Po­lice, Don’t Move!

The trial of Ti­mothy Baker

The Monthly (Australia) - - NEWS - by Catherine Ford

Late on the night of Sun­day, 25 Au­gust 2013, Lead­ing Se­nior Con­sta­ble Ti­mothy Baker, a po­lice of­fi­cer with Mel­bourne’s Ston­ning­ton High­way Pa­trol, was on duty in in­ner-city St Kilda. He was six and a half hours into his shift and work­ing “one up” – a po­lice term for un­ac­com­pa­nied duty – when a white Hyundai Ex­cel in traf­fic caught his eye. He swung his un­marked po­lice car around and fol­lowed it. Baker, then 42 years old, with 24 years’ ex­pe­ri­ence in Vic­to­ria Po­lice, con­firmed, via his ra­dio op­er­a­tor, that the Hyundai had stolen regis­tra­tion plates on it. He told her he was go­ing to in­ter­cept it. Two po­lice of­fi­cers started driv­ing in his di­rec­tion to pro­vide back-up. The Hyundai driver re­sponded to Baker’s flash­ing lights, pulling off Punt Road, one of Mel­bourne’s ma­jor ar­te­rial thor­ough­fares, into Union Street, a quiet Wind­sor side street. Baker parked a dozen or so me­tres be­hind him, his head­lights on high beam, il­lu­mi­nat­ing the road and the rear of the Hyundai. Two de­vices – a video cam­era film­ing for­ward from the dash­board of Baker’s vehicle, and a dig­i­tal voice recorder (DVR) in Baker’s in­te­grated op­er­a­tional equip­ment vest, which he’d ac­ti­vated – would record most of what was about to oc­cur. The po­lice of­fi­cer ap­proached the driver’s win­dow of the Hyundai and be­gan his ques­tions. Vlado Micetic, a 44-year-old St Al­bans man, an­swered them, slur­ring his words, as if drunk or drug af­fected. He told Baker he was on bail. The po­lice of­fi­cer told Micetic to step out of his car to be in­ter­viewed about his stolen plates, and to empty his pock­ets, which he did; Baker also told him to put his hands be­hind his back, to be hand­cuffed, which he ob­jected to. Baker used the ra­dio on his vest to call for the as­sis­tance of the back-up. The pas­sen­ger in Micetic’s car, a young Pol­ish woman named Evelina Niedzwiecki, com­pli­cated the sit­u­a­tion by ex­it­ing the Hyundai and slip­ping away from the scene. Baker, his at­ten­tion now split, be­gan to lose con­trol of his ar­rest. Hav­ing put only one hand­cuff on Micetic, Baker tried to keep hold of him, de­spite Micetic ob­ject­ing more stren­u­ously now – mostly ver­bally and with­out any ob­vi­ous men­ac­ing ges­tures. To­gether, with Baker stand­ing very close to Micetic, as if to fin­ish hand­cuff­ing him, the two men shuf­fled down the foot­path be­side the Hyundai in a tense hus­tle, speak­ing now in clipped non se­quiturs, un­til both dis­ap­peared in front of the Hyundai – out of sight of the po­lice dash cam, but not out of range of Baker’s lapel mi­cro­phone – where, with an abrupt warn­ing of “Po­lice, don’t move”, Ti­mothy Baker promptly un­hol­stered his gun and fired three shots into Vlado Micetic at near point-blank range. Micetic cried out in shock twice, dropped to the road in front of his car and, moan­ing in agony, fell un­con­scious. In the 22 sec­onds after his last gun­shot – tiny in­cre­ments of time, in this in­ter­cept, would con­tain worlds of mean­ing – Baker said noth­ing. He moved around, breath­ing heav­ily, and un­zipped a pocket of his equip­ment vest. His DVR picked up what sounded like metallic ob­jects fall­ing on the ground. The two back-up po­lice of­fi­cers ar­rived. They found Vlado Micetic dy­ing on the road, just in front of the Hyundai. They found Ti­mothy Baker stand­ing a few me­tres away, his pis­tol still in his right hand, speak­ing, now, into his vest ra­dio, de­mand­ing an am­bu­lance. They in­spected Micetic’s in­juries, com­mu­ni­cated them to their ra­dio op­er­a­tor. They saw Baker heave and vomit into the gut­ter. Baker told the of­fi­cers that Micetic had been a “smart-arse” with him and had pro­duced a knife, and that, fear­ing for his own life, Baker had shot him. A flick-knife was ly­ing on the road at the edge of the scene. When the ra­dio op­er­a­tor asked Se­nior Con­sta­ble Baker where Micetic had been shot, Baker re­torted, “Fuckin’ hell, what am I, a fuckin’ marks­man?” Micetic’s gun­shot in­juries were pro­found. All three of Baker’s bullets had hit their tar­get; one had torn through Micetic’s ab­domen, hit­ting his liver, pan­creas and aorta – a fa­tal trauma. An am­bu­lance ar­rived promptly, and Micetic was de­clared dead twice: once on the road in front of his car, and again, just be­fore mid­night, at the Al­fred hospi­tal emer­gency depart­ment, after hav­ing been worked on by am­bu­lance of­fi­cers and hospi­tal med­i­cal teams. In the mean­time, mul­ti­ple teams of po­lice de­scended on the scene in Union Street: se­nior homi­cide de­tec­tives, lesser-ranked of­fi­cers, foren­sic spe­cial­ists, and Baker’s close col­leagues from his own high­way pa­trol unit. The record­ing de­vices – Baker’s dash cam and the DVR from his vest – were taken by po­lice. Baker re­mained at the scene for some time, ques­tioned re­peat­edly, and then re­turned to his unit head­quar­ters in Prahran, where he was drug and al­co­hol tested, fin­ger­printed and dusted down by bal­lis­tics ex­perts. He was in­ter­viewed again, at Prahran, in the early hours of the morn­ing, by se­nior in­ves­tiga­tive po­lice. Nearly all reports noted that he was vis­i­bly trau­ma­tised – “shak­ing and trem­bling” – and dis­turbed by the night’s events. He was re­ported to have “shud­dered” when told that Micetic had died. One fel­low of­fi­cer was so con­cerned about Baker’s de­te­ri­o­rat­ing emo­tional state that she at­tempted to have a psy­chol­o­gist at­tend to him. Baker was driven home by an­other col­league after the po­lice shoot­ing fa­tal­ity pro­to­cols had ended – with­out the psy­chol­o­gist’s visit. He sub­se­quently took leave from work. Just over two years later, in Oc­to­ber 2015, homi­cide squad de­tec­tives, at least one of whom had been present in Union Street on the night and be­came the in­for­mant in the charge that fol­lowed, went to Baker’s home, knocked on his door at 7 am, and ar­rested him. He was charged with the mur­der of Vlado Micetic, and taken into cus­tody. He was the first serv­ing Vic­to­ria Po­lice of­fi­cer to be charged with mur­der in 30 years. Baker’s mur­der trial ran over four weeks in Au­gust and Septem­ber this year. The record­ings from Baker’s dash cam and vest mi­cro­phone were, Baker’s de­fence coun­sel sug­gested to me, “rare” trial ev­i­dence, and they were crit­i­cal to the trial’s out­come. What was rare about them, for a lay ob­server, was the “vir­tual” re­turn they

