

Coinciding with a move to Burnie, his marriage fell apart and he quit the police force. He also met his second wife, Belinda*. With police training behind him, Garretty was a natural to go into security of some kind. At first, he established a business in Burnie, setting up and servicing alarm systems, but after a while he decided there was more opportunity to build a decent business in Launceston, Tasmania’s second-largest city, which has close to 100,000 people. He and Belinda moved there, and she took a teaching job at one of the town’s leading schools while he went into business as a private investigator. He also invested in property, acquiring ten rental units. Both his parents helped him with money and encouraged him to go into business for himself, and his father helped renovate and maintain the units. Before long, Mike had six operatives in the PI business, as well as the units and other interests.

Life was good but hectic. Days were too short, and a lot of the targets in his line of work were mostly active at night. He felt time-stretched to the limit, and rarely saw his children from the previous marriage. After Belinda became pregnant, he tried to spend more time at home, but his business was very demanding.

Mike was delighted when his baby boy, Nathan*, was born. This would be his last child. He and Belinda had decided they would only have one child, and he’d undergone a vasectomy.

A few months after Nathan was born, Mike began to notice little things that whispered to him that Belinda might be seeing someone else. Nothing definite, just small incidents. For example, when he rang her during the day, she was never there. Being trained in noticing behavioural clues, he also detected a change in her attitude to him.

‘For a couple of months, I didn’t want to believe it,’ he told me. ‘All I could think of was an affair, but I just didn’t want to know. Especially after one failed marriage. I felt bad about even thinking along those lines.’ And then one day he found an open box of contraceptive pills. ‘I was gutted,’ he said. ‘And being a man by instinct and a cop by nature, I had to know for sure. So I set up an intercept line on our home phone to record any phone calls.’

‘Where did you hide it?’ I asked, thinking that he must have crawled into his roof or intercepted the phone lines somewhere outside. ‘Just connected a micro-recorder on my desk to the phone line, to pick up any calls on that phone,’ he said.

I wondered how you’d hide such a set-up. It would be difficult on my husband’s desk, which is always very tidy. But then I thought of my desk, where I constantly misplace mobile phones and car keys, and realised it wouldn’t be difficult to hide a micro-recorder there at all.

When Mike arrived home the next night at about 6 p.m., Belinda was there with seven-month-old Nathan. She told him the battery in her car was flat. Mike went into his study for a few minutes and then came back, telling his wife he’d run a quick errand and check out her battery.

While he was in the study, he’d seen that there were some calls recorded on the mini-tape, so he took it to the car and played it. On the tape was a conversation between Belinda and another teacher from her school, Greg Markham, with whom she’d become friendly. Garretty and his wife had been to the Markhams’ house for dinner a couple of times.

Garretty considered Markham a nice enough bloke, though he was known as a bit of a ‘pants man’. Garretty sat there feeling miserable, not knowing what to do. In the end, he rang his best friend, Tony, and told him what had happened.

‘Shit, mate! Come over and have a beer and a chat,’ Tony said.

‘No, not a beer,’ Mike replied. ‘Might do something stupid. Wouldn’t mind a talk, though.’

The two friends discussed the situation over coffee for a while. Mike vented a lot of his grief and anger to his friend, then eventually decided he’d go home, front his wife with the tape, and talk it through. He wanted to try to make this precious second marriage work.

He’d been gone for a couple of hours by the time he arrived home. Feeling very distressed, he told Belinda about the tape. A long night of talking and tears followed. Belinda said she’d ended the affair that day, after the recorded phone call. She’d decided she wanted her marriage to Mike to work. She loved him. Mike said to me, ‘If I’d put that intercept on one day later, things would have been so different.’ But the wheels of fate were turning.

In the morning, Mike and his wife agreed to ‘draw a line in the sand’, and he went off to get her a new battery. The retailer was about 15 minutes’ drive from the school where Belinda and Markham taught. With no clear mission in mind, Mike detoured past the school on his way home.

‘Why did you do that?’ I asked.

‘I’m not sure. Just making sure he was there and not available to my wife that day, maybe. Perhaps I thought I’d speak to him. Tell him to stay away from my wife. Dunno. I saw that his car wasn’t there. School had started, so he was obviously not coming in.’ This wasn’t unusual, as Markham worked part-time, which obviously created opportunities for him to follow other pursuits.

As Garretty drove past the carpark, he saw a young teacher he knew walking along the footpath. She waved at him, and he tooted his horn in recognition. He said to me, ‘I made no attempt to hide or sneak by. In fact, I drew attention to myself by tooting my horn.’

After Mike had fitted the battery to his wife’s car, the two emotionally battered people hugged each other and made a fairly unusual arrangement to meet for lunch. This was to be ‘part of the new order of things in their relationship,’ Belinda later told the court. Was it to keep the thread of forgiveness going, or leaving no opportunity for other arrangements? We’ll never know, as other events overtook the reconciliation.

On his way to work, Mike started thinking. Too much, probably, in his emotional, sleep-deprived state. His wife had promised not to see Markham again. He accepted that reassurance. But what about Markham? What if he made a nuisance of himself or didn’t accept that the affair was over?

Mike decided it would be a good idea to call by and say to Markham, ‘Stay away from my wife. It’s my family, you know.’ But he was wrong about it being a good idea.

Mike detoured to see if Markham was at home. The Markhams lived in a rather posh new housing estate with project homes built on concrete slabs, quite a distance out of town by Tasmanian standards and nowhere near Mike’s office. But Mike felt compelled to tell Markham he knew of the affair and to reclaim his marriage.

‘I pulled up into his gravel driveway a bit before 10 a.m.,’ said Mike. ‘All the way there, I hadn’t really decided what I would say. I was thinking maybe I would ask him to see the school principal and ask for a transfer. I was working up the courage to confront him. Believe it or not, I had butterflies in my stomach and my pulse was banging away. I was actually quite nervous about facing him.’

Mike looked into the house. ‘From my car, I could see him through the lounge-room window, sitting on the couch. His back was to me, and he was watching something on TV. I got out and went to the door. I knocked loudly, and next minute he was there, smiling away as if nothing was wrong. He said, “G’day, Garretty. Come in and watch the footy replay with me.”’

Mike said, ‘This is not a social call. I want you to stay away from my wife.’

Markham said, ‘I don’t know what you’re talking about.’

Mike recalled, ‘Then I pushed him in the chest. I was angry that he’d denied it. I told him I had him on tape. He put up his fists, and I thought, OK, so you want to do it that way? I punched him quite hard in the nose, which started to bleed. We then locked arms around each other and started to wrestle our way down the narrow hallway. We were each trying to land a punch on the other, with no success. We were more like a couple of adolescent kids locked in a wrestling grip.’

Further down the hall, in the wall supporting Markham as he moved backwards, was an open doorway leading to the bedroom. Suddenly, when he reached the doorway, both men fell into the bedroom entrance.

‘We landed hard on the floor, our feet just inside the doorway and bodies in the room itself,’ Mike told me. ‘I was on top, weighing about 97 kilos in those days, and my head was kind of buried in his shirtfront. We hit the ground pretty hard. I freed myself quickly and jumped up. He sat up and I punched him again on the nose. He fell backwards again and his head hit the concrete floor, which, unlike floorboards, had no give in it.’

(It figured, I thought. Those project homes are priced to sell, and the carpets are not very luxurious. They’re sometimes even laid without underfelt.)

Mike went on, ‘Markham stayed on his back, moaning a bit. He held his arms up, fists clenched, and I thought for sure, he’s just waiting for me to go nearer and he’ll punch me.’

I immediately remembered that posture from my nursing days in the neuro ward. That position, with arms bent and fists clenched, is a classic type of seizure known as pugilistic or fencing response. It’s a sign of a convulsion caused by an abnormal burst of electrical activity in the brain after a sudden injury such as a direct blow or concussion. About 25 per cent of brain injury victims suffer seizures afterwards.

‘Then he went quiet, and I said, “C’mon! Get up!” I thought he was playing possum. After about 30 seconds, he started to gurgle and roll his head from side to side. I spoke to him and he didn’t reply. Then I thought he might be really hurt. I kneeled down beside him and turned him on his left side into the coma position. I put my fingers in his mouth to make sure he wasn’t choking on his tongue. I noticed blood oozing from the left side of his head.’

