July 17 2006
– CAROLINE JONES: Hello. I’m Caroline Jones. Eight years ago in Perth four teenagers from previously blameless backgrounds embarked on a big night out. It was to end in a nightmare that parents of many teenage boys might dread. The sequence of events that unfolded on that Friday night has had momentous consequences for five families and continues to ricochet around the criminal justice system in Western Australia. A young man died, yet after an inquest and two murder trials there’s still no sign of the saga being put to rest. It’s all taking place against a background of numerous overturned convictions in the last few years. And there’s increasing controversy about a number of criminal trials in the west, even the High Court weighing in with some potent criticism of the Office of the Director of Public Prosecutions and of the police. Our story begins with a young woman, Mirella Scaramella, the girlfriend of one of the teenagers caught up in the events of that night. She has turned detective in her efforts to uncover the truth of what happened in Perth in the early morning hours of February 28, 1998.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: I mean, you always will have members of the public who will have their own opinion, and they’re more than entitled to their opinion. But I’m entitled to fight for the truth and I know that if anyone has a question for me about this case I can look them straight in the eye and give them an honest answer. There is nothing I won’t answer about this case. I know I’m not scared of the facts of the case, that’s the thing. I won’t sugar coat anything. I will tell you point-blank, “This means this and this was this.” That is how confident I am about the evidence in this case. I’d challenge any person, any mother, any brother, any sister to ask themselves if they don’t know someone or if they haven’t themselves done a stupid thing when they were drunk and kicked or hit or punched someone foolishly once or even twice or whatever the case may be, gotten into a fight when you’re drunk, you’re acting like, because you think you’re acting like a hero. Yet three days later, they get a knock on the door saying, “Oh, you know that person? “Yeah, well, he’s dead now. Come in for questioning.”
BRET CHRISTIAN, POST NEWSPAPERS EDITOR: You hear about a really terrible crime, say, a terrible murder, and then you hear on the news that the police have arrested someone. Your immediate reaction is, “You beauty, they’ve got the guy who did it.” Now, in Western Australia you cannot think that. Just because someone’s been charged doesn’t mean they’ve done it.
TOM PERCY, QC: I can only speak of the cases that I’ve seen over the past, say, 30 years. And in my view there is a mentality within the Western Australian Police Force – and it has been there for a long time – is that once they toss the coin and decide who they are gonna prosecute they then run with that. And they run with it assiduously, not looking to either side, not looking around, and just with a view to getting their man.
CAPTION: 28th February: 1998
SALVATORE ‘SAM’ FAZZARI: We all went out to Northbridge, a group of friends and I, after we had been to a few nightclubs. We then made our way back home. It started off as just an ordinary night for all of us. An ordinary night for Mr Walsham, he’d been out with his friends drinking, ordinary night for us. No-one knew that that night that a tragedy was to follow.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: Being 18 year olds at the time they would go out every Friday night to Northbridge. On this night there were six of them, it was Sam, Carlos, Jose and ………… in one car, and Toby – Sam’s best friend – and his then girlfriend Lorena in another car. They’d been to Northbridge at a few nightclubs and then they decided to go home to Stirling. Meanwhile, another group of people totally unknown to the boys started to make their way home to Stirling. It was Phillip Walsham and his two best friends, Craig Betts and Spencer Toogood. They too had been out that night. They’d been kicked out of a couple of nightclubs and were on the last train home from Leederville to the Stirling train station. Phillip Walsham was extremely drunk. When the train stopped at Glendalough Station he actually got off and was seen to be leaning over the railing. His friends got off and he fell over onto his back and they picked him up and dragged him onto his back onto the train. Once he arrived at the Stirling train station he fell out of the train again. He was obviously in no condition to walk on his own so he was walked over the overpass and his friends left him sitting on the kiss-and-ride seat at the kiss-and-ride bus shelter.
SALVATORE ‘SAM’ FAZZARI: We were driving past the Stirling train station. There was two young girls who were on the side of the road. And we asked if they’d like a lift. The recognised us as having gone to the same school as them and accepted. As we started to drive off we saw a young man without a T-shirt on just standing on the side of the road.
