There's no excuse for abuse
Murder

07
The murder of Garry Whyte
"Whyte was alone, unarmed, handcuffed" and running away from his killer when he was shot dead.

Murder with immunity
The facts are not in dispute. A private prison guard, Fabrizio Federico, then 31, working for Port Phillip Prison, shot and killed Garry Whyte on May 7th, 2002. The official excuse...Fedrizio told police he thought that the remandee, Garry Whyte, 39, a prison with mental health issues.. "knew he was armed and probably wanted his gun. The problem with that is that Garry has no history of voilent crime was running away. The prosecutor told the jury that (the screw) said earlier that (he) has "panicked and forgot his training when he fired two shots" at Whyte in a hospital corridor on May 7, 2002.

The Background
At first no charge... The then DPP (later to be a Supreme Court justice) force the charging with a direct indictment. Here's the ball grabber kiddies. If you are unfortunate to the charged with murder in the good State of Victoria, the Victorian Bail Act 1977 states very clearly that only the Supreme Court can grant bail. Big problem... its looks like  Federico is likely to be remanded in his own prison. Enter the screws union... it threatens all soughts of things. A deal is done.  Federico will be charged but bailed the same day. No remand time for  Federico. (risky, one might have thought because in this State people go to prison for threatening officials to effect the outcome of bail... in fact a case exactly the same was going on at the every time Hulls made the arrangements).

History making bail application
Back to  Federico problems. This gun happy screw has a few. The fist one being that it takes around 2 months to lodge and schedule a bail application in Victoria's Supreme Court (often longer as any criminal defence solicitor will tell you). Guess what happens. Robert Hulls arranges for a same day bail application for Federico. And you'll never guess, bail is granted. Conditions... not many because he returns to work as a screw.

"Whyte was alone, unarmed, handcuffed" and running away from his killer when he was shot.

Opening the Supreme Court trial, the prosecution asserted that Federico ignored the fact that Whyte was alone, unarmed and handcuffed and that another prison officer, who helped escort Whyte to the hospital, was able to help. He said Federico had been trained to deal with threats, and that the use of a firearm and lethal force was the last resort.

"The last resort became the first resort and he shot the prisoner dead," Mr Ryan said.

Federico has pleaded not guilty in the Supreme Court to murdering Whyte, who was taken to the hospital for a medical scan after complaining of headaches.

The prosecutor said Federico fired two shots after Whyte escaped from the room in which he was to have the scan. The first shot missed, but the second hit Whyte near the left collarbone. Doctors could not save him.

The prosecutor also remarked that Federico shot Whyte dead when he did not believe on reasonable grounds that it was necessary, and when it was not in self-defence. The Unions well paid Robert Richter, acting for the defence, said in his opening remarks that Federico shot and killed Whyte in an immediate and instinctive response after Whyte burst through doors into the corridor (running way from Federico).

Enter Justice Philip Cummins into the picture

He said the jurors might think after hearing evidence about training that it was drilled into prison officers to protect their weapons at all costs because "it is a weapon that can be turned on you and on others". "You shoot when you reasonably perceive a threat to life and to others," he said. We'll spear readers other lame excused offered by Cummins who was acting, many observers thought,  more as an assistant to the defence rather that the independant adjudicator. Which is, one must admit, a change from the usual complaint of defendants appearing before his Honour.

Many legal observers feel that even if the charge of murder could not be made out, there was still a clear case for manslaughter for a jury to decide. Federico had given at least two conflicting statements to police neither of which, it could argued, amounted to a defence. Remember the prisoner was shot in the back while running away from Federico. Even Cummins pre-offering of Federico protecting his gun, is an argument strained at best.

Normally judges of the nature of Cummins would be reminding the jury that conflicting statements may have given rise to an inference of guilt or they could act on a prior inconsistent statement to convict. Of course, in the end, It was a matter for a properly instructed jury to decide.

Of course, the jury never got to decide. Federico can thank Cummins for that. Cummins withdrew the indictment from the jury and acquitted Federico half way through the trial.

It is a criminal offence in Victoria to influence or threaten an official to influence a bail application. In fact, a high profile case involving a large city law firm and its Article Clerk and a former Legal Executive from the same firm was taking place under the watch of Robert Hulls, the then Attorney General, for exactly that offence.

Under Victorian law it is an offence to attempt to pervert the course of justice and punishable by 25 years imprisonment. No so if you're with the Labor party or work for the Attorney General.

Never in the history of the State of Victoria has such a bail application taken place. To have a hearing in the Suprme Court for bail takes time... often months. Let alone a bail application for murder... having been charged that morning. It is a practice rule that the DPP must be given minimum notice. Federico could not have had an application that day unless the DPP agreed and the Supreme Court waivered the rule.

In short, the fix was in. Firstly, no other citizen gets that sort of service... why Federico? Why did the Court agree to waiver its own rules. For the same reason perhaps it felt "pressure" to grant Federico bail. A phone call.

Cummins has a reputation with the Victoian legal profession of being a prosecutors judge. After all that was his previous occupation. If you have a trail, he's not on your list of preferred trial judges. Unless of course, your Federico. Even if you take murder off the table. There is still a clear case for manslaughter. Federico gave conflicting statements to police, changing his story at least twice.

Cummins' excuse in saying the jurors might think after hearing evidence about training that it was drilled into prison officers to protect their weapons at all costs because "it is a weapon that can be turned on you and on others". "You shoot when you reasonably perceive a threat to life and to others," he said.

We'll spear readers other lame excused offered by Cummins who was acting as assistant to the defence barrister rather than an independant trial judge

Of course, the jury never got to decide. Cummins, perhaps not trusting the jury to come to the "right" decision, withdraw the matter from them an acquitted Federico. And you thought Queensland was bad.




Fabrizio Federico.
Charged with murder
Garry Whyte
Unconvicted prisoner with mental health issues
At the time, it was not legal to shoot an escaping prisoner in Victoria.

The Government quickly changed that law.
________________________________
Manulipation of ths lergal system
The facts are not in dispute. A private prison guard, Fabrizio Federico, then 31, working for Port Phillip Prison, shot and killed Garry Whyte on May 7th, 2002. The official excuse...Fedrizio told police he thought that the remandee, Garry Whyte, 39, a prison with mental health issues.. "knew he was armed and probably wanted his gun. The problem with that is that Garry has no history of voilent crime was running away. The prosecutor told the jury
It is a criminal offence in Victoria to influence or threaten an official to influence a bail application. In fact, a high profile case involving a large city law firm and its Article Clerk and a former Legal Executive from the same firm was taking place under the watch of Robert Hulls, the then Attorney General,