of­fered to the past, to the ac­tual events in Union Street. They were an en­trée into the closed world of po­lice con­duct and, sig­nif­i­cantly, the life and vi­o­lent death of Vlado Micetic. Ti­mothy Baker sat in the wooden dock through his trial, in Mel­bourne’s Supreme Court of Vic­to­ria, dressed in a ro­tat­ing se­lec­tion of dark-coloured suits and good ties. Some­times, he topped them with a long, down­filled jacket. His gin­ger hair was shorn short and he walked the cor­ri­dors dur­ing breaks – his de­fence coun­sel had se­cured him bail on the grounds of his de­te­ri­o­rat­ing men­tal health in cus­tody – with the gait and ex­pres­sion­less­ness of some­one well se­dated. On one oc­ca­sion, he am­bled back to court with his silk tie flipped over one shoul­der, as though he’d for­got­ten he’d put one on. For a po­lice of­fi­cer, which he was no longer, Baker is a re­mark­ably short man, with a slight frame. In the years be­tween the shoot­ing and his trial, a po­lice head­shot ap­peared in the press, show­ing him to be pale, freckle-faced and out­sized by his bul­let­proof po­lice vest. In court, his face was puffy, with deep creases, per­haps from med­i­ca­tion and poor sleep. Be­hind Baker, and on the left side of the gallery, sat his el­derly par­ents, who at­tended ev­ery day. His mother, in homely, colour­ful knits, bore her son’s predica­ment with frag­ile cheer. When the trial hit days of mind­numb­ing te­dium, she did cross­words; when its ev­i­dence was in­tol­er­a­bly painful to her, she screwed her eyes shut and rocked in her seat. Ac­com­pa­ny­ing them, on oc­ca­sion, was Baker’s part­ner, a youth­ful and com­posed man, who wore high-top sneak­ers and dark suits, and wrapped his jacket tightly about him against the cold. On the op­po­site side of the gallery were Micetic’s fam­ily – stricken-look­ing peo­ple who seemed close, so­lic­i­tous, and greeted one an­other ev­ery morn­ing with kisses to each cheek. They were re­strained in court, and out­side it, where they hud­dled to smoke cig­a­rettes and mull over what was be­ing as­serted about their de­ceased brother. Through the weeks of ev­i­dence and ar­gu­ment, Micetic’s sis­ters took turns wear­ing a large silver heart on a long neck­lace. Jus­tice Christo­pher Beale in­structed the jury – six women, eight men, of An­glo-Celtic, South-East Asian and south­ern Euro­pean back­grounds – to keep an open mind, to not give specifics of the case to friends and fam­ily, and to “cut short any con­ver­sa­tion that is head­ing in the wrong di­rec­tion”. That can­not have been easy. Men­tion you’re watch­ing a po­lice of­fi­cer on trial for mur­der­ing some­one dur­ing a traf­fic in­ter­cept, and most have an opin­ion. Po­lice cul­ture in this state, one un­in­volved per­son I spoke to sug­gested, needed a seis­mic, pro­gres­sive re­think, es­pe­cially when it came to in­ter­ac­tions with those who are men­tally ill or sub­stance af­fected – in­ter­ac­tions that re­quire skilled ver­bal ne­go­ti­a­tions. The trial’s lead Crown pros­e­cu­tor, Andrew Tin­ney SC – with sleek silver hair and a touch of old Hol­ly­wood about him – got to busi­ness quickly. The Crown would ar­gue that Baker, while in the process of a le­git­i­mate in­ter­cept and ar­rest of Micetic, had es­ca­lated a mild sit­u­a­tion with a non-ag­gres­sive, if drunk, per­son, by treat­ing him with un­nec­es­sary brusque­ness and rude­ness; it would al­lege that Baker had pushed Micetic to the ground, lifted him up again, and “bun­dled” him to the front of his Hyundai, where, out of view of the po­lice dash cam, and in an out­burst of in­ex­pli­ca­ble and un­con­trolled emo­tion, Baker had re­sorted to ex­tra­or­di­nary and in­ten­tional fa­tal vi­o­lence, fir­ing, with vir­tu­ally no warn­ing and at close range, at Micetic. After un­der­stand­ing the enor­mity of what he’d done, the Crown would ar­gue, Baker had swung into dam­age-con­trol mode, taken a flick-knife from his vest, and planted it on the road to make it ap­pear Micetic had men­aced him with it. When other po­lice had ar­rived, straight after the shoot­ing, the Crown said, Baker had lied about at­tempt­ing to use his OC (ole­o­resin cap­sicum) spray on Micetic, and about Micetic ad­vanc­ing on him with a knife. The dis­puted el­e­ments of the mur­der charge that the Crown would need to prove, be­yond rea­son­able doubt, were that Baker had “in­tended to cause death or re­ally se­ri­ous in­jury” and that the killing was “car­ried out with­out law­ful jus­ti­fi­ca­tion or ex­cuse”. Tin­ney ar­gued that Baker’s “de­fence of self-de­fence, raised by the ac­cused at a time after this shoot­ing, was no more than a sham de­signed to ex­cuse his ac­tions in shoot­ing dead Vlado Micetic with­out any jus­ti­fi­ca­tion what­so­ever”. Mo­tive was not part of the Crown’s bur­den of proof, Tin­ney said, “rather, it’s for the pros­e­cu­tion to dis­prove the ex­is­tence of the de­fence of self-de­fence”.

