The Australian

Cost of innocence
A murder and a long list of wrongful convictions have fired a public campaign that threatens to erode confidence in the justice system, write Victoria Laurie and Paige Taylor

20 September 2006

IF anyone knows what it means to be declared innocent, it's John Button. Convicted of running down and killing his girlfriend in 1963, he spent five years in jail and 40 years protesting his innocence before a court quashed his conviction.

His innocence was restored not because another man, Perth's notorious serial killer Eric Edgar Cooke, had repeatedly confessed to the murder, but as a result of painstaking work years later by lawyers and journalists who unpicked the prosecution case.

Now Button wants other wrongly convicted people to have their cases scrutinised in the same way. Button is spearheading the Innocence Project, a fledgling group in Perth committed to freeing innocent people wrongly convicted in Western Australia.

He has already made powerful allies, including Perth QC Tom Percy and the state's former chief justice, David Malcolm, professor of law at Notre Dame University. "I have recently joined the Innocence Project," Malcolm says. "I'm very interested in what is proposed and having the equivalent of cold-case reviews is very important. The people associated with it are very sincere and I think they have the capacity to identify potential cases and then it will be up to legal practitioners."

John Button

Bitter experience: John Button spent 40 years struggling to clear his name of manslaughter charges. Now he spearheads the Western Australian Innocence Project. Picture: Andy Tyndall

It follows in the footsteps of two other Innocence Projects in Australia, set up within university law faculties at Griffith University in Queensland and at Melbourne University.

But Western Australia's version is strikingly different. It has been funded and staffed by angry families involved in one of the state's most contentious murder trials.

Button, who is the chairman, says the idea for an Innocence Project had been kicking around for years before three young men, Salvatore (Sam) Fazzari, Jose Martinez and Carlos Pereiras, were charged in 2004 with murdering a stranger, Phillip Walsham.

The men had admitted to assaulting Walsham but strenuously denied any part in his subsequent fatal fall from a pedestrian overpass at a Perth train station late one night. A trail last year ended in a hung jury, and the men remained in jail awaiting retrial.

Button and his wife Helen contacted the men's families and Button visited their sons in jail.

"I got the facts of the case, started meeting with the families socially. Most of our meals were spent with one part of the family or the other," Button recalls. "We sat through the trial, almost every day. The more I heard, the more I saw there was no evidence whatsoever, not even circumstantial evidence."

Sam Fazzari's girlfriend, Mirella Scaramella, and his cousin, Maria Di Benedetto, were driving forces behind the families' push to prove innocence, says Button. "They were so passionate, not just about the boys' case, but they suddenly realised the injustice in this state and how easy it was. Once the Walsham case was over, we were going to get the Innocence Project started, but the problem was the case was never over because the boys were convicted."

In a May retrial, a 12-person jury found all three men guilty of murder and they were sentenced to life in prison. "What that did was that the boys' families were so incensed at it, that the whole extended family joined together and said we'll finance this to get the boys an appeal."

Suddenly, the Innocence Project was up and running; "Sam's father supplied an office in Balcatta, the furniture, whatever we needed," says Button, who estimates the family has poured $30,000 into the project. Meanwhile, Scaramella, 26, has given up her job as a primary school teacher to work full-time for the Innocence Project as its only employee, while her sister Julia Scaramella is treasurer and Di Benedetto is secretary.

But controversy surrounding the case of the three accused men - whose appeal will be heard later this year - has led to concern from police and justice authorities about the kind of advocacy the Innocence Project might conduct in future.

Mirella Scaramella and Button both worked closely with ABC TV's Australian Story on its controversial three-part series outlining the Walsham case. The series used Scaramella's personal quest to free her boyfriend as its departure point and presented evidence that, in her opinion, established all three men's innocence.

It also endorsed a view, pushed by the Innocence Project, that the Walsham case is the latest in a long list of high-profile WA cases of wrongful conviction, a list that includes those of Button, Darryl Beamish, Ray and Peter Mickelberg, Rory Christie and Andrew Mallard where convictions were overturned on the basis of flawed investigation, new evidence or improper police practices.

