He was shit-scared, he'd ramble in a monologue that most of them could recite by rote. He'd witnessed a murder when he was a child and the killer, Derek Percy, was going to get out of prison one day and come after him. The day he had to identify Percy in that stuffin' police line-up fucked his life. He should have done more to save Yvonne. Percy had taken a contract out on him from prison and he was going to get Shane one day, he just knew it.
The locals knew better than to tell Stick that he was paranoid or delusional. The poor bastard was genuinely petrified. And when he wasn't talking about Percy, he was fortifying his home against the killer's imminent arrival. Cricket bat by his bed. An escape trapdoor carved into his living-room floor. Peering through the torn curtains in his lounge room to see who was parked outside his house.
Fifty-one-year-old Detective Sergeant Mark Winterflood has worked at Bega police since the mid 1990s and Wyndham, 35 klicks down the road, is part of his patch. The lifestyle suits him, he says; the job may lack the diversity offered in big cities but it lacks the chaos, too, and allows him time with his family and the opportunity to go fishing. His first meeting with Shane Spiller – who asked that he call him Stick – was in 1997, when he went to his property to have a chat about another matter. Spiller's yard, Winterflood noticed, was a graveyard for cars and motorcycles, some rusting, some half repaired, and this emaciated fellow with no meat on his bones looked as though he might have some degree of intellectual disability. Winterflood found Stick 'likeable but pathetic' and over the years came to realise that he had some level of Post Traumatic Stress Disorder from his encounter with Percy as a child. After their initial meeting, Spiller contacted Winterflood on an irregular basis: sometimes weekly, at other times with a six-month lapse between calls. Stick would occasionally 'snitch' to him about criminal activity and also shared with the policeman his terror of Percy. Aware of Spiller's dark paranoia, Winterflood didn't take his word for anything, proving to himself through discreet inquiries that Percy was indeed detained at the Governor's Pleasure in Ararat prison. 'There's no question,' Winterflood says, 'that Shane was genuinely traumatised, but he also used it to his advantage in seeking attention and sympathy from friends and health professionals.'
In 1997, the old law regarding Governor's Pleasure prisoners was abolished. Under the Crimes (Mental Impairment and Unfitness to be Tried) Act, Section 35, prisoners subject to the old system now needed to undergo a major review by the court to determine whether they could be released back into the community or remain subject to a custodial order. This Act spelled a radical departure from the old common law defence of insanity, replacing it instead with the defence of 'mental impairment' and providing different procedures for people adjudged not guilty by reason of insanity or not fit to stand trial.
Derek Percy and two other people were the first cases to be reviewed under the new Act. Lawyers involved recall the review was something of an endurance test, where lengthy, dry points of law – standards of proof, balance of probabilities, citing of legal precedents – had to be ironed out over two days and judgements made before they could even begin. At its heart, the major consideration in deciding whether or not to vary a prisoner's order was whether the detainee or the public would be seriously endangered if the prisoner were to be released to a non-custodial order.
Percy, then fifty years old, had been detained in prison at the Governor's Pleasure for more than twenty-nine years. Despite keeping his distance from other prisoners, he had once come under attack in the late 1980s from another inmate, who wrongly accused him of murdering his niece, lunged at him with a pen fashioned into a knife and stabbed him in the chest. Percy's desire to move out of the prison environs to a psychiatric hospital became even stronger.
In August 1998, the Sunday Herald Sun newspaper ran a story speculating on Percy's possible release following his imminent review by the Supreme Court. Next to the story was a photograph of Shane, taken shortly after Yvonne's murder. The paranoia that had plagued Spiller all those years became full-blown. People mustn't forget what Percy was like and what he did to Shane's little friend, he gibbered. He must never get out of prison. Through a circuitous route, Spiller was introduced to Robert Reid, then head of the Victoria Police Victim Advisory Unit. Reid was kind to Spiller, whom he found to be vulnerable and scared, and he instigated a claim for compensation, available to victims of crime, for him. The paltry sum of $5000 was initially awarded, but was later increased to $50,000 on appeal. In February 2002 a deposit of $32,000 was made into Spiller's account, but his terror about Percy having a contract out on his life, to have him located and murdered for the evidence he gave to police that resulted in his arrest, did not abate.