The de­fence case led by Ian Hill QC – a for­mi­da­ble trial ad­vo­cate in his 60s, with a la­conic, wry ap­proach and a with­er­ing way with op­po­nents – was straight­for­ward, he told me at the mid-point of the trial. In essence, it was very dif­fi­cult to be­lieve that a po­lice of­fi­cer, with no his­tory of knife fas­ci­na­tion or use, should plant a knife, the ex­act kind of knife the de­ceased had a his­tory of us­ing, at the scene of a shoot­ing, par­tic­u­larly when he did not know that the man he’d shot was an owner and prac­tised user of knives. The de­fence took is­sue with the Crown’s as­ser­tions that Baker was im­po­lite and that he pushed or threw Micetic to the ground. “No mat­ter how many times that is said,” Hill warned the jury of the lat­ter as­ser­tion, “it re­mains an al­le­ga­tion.” Hill claimed that, when the video footage was viewed, the jury would see “that Mr Micetic is the one lead­ing what, at that stage, was re­ally a dance be­tween the two”. Hill ap­pealed to the jury to place them­selves in Baker’s boots on the night and imag­ine what a po­lice of­fi­cer on duty might be think­ing when con­fronting to­tal strangers, when they were break­ing the law, in the mid­dle of the night. He read from Baker’s po­lice state­ment, made eight months after the event. He and Micetic, Baker stated, had been in a