CARLOS PEREIRAS: And as we were driving past this guy he just threw something at my car. I looked in the rear-vision mirror and I saw him throw it. So I just immediately stopped the car and wanted to see what his problem was. And then once we had stopped the car he had his hands up in the air like that. Then Sam threw a bottle at him.
SALVATORE ‘SAM’ FAZZARI: He threw it back at us and just missed our car, smashed on the road. So there was no doubt in my mind at that stage that this guy was probably looking for some sort of fight or something because he had thrown something at our car then he was giving us challenging gestures, provoking us somewhat.
CARLOS PEREIRAS: Jose basically started running after the guy straightaway. And I opened the boot and I gave Sam a tyre lever and I took one for myself. I’m not a very big person at all. I can’t really fight or anything like that, so I thought if something was going to happen it’s best just to have something just to at least scare somebody off, like, just in case something was happening to Jose or to Sam. Sam had then started running off after the guy. And then I, basically, I just did a U-turn and drove down towards where…the same direction where they were chasing the guy.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: As it transpired, the guy that they were chasing was one of Phillip Walsham’s friends who’d left him at the train station, Craig Betts. His other friend, Spencer Toogood, was walking a bit further behind. So it turned out that they were chasing both of them back to the station. Mr Walsham was still sitting on the seat where they’d left him with his head in his hands. By that time Toby and Lorena had caught up with them and they’d followed their car into the kiss-and-ride. They didn’t realise what was going on but because they saw Carlos’s car they followed them into the Stirling train station kiss-and-ride car park.
TOBY VANGELOVSKI: And I got out of my car and there’s just all this commotion going on.
LORENA RODRIGUEZ: I saw Sam running up the footbridge and he had a long, shiny metal thing, which I know now was a tyre lever.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: Once Sam was up on the overpass he saw that they’d got into a taxi and got away, and this angered Sam to a degree that he started banging the railing with the tyre lever.
TOBY VANGELOVSKI: And, yeah, when I got up onto the bridge, they were yelling and shouting, and… yeah, I basically just, “Calm down, guys,” you know. “Get in the car. You’re acting like idiots. What are youse doing? Let’s get out of here.”
LORENA RODRIGUEZ: And then they’ve come down, and as they’ve come down… Sam was still fairly heated. So, he’s come down and there was a gentleman sitting on the kiss-and-ride, which was Philip Walsham.
SALVATORE ‘SAM’ FAZZARI: I actually approached him and asked him if he was alright, and I asked him a couple of times, and after he wouldn’t answer me, I suppose then I kicked him once, which wasn’t the right thing to do, but it was just in a moment of frustration. I just did a stupid, silly thing. It was outrageous because it was an unprovoked attack. It was horrendous. It was a disgusting thing to do.
LORENA RODRIGUEZ: I was furious. I was really upset with him. I was so disappointed in their behaviour. I didn’t…yeah, I’d never seen them behave like that before.
TOBY VANGELOVSKI: She stormed over to them, starting yelling, screaming, pushing. She slapped Sam.
LORENA RODRIGUEZ: And as I was pushing Sam back in the car, I’ve seen Jose kick the, kick the man as well. So, I’ve turned around and had a go at him as well, and pushed him and shoved him and, yeah, I’ve shoved them both back into the car.
JOSE MARTINEZ: He was just there by himself with his hands on his face, and just sort of sitting there by himself doing nothing, and I don’t know what came over me to do that. I feel very ashamed of myself. He didn’t do anything to me. He didn’t provoke me. I just took my anger out on him, I suppose, but that’s still no excuse.
CARLOS PEREIRAS: I just thought, “Well, let’s get out of here.” That’s the first thing that I thought, because, you know, obviously they’d done something wrong. We just wanted to get out of there from there.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: By then, the two girls that they’d picked up earlier were so disgusted with them that they walked away, but after Toby and Lorena and the boys had left, the girls decided to return to check on Mr Walsham. And they noticed that he was bleeding from a cut above his eye, and they asked him if he was alright and if he needed any help, and he refused their assistance and said that he was OK, and he stood up and walked towards the footbridge, and he was last seen ascending the first couple of steps of the footbridge.