*
Heard before Justice Geoffrey Eames in Melbourne between August and September 1998, the review outlined the history of Percy's offences, including his writings that detailed the rape and homicidal fantasies involving children. But, Eames cautioned, a major review was not a sentencing exercise. 'The task set for the court under s.35 is not to determine whether the circumstances of the killing which led to his detention were such that any, or any additional, punishment should be imposed by extending the period of his detention. The issues before me focus on the question of present and future danger, not on punishment for events of the past.'
Eames moved through what was known of Percy's history, noting that his writings disclosed that Tuohy's abduction and death were not spontaneous events but occurred very much as his diary notes had anticipated such events might occur. 'The notes had been in existence at least for some months,' Eames observed, 'but there was evidence which later emerged which indicated that Mr Percy's homicidal fantasies had been present for up to four years prior to the killing.' Four years. That puts the known start date of his homicidal fantasies at 1965, the year he failed his Leaving Certificate, the year the Wanda Beach victims were murdered.
Detailing the even more horrific notes found in his cell in 1971, Eames noted that Percy's perverted fantasies included a complex chart that traced a pattern of conduct that would take place over many years, a plan that listed the first names of many children, some known to him. The issues Eames had to address, he noted, posed the question of whether he could be satisfied that, should Percy be released, the dangerous man of 1971 remained a serious danger to the community.
Psychiatrist Dr Ruth Vine interviewed Percy for the review. She had met him previously when he was interviewed for the Adult Parole Board and her opinion – that he was now not insane or, expressed in the more formal language of the Act, was not suffering from mental impairment – was echoed by psychiatrists Professor Paul Mullen and Dr Lester Walton. All three spent hours poring over the mountainous files of psychiatric reports amassed over Percy's thirty-year prison history, reports that agreed that however his condition was diagnosed or described, he presented a serious danger to the public and should not be released.
Of the three psychiatrists' findings, Eames noted that 'the witnesses who gave evidence before me were of the opinion that Mr Percy's mental condition in 1969 has not altered to that of today, and all three . . . [expressed] doubt whether the 1969 psychiatric opinion . . . would be consistent with what is understood today by psychiatrists to be the nature of his condition, then or now.' Percy had fallen on his own two-edged sword: his simple denial that he no longer had sadistic fantasies precluded psychiatrists from testing his mental state; but without being able to test that and find him mentally ill, he was unable to be transferred from prison to a mental health facility.
Percy, Dr Vine told the court, had a schizoid personality with prominent traits of isolation from others and a paraphilia disorder that manifested in his sadistic, paedophilic attraction to children of both sexes. His condition, she added, was highly unusual, the more prominent features of it being a preoccupation with faeces.
Coprophilia, like urophilia – a fetish for urine, also favoured by Percy, and shared by Adolf Hitler – is so unusual that it is labelled by psychiatrists as 'atypi
cal'. But despite many paraphilias being regarded as distasteful, deviant or socially undesirable, they are not automatic indicators of insanity.
Percy was represented by senior counsel Mr Tehan QC, who had entered the law in 1977 and took silk the same year Percy appeared before the review. Despite his wealth of knowledge of the law and his previous representation of numerous rapists and murderers, Tehan had never struck a case like Percy's. Briefed by Legal Aid Victoria, he spent months acquainting himself with the case, reading the trial transcript, Percy's writings, medical and parole reports. Fascinated with the unique elements of Percy's perversions – his history of dressing up in women's clothing, his preoccupation with excreta – Tehan burned the midnight oil prior to meeting with Percy at Ararat prison, learning about all aspects of lust murder. Like others before him, and despite the fact that Tehan was fronting the review as Percy's advocate, he found the prisoner sullenly morose and monosyllabic, a man who kept very much to himself.