push and shove fight … [and] while I was at­tempt­ing to ac­cess my spray, Micetic’s right hand went down to his side. The next time I saw this hand it had a knife in it … I thought I was about to be stabbed. I dropped my spray and grabbed his fore­arm, we con­tin­ued to wres­tle, he didn’t say any­thing, just had a crazed look in his eye. I went for my gun think­ing I was go­ing to be stabbed. The mo­men­tum of our wres­tle went to­ward him and I thought I was about to trip and fall for­ward. I knew if this hap­pened I would be stabbed in the back or neck and ei­ther die or suf­fer se­ri­ous in­juries. I brought my gun up to Micetic’s stom­ach level and fired three shots. We both fell to the ground in front of the Hyundai. Micetic was on his back. I had fallen on my front. I im­me­di­ately got into a seated po­si­tion and trained my gun on Micetic. He was breath­ing heav­ily, I could see the knife within reach of his hand, even though I knew he was shot I was scared about the po­si­tion of the knife, I kept my gun trained on Micetic and quickly grabbed the knife and threw it away. I in­formed the ESTA ra­dio op­er­a­tor.

“Here, elo­quently and clearly, he makes out the self­de­fence case,” Hill told the jury. De­spite Hill’s calm and rea­son­able-sound­ing ad­dress, after the Crown’s Andrew Tin­ney asked for the court­room lights to be dimmed for the first time and the com­pos­ite record­ing was played – the video and au­dio record­ings from the night had been synced to­gether by a po­lice foren­sic of­fi­cer, to en­able bet­ter scru­tiny of the events – the charged si­lence sug­gested peo­ple in the gallery were stunned. Tin­ney had told the jury the com­pos­ite record­ing wasn’t be­ing shown “to shock you”, but it is one thing to see drama­tised vi­o­lence on a TV and an­other to watch po­lice footage of a man be­ing shot dead in re­al­ity, while sit­ting near the man who fired the gun, and the fam­ily of the man he killed. The sib­lings of Vlado Micetic be­came vis­i­bly ag­i­tated, see­ing their brother re­turned to them, alive again and walk­ing and talk­ing on a screen. The gun­shots on the record­ing were so loud some in court jumped in their seats. Micetic’s shocked ex­cla­ma­tions of “oh, oh” after Baker’s shots were hor­ri­fy­ing. For his fam­ily, they must have been in­tol­er­a­ble. Hear­ing him call out, his older sis­ter clapped her hands hard over her ears; his younger sis­ter cried out au­di­bly and wept. But the footage wasn’t con­fronting for these rea­sons alone. The shoot­ing looked to be so pre­cip­i­tous, so ap­par­ently un­called-for and gra­tu­itous, that it ap­peared to be a recorded act of gross and avoid­able po­lice over­re­ac­tion and vi­o­lence.

