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Challenging Behaviour

Sunday 24 October  1999 

Produced by Gareth Robinson

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Program Transcript


Gareth Robinson: This program is about the murder of a young woman. It includes descriptions of the crime that may distress some listeners.

Hallo, I'm Gareth Robinson. Today's Background Briefing is also about a concept called 'challenging behaviour.'

The story begins on a Saturday morning in March, three years ago. The sun is yet to rise. Phones are already ringing in the homes of sleeping detectives in Albury, on the Murray River in New South Wales.

PHONES RINGING

Gareth Robinson: Just one block off Albury's main street, the police night shift is unrolling barrier tape around a small concrete car park. The detectives called from their beds, will join a crime scene photographer to record details of what happened here about two hours earlier.

CAMERA DRIVE

Gareth Robinson: No-one is sure exactly when the young woman, Kim Meredith, left the Termo Hotel on the main street to walk the few blocks to another bar where friends were drinking. The distance between the two pubs is about 450-metres.

Kim Meredith got half way. She was attacked in a well-lit street and forced into that car park where her throat was cut. Ferocious force was used, the knife blade severing an artery and the spinal chord.

Blood pooled on the concrete showed where this happened, and a thick blood trail revealed how Kim's body was dragged first one way, then another, to a spot behind a trellis, where she was stripped of all clothes but her white socks.

Afterwards, in a strange sequence of movements, her clothes and possessions were hidden in six separate locations, from a rooftop to a drain in the property next door.

Kim's body was moved again in the car park. She was propped up and seated against a door as if on display. There was a security light shining overhead. Human faeces were smeared below her breasts. There were no conclusive signs of sexual assault.

This crime scene was later examined by Rod Milton, a forensic psychiatrist. He's not able to discuss the case. What he can do is explain how a hypothetical crime scene can indicate what might be in the mind of a hypothetical killer. Rod Milton.

Rod Milton: The crime scene is often a demonstration of the mind of the criminal, in ways that he will never say, because he wants to keep that private. But you can make some very educated, sensible guesses from the crime scene, about what's gone on in the person's mind, what's important to him, even such aspects as intelligence or the presence of a psychotic illness or something of that nature.

You need to realise that there's going to be a spectrum of objects I suppose, or phenomena, that depend on the person. And in regard to sexuality, these are going to consist of such things as the nakedness of a body or lack of nakedness; the way the body's displayed. For example, putting the body in an open shopping centre at night under glaring lights tells you a lot about the person, or at least you can infer reasonably that the person displayed the body as a means of showing how he'd conquered the woman that he'd killed.

You can get an idea of the time spent with the body if there's blood spread in different places, and the body's been moved about or there's scratch marks on the body from being dragged; you can get some idea that perhaps the person spent a lot of time with some enjoyment at the scene of the crime, sort of pottered about, as it were, enjoying his domination and enjoying what he'd achieved.

The way the clothing is handled is interesting: whether the clothing's been torn off, whether certain parts of the body are displayed for example, a brassiere pushed above the breasts makes the breasts more interesting. Sometimes the clothing is displayed in such a way as to suggest humiliation of the victim, and that's often a big element. Sometimes the way the body is displayed will demonstrate what can only be interpreted as humiliation.

So these are all sort of sexual themes that people often don't recognise as sexual a) because they don't really want to, and b) because I think they haven't had enough experience in realising that this is the only way to make sense of these particular scenes.

Gareth Robinson: Rod Milton, discussing hypothetical crime scenes. His analysis of the case surrounding Kim Meredith remains confidential.

A young man called Graham Mailes was convicted of murdering Kim Meredith. Last month he was sentenced to a maximum 25 years in prison.

Graham Mailes is intellectually disabled. According to specialists who've assessed him, his IQ is as low as 40, compared with the community average of around 100. From the moment the police picked him up as a suspect, Graham's capacity to comprehend and communicate has been all-important.

Background Briefing has obtained copies of interviews the police recorded with Graham.

Graham Mailes: I'm not really sure, it'd be about Thursday, yeah Thursday I think.

Detective: All right.
Graham Mailes: I got the train ticket on Wednesday , and I went , got the bus on Wednesday, and the train ticket Wednesday and I left Thursday morning about 10.30.

Detective: About 10.30?

Graham Mailes: At 10.30.

Detective: OK, so --

Gareth Robinson: Graham is now 26. He was born with a cleft palate and a hare lip into a poor rural family in the central west of New South Wales. He is illiterate, and his adult life has been spent on the disability pension.

Detective: You said before you had a bit of sex, is that right?

Graham Mailes: Yes.

Detective: Who was that with, with Debbie Wilson?

Graham Mailes: Debbie.

Detective: When was that?

Graham Mailes: Friday.