Mike knew he had to call an ambulance. He dialled Triple-0 from the phone in the kitchen. He asked the operator to send an ambulance because a man had been assaulted. The operator asked for the address, and Mike realised he knew how to find the house, but not the address. ‘Hold on,’ he said and went to the fridge, looking for anything with the address on it. Luckily, there was a phone bill magnetised to the door, and he gave the address to the operator.

She asked, ‘What has happened?’

Mike said, ‘A man has been assaulted. His name is Greg Markham. He’s bleeding from the head.’

‘Is the assailant still on the premises?’ asked the operator.

‘Yes, I biffed him. I’m waiting with him here.’ The sudden turn of events had brought Mike completely to his senses. His police and first-aid training took over and he acted as he usually did in this type of circumstance — calmly and in control.

After he hung up, he got a green towel from the bathroom and tucked it into position around Markham’s head, to try to staunch any blood that was coming from his injury. Then Mike heard the ambulance siren and walked outside to meet it.

First out of the unit was Rescue Paramedic Tony Bartholomew.

‘What’s happened, mate?’ he asked Mike.

‘All you need to know is this is an assault,’ Mike replied, using the word he’d used so many times during his policing days.

‘Who assaulted him?’ asked Tony.

‘I did,’ Mike replied.

‘Where is he?’ Tony asked, grabbing his equipment. He was joined by his partner and they went into the house. Quickly assessing the situation, Tony suctioned blood from Markham’s mouth, rolled him onto his back and put on a neck brace. As he did this, he noted various injuries in biro on the back of his surgical glove. Markham had two bruised eyes (often known as ‘raccoon eyes’), which are often a sign of a skull fracture. He also noticed bruises behind both ears, which can also indicate underlying brain trauma. (These are known as ‘Battle’s signs’, after the surgeon William Battle, who first described them as significant indicators of a fracture of the base of the rear of the skull.)

Tony heard a car crunch to a halt on the gravel outside. Looking up through the bedroom window, he saw two officers get out of the car. Mike, who’d been restlessly moving between the hallway and the driveway outside, met them in the hallway. Tony got up and told the police that Markham had quite serious head injuries. He heard Mike ask if he could make a mobile phone call, which he did, telling his office he was ‘a bit snowed under at the moment and I won’t be in today’. He knew he’d be in for a long session at the police station.

Constable Darren Kirk* arrested and cautioned Mike. Kathy Harris*, the other young constable, attempted to handcuff Mike by pulling his hands behind his back. Mike told her he couldn’t get one arm back far enough because of the pain in his ribs, and asked her to cuff him in front instead. He told me he said to her, ‘Look, I’m not going to give you any drama or hassle, I’ve been in the job myself.’ She cuffed him in front as requested. ‘What happened?’ she asked. ‘I biffed him.’ They stood aside as Markham was placed on a spinal board with a ‘head bed’ to keep him immobile, and then wheeled out on a trolley.

As they passed the police and Mike, one of the ambulance officers said, ‘He doesn’t look too bad.’ Mike said, ‘He shouldn’t. I barely touched him.’

In the police car heading to Launceston police headquarters, Constable Kirk asked Mike, ‘You must have had a pretty powerful reason to do this?’ Kirk alleged that Mike replied, ‘The cunt’s been shagging my wife in my own house.’ He later told the court that Mike also said, ‘I only went there to speak to him. Next thing you know, it was all a blur. I saw him lying on the floor. I thought, fuck, that’s not good, so I rang Triple-0.’

When the formal police interview began, Mike knew Markham was injured but didn’t expect him to die. Neither did the police. But before long it was apparent that Markham’s injuries were far more serious than initially thought. He was X-rayed at Launceston General Hospital and swiftly transferred to Calvary Hospital in Hobart to receive specialist brain-trauma treatment.

By 1 p.m. that day, when the police interview started, Mike had barely slept for some 30 hours, had had little to eat or drink, had experienced overwhelming anger on discovering his wife’s infidelity, had gone through an intensely emotional session with his wife, and had then experienced more emotional turmoil and an immensely physical confrontation at Markham’s house. Then he’d been arrested. He wasn’t in great shape for an interview.

A formal interview is usually conducted between the accused and two police officers. Darren Kirk sat in and the other officer, Detective Constable Jack Elder*, was the lead interviewer. They used a routine common to police interviews, where the person being interviewed is asked to give a general account of what happened, locking them into a version of events, and then police go back through that in fine detail. In Mike’s case, this produced some contradictions.

For example, Mike said, ‘The very next thing I know it was just … a massive tangle, flying arms and legs and feet and heads and we were in his bedroom and then he wasn’t moving and he was bleeding from the nose and the mouth and he was quite clearly unconscious. I know I hit him. I don’t know how many times … it was in the blink of an eye. It just happened … it was so quick from push, shove, and then it’s there.’

But a bit later, he said, ‘Christ, I wanted to scare him. I wanted to give him a smack in the ear. I mean I can’t lie about that. I did. I certainly didn’t intend to hurt him like he’s been hurt. I really didn’t … I know I’ve hit him. I never intended to seriously hurt the man.’

Then he was asked, ‘You said at the start that you went ’round there for the reason of what?’

‘To tell him to stay away from my wife.’

‘You just said there a second ago that you wanted to hit him.’

‘Yeah. I think I did … it’s hard. Driving up to his place, I was shit-scared. I really didn’t know what I was going to say or what I was going to do. Apart from saying maybe we can just sit down … ’cos he’s not a bad bloke … and talk about it. I said, “Look, stay with your family. Stay the hell away from mine. I want to try and fix this.” And then, I don’t know, in just the blink of an eye, it got out of hand.’

‘How did it get past the point of talking … to rolling around on the floor?’

‘I’m not sure. It’s a blur. I know … he’s denied it. I’ve just pushed him and said … “Don’t bullshit. Don’t lie to me. It’s out now” … His hands are going into a boxing stance, and we were in the bedroom.’

The taped interview continued in this vein for 45 minutes. At one point, Mike was asked if he had kicked Markham. ‘If you’ve kicked him, would you have kicked him in the face at all and the head?’

Mike replied, ‘I don’t think so.’ He said he fell on top of Markham. He thought Markham had kicked him in his right ribs.

The police asked, ‘Are you perhaps hitting him from above?’

Mike replied, ‘I think I did hit him once like that … on the nose.’

‘You could possibly have kicked him?’

Mike said, ‘Look, it’s a possibility. I don’t recall doing it.’ The police didn’t ask any more questions about when or where a kick might have happened. If there was a kick, it may have been during the struggle, which Mike said lasted about seven or eight seconds. He said, ‘There were arms and legs everywhere.’ Maybe he meant that as they wrestled and struggled before the knockout punch, their legs were wrapped around each other. In that sort of fight, kicks are inevitable, as the parties’ legs and boots are in contact with each other. Mike wasn’t asked to describe any kicks. He had a small amount of Markham’s blood on one of his boots, but that could have come from Markham’s bleeding nose while they were wrestling, or from when he knelt beside his unconscious opponent to render first aid.

After he’d denied hitting Markham with anything but his fists, partly contradicting himself a few times along the way, Mike was asked to remove his boots, windcheater, and jeans, which were bagged for forensic testing, and he was given an overall to wear. A mouth swab was taken for DNA testing. Police examined his body but detected only a small mark on his right hand. Mike Garrett was then charged with Grievous Bodily Harm (GBH) and remanded in custody in the Launceston lockup.

By this time, he’d missed his lunch appointment with Belinda and his office had no clue where he was. He was worried that his wife would hear about his predicament on the radio, even if Markham wasn’t named in news reports. He knew she’d put two and two together.

Mike later found out that Belinda had rung Markham that day and left a message saying, ‘Mike knows about us. He’ll probably come and see you.’ It seems Markham hadn’t received that message when Mike arrived, as it’s unlikely he would have denied the affair.

Mike dozed in his cell, wondering how the events of the past 36 hours had landed him up in such a situation. After a while, an old cop he’d known back in his policing days came to the cell door.