The com­pos­ite record­ing was played in court at least half a dozen times through­out the trial. Each time, the court­room snapped to at­ten­tion, per­haps out of re­spect for the trauma it in­spired in the Micetic fam­ily, and, less ob­vi­ously, in Baker and his fam­ily, or per­haps be­cause the past re­turned pulls fo­cus like lit­tle else can. I took

rapid notes – writ­ing blind – while watch­ing and lis­ten­ing, be­cause I wanted to pin­point where, and pos­si­bly why, it was that Baker be­gan to lose his cool, his pa­tience, his au­thor­ity, with Micetic. I was also look­ing for points at which Micetic might have pro­voked Baker’s re­ac­tions. To as­sist the jury to at­tempt to fol­low what Ti­mothy Baker and Vlado Micetic said to each other in the min­utes be­fore the shoot­ing, and to un­der­stand more about their move­ments – and what, if any­thing, had pro­voked Baker’s ac­tions – the Crown also ten­dered a po­lice tran­script of Baker’s vest DVR au­dio record­ing. Read­ing the tran­script al­lowed for the events in Union Street to be slowed down, for con­tem­pla­tion, when watch­ing and lis­ten­ing to the record­ings in real time did not. The tran­script clar­i­fied some things, but it com­pli­cated oth­ers. Like any text – and a lot of ev­i­dence – it was open to in­ter­pre­ta­tion. The way – the speed – with which Baker reaches a crescendo of panic about the man he’d en­coun­tered and was try­ing to ar­rest is alarm­ing. It is a pro­foundly dis­turb­ing ex­change. What are you do­ing driv­ing around with “bodgy plates”, Baker asks Micetic.

Micetic: Found ’em at hard rub­bish, yeah? Baker: That’s not what I asked you. I asked you why you were driv­ing round with bodgy plates on your car. What have you been up to to­day? Micetic: Noth­ing [in­audi­ble]. Baker: Noth­ing? Niedzwiecki: [In­audi­ble] Baker: Jump out of the car, mate.

Baker was any­thing but Micetic’s “mate”, of course – they had never crossed paths be­fore – and Baker had the au­thor­ity to ar­rest him. Micetic later re­turns the term, ap­peal­ing to some non-ex­is­tent egal­i­tar­i­an­ism be­tween them, but is on thin ice with Baker from the out­set. “I’m, I don’t know where – why you’re bug­ging out for, like,” Micetic says to Baker. “I’m not be­ing smart, I’m re­spect­ing you.” After some ar­gu­men­ta­tive back and forth there’s a pause, be­fore Baker asks Micetic, now out of the car, to put his hands be­hind his back. Micetic tells him to check with his su­pe­ri­ors be­fore ar­rest­ing him. “I think you should do what I tell you,” Baker re­sponds. The stilted ex­change con­tin­ues for an­other minute or so, part dis­agree­ment, part scuf­fle, un­til:

Micetic: You got no idea who I am. You got no idea who I am … What are you do­ing? Wha … what are you do­ing this for, man?” Baker: Hey? Who are you? Micetic: You’re gonna get in – you’re gonna get in big trou­ble. You’re gonna lose your job. Baker: I don’t think so.

Micetic: You will. Baker: Mm? Micetic: You will. I’m telling you now, you will. Baker: Po­lice, don’t move! [Sound of three gun­shots fired in rapid suc­ces­sion]

Baker’s pan­icky ques­tion “Who are you?” sug­gested he’d taken se­ri­ously Micetic’s threats, that Micetic was some­one Baker should think twice about ar­rest­ing. Baker, when he cries out this ques­tion to Micetic on the record­ing, sounds as if he’s sud­denly all at sea with the task at hand. He has lost his way. He is fright­ened. Ques­tions cas­caded in my head. Why was a po­lice of­fi­cer per­form­ing such street patrols on his own? Why had a po­lice of­fi­cer pro­ceeded with­out back-up, when the sit­u­a­tion was more com­plex than imag­ined? Why had he got so deep into a sit­u­a­tion that a gun be­came his de­fault re­sponse? Why had the am­bi­gu­ity of Micetic’s threats to Baker’s pro­fes­sion­al­ism, which seemed lu­di­crous in ret­ro­spect, got un­der such an ex­pe­ri­enced po­lice of­fi­cer’s skin – what the Crown would de­scribe as Se­nior Con­sta­ble Baker’s “lit­tle hissy fit”?