Detective: Friday.

Graham Mailes: Yeah it was late about 12 o'clock we watched a movie.

Detective: Was it before or after the movie?

Graham Mailes: Before the movie.

Detective: OK. Was it, how many times did you have sex with her.

Graham Mailes: Once.

Detective: OK. And what part of her place was that at?

Graham Mailes: Lavington.

Detective: No, but what part of her place - does she live in a house, or does she live in -

Graham Mailes: No, she lived in the flats. The mission houses.

Detective: So what part of her flat did you have sex with her in?

Graham Mailes: Her room..

Detective: Her room. Bedroom is it?

Graham Mailes: Yes.

Detective: OK. What does Debbie Wilson look like, Graham?

Graham Mailes: Um wears glasses.

Detective: Glasses, yes.

Graham Mailes: Short hair.

Detective: What colour hair?

Graham Mailes: Sort of blackish hair, blacky-brown that is yeah.

Detective: Blacky sort of -

Graham Mailes: Blacky-browny hair.

Detective: Blacky-brown hair.

Gareth Robinson: Graham told many lies and gave a silly and easily disproved alibi. The lying was used by the prosecution to show cunning and cleverness. The prosecution also argued that the lies indicated a consciousness of guilt.

No-one disputes that Graeme was at the murder scene. His shoes left impressions in the blood. And shortly before Kim's body was found by a security guard, Graham asked a taxi driver to help him use an automatic teller machine. The card he was using was Kim's.

What is in dispute is whether, because of his intellectual disability, Graham was treated fairly by the criminal justice system.

Barrister Mark Ierace is an expert on the relationship between the law and intellectual disability.

Mark Ierace: In order to fairly partake in a trial, the accused must be capable of understanding the proceedings which are occurring. If, for whatever reason the accused can't, then a question arises as to whether the accused is fit to be tried. It's similar perhaps to the position that a person might find themselves in if they went to a country where they could not understand the language, they were charged with a criminal offence and weren't given the benefit of an interpreter. While they might be physically present in the court room while a case was held, it would mean little to them, not understanding the language.

In the context of a local court hearing, if the accused had a mental illness or an intellectual disability which prevented them from understanding what was being said, then you have a similar situation. In essence, a situation of unfairness, because the accused cannot partake in the hearing. It's not a question of whether the accused chooses to not partake, but they simply don't have that choice, they're not capable of understanding sufficiently what is happening.

Gareth Robinson: Barrister, Mark Ierace.

Graham's capacity to understand has been tested many times since his early childhood. He's been examined repeatedly by disability specialists and had surgery to repair his cleft palate. When he was nine, he displayed the skill levels of a child half his age.

At 11, his father was shot and killed by another man in the town of Forbes. The effect on the family was catastrophic. Conflicting accounts given to Background Briefing say Mrs Lovette Mailes was unable, or unwilling, to care for all of her four children.

Graham and a brother became wards of the State. Home for Graham became a series of institutions, detention centres and on occasions, psychiatric wards. His behaviour during his teenage years was marked by outbursts of aggression and destructive behaviour. In disability circles, such characteristics are known as 'challenging behaviour.' However, he has no record of sexual violence.

Among the long list of professionals who dealt with Graham is a psychologist and Associate Professor at the University of Sydney, Susan Hayes.

Susan Hayes: Intellectual disability is defined as a person having significantly below-average cognitive skills, that is the skills involved in thinking, reasoning, memory, working out problems, and that's accompanied by significant impairments in adaptive behaviour. Their ability to get on in the community, to catch buses, to socialise, to look after themselves, to communicate with others, and to understand what other people are saying to them.

Gareth Robinson: That makes it a fairly profound disability, because it clearly affects a whole range of things a person might be able to do without the disability.

Susan Hayes: Well it does. It affects the person's ability to make reasoned decisions about all aspects of their life, and whilst some people with an intellectual disability can for example do simple tasks, such as cooking, catching a bus to work, simple work and so forth, when it comes to complex decisions, for example about paying their rent, or handling their money, or how to get along with other people, how to handle aggression or conflict or their own emotions, sometimes that's where the disability becomes obvious.

Gareth Robinson: Susan Hayes.

Intellectual disability then, is not simply a matter of scoring points on an IQ scale. But the point score is still used to help determine a diagnosis. On an IQ scale where around 100 is the community average, Graham has been ranked as low as 40 by some assessments and on others between 50 and 60.

His involvement in the disability system ended at Woodstock, a government-run institution near Albury. Graham was hard to handle, and was eventually expelled. He went to live in town, sometimes sleeping rough on the streets. People like Albury solicitor, Marshall Sheean preferred to avoid him.