‘Mike,’ he said quietly, ‘I haven’t forgotten you. Come up to my office and ring your missus.’ Although he was stressed about what he would say, Mike jumped at the offer.

This is how Belinda remembered that day: ‘I was to be meeting Mike for lunch. He was going to call me with details of where and what time. Lunchtime approached and I hadn’t heard anything. I called his mobile. Strangely, my call went straight to message bank, so I left a message reminding him we were to be having lunch. About half an hour later I rang again, thinking it very odd that I couldn’t contact him. I left another message. Not long after that, I received a call at home from a good friend, a teacher from school. She sounded very agitated and she told me there had been a break-in at Greg’s house, and that he had been hurt and was in hospital. Immediately, alarm bells went off in my head, wondering if there was a connection with Mike, hoping desperately that there wasn’t. I then rang Mike again and said that I was really worried, could he please ring me.’

Still there was no response. ‘It was still probably another hour before he phoned, but time had no meaning — each minute I hadn’t heard from him was making me more concerned. He told me where he was and that there had been an incident with Greg. I don’t recall asking for any details — I was asking what I was to do.’

Belinda’s memory of that time is understandably blurred. ‘I cannot recall if I was able to see him on that day. If not that day, I went in to see him the next day — which was such an eye-opener to the situation we were in. Little did I know then that it was just the beginning of many more visits to Mike in challenging surroundings.’

While all this was happening, another victim of the tragedy was at work in the office of another Launceston school nearby. Greg Markham’s wife, Sally*, had left her husband early that morning to go to work and was oblivious to her husband’s situation until two uniformed police arrived at the school, asking to see her. They told her that Greg was in hospital, having been in a fight with Mike Garrett at her home earlier in the day.

She told me this seemed incredible. She could barely comprehend that a man she knew, although not very well, would come to her house and clobber her husband with sufficient force to put him in hospital. ‘Why on earth?’ she asked. Then the police told her that her husband had been having an affair with Mike Garrett’s wife for about a year, which was equally difficult for her to understand.

‘I went to the Launceston General,’ she told me, ‘and they said he’d been transferred to Hobart. So I went home, threw some things together, picked up the kids from school, and headed south. I dropped them off at Greg’s parents’ house and went on to the hospital. He had tubes everywhere.’

While the Markham family was coming to terms with the situation, Mike spent two days in the cells. He then appeared before a magistrate and was granted bail. At some time during those two days, Mike gave the police his microtape containing the fateful phone call between Markham and his wife. On his release, he and Belinda returned home to await the hearing on the GBH charge.

Meanwhile, Greg Markham wasn’t doing well. A CAT scan done at Launceston General had indicated what’s called a closed head injury, in which there’s increased localised activity as the body tries to absorb the dead cells caused by the injury, and as a result the brain swells. There’s little room for swelling around the brain, and the cells may press on the interior of the skull, exacerbating damage to the brain. Dead brain cells do not usually regenerate, but some cells are just ‘stunned’ and can later regain their normal functions.

To improve the chances, the patient is usually sedated, given lots of oxygen and blood transfusions, and put on a ventilator. If the swelling becomes critical, a drug called Manitol is given to reduce it. To monitor this swelling, a neurosurgeon inserts a fine tube called a ventricular catheter into the brain ventricles, the two small ‘sacs’ that drain cerebrospinal fluid or CSF from the brain. All these things were done for Greg Markham.

But there was an additional complication. When he was assessed at Calvary Hospital in Hobart, the medical staff found signs of a brain-stem injury.

There are two main sections of the brain. As well as the large pair of lobes contained in the hard, protective skull, there’s a vital section housed below the main brain, called the brain stem. The stem carries all the impulses produced by the brain itself to the rest of the body, and it also controls breathing and basic reflexes necessary for life. Because it is tucked in and protected where it travels from the main brain, the brain stem isn’t often injured.

A healthy person’s CSF should be clear, but 18 hours after Markham was admitted, his CSF became bloodstained, which suggested more bleeding. Another CAT scan indicated what doctors call a ‘shear’ injury, which occurs when the brain stem stays in position while a force has been applied to the head and brain, which has totally or partially sheared the join between the two. Brain-stem injuries are most commonly seen after car accidents, particularly involving a strong impact, as when the car stops suddenly, the heavy head keeps going forward and then snaps back.

Markham’s injuries were so severe that his prognosis was extremely poor. The doctors explained to his family that if he couldn’t breathe on his own five days after a brain-stem injury of that kind, he would never have any functioning life, even if he survived. He could have been kept alive indefinitely by inserting a tube into his trachea and permanently ventilating him, but after consultations between the specialists and Markham’s family, it was decided to turn off his ventilator.

The decision was partly influenced by Greg’s own wishes, which he’d previously expressed to both Sally and his father. Having known someone who’d been severely brain-injured and kept alive artificially, he’d made his family promise not to sustain his life in those circumstances.

Both Greg’s sons, aged 12 and 9, had already been in to see him. In spite of the ventilator and all the tubes, which are a scary sight for adults, never mind kids, they spoke to their dad to let him know they loved him. They then returned to Launceston to stay with Sally’s sister, as Sally felt they should return to school without too much disruption. She asked her sister to put a rug over the bloodstains in the bedroom doorway, so the boys wouldn’t see their father’s blood when they eventually returned home, whenever that might be.

The day after the boys went back to Launceston, at 1.40 p.m. on Sunday 30 September, Greg Markham’s artificial breathing was removed with members of his family and friends gathered around him. He died of respiratory failure 20 minutes later. These events would have a terrible repercussion for Mike Garrett as well. He now faced a charge of murder.

Later that Sunday afternoon, Detective Constable Elder arrived at the Garretts’ house and arrested Mike for the murder of Greg Markham. Mike was later charged in court and remanded in custody. One can only imagine the turmoil in the hearts of both families that day. Belinda says, ‘I was numb. We’d heard over the previous days that Greg was improving, and then that Greg was in a bad way. We had no real information.’ During this time, Belinda was concerned for both the men in her life. Her guilt threatened to overwhelm her. She says, ‘I’ll carry some of that guilt, for what happened to Greg and what happened to Mike, for the rest of my life.’

Sally was driving north, wondering how she would tell her sons. The ripples from Greg’s death were widening.

On legal advice, Mike did his second video interview as a ‘no comment’ interview. He asked Detective Constable Elder, ‘Why are you charging me with murder? You know this is only manslaughter at worst — it was an accident.’

Mike says that Elder replied, ‘Yeah I know, but we’ve been instructed by the DPP to charge you with murder.’ After that, Mike repeatedly said he didn’t wish to take any further part in the interview. The other interviewing officer, Inspector Mitchell Jones, pressed on with his relentless questions regardless. This video interview was never presented in evidence.

Later, Mike was taken to Hobart and remanded in custody.

The following day in Launceston, Detective Elder phoned Sally and told her they needed to return to her house, looking for more evidence to support the murder charge. Sally agreed. She picked up her sons from school and went to her sister’s house to give the police plenty of space. ‘I did not want the boys to see police all over our home so soon after their father had died,’ she told me. Thanks to her sister’s intervention, they hadn’t seen blood on the carpet, or, apparently, on the bedroom walls either.

At this point, it is worth mentioning that the house and the hall and bedroom doorway had never been treated as a crime scene, and so had remained unprotected for seven days. Sally Markham confirmed this. She had returned to the house, presumably walking in and out of her bedroom to get clothing and so on. She then travelled to Hobart to be with her husband, but the house was still open to anyone who had a key. Her sister had placed a mat over the blood on the floor. Sally and the boys returned to live in the house on the evening of Sunday 30 September, and the forensic people didn’t come until the afternoon of Monday 1 October.

The green towel Mike had used to staunch or mop up the blood from Markham’s injury on the day of the incident had now disappeared. Other marks, including some blood spatters on the walls, hadn’t been forensically examined or photographed. It’s possible some had been either cleaned up or altered by attempts at cleaning. The chain of evidence clearly had missing links. Forensic officers were called upon to do their best to get evidence from a tainted scene.

Swabs were taken from blood spatters still evident on the bedroom walls. It’s not known whether there’d been an attempt to wipe down the walls to protect the boys, or maybe the marks were small enough to have escaped notice by Sally’s sister.

