Jealousy is a poison that can make men, and women, do crazy things. It can whisper and entice, needling and pinching at common sense and hollowing the stomach. It can cause its victims to gnash their teeth and begrudge all possibilities. And rue what might have been. Love-struck Leon Joseph Oscar Borthwick fell victim to jealousy’s curse and killed another young man as a consequence. Borthwick’s vision had been clouded to the extent that he glared upon young university student Mark Zimmer as a rival: a love rival who, he believed, had stolen his girl. Seventeen-year-old Nicola Martin—Borthwick’s former flame of two years— was at the apex of a teenage love triangle. Borthwick, aged eighteen at the time, and Mark, aged nineteen, represented the remaining two angles. This case might have read like a bad teen romance novel brimming with immature angst had it not ended with the death of an innocent young man on a vehicle’s bullbar in a suburban street. It is not a cautionary tale. It is not a melodramatic Twilight-style saga. It is a real-life tragedy for all involved.
One of three siblings, Mark Zimmer lived with his parents, Christian and Ruth, in the middle-class Melbourne suburb of Endeavour Hills. He had an older protective sister, Kornelia, and a baby brother named Zachary. Mark had grown up in the southern beachside suburb of Carrum and completed his education at Mazenod College in Mulgrave. The family had moved to Endeavour Hills in 1999. They were a typical loving family. At the time of his death, Mark was studying an IT and business course at Swinburne University. He was ‘outgoing and very popular amongst his friends’, according to the police summary.
Leon Borthwick had grown up in Hyderabad, India. He and his family—dad Reginald, mum Lana and older brother Shawn—moved to Australia in 2000. In around 2003 the family moved from Hampton Park to Narre Warren in the south-east suburban corridor. Borthwick had completed Year 12 in 2007 and was employed in casual jobs. It had been in September 2006 when Borthwick had hooked up with high-school girl Nicola. The two met through a friend of Nicola’s. They stayed together as boyfriend and girlfriend until about September of 2008.
‘We split up after I started to get fed up with his laziness,’ Nicola said in a police statement tendered in Melbourne Magistrates’ Court. ‘I was also losing my friends because of him. He appeared to have an anger problem … When I say angry I mean he was protective of whom I associated with or even spoke to.’
It was around this time that Nicola met Mark Zimmer through mutual friends, including Mark’s best mate Sean Heneric. There were a large group of teens at the same house that night.
‘The night I met Mark, Leon was with me,’ Nicola told police. ‘On the night we all met Mark, Leon almost straight away took a dislike to him.’
Comments made about Borthwick’s mum’s silver and blue Tarago van only enflamed the animosity.
‘Mark and Sean made comments about the car he was driving,’ Nicola said in her statement. ‘Mark and Sean told Leon to go and collect [one of his friends] Jeremy in “the van of courage”. Leon did not say much, but I knew comments like this were upsetting him.’
Borthwick demanded Nicola leave with him. She refused.
‘When she refused he became angry,’ according to the police summary, ‘and threw a bottle on to the road and drove off at fast speed. [Those who witnessed that] were all surprised and scared by his actions.’
Sean Heneric recalled the incident in his police statement.
He was drinking alcohol. He had the bottle. Nicola had wanted to go and pick someone up. Leon got angry and threw the bottle along the road, just missing a car. He drove off and took off really hard. We knew then he was weird.
After Nicola broke up with Borthwick, she started calling Mark on his mobile phone, and at home.
‘We started talking to each other nearly every night,’ Nicola said in her statement. ‘We talked mainly on our house phones … We were just friends and were never boyfriend and girlfriend.’
Heneric told the Supreme Court that he was of the belief that the two were ‘friends with benefits’.
‘It means that people are friends but when they see each other they have sex, like, there’s no feelings in it— they are just there to have fun,’ he explained during Borthwick’s murder trial in the Victorian Supreme Court.
Whatever the relationship, Mark appeared to be playing the confidant.
‘Nicola had indicated to me that Leon was becoming too possessive and that she felt comfortable talking to Mark about her problems,’ friend Chernish Thomas says in her police statement.
Borthwick got wind of the burgeoning friendship between Mark and Nicola.
‘Even though I had broken up with Leon he did not like me talking to Mark,’ Nicola told police.
He told me to stop talking to Mark as he did not like him … Once Leon found out I had been talking to Mark he seemed to show up more often and [appear] at houses of friends of mine. I felt at times Leon was checking up on me, even though we had split up.
Borthwick, meanwhile, was telling his mates that he and Nicola were still an item. In the Supreme Court, Nicola said later that when she and Mark started talking on the phone, she and Borthwick were ‘kind of off/on at that point’. She later told prosecutor Michele Williams, SC, that she and Borthwick had remained friends.
WILLIAMS: You’d meet up with him and so on?
NICOLA: Yeah, we were still friends.
Over the following months before the fatal night of 15 November 2008, Borthwick regularly threatened Mark.
