Chapter 12
The Trial: Not a Nice Day
at the Office

That he which has no stomach to this fight, let him depart.

– WILLIAM SHAKESPEARE, HENRY V

The Basha inquiry had hardly concluded when, on my daily run around Albert Park Lake, I realised that I had in fact had a conversation with Keith Moor immediately after my release and that he had written the story up but in the shock of the new I had forgotten about this. There had been so much to adjust to and catch up with, a lot that happened in those first few days was a blur. But this was no big deal. People do forget and are allowed to forget. It doesn’t mean they are lying, notwithstanding what a defence lawyer might assert.

I immediately contacted Senior Detective Scarlett and told him of my oversight. He was not particularly perturbed about it either and said it would no doubt be a matter of some heated cross-examination at the trial – which I knew to be highly likely because if I had been the defence counsel I would have been onto this point like a shot. I would have been carrying on that it was all a lie, a fabrication, I’d made it up, I was chasing the reward, and anything else that I could think of to discredit me. And so it was to be!

Now that the Basha inquiry was out of the way I returned home. I am pleased to say there were no further incidents because once you have given your sworn evidence, even if you are “brown bread” (dead) or no longer around, that evidence can later be used at the trial as your evidence.

After many anxious moments and sleepless nights, the day of the trial arrived. I realised again how much the jail experience had changed me. The thought of seeing Dupas again made me feel physically ill. I wanted more than anything not to have to endure this experience again but I knew there was no escape from my obligations. I had purposely not read anything about the trial in the media and as I hardly ever watch commercial television I hadn’t seen any of those news services, which apparently gave the case blanket coverage.

I knew I was going to be in for a torrid time in the witness box and as a result I slept particularly badly the night before. It’s funny how life changes. Once upon a time, going to court was like water off a duck’s back to me. It’s something I did – all day, every day – for a living. Yes, you get nervous, but it’s the kind of nervousness you might feel before a race or a football match. It’s a good nervousness: it helps you perform at your best. The nervousness I felt the night before the trial and as I was heading to court was different: it was a feeling of dread. It took me back to my brief time as a defendant and what it subsequently lead to, not to the great days when I was practising as a lawyer. Funnily enough, the last matter over which I had appeared in the Supreme Court as a lawyer was a manslaughter case and it was before His Honour, Mr Justice Philip Cummins the judge on this case. Another one of life’s little parallels.

At the Basha inquiry I had purposely not spoken to the Halvagis family, but when I arrived at court for the trial the look of sheer desolation and deep sorrow on the faces of the entire family was gut wrenching. I don’t think I have ever seen anybody more devastated by a bereavement than George Halvagis. As he walked towards me in the hallway outside the court, I merely extended my hand to him. At the same time I kept walking and did not say a word to him. I was not giving Baldrick any ammunition if I could possibly help it.

It must be said that this prosecution had come about almost exclusively because of the efforts of George Halvagis and his family. He refused to let go of the fact that his daughter had been murdered and he wanted some answers – he wanted closure. He had been single-minded in his purpose since the day of Mersina’s murder. He petitioned the government, constantly kept in touch with police as to developments and was vocal in the Victims of Crime organisation.

Until the police contacted me and I came forward, there was insufficient evidence to prove Dupas had murdered Mersina. It was well known in police circles, and well known to the Halvagises, that Dupas was the man responsible but at law knowledge is insufficient to constitute proof. Hard evidence that has been tested under cross-examination is the acid test of whether an accused is guilty beyond all reasonable doubt.

The Halvagis family are typical of the post-war European migrant families that have made our multi-cultural society so great. The Halvagises have a wonderful work ethic and they had worked hard to establish themselves and be successful in Australia. The same work ethic had been instilled in Mersina. She was engaged to be married and had bought a house. By another of life’s coincidences, she had a part-time job working for a friend of mine in one of his service stations at Nunawading. She worked there as a console operator, and when my friend found out that I was giving evidence in the prosecution of Dupas he volunteered to me what a wonderful person Mersina had been. She was good with the customers, hard working, honest, a delight to have at his workplace. Everyone loved her, and my friend’s final comment about her was: “She was the type of employee that every employer aspires to have work for him.”

On the day of her murder Mersina had visited Fawkner Cemetery to tend her grandmother’s grave, another example of the sort of person she was. She would often put flowers on graves that appeared unkempt because she couldn’t stand the thought of those people being interred there with nobody caring for them.

The trial began in a blaze of publicity. I stayed away from the Supreme Court until it was my turn in the hot seat. Paul Scarlett gave me a couple of hours’ notice of roughly the time I would be facing the music.