Earlier that day, Dr Robert Kelsall, the acting state forensic pathologist, had conducted an autopsy on Greg Markham’s body, starting at 9.30 a.m. The examination was long and thorough, but Mike Garrett and several forensic scientists have suggested some of the findings were incorrect. At trial, however, this was what the jury heard.

After enumerating the obvious signs of medical intervention on Markham’s body, Dr Kelsall’s report listed 18 ‘signs of violence or injury’. These included some very minor marks, such as ‘tiny abrasions on left forearm up to 0.5 cm in length’ and ‘dried blood on the scalp in the region of the ventriculostomy catheter and incisions, possibly from these operations’. (Why not include this among the medical intervention?) Then there were the more significant signs of violence: the ‘upper eyelids bruised and red’ and, most significantly, ‘an area of visible haematoma on the posterior aspect of the scalp, 10 cm in diameter’. A big bruise. No mention of a fracture.

In summary, Dr Kelsall observed that Markham had a history of trauma to the head, resulting in loss of consciousness and hospitalisation. His body showed multiple fractures of the skull and multiple areas of brain haemorrhage, and the pathologist recorded ‘bruising, abrasions, and lacerations to the left side of forehead, lip, neck, right side of chest, front of both legs’. His opinion was:

This 44-year-old man, Gregory Paul Markham, has died as a result of brain haemorrhage following a blow to the skull which fractured his skull in the frontal, right frontal, and temporal regions … His injuries would have been unsurvivable despite surgical intervention. Bruising to the back of the skull, left temporal region, neck region, lip, chest, and legs indicates at least 6 blows, one of which could have been from his falling over especially the bruise on the back of his head. There are no characteristics which indicate that a weapon of any sort was used, although it is possible that the injuries to his legs could have been inflicted to both legs simultaneously.

The causes of death were listed as ‘brain haemorrhage; blow to skull; fractured skull, bruises, abrasions, lacerations, bilateral bronchopneumonia’.

On 2 October, Elder travelled to Hobart and escorted Mike to the Hobart Private Hospital to have his own injuries assessed. By now, these were seven-day-old injuries. Mike came up with ‘a slight scratch’, ‘a red mark’ and a small abrasion on his right ring finger. Elder told the technician there was no need to X-ray the sore ribs on Mike’s right side, where Mike said he’d been kicked. They were photographed, which of course proved nothing.

Soon after this, Mike applied for and was granted bail, which was pretty unusual on a murder charge. All the indications were that the charge had been overstated. Why give an alleged murderer bail and let him back into the community? Mike returned to Belinda and Nathan in Launceston to wait for his trial.

Friends and lawyers were optimistic, if puzzled. Why a murder charge? Surely this was an accident? Manslaughter, yes. A man had died as a result of the fight, and Mike would never deny that. But nobody thought it was murder, except apparently the Director of Prosecutions, Mr Tim Ellis QC.

Eight months later, the trial began before His Honour Mr Justice Ewan Crawford, with DPP Mr Tim Ellis, supported by Mr Ransom, prosecuting, and Mr Greg Richardson for the defence.

The media turned out in force. They’d already made a meal out of what was known of the case. For a small state like Tasmania, with three regional newspapers, there was an amazing level of interest in this case. One of the idiosyncrasies of living in Tasmania (which I know first-hand, having lived there for ten years in a fairly high-profile job) is that everybody either knows or is related to a person who’s an object of interest, or at least knows someone who knows them.

The three newspapers responsible for disseminating information to the good people of Tasmania are the Burnie-based Advocate, serving the west and north-west, with a circulation of about 24,000; the Examiner, based in Launceston, with a circulation of about 32,000 — both of these owned by Fairfax — and the Mercury, the biggest Tasmanian newspaper, published in Hobart for southern readers. On its website, the Mercury claims a circulation of about 46,000 and readership of 125,000 on weekdays, with a Saturday circulation of 61,000 and readership of 147,000, partly drawn by its advertisements for house sales and garage sales. Opposing views are rarely heard in the various newspapers’ circulation regions, but there’s always vigorous discourse between north and south — on most topics. Between them, the papers probably reach everyone on the island. Their stories generally reflect regional parochialism, but on this issue, they appeared to be united. Headlines like ‘Killer Cop’ sold papers.

As Mike later put it, writing on his website:

Throughout the period of the trial the media consistently reported suggestions and assertions made by the prosecution in such a way that a reader or listener would automatically think they were statements of fact. Little effort was put to reporting on the defence arguments.

How many of us read an article in a newspaper and automatically believe it simply because it is printed in front of us in black and white? It’s in the paper — it must be true!

Is it possible that jury members could have been influenced by this type of media coverage? It would be naive to think it not possible.

Of course, judges always direct jury members not to read papers, watch TV, or discuss the trial with anyone. But Launceston is a small city by mainland standards, and it’s naïve to think that a juror, walking to the court each day, would shut their eyes to the headlines on the newsagents’ promo boards. And if something is said in court, like something said in parliament, it’s privileged and can be quoted with impunity, so it can end up in a newspaper (or a book). Mike’s four-day trial produced dozens of print media stories in all three papers. Sally, Belinda, and Mike each have their own bitter examples.

As usual, the trial began with the selection of the jury and some remarks from the judge informing the jury about the task they were facing and the heavy responsibility resting upon them. Then came the prosecutor’s opening address. DPP Tim Ellis QC had a reputation for taking a pugnacious approach in his court appearances, and his opening address made it clear he was determined to have Mike Garrett convicted of murder. He told the court in his earliest remarks that ‘Greg Markham was a primary school teacher … who lived in a nice house, married to a nice wife [and] had two young children.’ (There was no mention of ‘nice’ when referring to the Garrett household.)

Ellis described the events of 24 September. He said that Mike Garrett, ‘a private investigator’, had ‘somehow tapped or taped the phone calls’ revealing his wife’s affair with Markham. Mike had discussed the issue calmly with his friend Tony, then returned to his home in Riverside and told Belinda that he knew about the affair.

Ellis emphasised Mike’s calmness at this time. Mike and Belinda had talked on and off for most of the night, but ‘there was no throwing the furniture around or cracking the plates or anything.’ On the other hand, Ellis also told the jury Belinda Garrett had informed police that Mike had said to her, ‘I’m very, very angry. I might appear calm, make no mistake, I’m very, very angry about this.’

Ellis then went through the events of the next morning, the ‘fresh start’, the collecting and fitting of the battery, Mike leaving for work, his ‘very calm’ phone call to Triple-0 and Mike saying that he ‘had assaulted [Markham], his words, had assaulted’. The DPP then described the scene encountered by the ambulance officers. He said that Markham had an ‘obvious broken nose, obvious injuries to the mouth and significantly, he had what are called battle signs [sic] … a medical term that from a fracture of the skull there’s been bleeding inside the skull, and it comes out behind the ears in bruises … So those head injuries were very serious and they were treated with speed.’

Ellis made no mention of the fact that, according to Constable Kirk, Markham’s eyes were open and as he was carried to the ambulance and a paramedic had said, ‘He doesn’t look too bad.’ The police obviously didn’t think Markham was going to die, as they made no attempt to secure the scene or have it forensically examined until a week later, by which time many people had walked through the house, over the mat covering the bloodstained carpet, and perhaps tried to clean up bloodstains on the walls.

The jury heard about the severity of the injuries and Mike Garrett’s calmness in the aftermath of the fight. He had told the ambulance officers that he had assaulted Markham, ‘so this calmness that had been there the night before … had come back again and you will hear it … on the tape to Triple-0. Someone apparently in possession of his faculties and very calm.’

As a former police officer who had first-aid training, Mike ‘should have known that hitting someone around the head so hard as he hit Greg Markham was likely to cause death’.

When police seized Mike’s clothes, Ellis said, ‘There was some blood on them. Not a lot, but some … on his boots that had a spatter pattern, but not from Mr Garrett. But there was a lot of blood all over that room … Not all over the room,’ he corrected himself. ‘There was blood on the walls. On two of the walls there was blood … which showed two splatter patterns … One fallen from a height greater than where the blood spatter was … and on another wall quite low to the ground. So wet blood had been hit or kicked or some force has been applied to it while the source of that wet blood is on the floor.’