Tehan didn't know if Percy was mad, bad, or both. And it was not his job to care. What he did know was that in the late 1960s, an insanity verdict was a compassionate jury's way to ensure a man was not sent to the gallows. And despite any private feelings he may have had, or any belief that the system would never let Percy go, he had a job to do, for his client. Tehan went in hard, strenuously arguing that the onus of proof that Percy still held sadistic fantasies lay with the expert witnesses who, he said, had failed to prove their theories. And without proof that Percy still had an active fantasy life, there was no basis, he said, for his client not to be released to a non-custodial supervision order on condition that he resided at the low-security ward at the Rosanna Forensic Mental Health Centre and was not allowed to leave the centre without approval.
Avoiding any negativity, Tehan pointed to factors that weighed positively on the side of his client and suggested that he would not endanger the public if released. For thirty years, he told the court, Percy had been a model prisoner. There was no evidence since 1971 in his writing or interviews with authority figures that proved he still harboured abhorrent fantasies. He was very young when the killing occurred. He might have forgotten many of the details of the killing and might not deliberately be refusing to discuss them with consultants. Percy was highly intelligent and therefore could reason that any escape attempt would irrevocably damage any chance he might have for eventual release. Finally, Tehan argued, Percy's parents and siblings had offered positive support and accommodation should he be released.
But Dr Vine would not be swayed in her opinion. While she could not, she said, predict future behaviour nor prove that Percy still had the dangerous sexual fantasies acted on in 1969 and reasserted in 1971, it was her opinion that those fantasies were deeply entrenched and there was a risk that they might remain with the offender for life. It was an opinion shared by Mullen and Walton.
'It is to be noted,' Eames wrote, 'that at the time of the killing and in the months leading up to it, there was no outward sign given by Mr Percy – who went about his normal duties in the navy with apparent care and skill – that he was then obsessed with planning the murder of one or more children . . .'
Professor Mullen, speaking in the quiet, authoritative manner that characterises his personality, backed Dr Vine's opinion. For four years before the Tuohy killing, he stated, Percy was obsessively writing complex paedophilic fantasies. Given his desires had proved so strong and his self-control so weak that he put his plans into action, his experience with other paedophiles suggested that Percy's fantasy life would continue today. Mullen was careful how he framed his next response. Percy's statements to Dr Walton that his fantasies abated soon after the killing would make his situation 'most unusual, if not unique,' he said. And unlike other forensic patients whose mental illness acts like a beacon of light, showing clear and obvious warning signs that they will return to past behaviour, Percy would not give off similar warnings. Mullen's prognosis was not encouraging. This was a man who had 'fantasised, planned, articulated in his own mind a system of hurting, humiliating and torturing a child, ending with killing as the direction and source of that sexual gratification. That is extremely rare, fortunately.' Extremely rare. Percy is a rare and interesting case. So rare and interesting that any treatment program, if ever he was interested in attending one, would need to be devised solely for him. Would such a program be successful? Eames enquired of Professor Mullen. 'It might be possible, if approached carefully, over time.'
Dr Walton, too, was not hopeful that, even if Percy were telling the truth and his fantasies had ceased, he would not revert to old behaviours if released. Unlike other known paedophiles, he warned, it was the act of killing that was the end result for Percy; death was not an unintended accident or unplanned event, as Percy had once told him during an interview in prison. It was the act of killing that was the impetus, the reason he abducted Tuohy in the first place.
Justice Eames agreed, delivering a blunt assessment. 'He has demonstrated no significant remorse or anxiety, at least none which I find credible, as to the circumstances which caused him to kill.' Eames accepted that, in light of the media's intense interest in Percy's review, it would have been an ordeal for him to give evidence. But, he noted, Percy was an intelligent man and his failure to give evidence led Eames to the opinion that Percy – the one person who was able to say whether he did or did not still harbour fantasies about children – did not want the issue of his fantasies explored. 'Because I am satisfied that Mr Percy holds those fantasies, then, in my opinion, the conclusion is irresistible that he remains as dangerous now as he was in 1969 and 1971 . . . I must,' he concluded, 'confirm the custodial supervision order, but I may vary the place of custody.'
