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The Walsh Street Case Stalemate

The Victoria Coroner Judge Jennifer Coate recently ruled against holding an inquest into the deaths of Damian Eyre and Steven Tynan, young constables cut down by gunshots in Walsh Street South Yarra in 1988. The parents of the policemen, backed by the Police Association, had applied for the inquest.

There had never been an inquest into how the men died, because, at first, it was the subject of a murder trial; then, because all the defendants were acquitted and the criminal court proceedings inconclusive, the coroner was stalemated until new and compelling evidence was given to him.

The families, backed by the Association, had tried, 14 years before, but the coroner refused that one: he saw insufficient advance on the criminal trial’s evidence – not enough for an inquest, thus stalemate.

The new submissions bore mid-2010 datelines, the signature of a later Association secretary, and landed on the desk of another coroner, the previous judge being too ill for the work. The new and compelling evidence submitted were: (1) Wendy Peirce, Crown witness, had told the world, via John Silvester and The Age, that her acquitted husband Victor did do it; and (2) acquitted defendant Peter (Macca) McEvoy had gone off early in the morning of 5 February 2010, before NSW Police witnesses in Lambton Newcastle, apparently boasting of his part in the killings.

Judge Jennifer Coate checked Ms Pierce out. Victoria Police, perhaps in anticipation of the imminent partial repeal of the double-jeopardy rule and a new murder trial, or perhaps for this coronial court investigation, had sent Detective-Sergeant Mark Caulfield, now promoted and an Australia Police Medal winner, over to Wendy’s place in August 2010. Yeah, Victor did it, obvious, admitted it; and Macca, Victor named him; and, yeah, Victor was out all night the night Eyre and Tynan died: all on record of interview, neat and tidy. But by January next she was telling all that she would not ‘swear up’. A coroner’s court family-and-community-support worker found Wendy to be anxious, prone to panic attacks, nursing a morbid fear of the media, with memory problems, dependent on benzos, and she called in a psychiatrist, who confirmed Ms Pierce was a mess. Thus, ‘compelling’ Wendy to testify was not a useful recourse. Besides,

… the credit of Ms Pierce is so damaged by her history, it would be against common sense to describe any one position she may state she holds at any given time as sufficiently cogent

to open an inquest [coroner’s bold].

Judge Coate fixed her Sherlocky eye on Macca. Had he admitted he did it?

Six NSW Police fell on a house in Lambton for an early morning raid which they video-ed. Three of them made statements later, not on the raid, but on the words of a man then unknown to them who happened to have been sleeping in a car in the driveway. To Sergeant Simpson, the man seemed groggy suggesting drug use, and was abusive, saying ‘If I’ve gotta come back for ya, you might find out something about 1988, a couple of fucking jacks in Melbourne, might cause you to fucking speak to me more politely, copper.’ (Peter McEvoy’s criminal record would show charges from youthful rapes, armed robberies, and the murder of the police, plus the convictions, sentences, and acquittals, and this outburst guaranteed they’d check. He was charged with offensive language and hindering police that day.)  Senior Constable Fuhrer was trying a door when Macca interrupted him with ‘the sweetest thing’ Macca had ‘ever heard’ was the last words of a dying policeman. On the DVD audio-track this sounded more like ‘sorriest thing’ and ‘heard about’. After the raid Macca was sitting on the veranda giving Senior Constable Thomas the benefit of his vision: ‘I can’t wait to put a shotgun to your fucking head, [gun] loaded with a solid [shot], and watch your fucking head get blown off. There’s nothing better than watching a cunt like you die.’ There was a record of another memory of this speech, not significantly different, but it was not on DVD.

Sweetest or sorriest mattered little except the jazz, but ‘heard about’ took Macca off the street, off Walsh Street, and introduced doubt as to when and how he heard, as Judge Coate read it. She listed Macca’s mentions as: Walsh Street, high-profile investigator John Noonan, Tynan and Eyre, his ‘victory over the law’ in the trial verdict, and the ‘spectre’ of a new trial in post double-jeopardy repeal days to come. But to Coate, Macca was ‘big-noting’ in the presence of the young suspects of the raid, and what he said was, ‘at best, equivocal evidence of an admission’.