The Crown argued that Mike hit Markham somewhere between six and ten times. Although Mike didn’t think he’d kicked him, the Crown believed there might have been a kick. As Ellis described it, Mike was in a frenzy. His previous calm, Ellis said, had ‘suddenly evaporated into a huge rage. Huge anger all came out and was taken out on Greg Markham in a frenzy. A frenzy of hitting him, maybe kicking him, but certainly applying such deliberate force to his head that it resulted in this big fracture of the forehead and other injuries to his head.’

The Crown argued there was no justification for Mike’s actions, and he wasn’t acting in self-defence. ‘He has gone there to have it out … hitting or kicking about the head. But he knew, or ought to have known, that it was likely to cause death, or he actually intended to cause death … Through those actions, he wanted to kill him. He wanted to kill … “the cunt who’s been shagging my wife”.’

Ellis concluded his address by saying that Mike Garrett had got on top of Markham and ‘immediately started belting him around the head … that’s the Crown case for murder, ladies and gentlemen.’

Mr Greg Richardson, a well-known criminal barrister from the coastal town of Devonport, told the jury that he and his client had no issue with any of the events stipulated by the DPP up until the actual encounter between the two men. What would unfold in the courtroom over the next five days, he said, was ‘a story of human tragedy of epic proportion. Families’ lives blown apart. But you will not hear or see a story of murder.’

He said the key questions for the defence case were Mike Garrett’s intention in going to see Markham, the causes of the physical conflict between the two men, and which injury or injuries caused Markham’s death. And, in particular, even if Mike Garrett had said, ‘There was an assault and I did it’, he was using ‘assault’ simply as a legal term in line with his police training.

Richardson was right to question the significance the prosecution had ascribed to Mike’s use of the term. ‘Assault’ covers any intentional physical contact with another person that occurs without their consent. As well as punching, it can mean pushing, shoving, tripping, hair pulling, elbowing someone in the ribs, or throwing a rock at them. It’s not unlawful unless charges are subsequently laid. The law defines unlawful assault as ‘a crime of violence against another person’, but assaults don’t necessarily fall into this category.

The defence appealed to the jury that ‘if you have, in the previous 24 hours, discovered infidelity between your partner and his or her workmate, you would feel anger. It’s a natural human reaction … As Mike Garrett tried to convey to the police, he was “gutted” and “shattered”. You might feel you’d like to grab the bloke and shake him.’

But you might hesitate to put these feelings into effect. While you might say, ‘I’d like to bang his head against a wall’, in practice you might only tell him, ‘stay away from my family’.

Mr Richardson raised the question of how Markham had responded when Mike told him he knew about the affair. ‘Was there a physical reaction from Mr Markham? Did he deny the affair, then put his fists up? Was there no reaction, as the prosecutor has said? Or did he say, “Oh, no, no, nothing going on mate,” or words to that effect?’

The defence foreshadowed that its case would also focus on the source of Markham’s fatal injuries. ‘Which blow? Was it a punch or the head hitting a wall or the floor? This is not an attack with a weapon. This is a fist fight.’ Richardson also denied that any kicking had taken place.

In regard to the assault, he again made the point that it’s just a word. In the same way that, as a former nurse, I might describe an indigestion pain as being behind my sternum rather than my breastbone, a former police officer will say he assaulted someone rather than hit him. The language of your profession becomes part of your vernacular. The emotive emphasis in this trial was on the assault, which Mike Garrett admitted. He didn’t say that he bashed and kicked Markham to death, just that he hit him, probably quite hard, that Markham fell back and hit his head, and things went downhill from there.

At the end of the first day, Mike went home with Belinda. He reassured her that the defence was pretty comfortable that if he were found guilty at all, it would be of manslaughter. He wouldn’t get a long prison term, maybe a suspended sentence. After all, it was a tragic accident.

Over the next four days, various witnesses told the facts as they knew them, before and after the fight. Not much new emerged, apart from the forensic evidence, which had been belatedly collected from a tainted scene.

Two forensic scientists gave surprising evidence about how much blood had been found at the scene. Mr Ellis had given the impression that there was a lot of it, but the scientists’ observations didn’t bear this out.

First, they spoke about the blood on Mike’s shoes and clothes, which were taken from him at the police station after the fight.

The testers had drawn yellow chalk circles around seven spots of red stuff on Mike’s boots. The spots were so small that the judge could barely see them with his naked eye when he held the boots to examine them for himself. The forensic scientist said the samples were tested for DNA to match against samples taken from Garrett and Markham. He thought one mark was possibly a smear rather than a droplet, and he’d had to remove one very small spot completely to test it. The results were unremarkable: the sample from the front of the right boot was unreportable, and a sample of Markham’s blood on the right boot heel could have been deposited when Mike was rendering first aid. There was another small sample of Markham’s blood, but it seemed obvious that these boots hadn’t been involved in kicking a man to death.

On Mike’s windcheater, the forensic scientist reported there was ‘no blood visible to the naked eye. I took some samples — some of the tests were sort of weakly positive, so I had another test done with Luminol, which came back positive.’

Luminol was also used to pick up a patch of blood on the back of the windcheater, but this was a mixture of more than one person’s blood and was found to be inconclusive. ‘I can’t exclude Mike Garrett or Greg Markham. It could also have been some other male.’

The judge asked, ‘So we’ve got no more than a screening test to say they were blood [on the back] and the samples taken for DNA?’

The witness said this was correct.

A DNA sample from the sleeve of the sweatshirt didn’t exclude Mike Garrett, but it didn’t come from Greg Markham.

Tests on Mike’s jeans found a lot of marks that might have been blood. Of the samples taken, three tested positive for blood, two more tested that they might be blood, several weren’t tested at all, and a few were tested and shown not to contain blood. The three blood-positive samples were found on the front left and right thighs and inside the right pocket.

It was impossible to say whether the mark on the left thigh was a mixture of Markham and Garrett, or one of them combined with that of another male. From the one on the right thigh, it wasn’t possible to exclude Markham, but it was possible to exclude Garrett. The DNA profile in the right pocket sample was an exact match to Mike Garrett. (Mike had a tiny abrasion on his right ring finger.)

The samples sounded very small and inconclusive to me. You’d expect more than a few spots from a savage beating.

The prosecutor now moved to the blood found on the walls of Markham’s home. Forensic scientist Pamela Scott suggested that the spatters on one wall could possibly have come from blood being sneezed or coughed onto the wall from roughly the same height — ‘medium velocity spatter, about 495 mm above the floor’. For this scenario to work, the spatter would have to come from a person bleeding in the nose or the mouth, as Markham was.

On another wall, the stains indicated that the blood was moving in a downward direction. These stains were lower down on the wall, 136.5 mm above the floor. The scientist later told the court they could have been ‘cast off by a multi-pronged object like a hand’.

These descriptions hardly indicated the kind of bloodbath the prosecutor had suggested in his opening statement.

Probably the most damning evidence was that of Dr Kelsall, who had performed the autopsy on Markham’s body. He listed 18 injuries that, it was implied, were caused by Mike Garrett. Significantly, when he described the external injury to the back of Markham’s head, he called it a haematoma — a bruise.

On examining Markham’s brain, which he described as ‘quite swollen’, he found an injury to the back of the brain that he described as ‘contrecoup’. ‘In other words,’ Dr Kelsall explained, ‘as the brain is hit from the front, it tends to move inside the skull, and often gives injuries on the opposite side.’

This opinion reinforced the Crown case that Mike hit Markham so hard in the face that the blow not only caused frontal fractures but also produced a contrecoup injury at the back.

The doctor was asked if there was anything internally to match the rear haematoma. He replied, ‘There was a haematoma, but no associated fracture in this region.’

‘All the fracturing was in the forehead?’

‘That is correct.’ He went on to say that the fracture was across the forehead, indicating that a large force was applied to the area above the eyebrows. ‘The skull is pretty rigid and as soon as it becomes distorted beyond that shape, the forces can be transmitted away from the point of impact so the fracture tends not to occur where the impact is, but behind it, in this region here.’ He demonstrated with a plastic skull, which was a bit much for some of the jurors.