I was not the first witness called in this trial, and there had been a substantial body of evidence given by the time I reached the witness box. One thing I did see in the media was that an identification witness has come forward with evidence about a person who had stalked her at the Fawkner Cemetery at about the time when Mersina had been murdered and this witness prepared a photofit identification with the police. A photofit is a process whereby you sit in front of a computer and an operator constructs the shape of the face, the type and colour of hair, glasses if any, shape of the nose, all the facial features until you have somebody you say looks like the offender.

When I picked up the newspaper the morning after the identification witness’s evidence I nearly fell over. Looking back at me from the front page was Peter Dupas. Not a question of degree of likeness; it was him! It was the best and strongest piece of photofit identification evidence I had ever seen. This woman’s recall was extraordinary to say the least, and would have been a big factor in Dupas’s conviction. Except for the fact that merely being sighted at the Fawkner Cemetery around the time of the attack was insufficient. It didn’t prove that Dupas was the killer and, in the absence of any forensic evidence to corroborate the witness’s observations, the prosecution could go nowhere.

When I attended court I was met by Scarlett and ushered into a little ante room outside the court. There I was to sit, trying to read the paper (without success because I was too nervous to concentrate), until my name was called. Each day in the countdown to the trial since the Basha inquiry the feeling of dread in me had mounted, and all I wanted now was for it to be over.

People had warned me that this was going to be difficult. They asked if I really wanted to go ahead with it and have a bucket load of shit poured on me but I gave my word and I was determined to follow through. I was always taught to confront the issue. The day will come and the day will go – better to face the music and get on with it.

“Call Andrew Roderick Fraser!” called the tipstaff (judge’s assistant). Here we go young fella, once more unto the breach, dear friend, once more! This is it, Sydney or the bush!

The Supreme Court of Victoria is a classic, imposing Victorian Building constructed along the lines of the Supreme Court in Dublin, Ireland. It was built in the 1800s when Queen Victoria was still on the throne of England. With Victoria at the end of the great gold rush, and colonial confidence high, imposing buildings for posterity was the order of the day. The court was constructed to preserve the sanctity and solemnity of the law and was designed with another objective: to scare the living daylights out of those appearing therein. The effect persists to this day!

The design of each court room is deliberately intimidating. After my name was called I walked onto the floor of the court, which is the lowest point. Immediately to my left, only a couple of metres away, was the dock – sitting higher than the floor where the lawyers sit but not as high as the jury and witness boxes. His Honour the learned trial judge sits at the highest point in the room. Walking this close to Dupas was intimidating and frankly unnecessary; I could have been brought in via the side door. Seeing Dupas sitting there wearing his usual Sphinx-like visage was unsettling. There he was, fatter, with the same blank, denying face, the blinds down in his cold, calculating eyes, just as I had seen them many times while banged up with him.

I gathered myself as best I could, paused and bowed to His Honour, who smiled at me and bowed in return. I wonder what he thought of this little effort by young Andrew. After all, I had appeared before him numerous times over the years and here I was now, a convicted criminal and pivotal Crown witness. Some day maybe I will find out what he made of me.

Sitting in the witness box I didn’t look at the accused, who is sitting at the back of the court. I could see Dupas out of the corner of my eye, but not once did I look at him. Also, I didn’t look much at defence counsel or the prosecutor who was conducting evidence in chief. I looked across the court from my high perch in the witness box, past the trial judge, straight at the jury, because they are the only people in the court who matter. They were the ones who I wanted to believe my evidence. From the point of view of convicting or acquitting the accused, it is the jury – not the judge, not the defence counsel, not the prosecution – that counts.

The prosecutor was Colin Hillman SC to whom I had been opposed many times over the years. Colin is a most experienced and competent prosecutor, even if we had not seen eye to eye on many occasions. It felt odd to me, and no doubt to Colin, that we were both pushing in the same direction for once – and not only that, we were polite to each other!

His Honour, Mr Justice Philip Cummins – known in the legal profession as “Fabulous Phil”, or “Fabbo” for short – is, as I have said, one of the most experienced trial judges sitting in the state of Victoria. What his honour does not know about criminal trials is not worth knowing. Fabbo is a no-nonsense judge who does not waste time and is blunt if he thinks counsel are doing just that. His trials are run fairly, straight down the line, but (as I’ve said) heaven help you if you are convicted and Fabbo sentences you; you will invariably cop a big whack. This is another aspect of the profession I have pondered over the years: why do some judges, who were once predominately defence advocates pleading for leniency, often turn out to be the heaviest hitters in sentencing once they are appointed to the bench? I have also seen former Crown prosecutors who become positively benevolent in their sentencing after years of prosecuting.

The defence team of David Drake and Mark Regan had the most unenviable task. As defence counsel you do not have to believe, or for that matter like, your client but you are duty bound to follow your client’s lawful instructions, even if you think those instructions are nonsense. You cannot make things up. Both were briefed by Legal Aid, who invariably end up acting for blokes like Dupas. Drake or Baldrick as he is known in legal circles had a cunning plan to discredit me; however I never did work out precisely what that plan was, apart from calling me a liar.