Marshall Sheean: Many people regarded him as a menace. His behaviour, public behaviour in the streets in the central business district of Albury was always a cause for concern, and almost always involved police action. He was a person who seemed to enjoy frightening people, he'd jump onto the bonnets of cars of people stopped at traffic lights; he'd take children out of prams and run away with them; he frightened a lot of people.

Gareth Robinson: Graham liked to drop in on shopkeepers in Albury's busy main thoroughfare, Dean Street. He also became a familiar figure at the taxi rank in nearby Olive Street.

CAB RADIO

Cabbie: I don't know a lot about his history except that he was paddling around with blankets and this sort of thing, and sleeping all around the place, and had an affinity with dogs. He always had a couple, three dogs with him which I believe he used to jump the wall of the pound and let them out and cart them home. They were his friends I believe.

Gareth Robinson: And he was fairly well known to the cabbies like yourself, wasn't he?

Cabbie: Well he was quite well known, because he used to deem the taxidrivers to be his friends, he used to hang around the ranks a lot.

Gareth Robinson: And you mentioned when we were talking before that he was a fairly strong sort of character, and some people chiacked him and some were wary of him.

Cabbie: Yes a lot of drivers were a bit wary of him because of his mental aptitude and the fact that he was very, very strong, and a young sort of a guy and very strong. And I personally was a bit wary of him.

Gareth Robinson: A second taxi rank features in Graham's story, the one in his home town of Forbes. At the time of the murder, Graham had been living in Forbes for two years. As in Albury, he spent some time on the streets, sometimes sleeping in a churchyard next to the taxi rank.

There was again, a pattern of misdemeanours, but for cabbies like Bill, the young man was not a threat.

Bill: When I first started on the cabs Graham used to be always hanging around the rank. Quite often when he was broke or wanted a hand-out or a cab fare, book a cab fare up to go home or something like that. He was here all the time. Or if he got a bit bored he'd come around just for a bit of a torment. Yes, no, I knew him quite well really.

Gareth Robinson: You say just for a bit of a torment. He was a bit hard to handle, was he?

Bill: No, no, he wasn't hard to handle whatsoever, no, he was a bit of a, just clown around a bit and more or less torment the drivers a bit. Might lay on the car or something like that, and nobody likes him laying around on their cards. No, he never ever done no harm, that's all he was doing was seeking attention I think, more than anything, that was his main aim.

Gareth Robinson: Graham eventually got off the streets, moving in to live with his aunt, uncle and cousins in a house surrounded by farms outside Forbes. In the autumn of 1996, he decided to return to Albury for a visit.

PUB NOISE

Gareth Robinson: On the Friday night, March 23rd, Kim Meredith worked a casual shift in the Commercial Hotel. After last drinks at midnight, she and her colleagues closed the till and had a few drinks themselves. At the bar was Steve Prosser, a part owner of the pub. So was Jay Oates, a 21-year-old patron known as OJ who'd stayed on when the Commercial's doors were shut. These men were among the last people to see Kim Meredith alive.

Later they testified about leaving the pub and heading just down the road to another, the Termo, at one end of Albury's main street.

Prosser and OJ had been drinking heavily throughout the evening.

In the Termo, the men kept drinking at a back bar, but Kim took her drink and, on OJ's account, chatted to two girls in the pub bistro. At some point, Kim left but OJ pursued her onto the footpath and, he told police, persuaded her to return. She did, but only to the girls in the bistro.

OJ didn't see her leave the second time. Neither he nor Steve Prosser were able to say with certainly when Kim finally left the pub. They thought it might have been around 1.30 in the morning.

The two girls, who might have confirmed this or supplied another timing, have never come forward.

What is certain is that the man at the centre of this story, Graeme, was drinking at the Termo at the same time as Kim.

Graham had been drinking earlier that night at several other pubs, in the company of a friend, another intellectually disabled man. This man went home at midnight. Graham headed for the Termo, where he was seen by a disability nurse, Dean Wheatley. After the band stopped playing, Dean followed Graham out of the pub and last saw him walking slowly away, up the main street. According to Dean Wheatley, this was about 2am.

The next time Graham was seen was at 2.40, at the automatic teller machine opposite the taxi rank in Olive Street.

ATM SOUNDS

Gareth Robinson: There's no doubt about the time because the ATM computer recorded it, and two unsuccessful attempts to withdraw money, using Kim's card. Graham was struggling with the card, so he actually asked for help from a passing taxi driver, a man who knew him. The cabbie told Graham to sober up and try again in the morning. But Graham already had his ticket back to Forbes. He caught the train home later that morning.

The police meanwhile were hearing about Graham from the cabbie. The day after the murder, they followed him to Forbes. At Graham's home, they found a pair of jeans with what seemed to be bloodstains. They also found Kim's watch.

Man: Well there's not much he'll be able to do with them down there.