CARLOS PEREIRAS: We ended up on Fulmar Street because Toby flashed his high beams, ’cause he was behind me in his car, and he flashed his high beams to tell me to stop, and then we stopped there.
TOBY VANGELOVSKI: I pretty much just went over to Carlos’s car and said to them, “Look, guys,” you know, “there’s no way I can calm Lorena down. She’s very upset. Rightfully so. We’re probably just gonna take off on our own from here.”
LORENA RODRIGUEZ: Then we pulled up. Sam’s approached the car and tried to apologise to me, and I didn’t want to hear it. So, I’ve got out the car and taken off around the corner and Toby and Sam have chased me. And they’d calmed down completely. They, you know, weren’t angry or aggressive in any way by that stage. They just trying to calm me down and trying…more than anything, trying to apologise and make me feel better about what happened.
CARLOS PEREIRAS: We stayed there for a little bit of time because Lorena didn’t really calm down, and Toby eventually just said, “Look, just leave us alone and I’ll sort her out.” From there, we left in two different directions and we went to McDonald’s in Tuart Hill.
As events unfold, the time the group spends at Fulmar Street becomes vitally significant.
Less than fifteen minutes after the assault, a taxi driver finds Phillip Walsham fatally injured on the road under the footbridge at Stirling Station.
GWEN WALSHAM: We heard a knock on the door at 5am…and there were two policemen. And they told us Philip was in Charlie Gairdner’s hospital, very, very, very ill. Didn’t know whether he’d pull through. And it just went from there and we went straight to the hospital.
JOHN WALSHAM: They told us there was no point in going to the hospital, as he was unconscious. And, um, I said, “Oh we’ll go anyway.” As soon as the police went, we jumped in the car and went straight to the hospital.
GWEN WALSHAM: And we were met by a nurse, and she took us into a small room and then the doctor came in and told us that Philip didn’t make it. You just can’t believe it. You just can’t take it in. I’m sorry.
The next day, an eyewitness calls Crime Stoppers. At about 2.30 a.m. Clare Pigliardo was a front seat passenger in a car waiting at traffic lights opposite the footbridge.
She later describes a ‘split second’ during which she saw a body do an ‘athletic backflip’ off the far side of the footbridge and ‘hit the road and bounce’.
ABC NEWS – March 3, 1998: Police are trying to determine whether Philip Walsham fell from the pedestrian overpass at the Stirling train station or was pushed. His friends told police they last saw him at 2:20am sitting at a bus stop before they left the station in a taxi.
SALVATORE ‘SAM’ FAZZARI: I can’t even describe the way I felt. My heart just for a second, just froze, and my whole world… It felt like I was on the verge of fainting. My whole world just… I can’t even…I can’t even begin to describe the way I felt at that moment in time. I was extremely scared. I was frightened that we’d be blamed, you know? I was remorseful that I’d kicked someone that potentially was the same person that was now dead. After that I went to see Toby, and then we went over to Jose’s place to tell him.
JOSE MARTINEZ: When they come over they obviously were very alarmed, and I said, “What’s going on?” And they said…they said, “Oh, my God,” you know. “I think the guy that we kicked is now dead,” because he had very particular features of the dreadlock hair you know, and it looked like the guy that we had kicked. Then, as we were talking, about 5, 10 minutes later, about six detectives were knocking on my door.
TOBY VANGELOVSKI: And you could imagine us, I mean, little 18-year-old kids. We’re just sitting there just going, “What is going on here?” This is things you see in the movies. This doesn’t happen in real life. Just sitting around, a whole bunch of detectives crashed through the house. It was just a pretty frightening experience.