In the last weeks of the trial, the au­dio record­ing of the in­ter­cept and shoot­ing, taken from the DVR recorder in Baker’s po­lice vest, was sub­jected to in­tense – and mind-numb­ing – ex­pert wit­ness scru­tiny, giv­ing rise to heated ar­gu­ment and counter-ar­gu­ment. A lot was at stake. Con­clu­sions drawn from the ex­pert wit­ness find­ings would help the jury de­ter­mine Baker’s in­no­cence or guilt on the fun­da­men­tal ques­tion: who brought the knife to the scene? Paul Tier­ney, a po­lice foren­sic of­fi­cer, gave long days of ev­i­dence that boiled down to this: his re­peated lis­ten­ing, and wave­form analy­ses, of the night’s au­dio record­ing against con­trol com­par­isons – lab­o­ra­tory and field de­ploy­ment record­ings of the switch­blade knife – had brought him to an opin­ion that a sound 14.5 sec­onds after Baker’s gun­shots was a “good match” with test knife de­ploy­ments. As Micetic was, at that pre­cise mo­ment, ly­ing un­con­scious on the road, it could only have been Baker, not Micetic, who was han­dling a knife. Baker said he’d pushed Micetic’s knife away, but there was no ev­i­dence sug­gest­ing that that ac­tion had re­sulted in the sound of a de­ploy­ment of a switch­blade. How­ever, a peer re­view of Tier­ney’s work, by a more qual­i­fied po­lice foren­sic au­dio an­a­lyst, con­cluded that a sound 2.2 sec­onds prior to Baker’s first gun­shot bore a “strong cor­re­la­tion” to one of Tier­ney’s own field de­ploy­ments and needed fur­ther scru­tiny. Tier­ney re­luc­tantly took heed of this but fi­nally dis­missed it. A car pass­ing at that ex­act mo­ment com­pli­cated the au­dio anal­y­sis im­mea­sur­ably. De­fence coun­sel ac­cused Tier­ney of bias, of be­ing “told what to look for” and “where to look for it” and