‘If you still see Nicola, I am going to tie you to a tree and hit you like a piñata,’ he yelled down the phone on one occasion, while Sean Heneric listened in.
‘Leon was angry,’ Heneric said in his police statement.
Mark could put up with them [the phone calls] and hang up. Mark would try and reason with him. He would say he wasn’t seeing Nicola and Leon should move on. Mark would always be calm. He just tried to get it across to Leon that he and Nicola weren’t going out.
Borthwick also threatened Heneric over the phone, blaming him for introducing Nicola to Mark.
‘He would make phone calls to my mobile phone,’ Heneric told police.
They would be at night. He would say things like: ‘You’re going to regret introducing Mark to Nicola.’ I felt he was trying to find someone to blame for him and Nicola breaking up and he was trying to put the blame on me … He would ring a couple of times and then it would die down, then he would ring again.
Heneric said Borthwick ‘was always angry’ when he called, with some calls lasting up to between thirty and forty minutes. Heneric tried to play the peace maker.
‘He wanted to know what was going on and whether he should confront them,’ Heneric told police
I was telling him that they weren’t going out and he shouldn’t worry. Leon would say that he and Nicola were still going out and he thought they were cheating on him. You could not reason with him. You would end up with threats. All through these calls he would still be making threats against Mark and I … The constant threats to Mark was that Leon knew where he lived and was going to get him, beat him up.
On at least two occasions Leon was heard to say that he was going to kill Mark. He said he would stab him and that he had a gun in his house and would go and shoot him.
‘Leon was saying that Nicola was an angel or something along those lines,’ Heneric said later in court. ‘He blamed Mark for their break-up.’
In late September or early October 2008, Mark and Heneric went to Chernish Thomas’s house to see Nicola to discuss the Borthwick situation—and possibly resolve it.
‘Mark was at breaking point,’ Heneric said in his tendered statement.
Not long after they arrived, Borthwick turned up with friends. Borthwick confronted Mark and demanded to know if anything sexual had happened between him and Nicola. He asked ‘how far’ the two had gone. Mark assured Borthwick that the relationship was purely platonic. A hug was as far as it had gone, Mark said. Borthwick stood face to face with Mark. Chernish Thomas told the Supreme Court that Borthwick became ‘more and more upset’.
‘First he got really red because he was about to cry— he had tears in his eyes,’ Chernish said. ‘He was stuttering and then he just kept getting louder to try and get his point across.’
‘If I cut your balls out maybe you will tell me the truth,’ Borthwick reportedly said.
From his bag Borthwick pulled a knife and held it to Mark’s crotch. It appeared to be a silly boy’s game— until it became apparent that Borthwick was not fooling around.
‘I’ll cut your dick off,’ he was said to have threatened. ‘Please don’t lie.’
‘Mark had one of his hands on Leon’s hand or wrist and Leon had his left hand on top grabbing Mark’s wrist,’ Heneric told police. ‘Mark was pushing the knife away.’
One of the young men present, Jeremy Dardenne, pulled Borthwick back. Some of the girls were crying.
‘Mark and I had had enough and left,’ Heneric stated. ‘In the car as we drove away Mark was freaked out by what happened.’
In court, Heneric added: ‘He was honestly, like, really scared.’
It wasn’t the first time Borthwick had produced a knife, according to some of the group. On two previous occasions he had pulled a blade and threatened young men he believed were looking Nicola up and down, according to the police summary.
Mark went on to tell his dad about the close encounter.
‘Mark told me that he was threatened with a knife at a party and that someone was giving him a hard time,’ Mark’s father, Christian Zimmer, said during Borthwick’s trial.
I tried to get some details out of Mark—as much as you can from a nineteen-year-old teenager who didn’t want to elaborate too much on it. I said, ‘Tell me more,’ and he said, ‘Well, there’s this crazy guy. He’s trying to get at me because I’m friends with his ex-girlfriend. I was at the party and he came at me with a knife.’
At that point I said, ‘Mark, you need to go to the police … He’s broken the law. He’s done something wrong.’
Prosecutor Williams asked Christian some questions on that topic.
WILLIAMS: Did he tell you the name of the person?
CHRISTIAN: He just told me that this guy was called Leon.
WILLIAMS: And so far as the topic of an ex-girlfriend is concerned, did you know who your son was talking about?
CHRISTIAN: I knew that he mentioned in that conversation the name Nicola.
WILLIAMS: Did you at that stage have any knowledge of whether your son was seeing or having any contact with Nicola?
CHRISTIAN: I was aware that he saw her on and off, as they were friends, and that there was phone conversation on a regular basis.
WILLIAMS: And when you say phone conversation on a regular basis, how did you know that?
CHRISTIAN: My phone bills were very high during that period and I had a word with Mark about it.
(Mark and his buddy Sean Heneric did in fact go to a local police station on 10 November to report the knife threat. ‘He wanted to get a restraining order or an intervention order against Leon Borthwick,’ Heneric said in court.)