Gareth Robinson: At the Forbes police station, the investigators switched on video and audio recording gear for the first in a series of interviews. They had Graham's permission to question him. What they didn't have was someone who could support him during interrogation, in line with police rules about interviewing people with intellectual disability.

One of the lawyers at the Intellectual Disability Rights Service is Georgina Connolly.

Georgina Connolly: First the police need to identify that the person has an intellectual disability and we find that a lot of people who are in the category where they might be involved in crime, or they might be suspected of being involved in crime, have a lot of coping skills that they use to mask their intellectual disability, and they don't lightly reveal it. It can take a lot of skill to identify that, and without adequate training, it would be very difficult for the police officers to do. It if is obvious that the person has an intellectual disability or the police manage to pick it up in some way, the Commissioner's instructions say that they need to offer the person with the intellectual disability access to a support person. But there is no pool of support people for police to draw from; people who are arrested often have no family contact or support network, and so it's not as though there's somebody on call, and available, to act in that role. Even if there is, it may well be an inappropriate person who may not assist communication and might in fact, prompt the person with the intellectual disability to answer questions when they really ought to remain silent.

Gareth Robinson: Georgina Connolly says it's essential that suspects with intellectual disability exercise their right to silence when interviewed by police.

Georgina Connolly: For people with intellectual disability I'd say it's essential because I think that the whole interrogation process is so stacked against them that there's no way they could go through that and hope to portray themselves well. It doesn't matter whether they're innocent or guilty, I mean they can still present information in such a way as to do themselves a disservice. I mean, the police are highly skilled interrogators, and the person with an intellectual disability by definition has a deficit in communication. Now there's no way that that sort of set-up can be used to elicit good information or the sorts of information on which you'd like to see a criminal investigation based.

Gareth Robinson: Georgina Connolly.

Background Briefing requested an interview with police involved in the case. They declined, because of the possibility of an appeal against Graham's conviction.

At the interview room, in the Forbes police station, Graham was given the standard police caution. That is, he was informed of his rights.

Detective: I want you to understand that you are not obliged to say or do anything unless you wish, but whatever you say or do will be electronically recorded and may be used in evidence. Do you understand?

Graham Mailes: What does aside mean?

Detective: Can later be used at court, the evidence, anything that you say, or do. OK? Do you agree to it before we started this interview I told you I intended asking you further questions about this?

Graham Mailes: Yes.

Detective: Do you agree that I told you that my questions together with any answers you cared to give, would be electronically recorded both on audio tape and video tape as the interview took place?

Graham Mailes: Yes.

Detective: Do you agree that I also told you that at the conclusion of the interview, that is at the end of the interview, you'd be supplied with a copy of one of the master audio tapes?

Graham Mailes: Yes.

Detective: Do you agree that I also told you that at a later time and date arrangements to be made for yourself and any legal representative you cared to nominate to view the videotape?

Graham Mailes: Yes.

Detective: OK.

Gareth Robinson: During this first interview, Graham presented an alibi: he was nowhere near the murder scene, but in the Albury home of his girlfriend. This would be the first of three different stories he told about his movements on the night.

Detective: All right and what happened then?

Graham Mailes: Then I stayed there for a while, and then I left and I go to Lavington to see me missus -

Detective: Yes

--and I stayed there, and I had a cup of coffee and I left there and she was going down town, get some groceries, I said "righto then, I'll throw me bag in". She said "Yes" she said she would, left all me bag there, went down town to help her do her groceries, I went home with her and I had tea with her and I went back to the men's refuge.

Detective: The men's refuge in Albury. Let's get that right: you went out to your girlfriend's?

Graham Mailes: Yeah..

Detective: And you sent and got some groceries with her, and you left your bags there, and then you went downtown, and got the groceries, went back to her place, had tea with her, and after that you went down to the men's refuge.

Graham Mailes: Yeah I watched a bit of television first before I left her house.

Detective: Sorry?

Graham Mailes: Watched a bit of television first.

Detective: You watched some television first?

Graham Mailes: Yes, before I left.

Detective: Right. Now what time did you leave her home on Thursday do you think?

Graham Mailes: It was about. I'm not really sure

Detective: Was it daylight?

Graham Mailes: Dark, yeah, nearly dark, going dark.

Gareth Robinson: The alibi didn't hold up. There was no girlfriend.

The police interviewed Graham twice in Forbes. He then agreed to go back to Albury, where there was a third interview. This time there was a support person, Graham's aunt, but she attended only part of the interview. Later, police said she'd become upset, having formed the view that her nephew was guilty.

Detective: Graham is there anything further you want to tell us in relation to this matter?

Graham Mailes: Yes I do

Detective: What?

Graham Mailes: I think you called me a murderer. Is this true or what. I told you my side and I want it off you now.