As I made the long walk from court door to my lofty perch in the witness box I was careful to keep my eyes straight ahead and under no circumstances make eye contact with either Dupas or the Halvagis family. I was indeed following the advice that I had given hundreds of clients. Take the oath and look directly across the court, directly at the jury, each in turn. Watch the jury’s body language and try to make sure they listen to your answers; after all, it is the answers and not the questions that form the evidence. It is the jury alone who will decide the fate of the accused; the judge merely passes sentence after conviction.

As I said earlier, during the Basha inquiry I had forgotten all about my discussion with Keith Moor, the reporter from the Herald Sun, but immediately, under cross-examination, I acknowledged having had that conversation and the fact that I had forgotten it. Baldrick, instead of then just saying that I had made the whole thing up and I was lying, went through each and every sentence in that article, putting to me that each one was a lie. My answer each time: “No, I forgot.” One thing he didn’t do was look at my Can Say Statement and compare it with the article in the Herald Sun; if he had, he would have seen that they were factually identical – there was not one inconsistency.

Baldrick made the fundamental and fatal error for any counsel in a jury trial of turning his back on the jury. This was his usual method of cross-examination: to turn his back to the jury, lean on the lectern and sneer at the witness. In my book he failed the most fundamental lesson: always play to the jury! The jury may as well not have been in the court. The only time Baldrick looked at the jury throughout the entire trial, I have been informed, was during his closing address. By then it was too late: he had lost the jury. I was watching the jury. As he laboured the same question over and over and over again throughout what was quite a lengthy newspaper article, the members of the jury were starting to roll their eyes, they were yawning, they were fidgeting, they were bored and their body language indicated that they weren’t interested in any of this questioning. But Baldrick didn’t twig because his back was turned to the jury.

Apart from this line of questioning Baldrick had nothing else to put to me, except to suggest that I had been using drugs while I made these statements to the police, because they were, in his view, so fanciful. There was one problem with that contention. After I was charged on the 13 September 1999 I ceased using and had been subject to repeated random drug testing by my general practitioner for the two years that I was on bail. I was then subject to random drug testing while I was in jail. Since my release from jail on 11 September 2006 I had been on parole, and while on parole I was also subject to random drug testing. I don’t know how many times I have been drug tested, but it is many, and needless to say I have not returned one positive sample. All of this was on the record as a clear rebuttal of Baldrick’s contention.

I was adamant with the Crown prosecutor that, on reexamination (which follows cross-examination), I wanted an opportunity to answer the question as to whether I was on drugs as Baldrick had asserted.

When the Crown prosecutor did start to re-examine me Baldrick jumped up and down, objecting to the question, saying it was irrelevant whether I had been taking drugs. The trial judge reminded him that he had opened that particular can of worms, so he could wear the answers given in re-examination. I was then able to explain to the jury how long it was since I had used drugs and that the suggestion that I had been using was nothing more than a deliberate slur.

As I said earlier, the police had not made public the fact that Mersina Halvagis had been kneeling when she was attacked from behind. When I described that posture to the police there was only one way I could have known of it, and that was from the killer personally. As it transpired, forensic evidence disclosed that Mersina had been stabbed a couple of times in the shoulder region of the upper body and the majority of stab wounds were concentrated in the breast area.

Baldrick put it to me that I must be lying about Mersina Halvagis kneeling because the stab wounds were in the chest area. I said any statement by me about chest wounds would be speculation. He then barked at me to answer the question. I can clearly remember saying “If you want me to speculate I can easily tell you what’s happened.” I then went on to say that, from what Dupas had re-enacted to me, the deceased was kneeling, she was small, she was attacked with great force from behind, the first couple of blows struck her in the neck or upper shoulder area, the sheer force of these blows had made her fall her backwards and she was then stabbed repeatedly in the chest. This was exactly what Baldrick did not want to hear and he tried desperately to stop me. I was looking at the jury. Their eyes were out on stalks. The trial judge refused to stop me, on the basis that Baldrick had asked the question and had pursued an answer and he was now stuck with the contents of that answer.

Clearly the most telling piece of evidence, in the eyes of the jury, was the incident in Dupas’s cell that I have already outlined. I was asked in evidence in chief by Colin Hillman SC, the Crown prosecutor, to re-enact the pantomime for the jury. I left the witness box and went down to the body of the court and re-enacted the incident where Dupas had acted out for me the stabbing of Mersina. I was watching the jury the entire time I was carrying out this pantomime. I had their complete attention – they were enthralled. One woman, who was sitting in the front row of the jury, was particularly shocked by this – I could tell by the look on her face.