But that option, too, was not open to Percy. Toward the end of the hearing, Justice Eames received a certificate from the Victorian Institute of Forensic Mental Health, which made it clear that any service they provided was not available for the custody, care or treatment of Percy.
For all the paperwork and formal language of the expert witnesses, Eames did not overlook the reason the review was necessary in the first place: the murder of Yvonne Tuohy. He read the victim impact statements submitted to him by her family and by others affected by her death, all of which expressed alarm and anxiety that if Percy was released, he could well commit other offences.
Justice Eames wrapped up his marathon twenty-seven-page report with a salvo for the media. 'Prior to, and during the course of, my hearings, several articles appeared in the newspapers which speculated that Mr Percy may have committed more killings than that of Elizabeth Tuohy,' he wrote, mistaking Yvonne's middle name for her Christian name. 'There is no evidence before me to support that assertion.' Citing a 1970 statement made by Detective Ken Robertson, which referred to Ron Anderson's 1969 interview with Percy, he opined that the only item of 'evidence' advanced was Percy's admission about Simon Brook's murder that 'I could have done it but I can't remember.' Having considered the material, Eames added, he gave little weight to it. 'It is not surprising that there was such speculation at the time of Mr Percy's arrest and trial, but it is important that speculation based on so little evidence should not distract the court from the task of evaluating the credible evidence which is available for scrutiny.'
Eames' conclusion was to the point: 'The safety of members of the public would be seriously endangered were Mr Percy to be released on a non-custodial supervision order and, pursuant to s.35 I confirm the custodial supervision order under which he is confined to custody in a prison.'
Until the next review, at least, Derek Percy would stay where he was, continuing to boast the dubious honour of being the only person subject to a Governor's Pleasure order to still be considered too dangerous to be released into the community. Other 'clients' subject to such orders had long since been deemed not dangerous enough to require prison supervision or were under the care of psychiatrists, with varying security levels.
Not Percy.
Months after the hearing conc
luded, The Herald and Weekly Times, publishers of the newspapers which carried the articles with the headlines 'Never Let Him Out' and 'Don't Let Him Out', which Justice Eames had deemed unnecessary, were found to be in contempt on the grounds that they interfered with the due administration of justice. The publishers and editor were fined, pending appeal, $12,000. Three years after the hearing the appeal was upheld, the judgement finding that contempt was not proved because the headlines expressed the views of private citizens.
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In 1998, the victim of an attempted abduction from a Dandenong street in 1967 contacted Melbourne's Sunday Herald Sun newspaper after it ran an article and photograph of Percy. She had never before seen a photograph of the man she now believed was her attempted abductor. 'I got quite a shock when I read the newspaper and saw him,' she told a reporter. 'I was so concerned I contacted my local police station in a bid to retrieve the statement I had made to police at the time.' The woman, eleven years old when the abduction attempt took place, was riding her bicycle to the local shop when a man in a tan-coloured station wagon flagged her down and asked her for directions. She told him what he needed to know and continued to the milk bar. When she came out of the shop, she found the man had not left. Beckoning her over to his car, he complained that he could not find the address and asked her to put her bike in the back of his vehicle and go with him to show him the way. His right hand, she recalled, was down near the door and using his other hand he lunged at her, trying to force her into the car. Terrified, the girl slipped out of his grasp and ran to a nearby friend's house, where police were called. But all attempts to find the man proved fruitless. 'I would not bet my life on it,' she told the newspaper, 'but I would bet my last dollar that that man was Derek Percy. I want to see the statement I made to reassure myself that I am right. Police said that if I was sure it was him, they would consider charging him.'
Lambs to the Slaughter Page 19