Under cross-examination by defence barrister Carmen Randazzo, SC, Christian Zimmer said that he believed Nicola was staying over some nights.
‘Mark did mention it,’ Christian said:
and I was going to have a more serious conversation with him [about that] but we never had that chance … We were seeing more of her and I was a bit upset that Mark didn’t introduce her at that point … They didn’t come out and say, ‘We’re a couple.’
Christian told the jury that he was ‘very forceful’ in trying to get his son—who was growing ever concerned about home security—to alert the authorities about Leon Borthwick. Christian described the issue in court as a ‘teenage love problem’.
‘[Mark] just kept on saying, “This is my problem and we’ve got mutual friends … and they’re assisting me with trying to calm down the situation,”’ Christian said in court.
Mark had also mentioned the threatening phone calls in passing, Christian said.
Mark was behaving odd. He wasn’t his normal self … He told me on one occasion that [Borthwick] had called him and threatened to kill him, and he also mentioned the fact that he was continuously threatened and then [Borthwick] would say, ‘I’ll cut your tongue out’ and then he would bring up, ‘I’ll kill you.’
I think there was maybe a one- to two-week period where nothing occurred after the knife incident and it looked like Mark was saying that his mutual friends [had] managed to calm the situation down, and then I think it must have started up again and got worse because that’s when Mark started to tell us about these phone calls … Mark was saying ‘I’ve got everything under control’ because he didn’t want to concern us … I said, ‘Look, you know you have to do something [by going to the police], this could get out of hand.’ But he was adamant that this was his problem and he wanted to deal with it.
A couple of weeks before Mark’s death, Borthwick rang Heneric and told him that he was at a local McDonald’s store in Endeavour Hills with about six mates.
‘He demanded I give him Mark’s address and said if I didn’t he would come to my house and make me come out,’ Heneric said in his statement. ‘He said he would drag me out of the house, strip me naked and tie me to the back of a car and drive my body around.’
According to Haldane Bensley, who worked at the McDonald’s store, Borthwick turned up on another occasion asking for Mark’s address. ‘I told him Mark was a friend and I wasn’t giving him the address,’ Haldane told police.
He told me he wasn’t scared of Mark and he’d already held a knife to his balls and he’d kill him for his girlfriend. I asked him, ‘Isn’t she your ex? Why do you care?’ Leon said they were still together. I went back in and called Mark to tell him. It was about 2.20 in the morning … Mark said, ‘Yeah, he speaks a lot of shit.’ Mark told me that Leon had split up with his girlfriend but he wasn’t over her … Mark told me [he and Nicola] were close but they weren’t seeing each other. They were getting closer and Mark liked her. Mark told me how Leon had been calling his house over the last couple of weeks, like calling him in the middle of the night and hanging up, and another time held a knife to his balls.
On 13 November, Borthwick confronted Mark at a park near the Zimmers’ home. Mark told his dad about it.
‘He looked very distressed,’ Christian told the jury.
The only detail he said was that Leon was out in the park with his mates [and that] he was being threatened again. Then he mentioned the fact that maybe it’s not worth it all and he should just forget this Nicola and I then said to him, ‘Maybe it might be better if you just forget her.’ Then he said, ‘But I really like her’ and I said to him, which was probably my mistake, ‘Don’t let anyone tell you that you are not allowed to see her.’ I shouldn’t have told him that. I should have said he should have forgot her.
Leon Borthwick was a vindictive young man with jealousy stoking his immature ego. He was not willing to let Nicola go. The two were still hanging out as friends and, along with a large group of pals, they spent the afternoon of Saturday, 15 November milling and chilling at the Fountain Gate Shopping Centre. In the words of one of the group, Ed Gutteres, they were all there ‘to kill off some time’. Late in the afternoon Gutteres invited everyone back to his parents’ house.
‘We were just hanging out there like a normal day— playing basketball, Playstation, watching DVDs, listening to music,’ one of the group, Jermaine Berenger, explained in court.
That evening at about 9.30, Borthwick dropped Nicola off at her aunt’s house for a fiftieth birthday party, stopping at her house along the way. They had a discussion.
WILLIAMS: You had an argument, was it?
NICOLA: No, not an argument. Just, like, if we were going to get back together or not.
WILLIAMS: Tell us what was said.
NICOLA: He just asked me pretty much if we were going to get back together or not, or if we were just going to stay friends.
WILLIAMS: And what did you say?
NICOLA: I just explained to him I didn’t want to be in a relationship any more and that, yeah, just stay friends—at least for then anyway.
WILLIAMS: And how did he react to that?
NICOLA: Well, he kind of just went along with what I said, I guess … He kind of just stayed quiet.
Borthwick then drove back to Gutteres’s house with mate Phillip Pellegrin in tow.
‘He was crying and he told me that his girlfriend, Nicola, couldn’t tell him she loved him whilst looking into his eyes,’ Pellegrin told police. ‘He was questioning whether or not Nicola loved him anymore.’
Back at Ed Gutteres’s place, Borthwick could not hide his inner pain. He was still crying.