The coroner took modest pains to say the repeal of the 1215 double jeopardy law was irrelevant to her rulings. But to Victoria Police investigators assigned to assemble evidence for prosecution in the brave new ex-double-jeopardy era opening in 2012, this legal scorecard - Wendy’s word 0, Macca’s admission 0 – makes the ruling depressing. Unless detectives are collating evidence we have no idea of, the re-trial so confidently promised by the deputy commissioner well before Christmas 2011 is unlikely to happen.

John Kerr
February 2012

[The Judge Coate’s ruling on the Tynan-Eyre application is on PDF is under rulings on http://www.coronerscourt.vic.gov.au ]

Who wants Protective Service Officers?

A lot of Victorians who think about policing are worried right now. I’m one.

I have before me the Age of 24 November 2011:

Police training review urged

Tyler Cassidy’s death

a clarion call: Coroner

 

The youngest victim of a police shooting in Australia, the 15 year-old was low in spirits, affected by alcohol, talking wild – suicidal, homicidal, aggressive, self- destructive wild, and brandishing knives. He menaced in particular one police officer of the four who answered the calls to the scene, a shopping centre and parkland on a Thursday evening in December 2008. Within 73 seconds of the arrival of police, Tyler was shot five times, three shots fired into his legs in contravention of police policy that envisages shoot-or-die situations and directs aim to the greatest body mass, the chest area. The leg shots and CS foam did not much slow Tyler’s advance. Tyler had more or less cornered a cop on a stairway when the fatal bullet hit him.

On the stand in 2010, that cop called the mess ‘a tragedy that Tyler didn’t have the tools, if you will, to be able to cope with the situation he found himself in… One day my [daughters] will ask me if I’ve ever used a gun and I don’t know how I’m going to answer.’ Why coronial investigations into deaths by police shootings take so long – this one nearly took three years from death to concluding findings – mystifies me, but the ones in the 1990s took longer. Three years is a long time to sweat on what the world thinks, and though the killing will haunt the private lives of the four exonerated officers until the day they die, inquest findings do clear the deck of life a bit.

In the 1980s, Victoria police officers directly involved in shooting homicides seldom gave evidence at the inquests into the deaths of those they shot. In an atmosphere of litigiousness, they had a right to silence on the one ground available, that of the risk of self-incrimination. All the officers involved who were well enough gave evidence at Tyler Cassidy’s inquest.

Pointlessly, the techno nuts among armchair policing experts see the incident as a case for the ‘Taser. Some early media reports identified Cassidy as white supremacist gang member (some skinheads on-line claimed him as a member). The coroner wanted better police training generally, and perhaps specialist police for out-of-control people. The coroner’s idea of crisis experts got an elephant stamp from Legal Aid, and mental-health experts, who argue for more police and community awareness of mental health crises. The police union secretary made the point that police have not got the years of time to train as mental health experts. A broadcaster wanted to give the cornered officer ‘a bravery medal’.

If only there had been more time… There was a hardware store nearby; the distraught lad had got knives from there; and four long brooms might have saved all this blood, had there been time. The far more formidable Katherine Knight of Aberdeen, the so-called ‘Australian Hannibal’, was once disarmed while going off with a knife with a hostage in a service station by NSW cops with brooms. But there was no time. Skinhead Cassidy was proven to be a myth – Tyler’s moves and motives were solo, not ‘gang’. It is difficult to see how a state-coverage of specialist police would work. The experimental Police Ambulance Crisis Assessment Early Response unit hangs by funding thread, though police, hospital and mental health workers in the Southern Region have had nothing but praise for PACER whereby police and clinicians pair up to answer calls and get the disturbed and critical into a hospital fast.1  but greater awareness for police and everybody else may help. From the sound of the officer’s ‘compassionate, decent, brave’ words in court, a medal would be the last thing he wanted.

The history of Victorian Police shooting favors the coroner’s general training recommendations. One should beware of generalizing from small-number statistics. But there’s no going forward without looking back, and it worked in the mid-1990s:

Fatal woundings by Victoria Police 1984-942

1984:

1

Mad Max Marinoff shoots up police

1985:

2

= Mad Max Marinoff

1986:

2

Russell Street police building bombed

1987:

3

Hoddle and Queen Street massacres

1988:

6

Walsh Street killings of two police

1989:

1

= Gary Abdallah - controversy & community action peaks

1990:

3

hollow-point, fully jacket Vicpol ammo introduced

1991:

1

 

1992:

3

 

1994:

8

Operation Beacon firearm & other re-training introduced

1995

none

 

The Baillieu Liberal government, swept into power on a raft of law-and-order promises, is methodically putting their unthought-out platform into rasher practice. It is as if the hideous experience of those years magically evaporated.