JOSE MARTINEZ: I know that it was a horrible thing to do, but I know that you don’t die from a kick. I mean, it was to his head and it was a horrible thing to do, but I know that he was there, that he was not dead. We left and he was alive. You can’t describe how you feel about doing something like that to somebody that later on is found dead. It’s just a feeling that will live with you forever.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: All the people that were at Fulmar Street were taken in for questioning, so that’s the four boys that were in Carlos’s car and Toby and Lorena.
LORENA RODRIGUEZ: The police were telling me that they knew that they’d thrown him off the bridge and that I might as well tell them the truth because otherwise I’d be implicated as well, telling me that I was going to be done with fraud for lying and I could be done as as accessory because I was there and they knew I did it, they knew that the boys did it, so I might as well just own up and tell them the truth. If I knew that they had done anything like that, I would’ve been the first person to dob them in. I couldn’t believe that they were accusing any of us of doing anything like that, because it was just… None of us are capable of doing that.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: The most critical part of this case is if whether, after they’d left the scene and spent time at Fulmar Street, whether they had time to return back to the Stirling train station and commit the crime. What the police did was conduct time trials with each of the boys separately.
SALVATORE ‘SAM’ FAZZARI: They ran us to and from the train station to Fulmar Street. At one stage we had the police siren on and were zooming through the traffic. But once we had actually arrived at Fulmar Street, the police went through my events, asked me how long I was there for.
JOSE MARTINEZ: They were looking at their watches and writing down, taking notes.
SALVATORE ‘SAM’ FAZZARI: One of them had an actual stopwatch. And once we actually arrived back, one of them clicked it and looked at the other detective and they said, “Oh, it’s just not possible.” Right there and then I realised, or I thought, that, “Yep, they believe me and they’ve proved that it couldn’t have been me.”
CARLOS PEREIRAS: The detective looked at his watch, looked at his partner, looked at each other, and then just shook their heads like, as if, I don’t know, to me it was to suggest that it’s just not possible. They never mentioned anything to me, but that’s the impression that I got.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: On 20th April, 1998, they were actually given the Statement of Material Facts stating that they were excluded from any involvement in Mr Walsham’s death. It was broadcast in the media and all the rest.
ABC NEWS – April 24, 1998: Detectives have charged two men with assaulting Mr Walsham 15 to 20 minutes before his fatal fall.
DETECTIVE: Enquiries have excluded these two males from any involvement of the fall.
GWEN WALSHAM: There’s no way in the world Phillip would’ve committed suicide. He was too happy. He’d got his life sorted out. He had his girlfriends. Plenty of girlfriends. I mean, when he was 15-16, OK, he was on drugs. He won’t be the first and he won’t be the last. But we got over that. He did… he did try to commit suicide but it was just a feeble attempt. Just to get help, I think it was.
JOHN WALSHAM: His mood swings stopped, because he had very severe mood swings when he was smoking the marijuana. And after he stopped, they stopped… He became a different person. He was just a young, happy…
GWEN WALSHAM: Enjoyed life.
JOHN WALSHAM: ..carefree boy.
ABC NEWS May 25, 1998: Magistrate Con Zempilas fined 18-year-old Salvatore Fazzari and 20-year-old Jose Felix Martinez $1500 each for assault occasioning bodily harm. He took into account that both men had pleaded guilty and had no previous criminal record.
JOHN WALSHAM: I firmly believe their actions contributed to my son’s death. He was not in no state of mind when he walked up on that bridge to defend himself from any other attacks.
REPORTER: While police are convinced the men are not responsible for Walsham’s death, his family are still desperate for answers.
JOHN WALSHAM: Please, if anybody knows anything, please help to end our anguish over what happened to our son.
MIRELLA SCARAMELLA, FAZZARI’S GIRLFRIEND: I was overseas at the time and I was more worried about the fact that Sam might go to prison for the assault because that’s, um, what the lawyer, his lawyer, had told him might be a possibility. But once he pleaded guilty and he actually came over to Europe to visit me, we didn’t think anything more of it. Obviously it was a part of Sam’s life that he always wanted to forget. But we never ever thought it would come up again.
2001… Three years later, a new detective, Scott Higgins, takes over the Walsham investigation.