Detective: Graham, at the completion of this interview, you will be under arrest and I intend to charge you with the murder of -

Graham Mailes: I done no murder. I done no fucking murder mate. I should know that's my word.

Detective: We will. In any event, do you want to say anything further?

Graham Mailes: No I do not.

Detective: Have you given the answers as recorded of your own free will?

Graham Mailes: Yes, I do. Am I allowed to go home today or what?

Detective: No.

Graham Mailes: Why?

Detective: Because you'll be staying in custody.

Graham Mailes: I'll come back to court.

Detective: Can we just continue.

Graham Mailes: Yes.

Detective: for a minute. ?

Graham Mailes: Yes.

Detective: All right, I'll ask that. Have you given the answers as recorded of your own free will?

Graham Mailes: oh well yes you did.

Detective: No, have you given your answers of your own free will?

Graham Mailes: Oh yes I did.

Detective: OK. , has any inducement been held out ...

Gareth Robinson: Five days after Kim's death, Graham was charged with murder and remanded to Long Bay jail in Sydney.

While awaiting trial, he gave police a fourth interview. He said he'd been telling lies. This time he implicated another man, a former neighbour of his in Woodstock, the disability centre in Albury. Like Graham, this young man lived in Woodstock's unit for people with challenging behaviour.

Graham told police a complicated story that involved the two men changing clothes beside a clothing bin on the night of the murder. Graham said he'd later seen his friend run out of the Termo hotel. Graham had followed, and saw the man killing a woman.

This story about changing clothes, according to Graham, explained the bloodstains on his jeans. But this part of the story about the clothes has no credibility. Nor did anyone see the other man in the pub or near the murder scene that night. The second man was interviewed by police, but not until seven months later, and no charges were laid.

COURT SOUNDS

Gareth Robinson: At Graham's committal hearing, the prosecution outlined the circumstantial evidence and the lies. It was suggested that the lies indicated that Graham was trying to cover his guilt.

Police witnesses testified that they believed there was nothing wrong with Graham's intellectual grasp. His problem was simply the speech impediment.

Nearly a year after the murder, Graham was committed to stand trial. First though, there had to be a separate hearing into his fitness. The issue of fitness is central to this case. Graham's lawyers and the prosecution each commissioned experts to assess his level of comprehension.

The job of assessment went to two psychiatrists, one for each side, and the psychologist, Susan Hayes.

Susan Hayes: This one's the Kaufman brief intelligence test, which I use quite a lot, and it consists of three sub-tests. The first is a series of pictures which you show to the person and they have to name the picture. Now that might sound pretty simple, but you start off with simple things like a bed or a fork, and work up to quite complex illustrations like a fire extinguisher, a compass, a hexagon and a thermostat, so that you can see that the level of language is very sophisticated.

The next section of this test is like a crossword, where there's a clue such as a dark colour, and there's three letters, a B and an R and a W, and person has to work out what that word is. Mostly they get that right, that's 'brown'. Those are the vocabulary and school-based type of skills. And the next section is designed to test what's called fluid reasoning, which is the ability to solve new problems, and that's a series of puzzles, of increasing complexity, and the person has to work out which is the missing piece of a puzzle. So by the time you get to the end of the test, it's not just matching the bone with the dog, it's looking at nine pieces of a puzzle, one of which is missing and it's black on white, white on black and different shapes and numbers, so you're operating with about five different concepts that you've got to hold in your mind.

Gareth Robinson: Susan Hayes can't discuss the details of Graham's case, but she's known many which involve the same sort of questions about a person's capacity to defend himself. Susan Hayes says the principles of fitness were laid out in a court case in Victoria, involving a defendant called Pressor.

Susan Hayes: You need to conduct a fitness assessment using as a basis what's called the Pressor formulation, and in the case of Pressor, a judge set out what has become the leading description of how to assess whether a person is fit or not, such as the person's understanding of the charges, the person understanding that this is indeed an adversarial hearing, that there are some people who are against him or her, and against their point of view, then being able to understand what the evidence is against them and to put their own evidence and to understand enough to be able to discuss with their legal counsel the pros and cons of different sorts of approaches or different defences which could be available to them.

Gareth Robinson: Susan Hayes. She and the psychiatrist engaged by the defence found Graham unfit to stand trial. The prosecution's psychiatrist disagreed. These conflicting opinions were presented to a jury.

The judge in the fitness hearing was Justice Peter Newman.

He began by telling the jury what would happen if the accused was found unfit. The judge said Graham would be referred to the Mental Health Review Tribunal and it would decide his status.

The judge could have said more, and Graham's barrister wanted him to. The barrister made a request, in the absence of the jury, for the judge to explain that a finding of unfitness would not mean that the defendant would escape a murder trial. Being unfit would still mean a trial by jury and if convicted, a possible prison sentence. However, the trial process would be slightly different.