Despite the hard-won knowledge that police training lay at the core of the situation that saw an officer shoot some poor bugger dead (on average) every six weeks in 1994, this government is recruiting Protective Service Officers, ostensibly to make all railway stations safe at night. In other words, rail stations, over 90 per cent of which are not known to be unsafe in any way, are going to have fully armed, half-trained half-police on half-a-cop’s-pay on every stop. Re-assuring video of the recruits during their 33-week course has been aired. This show PSOs can definitely walk backwards (can ‘retreat’) while training a handgun on some imagined assailant. However, this practice is on a daytime sports field in a 3-second visual grab, and leaves us wondering what the drill is when these guys run out of platform one night surrounded by angry, or drunk, or emotionally charged-up people.

I don’t imagine there is anything in the budget for the legal bills arising from just one shooting death by a PSO. Lawyers with a client family who’ve lost a member by government-issue bullet fired by a public servant will soon make training real police look cheap.

The Baillieu government has: repealed home detention, increased sentences, made more sentences mandatory, and talked tough on crime… and yet they wonder why arrest and incarceration rates have risen, and why they need to build and man another prison.  (Forget the claim that the Labor Party hid plans for a new prison from them. Even if it’s true, Blind Freddy solo could have worked out the need for a new one.)

The state has learned the hard way that even properly trained, highly-disciplined cops, even after the successful reforms ushered in in 1995, still shoot too many people. Welcome to amateur hour at a rail station near you. Just be careful.

1    Moorabbin Leader 30 June 2010, Adrian Ballantyne
2     Task Force Victor figures

Victoria Police: why were they so deadly for so long?

Victoria Police might have been especially violent and deadly from their origins.

First, a correction of some lazy history, that Australia got an English model of a criminal-justice system, is in order. Australia got Pentonville Prison as a model for our slammers and English common law for our gavel bangers, but the assumption we got Sir Robert’s Peelers for truncheon twirlers needs a closer look.

In Victoria, the police body may well have been Peeler English, but the police heart and arm was Irish. Robert Haldane, the Victorian force’s only historian, expected to find a lot of Irish immigrants in the colony’s police – the Kelly Gang’s 1878 victims were Lonigan, Kennedy and Scanlon after all – but 82 per cent makes Victoria’s police more Irish than the famously Irish NYPD ever was. 1 A great many of these men had been police before their Victorian gig: in the Royal Ulster Constabulary, or wherever a civil authority was needed to enforce Native Lines in imperial possessions. Others had served in the military, often in colonies. In Ireland, Africa and Allahabad, these young men’s nights were not spent sharing a jar or a pipe outside the dance hall with the local louts, or being polite to the family of a local girl they fancied; they were in lonely barracks, feeling unwanted, an ‘us’ in a sea of ‘them’.

Between the time Ned Kelly wrote that the force was ‘a parcel of big ugly fat-necked wombat-headed big-bellied magpie-legged narrow-hipped splay-footed sons of Irish Baliffs or English landlords… better known as officers of Justice or Victorian Police’, and the time of the Victoria Police armed robbery squad’s worst excesses in the 1980s, is five to seven police careers. Did that sense of Them and Us survive?

There’s a problem with the Irish-dunnit theory. Early NSW and WA police had many, but not as many, Irish cops too. T’othersider, a WA magazine defined Policeman as ‘a man with a uniform, a brogue and big free thirst’. Yet their state police don’t shoot folk nearly as much.

I suspect that the death of David Gundy saved lives in NSW; and that Blackfellow, Catholic Weekly, and other community action after his 1989 death was the Big Brake on NSW Police shootings. There was a sustained outcry after the NSW Police Special Weapons and Operations Squad mistakenly killed him in 1989. So much so, that few New South Welshmen now remember that the SWOS was pursuing another blackfellow, John Porter, who’d shot two of their plainclothes anti-theft constables three days before. One cop, Alex McQueen, later died; Porter was apprehended in Southeast Queensland. 2 After Gundy’s death, suggestions NSW Police had unofficial kill policies or were trigger-happy never arose again.