Jermaine Berenger said in court: ‘He was crying. We pretty much knew at once it had something to do with Nicola.’
That night Borthwick told one of the group: ‘I can tell my girlfriend doesn’t love me as much anymore because Mark has come in the middle of everything.’
Borthwick asked Gutteres if he could use the home phone. He called Mark Zimmer’s mobile number. Mark and Sean Heneric were together at the Zimmers’ home eating pizza and KFC while watching a Stargate episode when the call came through.
‘Mark came up with an idea he wanted to watch the whole series of this show,’ Heneric recalled in court, with half a smile in the only light-hearted moment of the trial.
Because I wasn’t a big fan of Stargate, and he wanted me to get into it, he wanted me to start from season one, episode one—my God—and work our way down through all of the twelve series.
Mark put Borthick’s call on loud speaker. Borthwick asked Mark if he’d spoken to Nicola recently.
‘Leon was saying that he’d had enough of this shit and it was going to finish tonight,’ Heneric told police. ‘I heard Leon say to Mark that he was going to be at his house at 12 [midnight] and then the call ended.’
Those at Ed Gutteres’s house also caught the conversation at Borthwick’s end. There was talk of fighting ‘one on one’. Berenger heard Borthwick say that he used to be a lover, not a fighter, until Mark took his dignity away. It might have been laughable banter between two young rams were the consequences not to turn so horribly ugly in the hours that were to follow. Back at the Zimmer home, Mark went into his mum and dad’s bedroom.
‘He was very distressed and he said he just got a call from this Leon and he was coming to get him tonight,’ Christian said in the Supreme Court. ‘My wife said, “What do you mean by that?” and he said, “He’s going to come and kill me tonight” … I told Mark to ring the police.’
Mark did make a call to the local cop shop but did not fully explain the situation, or leave any details. The policewoman taking the call reportedly replied: ‘There’s nothing we can really do right now. It’s only when he comes to your house, call 000.’
‘Mark said thanks and hung up,’ Heneric said in his statement.
Christian Zimmer told the court what happened next:
After probably about ten minutes I went back into the study and said, ‘Have you rung the police yet?’ and Mark said yes he had. I looked at Sean and I said, ‘Sean, did he ring the police? And Sean said, ‘Yeah, he rang the police,’ and I said, ‘So what did they say? When are they coming?’ and Mark said, ‘They’re not coming,’ and I said I couldn’t believe that they’re not coming. I said, ‘What did they say?’ and he said, ‘They told me to dial 000 when this person arrives.’ At that point Mark decided to try to get help from his friends.
Mark began to drum up reinforcements over the phone. Heneric told police: ‘Mark asked everyone to come to his house to help make sure nothing happened.’
Christian told the jury:
Mark’s friends were out the front in the reserve, playing cricket. He felt that they had no weapons so they should arm themselves and he went to the kitchen and said, ‘Maybe I should get some knives,’ and I said, ‘Mark, you’re not getting any knives. You are not going out of this house with a knife.’
He said, ‘Dad, they’re going to come with weapons. I need something. We need something,’ and I said, ‘Mark, people just get killed with knives. Please don’t take a knife.’
He went out to the shed and I had some spanners and I said, ‘Look, if you want you can take some of these.’ Mark grabbed some of the spanners and took them to his friends … Probably about half a dozen.’
(A neighbour would find spanners and a broken cricket bat left behind in his garden the following morning.)
Mark returned the call from Borthwick. Attack, apparently, seemed the best form of defence.
‘I heard Mark say to Leon that if he didn’t come to his house then he was going to go to Leon’s,’ Heneric stated. ‘Leon was asking Mark who was going to be at his house. In the end Mark just hung up.’
At Borthwick’s end, Pellegrin heard Mark say that ‘there was about fifty guys there to get Leon and that Mark was going to crowbar Leon in the face and if he wasn’t there at twelve that he was going to go to Leon’s house.’
The two young warriors then immediately rang Nicola. Borthwick got through first.
‘After the [fiftieth birthday] speeches at around 11 pm I received a call from Leon and he told me this would be the last time I would speak to him,’ Nicola said in her statement.
I asked him what he was talking about and he said, ‘It was set.’ When I questioned him further he said, ‘Me and Mark are punching on tonight.’ He told me that this was to occur at Mark’s house. While I was talking to Leon I received another call at the same time. This call was from Mark, so I placed Leon on hold and spoke to Mark. Mark said, ‘Leon is coming to my house tonight and I am waiting for him and I have over thirty guys here waiting for him also.’ Mark did not say what they were going to do when Leon arrived at his house. While I was talking to Mark, Leon hung up and Mark told me that everyone has had enough of being threatened by Leon.
In court, Nicola added: ‘Mark was angry and frustrated and he didn’t want to deal with Leon any more and he was just fed up with everything so he wanted everything to stop … He just wanted to sort everything out.’
Borthwick got back in touch with Nicola.