The ABC series came in for heated attack and was panned by ABC's Media Watch for presenting a viewpoint of a passionate advocate without putting the other side. Where, for example, was an interview with the crucial eyewitness who says she saw other figures on the footbridge with Walsham just before he fell? And why was it not clearly stated that the young men had lied and changed their evidence during the case?

"If they are balanced and accurate and they beat us up, that's fine," says WA Police Media Unit spokesman Jon Tuttle, who has pressed a police complaint at the highest level within the ABC. "But if people step away from being balanced and accurate, that's when we have a problem ... We're used to getting into a dust-up in the media. But when it comes to the heart of the justice system, Australian Story went, in our view, so far over the mark that we felt duty-bound to respond to it."

Australian Story vigorously defends its series and the controversy last week spilled into state parliament when Labor MLA Tom Stephens put questions on notice alleging police made claims inconsistent with the facts in their letter of complaint to ABC managing director Mark Scott. Stephens's questions also implied that the police complaint, and letters posted on the Media Watch website, may have been drafted by the prosecution in the Walsham case.

WA Chief Justice Wayne Martin issued a scathing attack on the program. "This new advocacy role being adopted by certain sections of the media after high-profile trials is disturbing and is something which has the potential to greatly reduce public confidence in our justice system," he says.

Tens of thousands of criminal cases had been dealt with by WA courts, he says, "so to take half a dozen cases over 45 years, condemn their findings and then declare they demonstrate a systematic failure of criminal justice in this state fails to put these cases in their proper perspective".

Button defends the Australian Story program. "Of course it was one-sided because you'd (already) had the other side. You had three totally innocent people, a corrupt police force and the DPP". He adds later: "You reach the point where nothing surprises you and you expect the police to be corrupt in every case." Such comments contradict Button's claim that "the last thing we want to do is erode confidence in the justice system".

Police have noted Innocence Project members' involvement in other trials. "They make themselves very obvious and there's a meeting of the minds in a number of these cases," says police inspector Scott Higgins, who headed the Walsham inquiry. "It's almost a collective getting together. Walsham people were involved in the Christie trial. I know Scaramella was present during that trial."

"In the past, it's always been 'attack police credibility because thats how you get acquitted at trial'," says Higgins. "But that's normally done in court and you get a prosecutor who can cross-examine or re-examine. But this is being done outside of court and we have very little recourse, except to complain, and it's hard to get the last word."

Both Higgins and Tuttle stress that WA police "are not opposed to Innocence Projects per se".
"In some ways we're an easy target because there are some cases where we have got things wrong," says Tuttle.

"Innocence projects have a valid purpose and they have proved in the past that people have been innocent," he says. "I don't want to say they are a bunch of do-gooders who shouldn't be doing what they're doing. But you can't throw a blanket over all doubtful convictions and say they are all the same."

Tuttle strongly objected to comments made in Australian Story by Tom Percy. "Comments about WA police picking their mark and sticking to it whether or not they think the person is guilty were quite upsetting and offensive," says Tuttle. "We're ordinary members of the community with normal hopes and aspirations. No one I know would knowingly put someone before a court in a false case."

Button says a meeting with Police Commissioner Karl O'Callaghan last week went "surprisingly well". O'Callaghan offered to attend the Innocence Project's first formal meeting later this year to answer questions. "He said he would back his people but not if they did the wrong thing."
Lynne Weathered, head of the Griffiths University Innocence Project and co-ordinator of the national Australian Innocence Network, which hopes to have active groups in every state, says it is unusual that the WA project is so firmly under the control of one advocacy group. "Similar projects elsewhere, generally, are ones that do stand back. They are not normally set up around one case," Weathered says. But the current Walsham focus "may change".

"One case can be the catalyst to move into the broader area and maybe that's what's happening," says Weathered, who will familiarise herself with the WA project when she visits Perth next month.

Button says the Innocence Project will move on to other cases once the Walsham appeal is heard. "We're assuming they will be exonerated, so once they are, we'll make it fairly big. We want to show that we as an Innocence Project are there to get the wrongfully convicted out of jail."

Innocence Projects
Truth in Justice