His Honour interrupted and asked if the fractures the doctor had described could have been cause by one blow.

‘Yes,’ the doctor replied.

In his cross-examination, Mr Richardson took the doctor through his long lists of the injuries associated with medical interventions and those that could have been caused in a fight. Gradually, they worked through the items, with Richardson suggesting to the jury they could cross this or that item off as not being inflicted during a struggle, but being more indicative of Markham’s treatment after he lost consciousness.

Finally, they got to the question of the force that had been applied to Markham’s body.

‘You’ve indicated other parts of the body having a force applied.’

‘Yes.’

‘When we talk about a force, you’re not suggesting a force from any particular object, like a hand, or elbow; it could equally be a force from a wall or floor?’

‘Yes.’

‘There was nothing that points to a weapon being used?’

‘No.’

‘And no evidence of a kick?’

‘Correct.’

‘There is simply evidence that was some form of force applied to various parts of the body.’

‘Yes.’

Richardson asked why it was that other people could sustain far worse injuries and survive. The doctor explained that Markham’s fractures had such lethal effect because of the specific area affected, which was quite small.

‘A blow of similar force on the side of the jaw might cause a broken jaw, but wouldn’t kill you?’

‘We have to have that distortion of the skull I showed you.’

‘It is not necessarily the amount of force, but exactly where it happens to have hit?’

‘That’s critical in this case.’

‘So the haematoma to the back of the skull, that would be entirely consistent with someone falling backwards, especially if there was another person on top of them as they fell. He hits the floor, that kind of thing?’

‘Yes,’ the doctor replied.

The defence also asked about two parallel bruises on Markham’s shins, which the prosecution had suggested were evidence of kicking. Dr Kelsall agreed that they could have been caused by the tight straps holding Markham to the spinal board, as the skin across the shin is very thin.

Dr Kelsall also confirmed that, in spite of the force allegedly applied to the front of Markham’s face, his nose wasn’t broken,

Finally, Richardson made one more point. ‘If a person were lying unconscious on their back and blood was running down their throat from their nose or mouth, would it be consistent that person could make a spasmodic, almost explosive gasp, with blood being ejected?’

‘Somebody with a brain injury of this sort could have that happening. Also the posture, if the airway was obstructed, could produce that effect as well.’

Every day on their way to and from court, the Garretts and Mrs Markham had to push through the throng of reporters assembled outside. Belinda Garrett tried to make light of the journalists’ insatiable interest, joking with a friend about what she planned to wear the next day — what the reporters called her ‘pencil-thin slacks’, or maybe a brightly patterned dress? Her husband was on trial for murder, but the media seemed more interested in her outfits.

Sally Markham also disliked what she called the ‘press invasion’. With two young boys who’d lost their father, while she was grieving not only over the loss of her husband but also about the alleged reasons behind the incident, she was barely getting through each day.

When she gave evidence, she told the court that the Greg Markham she’d known for 20 years wasn’t aggressive in any way and didn’t get into fights.

But, as Mr Richardson put it, ‘The Greg Markham you knew didn’t have affairs with people?’

‘Well, yes, that surprised me.’

The judge sent the jury out of the court, and Mr Richardson applied to His Honour to find a ‘no case to answer’ against his client, applying the definition of homicide under the Criminal Code section 253 (20), which says ‘Homicide is the causing of a death of a person by an act … but for which he would not have died when he did.’ Richardson cited the evidence given by Calvary Hospital’s Dr Turner, who had told the court that if Greg Markham’s ventilator hadn’t been switched off (complying with the wishes of his family), he would still be alive. Intubated, he could have lived indefinitely, brain-damaged but not dead.

‘Now, I’m not suggesting that it’s a preferred state, to be severely brain-damaged, but the fact of the matter is you are still alive. Had the machine not been turned off, we might be dealing here with GBH, but not manslaughter or murder, because there is no homicide,’ Richardson said.

His Honour wasn’t having it.

‘I’m satisfied that there’s ample evidence upon which a jury could conclude that Mr Markham died as a direct and immediate result connected with what happened in the house.’ In fact, His Honour concluded, only the ventilator had been keeping Markham alive. Without it, he surely would have died sooner from his injuries.

The jury came back to hear Mike Garrett’s account of the events. In a smart, dark suit, his fair hair cropped short, he climbed into the witness box.

Richardson took him through the events leading up to that morning. Mike told the jury that he and his friend Tony had discussed his options during their talks the night before, and they’d agreed that there would be no wish to hurt the other person. ‘I could see no point or possible gain for anybody else to be hurt by this.’ Later on, after Mike and his wife had talked for most of the night, they’d agreed ‘that we did love each other and we both wanted our marriage to survive, and we made a commitment to each other to somehow get over this, put it behind us and move on.’

He said, ‘I did not go to the house with the purpose of starting a fight.’ Even though he wanted to hurt Markham, he didn’t intend to do it.

After Markham denied the affair several times, Mike said he asked Markham to get a transfer from the school. ‘Having my wife in close contact during a normal day was going to make it so much harder [to fix things] and I just wanted him out of there.’ Then Mike pushed him in the chest. Mike says Greg put up his fists. He said he had ‘absolutely no doubt he was going to punch him’.

‘What did you do?’

‘I punched him first.’

The two men wrestled and grappled, then Greg fell backwards and hit the floor with Mike on top. Mike punched him again on the nose, producing a gush of blood, and then ‘he sort of flopped onto his back and that was the end of the fight’.

Mike said, ‘He didn’t respond to my voice and his breathing wasn’t right. He was making gargling noises — there would be no breathing, then he’d make an explosive breath out, and it was like nothing I’d ever heard before. I rolled him on his side. Although I wondered at first if he was playing possum, I thought, no he can’t just be stunned, there’s more to it, and he needed medical attention. I called the ambulance after getting the address from a phone bill in the kitchen and then went back to Greg. Told him an ambulance was coming. Just talked to him a bit.’

The lawyer took Mike through the subsequent events, leading up to his being charged with murder.

Richardson’s final question was, ‘Is there anything you did during the course of that struggle which you then or later thought might even possibly cause that man’s death?’

‘Absolutely not.’

When Mr Ellis examined Mike Garrett, they got into a long argument about the definition of assault. During these exchanges, Ellis lost no opportunity to remind the jury directly and indirectly that Mike Garrett had been a police officer. The judge got involved in the argument, and Richardson objected.

Ellis then changed tack, asking about when Mike had found the contraceptive pills. He grilled Mike about the date, the name on the pack, and how many had been taken. The implication seemed to be that Mike had known Belinda was having an affair with Markham for months and he was lying when he said the discovery was a shock.

Next, Ellis went for Mike about the listening device, pounding him on whether he’d deliberately concealed it. Mike said he’d placed it on the floor under his desk because that was where the phone socket was. After many questions and answers, with the judge intervening and Richardson interposing, Ellis insisted he give a one-word answer. ‘It was deliberately out of view, wasn’t it?’

‘Yes.’

He then put it to Mike that he was avoiding a straight answer because private surveillance of phone lines isn’t permitted under the Private Inquiry Agents Act and the Listening Devices Act. A warrant is required unless one of the parties recording a phone conversation (on a tape recorder, not directly from the phone line) is aware that the conversation is being recorded. Ellis was attempting to show the jury that Mike wasn’t a man of integrity, that he’d break the law and make a covert recording if it suited him. By tapping the phone without the knowledge of his wife or Markham, he could lose his investigator’s licence.

(In view of the alternatives Mike was facing, I thought, he might welcome that as an option!)

Mr Ellis went on, badgering Mike over what he’d told police about making the recording. They sparred about whether the tape was ‘physical’ evidence or not, whether he had made the recording illegally, how he hadn’t fully answered questions to the police, and Ellis continued to put ‘answer yes or no’ questions. Eventually, Richardson got up, objected to the way the questions were being put, the judge intervened again, and Ellis apologised and kept going.