The judge declined to give the fuller explanation, saying it could be done later in the fitness hearing.

The hearing proceeded, with the jury listening to the experts, but also being told about the evidence against Graham. They heard about his bloodstained clothes, about his use of Kim's bankcard. They also heard about the lies. The prosecution's psychiatrist saw them as evidence of a capacity to construct a coherent story to back his assertion of innocence.

The psychiatrist also mentioned that Graham had told him another version of the murder. This third account involved Graham being in the main street of Albury when the other disabled man appeared and took him to the place where Kim lay dead.

Graham said the other man claimed responsibility for the killing.

The prosecution psychiatrist and the defence experts all agreed that Graham was intellectually disabled, but disagreed about his level of comprehension and about his ability to function in the world.

The jury accepted that the prosecution's expert was right. Graham was fit to go to trial. What it meant for Graham was that he faced trial as if he was able to comprehend the proceedings and assist his defence team.

COURT SOUNDS

Gareth Robinson: Graham's trial opened in April this year in the town of Wagga Wagga. The judge was Peter Newman, the same judge who'd run the fitness hearing. In the court room was Enid Hope, who'd worked with Graham in the Woodstock disability centre in Albury. Enid had been appointed as a support person for Graham in court.

Enid Hope: Graham isn't exactly you couldn't call Graham pleasant to look at. He's got a hare lip, he has a very - he has a stare which looks very cold, can look very cold and calculating, but then when Graham smiles, it lights up the whole of his face, he looks a completely different person. He's got a beautiful smile, and unfortunately no-one saw that, has seen that over the last three years, and the photographs that people do see of Graham, and when they see him in his court appearances, he doesn't look very pleasant, and he doesn't look very nice at all.

Gareth Robinson: With Graham in the dock, the defence returned to the question of fitness. Defence barrister Terry Golding told Judge Newman his client had been unable to instruct him. This meant they couldn't construct a defence or properly represent him.

Terry Golding also produced a new opinion about his client. It came from a prison psychiatrist who'd been treating Graham for two-and-a-half-years during his time on remand. This doctor said Graham was unfit to face trial. This, Golding argued, added to the defence view that Graham had no idea what was happening in court. Golding foresaw what he called an appalling injustice.

Judge Newman disagreed and ordered the trial to proceed. As it did so, the behaviour of the man in the dock became increasingly disruptive and outrageous.

ABC reporter Anne Delaney was an observer throughout the trial.

Anne Delaney: He spent a lot of the trial asleep. It's a serious trial, it's a murder trial, he's been charged with this horrendous act and he spent the bulk of the time in the dock, sleeping. When he wasn't sleeping the antics had a lot of the court staff at wits' end because he would do things like start doing push-ups, he'd start repeating word for word what either the magistrate or solicitors were saying, he'd start singing, admittedly some of the songs he was singing, not what you would expect someone in their '20s to be singing; he was singing things like nursery rhymes and stuff like that, very repetitive, very monotonous kind of songs, or he'd simply be starting to talk to himself, or he'd start doing exercises in the dock. He seemed like he wasn't there, he wasn't focusing, he was off in his own little world for want of a better term, and it wasn't very pleasant for the family either, of the victim; they were upstairs. There's a second public gallery which is upstairs, and they were upstairs looking down on the whole process, and this was obviously very distressing for them because they could see this man who was a child-man, who was being aggressive, very abusive, then the next moment was sleeping like a baby. So you could see the almost disbelief in their minds that 'Is this him? It has to be him,' 'No, it' cant be him.' You could see that they're just torn; very, very confusing situations.

Gareth Robinson: Judge Newman speculated about the possibility of tranquilising the defendant. Both the judge and the prosecutor suggested that Graham's behaviour was deliberate. Enid Hope thought it was the product of fear.

Enid Hope: He was feeling very frightened and very threatened. He felt no-one believed him, so he was being very angry, abusive, swearing at the challenge. He was making inappropriate hand signals to the judge using really, really bad language to him. The jury looked absolutely horrified, and you can't blame them, it wasn't very nice what Graham was saying. But he was feeling really threatened, and didn't understand a lot of it, what was being said.

Gareth Robinson: Some people I think interpreted his behaviour as calculated, that there was some sort of strategy in it, do you think that was the case?

Enid Hope: No, I do not. He was just feeling really threatened and angry, and it was his way of expressing it, saying well, I don't care what you think of me, I know I'm saying I didn't do this; I don't care what you think.

Gareth Robinson: And obviously you think that judging by their appearance, it didn't go down well with the jury at all.