em­ploy­ing in­suf­fi­ciently ro­bust sci­en­tific method­olo­gies. On the other hand, in the pros­e­cu­tion’s view, the de­fence ex­pert wit­ness, Neil McLachlan, was mostly self-taught, and his ev­i­dence should be “thrown in a bin”. But what McLachlan pro­duced was a com­pu­ta­tional anal­y­sis of the sounds on the DVR record­ing that sug­gested that the noise 2.2 sec­onds prior to the gun­shots was a good match for a knife de­ploy­ment. Andrew Tin­ney’s in­tended crit­i­cism of McLachlan’s meth­ods – us­ing “al­go­rithms and com­put­ers to solve the prob­lem” – emerged as a com­pelling rea­son to pay close at­ten­tion to his find­ings. McLachlan’s method­ol­ogy aimed to erad­i­cate the sub­jec­tiv­ity of the Crown ex­pert’s ap­proach; he wasn’t in­ter­ested in lis­ten­ing to the sounds, he said, be­cause the hu­man ear is fal­li­ble, and the psy­chol­ogy be­hind hu­man per­cep­tion of sounds is “slip­pery”. If McLachlan was be­lieved by the jury, that amounted to “rea­son­able doubt”. Vlado Micetic had lived most of his ear­li­est years with his grand­par­ents. His older sis­ter Mira Ge­len­cir – a woman in her early 50s, with an East­ern Euro­pean– in­flected dress sense, kohl-lined eyes and grav­i­tas – told the court that her par­ents had put her and her brother Vlado into their grand­par­ents’ care. This ended when the grand­par­ents were killed. Why they were killed was deemed in­ad­mis­si­ble in the trial. Jus­tice Beale had not per­mit­ted the pros­e­cu­tion to ask Ge­len­cir about this, stat­ing that “apart from en­gen­der­ing some sym­pa­thy for [Vlado Micetic], I’m strug­gling to see its rel­e­vance”. After the trial was over, I found a 1975 ar­ti­cle in the Age about it. The grand­par­ents were mur­dered. They, and a friend, were killed at their kitchen ta­ble in St Al­bans, shot by a Croa­t­ian fam­ily friend, after they ob­jected to his “dirty talk” about women in front of their young grand­chil­dren. Micetic was six at the time. Dur­ing Baker’s trial, the jury heard that Micetic had for sev­eral years been griev­ing the death of his mother. Ge­len­cir said her brother was some­one about whom, from an early age, “there was some­thing wrong”. “He was al­ways fright­ened when he was young … Some­times the lights [in their home] had to stay on.” Later, par­tic­u­larly to­wards the night he died, he was “very de­pressed, started to drink a fair bit … looked re­ally down … was sort of lonely, sad … con­sis­tently un­happy”. He was a chronic hoarder of aban­doned fur­ni­ture and un­wanted junk. Ian Hill’s cross-ex­am­i­na­tions of Micetic’s sib­lings formed a bleak, dis­turb­ing por­trait of Micetic. Fif­teen years be­fore his death, he was di­ag­nosed as a para­noid schiz­o­phrenic with a delu­sional dis­or­der. He’d spent a “lot of [his adult life] in cus­tody”, and, in his sis­ter’s mind, shouldn’t have been in jail so much as a psy­chi­atric in­sti­tu­tion. Alek­san­dar Gerovic, one of Micetic’s two much younger half-broth­ers, told the court Micetic had spent so much time in jail that he hadn’t known how to shop for him­self when re­leased, and had to be helped by his sis­ter. He had been hos­pi­talised in men­tal health fa­cil­i­ties, but was able to sign him­self out. “He needed help when he was young, when my grand­par­ents got killed,” Ge­len­cir told Hill, “but ev­ery­one said that he was go­ing to for­get. But he didn’t.” Ge­len­cir con­firmed that on a num­ber of oc­ca­sions she had called cri­sis and as­sess­ment (CAT) teams, psy­chi­atric teams and po­lice – “the CAT team won’t come with­out the po­lice, and the po­lice won’t come with­out the CAT team” – be­cause her brother’s “be­hav­iour was fright­en­ing”, es­pe­cially when he wasn’t tak­ing his med­i­ca­tion and was drink­ing. With re­luc­tance, she an­swered Hill’s ques­tions, based on po­lice and men­tal health work­ers’ records. Her brother had been abu­sive; she’d re­ported that he was “de­stroy­ing the in­te­rior of his home … re­mov­ing plas­ter from the walls”; she had taken out an in­ter­ven­tion or­der on him. A few months be­fore Baker killed him, Micetic had been found by po­lice, ly­ing in a street near his home, “with blood all over his face … a bro­ken col­lar­bone and other phys­i­cal prob­lems”. He had been ag­i­tated and ag­gres­sive. Shortly after this, asked Hill, had Micetic erupted in rage in Ge­len­cir’s kitchen? “Dur­ing the course of you mak­ing him a sand­wich,” Hill prompted her, when “he be­gan slap­ping the bench, yelling, scream­ing, threw beet­root ev­ery­where?”

Micetic had spent so much time in jail that he hadn’t known how to shop for him­self when re­leased, and had to be helped by his sis­ter.