Whatever state of Australia you lived in during the time of Victoria Police’s worst excesses, Ireland was on your TV news a lot. ‘The Troubles’ in Northern Ireland on screen saw a seamlessness between police, paramilitary and military power in the streets of Belfast and guarding the British Conservative Party conference after an Irish Republican Army bomb ripped the Brighton hotel Maggie Thatcher and her Cabinet were staying in, killing five people, in 1984. When the Sydney Hilton was bombed, where Australia’s and India’s prime ministers, among others, were staying four years earlier, it seemed the federal government was responding to the outrage when they pushed states to set up paramilitary forces, Special Weapons and Tactics units, SWAT teams. However, the fed’s anti-terrorist plans for these were laid many months before the bombing, as shown by J Hocking, Jude McCulloch & others. Victoria got its Special Operations Group, SOG, the self-styled ‘Sons of God’, motto blessed are the peacemakers… for they shall inherit the Earth, in this way. SOG was trained by the Australian Army’s Special Air Service Regiment. Our SAS were trained by the UK’s SAS, and those trainers worked in Northern Ireland. In its 33-year existence, the SOG has yet, as far as I know, to nab a terrorist; but it chewed up armed robbery suspects in the 1980s and 1990s.

Like the laws allowing Vic state police to tap phones and bug places, laws that were ushered through Parliament 12 nights after the Walsh Street killings, the ‘extraordinary’ circumstances that created SWATs have undergone normalization to the point of being commonplace and integral to daily police operation.

Until 1994, before the number hit its eventual record eight 3 dead that year, one every six weeks on average, Victorian cops just kept on shootin’. It seemed like they were running out of armed robbers, so turned their guns on emotionally disturbed people behaving dangerously. There was plenty of community outrage and action, and powerful lawyers locked onto the legs of police, but, until 1994, they never looked like bringing down the beast inside. It is still a problem, though a much lesser one, though these PSOs are a worry for the future.

To Victoria Police’s great credit, police command admitted they did not know how this deadly situation had come about, commissioned a task force to find out, and launched Operation Beacon, a radical change in the way police used firearms, new training or re-training.

In 1995 they shot three dead.

In 1996 they shot no-one dead.

 

 

1 The People's Force: a history of the Victoria Police, Melbourne UP, 1986

2 My bookazine Cop Killers Wilkinson, 2010 explores Porter’s shooting of McQueen. John Birmingham’s Leviathan 1999 Random has an excellent account of the Gundy shooting.

3 Some sources, including Jude McCulloch, Blue Army: paramilitary policing in Australia, Melbourne UP, 2001, list nine deaths in 1994.

How I Came to write A Pack of Bloody Animals

What are the most important crime-and-punishment issues modern Australia has experienced?

In 2001 I was a guest at the launch of a book on thoroughbred racing by Robin Levett in Macquarie Street Sydney. Another guest, consultant to a publishing company, told me about a heap of documents he’d obtained, documents which provided background to a much publicized crime of the day. ‘I was born to write that book,’ I said. Thus, I started writing true-crime books. Later, I undertook the big one, a dictionary of Australian crime and punishment since earliest times A to Z. This involved reading literally hundreds of true-crime books. The project was eventually abandoned after three years’ work:  internet sources, not worth a damn when I started, had grown hundredfold; the crime-interested reader had changed her habits; and reference book publishing had died.

The big reference book gone, living with my broken heart, I was in search of a subject. I asked myself, ‘What are the most important crime-and-punishment issues modern Australia has experienced?’ Queensland’s close brush with one-party rule was the stand-out of the 1970s and 1980s. But royal commissioner Tony Fitzgerald, journalists Phil (Road to Fitzgerald) Dickie and Evan (Hillbilly Dictator) Whitton, screenwriter Ian (Joh’s Jury) David and others had plowed that ground. Besides, I was not there then, and I could not add a frangipani.