‘I told him that Mark had a whole lot of people with him and he probably shouldn’t go to Mark’s house ’cos, you know, he could have got hurt,’ Nicola said in evidence. ‘I was just warning him that Mark was ready if he did come.’
Borthwick reached out to his older brother Shawn, who was at a mate’s place in nearby Hampton Park having a drink and a feed after work. Borthwick rang him.
‘Leon told me that someone was after him; some boys wanted to bash him,’ Shawn said in his police statement. ‘I didn’t pay much attention to what he was going on about and told him to come over.’
Borthwick scored a lift back home where he grabbed the keys to his mum’s Tarago. He drove the van, with Jermaine Berenger and Phillip Pellegrin on board, to go meet up with his brother. Upon his arrival, he and Shawn had a conversation.
‘It was Leon filling his brother in on what was going on and then it was just his brother cracking it back pretty much saying, “Why are you fighting over a girl? That’s stupid,”’ Berenger said in court.
By midnight there was a group of up to eight young men assembled at the Zimmer home.
‘These friends were all aware of the on-going threats [Borthwick] had been making towards [Mark],’ the police summary stated.
But Borthwick never showed, and at 12.05 am Mark decided it was time to travel to Borthwick’s house. Borthwick was informed that Mark and his crew were coming to him to ‘resolve the situation’.
According to the police summary: ‘His friends agreed.’ One of those friends, Noel Amarasinghe, put it eloquently enough when he told police: ‘We all decided to go to Leon’s place to sit down and talk to tell him to lay off—that Nicola doesn’t like him and to stop being jealous.’
‘It sounded to me that these guys wanted to get into a fight,’ Shawn Borthwick said in his police statement.
Leon and his friends told me that the guy wanted to fight Leon and was going to get him with a crowbar. They told him that they were going to come to our house with thirty people. I told Leon to leave it for now, just wait. The guys were being stupid. I told Leon not to worry about it. That they weren’t going to come to our house.
Christian Zimmer was fighting against the tide trying to dissuade the young men—some of whom, according to differing versions, had armed themselves with spanners, lengths of steel pipe, a cricket bat handle and a windscreen wiper—from heading over to Borthwick’s house.
‘Mark came in—it would have been around midnight,’ Christian recalled in court:
and said to me that, ‘It looks like they’re not coming. We have decided we’re going to go down to his house.’
I said to him, ‘No, you’re not going down to his house.’
He said, ‘Dad, I am,’ and I said, ‘No Mark, you’re not going. I don’t want you to turn into what this person is,’ and he said, ‘Dad, I can’t live like this anymore. He’s been threatening me and intimidating and harassing me for so long. I just need to do something. I’ve done everything you’ve asked. I’ve gone to the police. They’re not doing anything. I’ve rung them tonight. They’re not coming. My friends think they can sort this out. My friends know Leon. Maybe we can go down there and sort this out. I just cannot live like this anymore.’
By that stage tears were welling in Mark’s eyes. Christian continued:
I said, ‘Mark, let me come with you,’ and Mark said, ‘No, this is my problem Dad. I don’t want you there,’ and I said, ‘Let me, at least, you know, come with you, we need to sort it out,’ and he didn’t want to have me there. He walked off, and then about five minutes later he came back and said, ‘Dad, can you take some of my friends because we can only fit, I think, four people in my car. Can you take some more, and I’ll have more people there to help me in case things get out of hand.’ I decided I would help him.
Mark drove a couple of his friends. Christian Zimmer drove the others. They drove past the Borthwick house, turned at the next intersection and parked. Jeremy and Michael Dardenne (who had been in Borthwick’s company earlier that evening) had earlier picked up Jeremy’s girlfriend, Jessica Cardamone. They drove past Borthwick’s home. They saw Mark and his group, and had a short chat, before parking opposite the house. A message was then relayed back to Borthwick: Mark Zimmer and his crew had arrived.
‘Leon told me that he was pretty sure that they had weapons,’ Shawn Borthwick said in his statement.
Leon and I said that we would go and have a look to see what was happening. We needed to sort it out. I was concerned. I thought that these guys must be serious. I was concerned for my parents and my house.
Shawn and three of his mates left in his vehicle. Borthwick, with Berenger and Pellegrin still on board, were to follow.
‘He was pretty angry at the time that they had the nerve to go to the front of his house,’ Berenger said in court. ‘And then along those lines he goes, “If I see them I’m going to run them over with the van.” Me and Phillip both reacted. Said, “No, don’t be so stupid” sort of thing.’
It was a two-minute drive from Shawn’s mate’s house to the Borthwick home. Christian Zimmer, already parked down the road near the house, watched Mark and his mates march on.
‘All the boys got out of the cars and started to cross the road,’ Christian recalled in court.
I called back to Mark. I asked him to come to the car. Mark walked back to the car and I said, ‘Mark, please don’t do anything silly. If anything gets out of hand, I’m here. Just come here. Run back here … Make sure that no-one does anything silly.’