I then went on to talk about finding the knife in the garden and watching Dupas weighing it up in his hand and repeating “Mersina, Mersina”. The same juror was clearly horrified at that.

My cross-examination had lasted nearly three days and had been long and boring, and that was obviously the impact it had had on the jury.

Dupas’s defence had boiled down to one thing: an allegation repeated ad nauseam that I lied at the Basha, that I was a gold digger, a publicity hound and a general bullshit artist. Not one shred of evidence to rebut any aspect of my sworn testimony was led by the defence, and accordingly there was not a conflicting point of view the jury could consider.

As the accused Dupas was not required to say anything in his defence. However, if the accused doesn’t, then that fact can be highlighted in the Crown’s final address to the jury. In other words, it is quite acceptable for the judge to observe that the accused has chosen not to give evidence in his own defence. Of course, Dupas would not go anywhere near the witness box because he would risk bringing himself undone by lying. The defence called no witnesses whatsoever.

After a three-and-a-half-week trial the jury retired to consider its verdict. A few days later I received a phone call from Paul Scarlett to say “The matter is over: Dupas has been convicted.” I didn’t realise how much impact this trial had had on me until I had heard those words: “He has been convicted.” I put the phone down and burst into tears. I had not been sleeping well. I had been having, and continued to have, a recurring nightmare. In it Dupas escapes from prison and he comes looking for me. He is never front and centre in the dream, he is always somewhere in the crowd and I just catch glimpses of his face, but he is always there, that silent, ever-present malevolence.

I withstood a huge barrage of attacks from the media but it motivated me more to do what I consider to be the right thing. People warned me that the media would sensationalise the trial and it was hard – especially with teenage kids and trying to rebuild my life. It was hard to keep my head in a good space. But my parents set an example of honesty that was ingrained in me.

While I was in the witness box my manager, Victor Susman, was present in the body of the court, watching. Halfway through the cross-examination, Mersina’s brother approached him and told him that the family was deeply grateful for my bravery, for the fact that I had been gutsy enough to come forward and tell the truth. It was when Victor told me this that I confirmed in my own mind that I was definitely doing the right thing, because these people needed finalisation.

Once Dupas had been convicted and been sentenced to a third life term without parole, the new hot topic was the reward offered by the state government, a substantial one million dollars. Everybody seemed interested in whether I should get the reward given that I had been in jail and that was the only way I had obtained the incriminating evidence. Well, like it or not, the people who are going to have evidence that a reward might flush out aren’t usually little old ladies who work on a volunteer basis in the local opportunity shop. Most of the witnesses who claim rewards are crooks who have criminal records and have been in jail. Why? Because they are the people who talk to other criminals and to whom other criminals often make voluntary admissions that return to bite them some time in the future. I would never have received the admissions from Dupas if, for instance, I had visited him on a professional basis in jail, or by being his lawyer for any other matter. He is that type of person who would never have made those admissions to anyone else. The very fact that it had taken some months of me working in the garden with him, and the coincidence of timing that I was with him in jail at the time of the Margaret Maher and Mersina Halvagis investigations that he let his guard down sufficiently to make the admissions to me, was significant.

Time and time again over the years the coppers have had Dupas in custody and questioned him, and every time he has behaved in exactly the manner I described to them. They didn’t describe it to me; I told them. And it was only after I had made my formal statement that the police told me that over the years Dupas’s behaviour has been totally consistent. That is, he sits in a police station being interviewed, he gets to a stage where you think he is going to make admissions, he starts sweating and becomes nervous, anxious and shaky, then clasps his hands together. Then, when he is really anxious, he puts his hands between his legs and crushes his knees together and then starts rocking backwards and forwards. Every other time he has displayed those behaviours he has pulled himself up short and that has been the end of the discussion. The blinds come down and he blocks the matter out of his mind and he will not talk about it any more. The only difference, with me, was that he took the process one step further and blurted out the admissions that led to his conviction. It was only after he had blurted out the admissions that the blinds came down. Not much of a change, but a change of immense significance as far as the police, the Halvagis family and the Victorian public were concerned.

As I said earlier, being in the witness box was easily the most disturbing thing I have ever done; and frankly, if I knew then what I know now, I wonder whether I would have come forward to give the evidence when requested. However, now that it’s done and Dupas is convicted, I am pleased that I have come through the ordeal and this poor family now has some closure.

Mr and Mrs Halvagis visit their daughter’s grave daily. These people have been devastated by what happened to them and I, as a parent, can understand that to lose a child would be the most horrible thing that could happen to you. But to lose such a beautiful child in such tragic circumstances is something you would never recover from. I am told by people who have been to the Halvagis family home that Mersina’s bedroom has not been touched since the day she was murdered. It is almost a shrine to her. These are good people who came to a new country to provide their kids with something they would never have had if they had stayed in Greece – and this is what they get. I am glad I did what I did.