The 1990s did not seem to have a stand-out at first. I now feel the reason for my initial blindness was because I was the width of a Richmond City Council ballot paper away from it, living in Richmond until 1993. After that, living in Sydney, I found a mention of Victoria’s police to a Sydneysider would surely see black humor about police shooting people follow. Australians know next to nothing about police over their own state borders and they don’t seem to want to. Victorians in the 1980s would often dismiss the NSW police as ‘all on the take’. NSW folk often thought their police were doing that too, but they thought Victoria’s police were worse, because of the perception of violent death surrounding them.

Back in April 1987 I’d read an obit piece on the front page of the Age. Dennis (Mr Death) Allen had died, and reporter Tom Noble had provided an amazing account of the animal. I published biographies, so I arranged to meet with Tom to talk about a possible biography. The result was the book Untold Violence. It covered the crazy careers of Dennis, his brother Peter, and another criminal, and gave accounts of Melbourne’s crime ‘businesses’ – flesh trade, cocaine, and vehicle theft for example. We went on to issue Walsh Street and Neddy Smith’s autobiography together, but in the immediate aftermath of publication, Untold Violence seemed to be the end of the line, a commercial fizzer. Bookshops had not re-ordered many in the all-important month after publication. More months passed. The book sold steadily on and on – for 20 years, in one form or another. The sub-title – Crime in Melbourne Today – became more and more irrelevant, but the contents were, and remained, riveting reading. Word of mouth recommendation takes its own time, and Untold Violence and Walsh Street have withstood time’s test.

Despite publishing Walsh Street, Tom’s account of the investigation of the murders of Constables Damian Eyre and Steven Tynan, and reading in Melbourne dailies of accusations, debate and concern over police shootings in the 1990s, I did not see these events as Australia’s Number 1 crime-and-punishment issue of the decade, after Fitzgerald closed his State-changing inquiry.

(I was living in Sydney in 1995 when John Silvester, Andrew Rule and Owen Davies published The Silent War, so, due to the parochial true-crime coverage of metro dailies, I missed then, the book sub-titled Behind the police killings that shook Australia. It detailed seven police shootings in Victoria. Between 1984 and 1994, Victoria Police shot and killed 29 people, more than the police who served the other 64 percent of Australians. These writers called it a ‘war’. Now out of print, it is worth a hunt if you are a hunter type.)

When I met Ray Mooney in 2009, over another matter, we got talking. I had read his novel based on Christopher Flannery’s life, A Green Light, but hadn’t known he’d written a play on the Walsh Street events, The Truth Game. He thought Walsh Street was the key crime of his time.

‘What about Russell, Hoddle, Queen Streets…?’ I stuck to Victorian examples, but contenders included Milat, Mosman Grannies, Milperra and that was just part of M in the big dictionary. And, since Walsh Street, two other Victorian policemen, Rodney Miller and Gary Silk, were shot by men intent on avoiding apprehension; not a random execution like Damian Eyre and Steven Tynan’s deaths, the thing that made Walsh Street such an ugly crime, but ugly nonetheless. Ray felt the Port Arthur Massacre was the only other contender when it came to crimes that changed Australia.

There was a veritable treasure trove of old documents, tapes, cuttings and exercise books that had survived raids by wombats. (Wombats will have a go at plastics and papers: fact.)  

I found there was a general consensus that the police caught the men who, in revenge or hate or both, did the Walsh Street killings but the men got off at trial because a woman pulled her testimony, so it was all Wendy’s fault. This is a half-truth, narrow slices of legal progress. It is without context: how busy the coroner was then; ignores the change of government; and was devoid of anything that went down in the days and years before it, or since. The lesson from Walsh Street is not that the trial failed. The lesson is that war on the streets does not work. While this lesson was learned by police in Victoria and interstate, by their high commands at least, politicians ignored it. The politicians went right on promising to be tougher than King Gees on crims, talking crackdowns, tough new laws, longer sentences… spending money like tomorrow would never come, and achieving nothing.

The finest leadership moment in the Victorian police shooting mess came in 1994. Such deaths had hit one every six weeks, but police command kept their heads and their integrity. They frankly admitted they did know how it came to be that the state’s police shot far more people than other law enforcement agencies, or how to fix it, and they set out to find out.

This is how I became convinced Victoria’s crime and punishment imbroglio in the late 1980s and 1990s needed revisiting. That conviction led to two years’ work, work long preceding the decision of the state attorney-general and cabinet to repeal the double-jeopardy rule in 2011, when A Pack of Bloody Animals was cut from the larger work.

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