He said, ‘Don’t worry Dad, everything will be fine. I will be back in ten minutes.’
That was the last time Christian Zimmer saw his son alive.
Prosecutor Williams questioned Christian about the presence of weapons.
WILLIAMS: Did you see whether he or anybody else took anything with them?
CHRISTIAN: [One of the boys] was carrying my squeegee and I thought what is he going to do with that? I usually clean my windows [with it].
WILLIAMS: What about anyone else?
CHRISTIAN: No, I didn’t see.
WILLIAMS: What about your son? Did you see him with anything?
CHRISTIAN: I didn’t see him with anything … I am not saying he didn’t have anything. I didn’t see him with anything.
Christian continued:
I was sitting in the car thinking, ‘Should I follow them?’ Then I knew Mark would be upset with me. I was also concerned that it might aggravate the situation. I was hoping that, you know, these kids could sort it out together.
Most who were there said they were not expecting any real trouble. Joshua Madeira told police:
Prior to the accident I was not aware of what Mark’s plans were and I did not expect there to be any trouble. I never saw anyone I was with take any weapons with them, or Mark carrying any weapons. I did not take any weapon with me.
Mark, Sean Heneric and mate Troy Polifrone had crossed the road to stand by the car containing the two Dardenne boys and Jessica Cardamone. Mark stood near the driver’s door talking to the occupants.
‘I don’t know whether it was to me or Jess but he did say that he wasn’t there to fight, he just wanted to sort things out,’ Jeremy Dardenne said in court. ‘He was holding, I guess, like a metal cylinder-looking thing.’
Heneric and Polifrone were standing on the roadway next to Mark.
‘They were all standing just within or on the white parking lane line,’ according to the police summary.
Shawn Borthwick said in court: ‘It seemed like there was a lot of people.’
As Shawn was driving along his street, his brother flashed his lights at him.
‘He just flashed the lights for him to slow down and then sped up to try to catch up to him,’ Berenger recalled in court. ‘[Leon] was driving pretty steady, close to the speed limit.’
Leon Borthwick drove over to the incorrect side of the road, overtaking Shawn and swerving in towards where Mark, Heneric and Polifrone were standing. According to passenger Pellegrin, ‘[Leon] unexpectedly swerved the van towards them. He was on the wrong side of the road … As he did this, Jermaine and I started screaming at Leon to stop.’
Heneric and Polifrone saw the Tarago coming and stepped in closer to the parked car next to which they were standing.
‘I heard a loud rattling sound of a car and I looked to the right and I saw a blue Tarago van coming towards us on the wrong side of the road with its high beams on,’ Heneric recalled in his statement. ‘I had to move in close to Jeremy’s car to avoid getting hit.’
In court he tried to describe the feeling of the van brushing past him.
I don’t know how to describe it—when you feel like it’s very close; going fast like the wind … It definitely didn’t brake … I sort of froze … I heard the bang and I looked to the left … I wondered where Mark went.
Leon Borthwick hit Mark with the front right side of the van. Mark had turned to run but was too late to avoid the fatal impact. Here’s what the witnesses said.
Passenger Jermaine Berenger: ‘I just looked over to the windshield and just saw someone on it.’
Jessica Cardamone:
The last thing I know was that we were just talking and out of nowhere I just heard this ‘bang’ and I thought our car might have got hit. Sean screamed out ‘Mark!’ It was really quick but I saw Mark go through the air and his shoes came flying off. He was hit and landed so many metres away.
Christian Zimmer told the jury of his memory of the sickening impact. ‘I heard one almighty bang. It actually sounded like a gunshot went off. I was just taken aback.’
Mark ended up lying in a nearby driveway. Leon Borthwick continued to drive, leaving the carnage behind. ‘Oh my God,’ he said to his two passengers. ‘I can’t believe I just did that.’ He and Shawn pulled up down the street. The siblings got out of their vehicles and spoke. Shawn was unaware that his brother had just hit someone—or that anyone had been hit for that matter.
‘He seemed normal,’ Shawn said in his statement. ‘I told Leon to stay there, and told him that I would go and see these guys and see what the problem was. I didn’t want Leon to get hurt.’
Leon Borthwick then hid in a backyard. Berenger told the jury: ‘I just remember Leon crying, being like, you know, “I have screwed up my life. I will never get to be with Nicola now.” I remember him saying, “I’m going to jail.”’
Back at the scene, Mark’s friends had crowded around him in a panic.
‘His eyes were half closed and blood was everywhere,’ Jessica Cardamone told police. ‘I was not sure if I should check his pulse or not, and some nurses came out from a neighbouring house.’
Josh Madeira recalled: ‘I had a ringing in my ears and felt so sick that I had to go and sit in the gutter … I was in my own world of shock.’
Sean Heneric told police: ‘I was screaming out that Mark needed help.’
Christian Zimmer drove to the scene.
‘I noticed that there was a gathering of people on the left-hand side of the road,’ he told the jury. ‘It looked like a commotion.’