Enid Hope: It didn't go down very well at all. I noticed one gentleman glaring with his arms crossed; his body language was really negative right from the very start.

Gareth Robinson: The prosecution eventually applied for Graham's removal, on the grounds that nobody could hear the evidence. Once again, barrister Terry Golding raised the question of fitness. Here is a re-enactment of part of what he said, and the judge's response.

Reader: It must be abundantly clear to Your Honour that I am effectively uninstructed in this trial. While it may be the case that the accused person is present, it must be abundantly clear to Your Honour that I am deriving no assistance by way of instructions at all. I have some sympathy, only that it's true enough that it's difficult to hear.

Reader: Like the jury, I'm seeing a lot of this stuff for the first time, not all of it, but I am finding it now impossible to follow it with the continual noise coming from the dock. And if I am having that trouble, having been in these rooms on many occasions before, then to people like the jury who are unaccustomed to it, it must be intolerable.

Reader: I understand that, and I say nothing about it, but that is only one aspect of it, and I can speak only in a hypothetical way. But there is material in here to which I would be expected to direct my client's attention and ask for compensation. My client cannot read or write, it's simply impossible under those circumstances if he's not here watching for me to direct his attention if such a situation arises to those matters on which I might need instructions. That would be quite gross, that would be a travesty.

Gareth Robinson: In the end, the judge decided to evict Graham and put him in another room with closed circuit TV, where he could watch the proceedings.

Terry Golding argued that this would be unfair to his client. This is a re-enactment of how the judge responded.

Reader: I don't think in the circumstances the jury will be surprised. His conduct of course is prejudicial anyway. What the jury must be thinking, with a person who's carrying on like your client is carrying on, I doubt is a favourable one, and I think I'm understating it.

Gareth Robinson: So in an effort to restore some tranquility to the courtoom, the prisoner was taken out. After a break, Terry Golding reappeared, with a new problem. Graham, he said, had been enraged when told he'd been evicted. He'd responded by sacking his legal team.

Again, a re-enactment.

Reader: The situation has developed now where I simply don't know what to do. In a minute I'll be inviting Your Honour, if you'd be so kind, as to give me some advice, because he has been found fit to plead. I'm conscious of that. In a sense there is some tribunal of fact which has found that he's capable of withdrawing his instructions. I've always had the view, and I re-state them now, that I'm effectively uninstructed, so I have a view which is different to their interpretation. Accordingly, the withdrawal of instructions and the nominal way he has done it, poses an ethical problem for me, because I'm of the view that he's not capable of doing that, because he dosen't know what he's doing.

Gareth Robinson: Terry Golding took his ethical problem to the New South Wales Bar Association, which advised him to stay on as amicus curae, a friend of the court.

The trial continued and Graham was allowed to return to the dock. At one stage the man he accused of killing Kim Meredith, took the stand to deny any involvement. This man said he was with his girlfriend on the night of the murder. She testified to confirm this. Both these people are also intellectually disabled.

During this section of the trial, there was legal argument in the absence of the jury.

The defence wanted the jury to hear some of the history of the man Graham was accusing. This history was recorded in files from places like Woodstock, the disability centre, and court records. It told a story of several assaults on women, some of them sexual, and of bizarre sexual behaviour.

Judge Newman said this information about this man was not directly relevant to the circumstances of the attack on Kim.

However the judge did allow the defence to put some questions to the man about his attitude to women, and his violent treatment of them. His evidence prompted legal argument over his capacity to provide coherent testimony. Then the man was stood down, maintaining his denial of involvement in the murder.

The weight of the circumstantial evidence remained crushingly against Graham. His shoe print was found in the blood at the scene. He had some of Kim's possessions. There were the bloodstains on his clothes.

The murder weapon however, has not been found.

There are people close to the case and who know Graham who say it's possible he arrived at the scene after Kim's death, that he was involved, but only in helping to move her body.

These people who won't allow their names to be used, note that Graham was identified in Albury's main street around 2am, and then again at 2.40. They believe that there wasn't sufficient time for Graham to have intercepted Kim, killed her, stripped her body and moved it around. Then Graham had to put her clothes and possessions on a rooftop and around the neighbouring property, and all this before taking her card and getting to the ATM opposite the taxi rank.

However the jury disagreed and found Graham guilty of murder.

Judge Newman sentenced him to a minimum of 18 years in prison, and a maximum of 25. Some of the judge's sentencing remarks are re-enacted now.

Reader: Having observed the conduct of the prisoner, and having observed his attempt to exculpate himself by calculated mendacity, I find that the prisoner, while moderately intellectually disabled, is a person who possesses innate cunning, which makes him a potential danger to the community. All the evidence relating to his intellectual capacity indicates that his prospects of rehabilitation are poor.