INSP. SCOTT HIGGINS, WA POLICE: When I arrived in 2001, there was an ongoing investigation. They’d had it on the backburner, so to speak, and were looking at a couple of different avenues of enquiry.
A juvenile who was in Pereiras’s car on the night is offered indemnity from prosecution in return for evidence about the evening’s events.
He tells police he has no information to help and declines the offer.
INSP. SCOTT HIGGINS, WA POLICE: By the time I came onto the case in 2001, it had dwindled down to pretty much these four guys. Up to that stage, I’d say they had looked at, and I’m guessing here because I didn’t look at the whole list exclusively, sorry, completely at that stage. They would’ve looked at a dozen to maybe twenty or so who came up and were possibilities.
BRET CHRISTIAN, POST NEWSPAPERS EDITOR: What seems to happen is that a terrible crime takes place, or a terrible event in this case, it might not have been a crime. A terrible event takes place, someone becomes fixated on, on an alleged perpetrator, and the whole system closes ranks to make sure that they go inside. I think you have to see it to believe it.
TOM PERCY, QC: I don’t think much has changed since about 1961 in the way that we deal with prosecutions in Western Australia. It’s just that recently we’ve had a lot of people prepared to put many years of hard work into pulling apart some of these cases where it has appeared that injustice has been done, and as it turns out, it’s been exposed.
BRET CHRISTIAN, POST NEWSPAPERS EDITOR: See, the first and the hardest case was the Button case because no-one believed the system could get it so wrong. And John Button had to prove himself innocent in order to be exonerated.
JOHN BUTTON FROM AUSTRALIAN STORY’S ‘MURDER SHE WROTE’: They’re trying to prove that if my car had hit a body, there should be certain damage to my car, which isn’t there.
BRET CHRISTIAN, POST NEWSPAPERS EDITOR: John had been convicted and jailed way back in 1963 for killing his girlfriend by running her down with his car. The police had completely botched John Button’s case. It was entirely circumstantial. And then when it came to court, they withheld vital evidence that would have exonerated him.
CRASH TESTER – AUSTRALIAN STORY’S ‘MURDER SHE WROTE’: And then, the most important part, it’s a pretty substantial dent where the body would go up on the hood, the bonnet.
BRET CHRISTIAN, POST NEWSPAPERS EDITOR: He proved beyond doubt the damage to John Button’s car was completely inconsistent with hitting a pedestrian.
CAPTION: February 2002…
APPEALS JUDGE – AUSTRALIAN STORY’S ‘MURDER SHE WROTE’: The verdict must be regarded as unsafe and unsatisfactory on the ground that there has been a miscarriage of justice.
BRET CHRISTIAN, POST NEWSPAPERS EDITOR: But what we had no idea about then was that John Button’s case was just the first of a whole string of wrongful convictions that the Western Australian Court of Appeal was about to start throwing out.
TOM PERCY, QC: We’ve seen cases where there’s been massive non-disclosure, or simple failure to properly investigate. When they thought they had their man, no-one else mattered. Once the juggernaut starts to roll, even in cases as far back as Beamish and Button in the ’60s, then there’s no pressing the button to say, “Stop, hold on. Whoa, boy. We might just be on the wrong track.” I don’t see any of that in the current, or in the past, police culture in Western Australia. Nor do I see it in the prosecuting authorities.
KARL O’CALLAGHAN, WA POLICE COMMISSIONER: Well, I disagree with that statement in that most detectives are very professional in what they do and they do examine different paths. Our detective training these days is very comprehensive in that people are not taught just to follow one angle, and I understand the pressures to follow one angle. They’re taught to look at lots of different things. And the procedures in Western Australia have changed quite significantly, even in this decade, in response to these sorts of claims. And I’m not convinced that Mr Percy’s comments are true, and they’re certainly not true for this decade because investigative procedures in Western Australia have changed significantly.
January 2003… five years after Phillip Walsham’s death
Jose Martinez, Sam Fazzari, Carlos Pereiras and a fourth man, unnamed because he was a juvenile at the time, are summonsed before a coronial inquiry.