He got out of his car to find his son lying in a pool of blood. He rushed to him and tried to resuscitate him, but Mark’s mouth was full of blood. Shawn Borthwick and his mates had reached the group, and saw the dead boy.
‘I couldn’t look at him for too long,’ Shawn told police. ‘I was in shock, I seen blood everywhere. He was pretty messed up.’
Shawn walked back to the Tarago and found his frightened brother, who by that stage had returned to the van. Not knowing what had happened, he told Leon and his two friends to split.
‘I did not tell him about the guy I saw lying on the ground because what I saw was bad,’ Shawn said in his statement. ‘I was shocked. I didn’t want him to know … I did not see Leon hit anybody in his car and I did not hear the sound of a car hitting anything.’
Borthwick drove towards Pellegrin’s home. Pellegrin later told police: ‘Leon thought he had killed the guy. He kept saying how he wanted to see his girlfriend Nicola. He was saying things about how he could avoid getting in trouble.’
Berenger told the jury: ‘[Leon] was saying, “Should I burn the van or drive it off a cliff or something so that there wouldn’t be any evidence?”’ Borthwick also talked about trying to fix the windscreen.
‘There was a bit of a pause, like a silent moment, like we were just all in shock,’ Berenger said in evidence. ‘He was just like, “I need to see Nicola.”’
At the scene, paramedics had arrived but could not bring Mark back.
‘They determined that—because there were no signs of life, he was unresponsive, had massive head injuries, blunt trauma and massive external blood loss—[Mark’s] injuries were incompatible with life and no further resuscitation attempts were made,’ the police summary said.
News began to spread. Ed Guterres was on the internet around 1 am in his parents’ study.
I got a call from Michael [Dardenne] and he told me that Leon killed Mark. I thought he was joking at first and then he started crying and I realised he was serious. He told me there was blood everywhere and the ambulance had arrived … [Another friend] came on-line and asked me what happened to Mark. I told him Leon hit him with the car and killed him.
Having hidden the damaged Tarago in a sidestreet, Borthwick borrowed Phillip Pellegrin’s father’s car and drove to Nicola Martin’s home like a moth to his former flame. He paid her a visit under the cover of darkness. It was about 2.30 am.
‘I had what I thought was a dream,’ Nicola said in her statement.
In that dream I heard knocking on my bedroom window and when I looked out Leon was standing there. Leon has actually done this in the past. He told me that someone died and he hesitated and then he said ‘Mark’.
She told Leon to go home. Unsuccessfully she tried to ring Mark Zimmer. On the way back, Borthwick stopped off for a quick feed of McDonald’s then fell asleep at Pellegrin’s house. Detectives arrested him later that morning.
The Major Collision Investigation Unit worked the scene. The police summary said:
A survey of the crime scene was conducted and a scale plan produced. At the scene it was noted that there were no visible tyre scuff or skid marks on the road surface leading up to and past the scene. On the driver’s side of Dardenne’s vehicle were visible scuff marks. On the road surface to the rear of the vehicle and to the north of the parking lane, were shoe scuff marks. This area was identified as the point of impact … The examination of this crime scene concluded that the deceased was hit whilst standing on the north-west bound lane, just over the parking lane line. He was struck by a vehicle traveling in a south-east direction which would have been travelling totally on the incorrect side of the road. The force of the impact pushed the deceased backwards where he landed on the grassed nature strip, rolled for a short distance before coming to rest in the driveway.
A collision reconstruction was conducted after a further examination of the vehicle. The reconstruction concluded the vehicle was traveling between 35 kilometres per hour and 56 kilometres per hour, but likely to be about 45 kilometres per hour at the time it collided with the deceased. There is no evidence of emergency braking or evasive steering having been applied by the accused.
The accused admitted he did not brake before the collision or stop at the scene immediately after the collision and render assistance in any way. The accused stated the collision was an accident and he did not intend to kill the deceased.
At the start of Borthwick’s murder trial, prosecutor Michele Williams told the jury it was the Crown case that Borthwick ‘deliberately drove’ his mum’s Tarago van at Mark Zimmer.
‘Mark Zimmer was, if you like, his love rival,’ Williams said in her opening address.
So we say he [Borthwick] had a motive. He had a motive to wish [Mark] harm … There was, if you like, a background of jealousy, anger, possessiveness and obsessiveness demonstrated by the accused man towards Mark Zimmer … Before the killing [Borthwick] confronted Mark Zimmer in a park near Mark Zimmer’s house and on the night, the actual night, at 9.10 pm, the accused man rang Mark Zimmer threatening yet again to kill him, which is what we say he ultimately did. We will be saying that on the night in question he was angry and he was prepared to act out his jealousy—and he did.
Williams stressed to the jury that Borthwick was not speeding at the time. ‘This is not a case where we say he drove at 100 miles an hour at him. We are not saying that at all.’
Williams also made mention of what Borthwick had told police after he had been picked up.