Gareth Robinson: The sentence was handed down last month. Graham's friend, Enid Hope, is still working with disabled people in Albury. She believes the court determined only a part of the truth.

Enid Hope: I'm not denying that Graham was here, but I do believe there's a lot of room for doubt, yes.

Gareth Robinson: Why?

Enid Hope: The Graham I knew wouldn't have done it, he had a basic respect for women. He was shy around young girls, and I just don't believe that Graham did this, and it's not that I'm not being objective, I just feel there's a lot of other issues involved that weren't taken into consideration.

Gareth Robinson: But we know from the objective evidence that he had some involvement. He had the murdered girl's blood on his clothes, he had her possessions after she died. What does that tell you?

Enid Hope: It tells you definitely that yes, Graham may have been there, or obviously was there, but that does not say that he murdered the girl.

Gareth Robinson: Are you suggesting that somebody else did?

Enid Hope: Yes, I am, yes I really do believe it was someone other than Graham, that murdered Kim Meredith.

Gareth Robinson: Enid Hope. At the taxi rank in Forbes, the cabbie Shane shares Enid's opinion.

Shane: It's a widespread belief in this community that Graham was involved, but he wouldn't have been able to do what has happened to that poor girl.

Gareth Robinson: Why is that?

Shane: Well just because of Graham. He was a, he was probably a caring person you could say, he didn't have any violence in him except for probably tormenting violence, yes. Louts louts would torment him and they'd provoke him. I miss Graham, I'd love to have him back here. He could come back here and punch me in the arm like he used to any time. I'm sure the other taxis and taxi cabs or taxi drivers would think the same, that's all I'm speaking for.

Gareth Robinson: So there were some warm feelings towards him.

Shane: Oh Graham was, he was like a friend. On the taxi rank, you'd come down to the taxi rank and you'd expect him to be here, you know. You expected him, and he wouldn't welcome you with a shake of the hands, he'd welcome you with a punch on the arm or something like that. 'How're you going, you big You-know-what?'

Gareth Robinson: Graham Mailes is now in jail. Psychologist Susan Hayes says there's an increasing group of prisoners with an intellectual disability. She says that her research over the past decade shows that now about 20% of New South Wales prisoners have an intellectual disability.

Susan Hayes: I think that they get there because they've fallen through all of the other sieves in society, the services which should have addressed their needs earlier, such as education, health, community services, have not. Their challenging behaviour hasn't been addressed, they haven't been assisted to find work, they haven't been assisted to find appropriate recreational or social outlets or even to find homes. The proportion of people with an intellectual disability amongst the homeless population is great, and far too great, it shouldn't be that way. So finally they come to the door of the prison and the door of the prison is about the only door which has to open to them. It can't close, they can't be excluded on the basis of their intellectual disability.

Gareth Robinson: Back in December, 1996, when Graham Mailes was still in his committal hearing, the New South Wales Law Reform Commission tabled a report in the State Parliament. The report recommended a host of improvements to the way the police and the courts deal with people with intellectual disabilities. Virtually none of the recommendations have been implemented. Intellectual Disability Rights lawyer, Georgina Connolly.

Georgina Connolly: There has been a lot of investigation into this issue throughout Australia at a State and Federal level. There have been a lot of reforms suggested but very little government will to actually implement those reforms. I think this is a very difficult issue for governments, who want to be seen to be strong on crime. They think that actually delivering justice to people with intellectual disability will be seen as weak. In fact it's not weak at all, in fact it does require a complex and brave addressing of issues that have been of noted concern for just far too long.

Gareth Robinson: Georgina Connolly is not saying that people like Graham Mailes should be exempt from justice.

Georgina Connolly: We don't say that people with intellectual disability should never go to prison. I mean in some cases, they should, but if you look at the personal profiles of a lot of people who end up in prison, the fact that they would go there is just utterly predictable from the sorts of behaviours they've engaged in previously and has remained just unaddressed. And there is simply no need for their behaviour to escalate in a way that ends up in them going to prison. It could be addressed at a much earlier level.

Gareth Robinson: The security guard who found Kim Meredith in the car park that Saturday morning has been unable to return to work.

Kim's family has left Albury and moved to Western Australia.

Kim was 19 years old when she died.

THEME

Gareth Robinson: Co-ordinating Producer is Linda McGinness; Research, Jim Mellor; Technical Production: Anne-Marie Debetencor; Background Briefing's Executive Producer is Kirsten Garrett.

I'm Gareth Robinson.

THEME

Further information

People with an Intellectual Disability and the Criminal Justice System - Report 80 (1996)
NSW Law Reform Commission
http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R80INDEX

Publications

Intellectual Disability: A Manual for Criminal Lawyers
Author: Mark Ierace
Redfern Legal Centre Publishing, Sydney, 1989
 
 
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