Mike told him he hadn’t thought too much about the tape during his interview; he thought he was being interviewed about the fight with Markham and the fact that he was seriously hurt. The next set of questions was about Mike’s use of the word ‘assault’ to Triple-0, ambulance, and police. He didn’t call it a fight. More repetitive questioning took place, with the judge interrupting yet again. I felt very glad I hadn’t been in that box facing Mr Ellis.

Mike did himself no favours by arguing or refusing to answer or giving indirect answers to Mr Ellis. He was actually angry, but his demeanour in response to Ellis could have indicated to the jury that he was hiding something or not being completely truthful. It’s always a risk if the accused gives evidence. It opens the door for a determined prosecutor to make mince meat out of the witness.

They argued about ‘assault’, ‘biffed’, ‘whacked’, ‘hit’, and ‘struck’. ‘Which was it?’ Ellis asked. Richardson objected again. The judge intervened once more.

After many more questions, Ellis asked, ‘Why did you tell your office you were “snowed under” when you were under arrest for grievous bodily harm?’

‘I was under arrest for assault. It was a manner of speech. I wasn’t going to be in to the office.’

‘That was a lie, wasn’t it?’

‘Yes it was. I did not tell my secretary I’d just been arrested for assault.’

‘Because you thought, “I am in the right here. This will blow over”?’

‘No, I thought she doesn’t need to know.’

Mercifully, the judge decided that this was a good time to adjourn. Unfortunately for Mike, the overnight break gave Mr Ellis plenty of time to go over the evidence already given by Mike and think of hundreds of questions to ask him the next day. Which he did. Line by line, word by word. That is the prosecutor’s job, and Ellis was good at his job.

There was quite a bit about kicking, with Ellis accusing and Mike denying.

‘Is it the case that you would agree that it would be a very, very bad thing to have kicked Mr Markham while he was on the ground?’

‘Absolutely.’

‘Certainly something that may have been intended to cause death and may have been likely to have caused death? I am suggesting to you that’s exactly what you did in your rage?’

‘I did not kick Mr Markham in the face or upper body at all.’

‘That while he was lying there and while you were still infuriated, you kicked him to the head causing the abrasion on the left side of the head causing blood to smear on your boot, causing wet blood to expel from his head over the wall opposite. I suggest that is what happened?’

‘I did not kick Mr Markham to the head, face, or upper body. I did not kick him.’

‘You’re sure about that now?’

‘I am absolutely positive.’

The questions continued for a long time. At last, the questions were over and the jury heard closing addresses. In a closing address, the prosecutor can only refer to what he said he was going to prove in his opening address. He can’t bring in new stuff, other than the evidence that has been led. The prosecutor nearly always goes first, to give the slight benefit to the defence of saying the last words to be ringing in the jury’s ears as they leave the court to consider their verdict.

In his closing address, Mr Ellis told the jury, ‘They say that history is written by the winners. That means that when there’s no one else around to give the other version, then that’s the version that tends to prevail. But it doesn’t have to happen in a court of law. We’re not bound by the murderer’s word as to what happened.’

He said that the important thing was the blood spatter on the wall (which had been unprotected for a week) directly opposite where Markham’s head had been. ‘So the head lifts up a little bit with the kick and the blood flies. That is exactly as you can find it happened.’ There was more about Mike Garrett being ‘sneaky’: keeping things hidden, lying or being untruthful; ‘he doesn’t tell the truth, he is glib, he covers up, he hasn’t told the truth from the start.’

Mr Richardson gave his closing address basically by saying Mike Garrett didn’t do it and that the Crown hadn’t proved its case.

Then the judge summed up. He said that what they’d heard from the lawyers and indeed, from himself, wasn’t evidence. Evidence was what the witnesses had said. He said there were three verdicts open to the jury: guilty of murder, guilty of manslaughter, and not guilty. He said they must be satisfied Mike struck Markham voluntarily and intentionally. Just because he may have lost his temper didn’t mitigate any deliberate striking. He went into the elements of murder — whether someone did die, intent, unlawful assault rather than simple assault or body contact. He canvassed the possibility of self-defence, explaining that this shouldn’t result in a guilty verdict.

The phrase ‘ought to have known’ that he’d cause harm or death was extensively explored. His Honour explained, ‘You have to consider Mr Garrett himself, not some hypothetical person. Ought he to have known? He was 38, a former policeman, seems to have some first-aid knowledge.’ Ought he to have known his punches, the argument, the fight, would cause death?

He said that ‘the DNA evidence does not prove that the blood was the blood of the deceased, or of the accused.’ On anything. He said that the pathologist had said that some samples were more likely than others to include or exclude each person.

‘As for the blood on the wall and the right boot, that matched the deceased. Other samples were “inconclusive”.’

He said that the Crown case was that in a huge rage, or in a frenzy, there was a frenzy of hitting and striking and possibly kicking Mr Markham that resulted in injuries that were so severe death was caused. He said to the jury: ‘You do not have to find precisely which blow caused death. That he knew or should have known death would be caused. There was hardly a mark on Mr Garrett, yet a considerable number on the deceased and he suffered the dreadful fracture and brain damage.’ Certainly not a fight between two people and disturbance to the house or contents.

He continued, ‘It points to the fact that the fracture came from force applied to the front of the head, if you accept the evidence of Dr Kelsall, and not from the back of the head going backwards and hitting the floor… a frontal force. [My italics] … It might have been an almighty punch, it might have been a kick, you do not have to determine which to find the accused guilty.’

As for the defence, the judge said, ‘he had no intention of causing death and he did not know that death was likely to be caused by any of his blows, nor ought he have known that. Certainly the defence case is that you couldn’t conclude that he ought to have known that death was likely if it was a punch that fractured the skull and caused death. How many of you, before you came in here, realised that a punch to the face could cause death in the way Dr Kelsall has indicated it can? … [My italics] … As to the delivery of a kick, no, there isn’t any evidence that actually a kick was administered to the head that caused death.’

He said that Dr Kelsall had said the skull was fractured across the forehead, behind the two eyes. It was a single large fracture with the bone fracturing into multiple small pieces. One force could have caused that fracture. The bruising to the back of the head could have been caused by a fall backwards, but ‘that would not have been the cause of the fracture in the front, in his opinion.’ [My italics].

After reminding the jury that the onus was on the Crown to prove its case, he asked them to go and consider their verdict.

Ninety minutes later they returned. Their verdict was ‘Guilty of murder.’

Mike Garrett says he felt as if a spear had gone through his body. He had difficulty breathing. His mind couldn’t accept what he had just heard. ‘What the hell just happened?’ he asked himself. After being told by his lawyers that the judge’s summing up was ‘a manslaughter summation’ and having being on bail awaiting the trial, he couldn’t comprehend that he, an ex-copper, was going to be sharing prison accommodation with crooks he’d put away. He didn’t have to wait long. He was taken from the court to the cells.

Five days later, he was sentenced. The judge said Mike was unlikely to offend again. He found Mike had no intention of killing Markham on his way to the house, ‘but what caused an overwhelming rage to develop was not clear. Possibly it was the denial … The blood spots and smear on his boot make it appear likely that the fatal blow was a kick to the head, but I cannot be sure of that. The application of force responsible for death was almost certainly a single blow to the left of and above the right eye.

‘The terrible tragedy of it all is that one man lost his life, another must go to prison and the partners and families will suffer. The Court’s duty is to uphold the law, to condemn those who resort to violence and to reinforce the sanctity with which life in our society is regarded. The prisoner is convicted and sentenced to imprisonment for 15 years. There is no reason to affect the usual rule that parole eligibility will arise after he has served half the length of that sentence.’

Seven and a half years, Mike thought.

‘Take him down.’

Mike Garrett told me his prison term was made bearable by the fact that he spent most of it at the low-security Hayes Prison Farm. He got fit ‘and ran and ran to make sure the other prisoners knew I was fit’; he developed a couple of friendships in prison that helped him then and later; and he obtained two tertiary qualifications — as a personal trainer and an accountant. His wife and son visited every second weekend, alternating with his mum and dad. Little Nathan was 17 months old when his dad went to jail, but he knew who he was and where he was. When Nathan was old enough, he was told why his dad was there. Belinda felt guilty about Mike being in prison, but she supported him through love, not guilt. Their relationship now is testament to that.