He tells, we say, lies to the police—minimises what he did, the way he acted and what he saw. He says, ‘I was not going that fast. I had bald tyres. He popped out of nowhere.’ By the way, the van was looked at afterwards; examined mechanically. [It was] roadworthy. [There was] nothing wrong with the vehicle he was driving.
She harked back to the 9.10 pm death-threat call Borthwick made to Mark only hours before his death.
It indicates that the accused man is having a go at Mark Zimmer for still seeing or even daring to talk to Nicola. We say that is very strong evidence as to what was going on in [Borthwick’s] state of mind when he drove that car down the road and, we say, drove straight into Mark Zimmer. In other words, he carried out the threat. He intended to kill him and did, or at the very least when he drove that car—no brakes, no swerving—intended to cause really serious injury.
Defence barrister Randazzo focused her opening on the question of Borthwick’s intent.
Mister Foreman, ladies and gentlemen of the jury, have you ever heard the expression ‘to keep an open mind?’ It is an expression that I use every time I stand up to first address a jury … What you are going to hear [in this case] is Leon Borthwick’s record of interview in which he tells police time and time again that this was an accident. If the Crown cannot negate accident then, as tragic as the events of that night are, it is your duty to return a verdict of not guilty.
We dispute emphatically that it was a deliberate act … Whether Leon Borthwick is a jealous man, whether he is a possessive man, whether he liked or disliked the deceased Mark Zimmer is ultimately not going to be an issue for you because your task is to say, ‘Well, on the evidence that we hear are we satisfied beyond reasonable doubt that he intended to kill or cause really serious injury?’ That’s it. Not even something less than really serious injury. If you come to the conclusion, ‘Well, he was going there to confront him and harm him,’ that doesn’t satisfy that requisite element of the offence.
In her closing, Williams left the jury with this observation: ‘Three people were on the road and Leon Borthwick just happened to get the one person he’d been threatening to kill. I’ve got to say, he’s either pretty lucky or pretty unlucky.’
After a six-week trial, the jury acquitted Borthwick of murder and found him guilty of manslaughter. It was a verdict that crushed the Zimmer family. At Borthwick’s pre-sentence hearing, a haunted Christian Zimmer read out his victim impact statement.
‘My son died in my arms and he was only nineteen,’ the sobbing father read aloud.
I attended the crime scene within minutes to find my son Mark lying on a driveway covered in blood … That image will stay in my mind until the day I die. I desperately tried so hard to save my child’s life by giving him mouth to mouth, but so much blood was coming from his mouth and nose that it was difficult for me to get air into his lungs. I swallowed so much blood that to this day I can still taste Mark’s blood in my mouth.
The despairing father said a part of him died with his son that night.
Ruth Zimmer said the death of her elder son had left an empty space in her heart.
Mark’s room is still untouched and looks as if he has just left it, with his socks still on the floor where he dropped them, the book he read still open on his bedside table and his clothes still in his wardrobe.
The shattered mother told Justice Katharine Williams, ‘I just can’t make myself change anything.’
Ruth said Mark’s death had devastated his sister, and had also had a detrimental effect on young brother Zachary.
‘Sadly, Zachary feels at home at the cemetery because we spend so much time there,’ she said.
Justice Williams sentenced Borthwick three days before Christmas in 2010. She handed him seven-and-a-half years’ jail with a minimum of five.
‘Mark Zimmer was a treasured son, brother and family member,’ Justice Williams said when sentencing Borthwick.
Immediately before hitting him, you did not swerve away or try to stop by jamming on your brakes. I am nevertheless not satisfied beyond reasonable doubt that you deliberately drove into him because everything happened very fast, you were driving too fast and too close to those by the parked car and Mark Zimmer had stepped back onto the roadway.
The prosecution argues that you have shown no remorse for your crime, pointing to your failure to go back to help Mark Zimmer, your flight and talk about destroying the van. As for fleeing, I agree with your submission that your failure to go back to Mark Zimmer and hiding is understandable given your probable reception by those at the scene.
[Melbourne Remand Centre chaplain] Father Joe Caddy did not say that you had specifically expressed remorse to him, but he thinks you have developed a deep sense of remorse in custody—to the extent that you had asked him to pray for Mark Zimmer in November when the dead are remembered. You told Father Caddy that you pray daily for Mark Zimmer and his family … I consider that you have only demonstrated very limited remorse for your actions.
You went to an area where you knew young men were gathered and you saw those on the road. Yet, despite the screamed protests of your passengers, you took no evasive action before tragically taking a young man’s life. Even if events occurred too fast for you to stop when Mark Zimmer moved on to the road, his death occurred because of the extremely dangerous way in which you were driving.
It was to prove a hollow Christmas, not only for the Zimmer family but all the young people involved. As one of Mark’s friends, Mikhail Quinless, told police: ‘I thought Leon was obsessed with Nicola. I told Mark once, when he was talking about Nicola, he should stay away from her. I never thought it would end the way it did though.’
Borthwick unsuccessfully appealed against the length of his sentence. Some were surprised he even tried.