THE PENALTY OF A CORRUPT POLICE FORCE

People disbelieve them even when they have got it right

ABC Television's award-winning Australian Story has been accused of crossing the line between journalism and advocacy in an unprecedented series of programs claiming three West Australian men were wrongly convicted of murder. In the final episode of a three-part investigation, Australian Story will tonight examine the alleged murder of Phillip Walsham, 21, who fell to his death from a pedestrian bridge over a freeway in the Perth suburb of Stirling in February 1998. West Australian police believe a group of teenage louts armed with tyre levers found Walsham sitting, alone and drunk, on a bench near a train station. They say the youths kicked him in the head without provocation, then pushed or threw him over the footbridge to his death.

But Australian Story has broadcast claims that the teenagers -- now men in their mid to late 20s -- were wrongly convicted by a jury in March. While the men do not deny they were armed with tyre levers, and admit they kicked Walsham in the head, they insist they left him sitting on the bench and did not follow him on to the footbridge.

West Australian Police Commissioner Karl O'Callaghan has condemned Australian Story, accusing the program and its staff of mounting a campaign to get the conviction overturned. It is not journalism, it is advocacy," Mr O'Callaghan said after he had seen the first program in the series. "There were quite glaring events that could have provided a different point of view which were simply left out."

Australian Story has focused on Mirella Scaramella, the photogenic girlfriend of one of the men, who program presenter Caroline Jones says "turned detective" in an effort to "uncover the truth of what happened that night and get the murder charge dropped". It is clear many of the staff working on the program also believe that the West Australian police, reeling after several high-profile convictions were overturned, got it wrong.

But on March 7, a jury disagreed. It convicted three of the men of murder, and they are now serving 10 years in prison. Inspector Jon Tuttle of the West Australian police media unit said Australian Story was "telling a story, but it's a story the jury didn't believe". Inspector Scott Higgins, who assembled the evidence that led to the conviction, said: "I have no doubt -- or no reasonable doubt, since I suppose nobody can ever be 100 per cent sure -- that we got the right people. "There are a group of people, lawyers and journalists among them, who are campaigning to get all kinds of convictions overturned as if justice in WA is completely rotten, and it is a symbiotic relationship because the defendants all want to get off, the journalists want a good story and maybe a book or prize and the lawyers want the publicity." Series producer Wendy Page would not agree to an interview. But acting executive producer Philip Williams said in an email approved by lawyers: "This is our first triple episode. This doesn't mean we attach any greater significance to this story ... It's simply this is a very complex tale, involving many players: the accused and their families, the parents of the victim, the Police Commissioner, the investigating officer, the DPP and others."

The facts of the case -- at least up to the point when Phillip Walsham fell to his death -- are barely in dispute. A group of friends -- including Salvatore Fazzari, Jose Martinez, Carlos Pereiras and a juvenile who cannot be named -- went nightclubbing on Friday, February 27, 1998, and stayed out drinking until the small hours. They were on their way home about 2.15am when they passed a pedestrian who threw a tennis ball at their car for refusing to give him a lift. The group stopped, got two tyre levers out of the boot, and gave chase. The pedestrian saw them coming and ran across a footbridge with his friend. They escaped in a taxi.

Frustrated, the group descended from the footbridge, where they found a drunk Walsham -- 21 and also on the way home from a night out -- sitting on a bench with his head in his hands. In an unprovoked attack, Fazzari kicked Walsham in the upper body; Martinez kicked him in the head. Fazzari told the program: "I kicked him once, which wasn't the right thing to do, but it was a moment of frustration." Martinez said: "He didn't do anything to me. He didn't provoke me. I just took my anger out on him I suppose. It was to his head and it was a horrible thing to do."

Two girls who had been in the car were so astonished and offended they refused to have anything more to do with the youths, and decided to walk home. The youths drove away. The girls then checked on Walsham. He was still sitting on the bench, bleeding from a cut above his eye but said that he was OK. The last time the girls saw him, he was walking towards the footbridge.

The youths told police they went to McDonald's. But police claim they returned to find Walsham on the footbridge where they beat him with the tyre lever and threw or pushed him to his death on to the Mitchell Freeway. In 1998, Fazzari and Martinez were charged with assault for kicking Walsham. They pleaded guilty and were fined $1500. The case lay dormant until 2001, when Inspector Higgins joined the Major Crimes Unit and decided to review the evidence. In April 2003, he referred the matter to state coroner Alistair Hope, who decided Walsham had probably been beaten with what looked like a tyre lever and subsequently pushed or thrown off the footbridge, probably by whoever had been wielding the tyre lever. The matter was referred to the Director of Public Prosecutions, and on March 31, 2004 -- six years after Walsham died -- the four were charged with wilful murder. The first trial was held in May last year. The jury could not reach a verdict. But in the second trial, the jury found Martinez, now 28, Fazzari, now 27, and Pereiras, now 26, guilty of murder.

Among those startled by the verdict was Bret Christian, multi-millionaire proprietor of the Post group of newspapers that circulate in Perth's affluent western suburbs. He is now campaigning for "justice for the men". Mr Christian told a rally of 200 people last week the verdict should be overturned. "People in Perth have two points of view on this case," Mr Christian told The Australian. "They either say, well, they kicked this guy in the head and 15 minutes later he's found dead, and what's the chance of it not being them? Or else they say, they were running around with tyre levers, they are shitheads, and why take up the case of shitheads? "But it's wrong, just plain wrong, to throw somebody in jail for throwing somebody off a bridge when the facts just don't add up to a conviction." Mr Christian makes some good points: there are no witnesses to the crime, and there is no forensic evidence to link the youths to the murder. In another twist, scrapings from under Walsham's fingernails that might have revealed fibres or DNA have gone missing, as have X-rays of Walsham's legs.

But somebody did see Walsham's body fall: Clare Pigliardo told the court she was in the front seat of a car stopped at traffic lights when she saw a body do an "athletic backflip" off the bridge and "hit the road and bounce". Australian Story included this information in the first episode of Beyond Reasonable Doubt -- but it excluded a critical additional fact: Ms Pigliardo also said Walsham was not alone when he fell, but was surrounded by a group of two, three or four men. This was included in the second episode of the program.

Viewer reaction has been mixed. On the Australian Story website's feedback page, one says: "From all that has so far been depicted on Australian Story, these boys are innocent, however are not being given a fair trial." Others disagreed: "This story is extremely biased. These four men repeatedly say they could never have killed but they can look for a fight when armed with a tyre lever AND can kick a man in the head, unprovoked."

For his part, Inspector Higgins said: "We've never denied that it's a circumstantial case." But he said the evidence suggested Walsham was hit hard with something resembling a tyre lever. The distinctive C-shaped mark on his shoulder was "not damage from hitting the kerb or the road, or being hit by a car". He said it was too far-fetched to believe another group of men wielding tyre-levers accosted Walsham on the footbridge. He said police had "absolutely no problem" with Australian Story taking up the case. "But you can't dolly it up, and call it the search for the truth. They just don't like the jury's decision."

But Mr Christian -- who sat through weeks of evidence while reporting the trial in a series of front-page articles -- says it is insulting for police to suggest "we're just a bunch of journalists patting each other on the back". "There is plenty of evidence that police have got it wrong before," he said. "We are doing exactly what journalists are supposed to do. Wouldn't it be worse if we observed this stuff and didn't say anything, and just became cheerleaders for the cops?"

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