While Mike was in prison, Sally Markham applied to the Supreme Court to sue him for the loss of her husband. The sum agreed on required the Garretts to refinance their home, but they saw it as part of the price they had to pay for what had happened. Belinda continued to work part-time, and she and Mike supported each other with the help of their parents.

Greg Markham’s parents decided they couldn’t stay in Tasmania, where they’d had to bury their beloved son. They moved to Queensland, a long way from Sally and her boys, who somehow managed to start a new life without Greg.

During the last year before Mike’s possible release, one of the former inmates, who was now out and running his own business again, offered Mike a job as an accountant. He was granted day release, so every Monday to Friday, he put on a suit and caught the bus, like any other worker, to work in North Hobart. Mike has an enduring fondness for this man, who gave him both a chance to prove himself and a hand up into a return to normal life on the outside.

About two years before Mike was eligible for parole, his father had commissioned lengthy opinions from three eminent forensic pathologists who specialised in head trauma and blood spatter evidence. He then retained Greg Barns, a leading Tasmanian barrister, to provide the Parole Board with a submission based on their evidence. The submission also went to Tasmania’s then Attorney General.

In a generous move, Sally Markham also sent the Parole Board a long statement supporting Mike’s release on parole. When the board considered Mike’s application, their decision referred to Sally’s statement:

There is no doubt the Applicant’s crime has changed the life of the victim’s wife and two sons and had a lasting effect on them and many others. The grief and challenge of raising two boys without their father has been difficult and emotionally exhausting … Despite this, the victim’s spouse states, ‘if [Mike Garrett] is let out on parole his son won’t have to miss out on having his dad involved in his life. I imagine it will also be a relief for his parents to have him home. [He] has been in prison for 7½ years. I cannot see what further incarceration can do.’ The victim’s wife has also requested the Applicant receive a copy of her statement, and this wish will be granted.

The board also noted that Mike Garrett had made a 17-page submission expressing his remorse and outlining the steps he had taken to rehabilitate himself while in prison — the qualifications he had acquired, his work on day release, and his fundraising efforts to purchase equipment for gym users at the prison. The board also noted:

He is acutely aware of the fact that he has denied two sons of their father and that the victim’s spouse has been left to carry the burden of being a sole parent. He states his wife is enormously supportive of him and that his parents have been a tower of strength … He states no words can express his regret. He submits he is not a threat to the community. He doesn’t abuse alcohol or drugs.

The board’s decision also cited a Prison Episode Summary stating that ‘the Applicant has completed numerous S42 releases satisfactorily and often states his deep regret for the consequences of his actions upon the victim’s family. His behaviour in prison has been extremely good.’ The decision concluded:

Taking all matters into account, the Board is of the view that the Applicant now meets the statutory criteria to be granted parole and that his reintegration into the wider community will best be served by the Applicant being granted a period of parole. Parole granted.

Mike was out, but he wasn’t lying down. While still in prison, he’d set about trying to show the court and the world that the punch he’d administered to Greg Markham couldn’t have caused his death on its own, and that there was no kicking involved. Mike didn’t want Nathan to grow up as the son of a convicted murderer. Mike’s father had assembled four long opinions stating that Greg Markham didn’t die from the punch to his face. Other forces were also at work.

Dr Keppel had given evidence that the frontal fracture was caused by a blow to Markham’s face, and that the injury at the back was caused by the brain impacting the inside of the skull — that is, the one at the rear was a contrecoup injury. But the new opinions said this sequence should be reversed: the frontal fracture was a contrecoup injury caused by the blow to the back of Greg’s head, not by a kick or any blow to the face.

Traumatic brain injury can occur even when the head doesn’t hit another object. For example, in a car accident where the victim receives a blow to the torso but no impact to the head, the skull decelerates abruptly but the brain may not decelerate until it has been pushed into the skull, causing a contrecoup injury. The victim may have no signs of bruising, but the internal impact can be severe.

Three pathologists gave opinions supporting this interpretation of Markham’s injuries. Professor Anthony Ansford had over 35 years’ forensic experience as a consultant to the Legal Aid Department in the Hong Kong administration and a senior consultant forensic pathology to the Queensland government; Dr Shelley Robertson was a widely experienced forensic pathologist, fellow of the Royal College of Pathologists of Australasia, and consultant senior pathologist with the Victorian Institute of Forensic Medicine; and Dr John Plunkett was a US specialist in anatomical, clinical, and forensic pathologist, with more than 28 years’ experience, who had a special interest in head injuries, with 24 peer-reviewed papers to his name.

All three experts stated that the only significant injury suffered by Greg Markham was to the back of his head. The minor injuries described by the pathologists and other health professionals at the trial were the sorts of injuries you’d expect to find after a short, sharp encounter between two men wrestling and trying to punch each other in a confined area.

A fourth forensic pathologist, Dr Byron Collins, was also engaged to fly to Hobart and meet Dr Kelsall to review Greg’s injuries. Dr Collins agreed with the other three experts that Greg had suffered a blow to the back of his head, and that the injuries sustained as a result were related to his death. This conflicted with Dr Kelsall’s opinion that the blow to the back of the head had no relevance to Mr Markham’s demise. Dr Collins directly addressed the flaw in the logic behind Mike’s sentence:

There is not a ‘long fracture across the skull above both eyes’, as contained in Mr. Justice Crawford’s comments on passing sentence, and it would therefore be unsafe and pathologically unsound, as Justice Crawford has apparently done, to assume that the ‘force responsible for death was almost certainly a single blow to the left of and above the left eye’.

This statement was cited, along with the other pathologists’ views, in a petition for mercy under section 419 of the Criminal Code Act 1924 submitted to the Attorney General, Steve Kons, requesting that he refer Mike’s case back to the Court of Criminal Appeal. Mike and his father were convinced that the opinions of such eminent pathologists would be enough to have Mike’s conviction for murder set aside and his reputation restored. The submission said that in view of the ‘powerful nature of the written opinions provided by the four medical experts we strongly believe that to allow Mike’s current conviction and sentence to stand would be a miscarriage of justice.’

But, in spite of all the time and effort spent on the opinions and the appeal document, Mike’s petition for mercy was not granted, and he was refused leave to appeal. His conviction remains.

Mike’s ‘accident’ occurred before Victoria and New South Wales enacted specific legislation dealing with assaults involving a single punch, sometimes referred to as a ‘coward’s punch’. In both cases, the decisions followed high-profile cases where the results of a single punch had caused death. In Victoria, the legislation was introduced after a case that was very public because the victim had been a national cricket hero. The death of David Hookes was the outcome of his altercation with pub bouncer Zdravko Micevic, a former boxer. On the night of 18 January 2004, Hookes went to a south Melbourne hotel to celebrate the Victorian cricket team’s victory over South Australia. The cricketers became rowdy and were told to leave. Security staff followed them out for a short distance. It was alleged that Hookes took a swing at the bouncer, punching him twice. Witness statements differ on who started the fight, as witness statements usually do, but Micevicćsays he was forced to defend himself and punched Hookes, who fell to the ground.

Hookes hit the back of his head hard on the roadside and lost consciousness. Paramedics were unable to revive him, and life support was withdrawn three days later. After this, Micevic was charged with manslaughter.

The memorial service for Hookes at the Adelaide Oval drew about 10,000 people, who packed the stands on the western side of the ground. They were joined by members of Hookes’s family, former and current cricketers, political leaders, dignitaries, and celebrities, including several state premiers, the South Australian governor, and Oscar winner Russell Crowe.

A guard of honour was formed by a continuous line of former cricket greats, the South Australian and Victorian cricket teams and the Australian team, which had stayed back in Adelaide after a one-day victory against Zimbabwe the day before on the same ground. Three stumps were placed at one end of the pitch where Hookes scored many of his 12,671 first-class runs and 20 of his 32 centuries. Hookes’s cricket-team hat sat on the stumps, his bat resting against them, which was Hookes’s custom during intervals in games.

On 12 September 2005, Micevic was acquitted on the charge of manslaughter. The jury decision took five days. Afterwards, Micevic expressed his regret and condolences to Hookes’s family. A civil suit initiated by Hookes’s estranged wife was withdrawn in 2007.