“Could have been,” she de­murred. “I don’t know, I can’t re­mem­ber.” Micetic had “fam­ily vi­o­lence con­di­tions im­posed upon him” and had strung up fish­ing line in his home. “Man traps,” Ian Hill said, a choice of words dis­puted an­grily by the pros­e­cu­tion. “So that if some­one came to the house … they would get tan­gled up in the fish­ing line?” “Yeah,” she said, “I saw that.” “Did he tell you that he slept with knives un­der the bed?” Hill asked her. “No,” she said, then added, “Maybe he did, I don’t know.” Hill asked her if, when she and her sib­lings tried to help their brother de-clut­ter his home, shortly be­fore he was killed, she had no­ticed “that he was in pos­ses­sion of a sawn-off shot­gun and am­mu­ni­tion”. She replied that she hadn’t. (One of Micetic’s house­mates had told po­lice he’d seen “a sawn-off .410 shot­gun, a lady shot­gun”, in the house. “I’m pretty sure Vlad bought it off a junkie … [and] was fix­ing it … I’ve never heard or seen that gun go off.”) Ge­len­cir did agree, how­ever, that she had seen knives in the house. One knife, as Hill put it, was “stuck in the wooden frame­work in­side the front door”, which Ge­len­cir con­firmed. Micetic’s half-brother Alek­san­dar Gerovic told the court that hav­ing a knife above a front door was some­thing “a lot of us [in the fam­ily] have done … not for a safety rea­son … it is just a myth­i­cal thing that I think a lot of the wogs be­lieve in.” How­ever, Gerovic also gave ev­i­dence re­gard­ing a black-han­dled knife he had seen while mov­ing things out of Micetic’s house and into his garage weeks be­fore the shoot­ing – a knife bear­ing a close re­sem­blance to the one Baker claimed Micetic had pro­duced in Union Street, and which was ly­ing on the road after the shoot­ing. This ev­i­dence res­onated like an alarm when­ever it sur­faced through­out the trial. Gerovic con­cluded by telling Andrew Tin­ney that his half-brother was, nev­er­the­less, “just a very de­pressed per­son, very lonely … He was not out to hurt any­body, he was just, he was a lov­ing per­son. He was not a monster.” But Micetic’s prior crim­i­nal of­fend­ing was “ex­ten­sive”, even in the words of De­tec­tive Se­nior Sergeant Stephen McIn­tyre, the po­lice in­for­mant. Most re­cently, he’d been found guilty of vi­o­lence and dis­hon­esty of­fences; pos­ses­sion of weapons; ag­gra­vated bur­glary where a knife was em­ployed, com­mon as­sault, and reck­less con­duct en­dan­ger­ing life (for which he re­ceived two years, seven months’ im­pris­on­ment). Six months be­fore he was shot dead he had been bailed after a charge of shoplift­ing while in pos­ses­sion of a Stan­ley knife; he’d bro­ken his bail con­di­tions, which was hang­ing over him when Baker pulled over his Hyundai.

Much of this his­tory of of­fend­ing could be found on the Law En­force­ment As­sis­tance Pro­gram (LEAP) data­base, which all po­lice have ac­cess to. Warn­ing flags about Vlado Micetic – namely “drug as­so­ci­a­tion, car­ries firearm, vi­o­lent and sui­ci­dal/self-in­jury” – were avail­able on LEAP the night of Baker’s in­ter­cept. Baker wouldn’t have known who he was about to ap­proach, how­ever, be­cause the num­ber­plates were stolen. Hill put it to the jury that Micetic was a man who found the world over­whelm­ing, had turned his house into a “fortress” of “doors dou­ble-locked … knives strate­gi­cally placed … fish­ing line strung up, [where] no doubt Mr Micetic felt safe”. “You might think,” Hill con­tin­ued, in a strik­ing and cred­i­ble piece of con­jec­ture, “sur­rounded by the body shell of the car, he too would have felt safe, [with] knives also strate­gi­cally placed. Do you not think that when he left the car, or his house, that he [felt] more vul­ner­a­ble … [that this was] the time when you would ex­pect him to be armed … with some­thing that could be con­cealed?” The pros­e­cu­tion stren­u­ously ar­gued that “there’s no ev­i­dence that he in­tended to use any of those knives to at­tack or threaten peo­ple, or that he did ever use any of those knives for such a pur­pose”. In fact, five knives were found in Micetic’s car after the shoot­ing in Union Street – among them a yel­low-han­dled knife near the driver’s seat­belt clasp, a box-cut­ter knife in the driver’s side door com­part­ment, and what Ian Hill de­scribed as “a rather large knife” in the rear footwell – all of which the pros­e­cu­tion asked the jury to over­look, be­cause “knives are only weapons if you use them as weapons”. Evelina Niedzwiecki, Micetic’s com­pan­ion in the car, gave ev­i­dence twice. Niedzwiecki is young, with a long pony­tail, but has the teeth and skin of some­one decades older. On the first day, she ar­rived at court hours late, so af­fected by heroin she strug­gled to re­main up­right, and her rec­ol­lec­tion of what she was do­ing – giv­ing ev­i­dence in a mur­der trial – came over her in only fleet­ing rip­ples. The fol­low­ing day, mod­er­ately more co­her­ent, she told the court how, home­less and in need of a bed, she had roomed at Micetic’s St Al­bans home for a week or so be­fore he died. She had stayed in the bed­room of his house­mate – Faik Gaso­vic, a gi­antesque heroin user and al­leged drug dealer, who would also give star­tling ev­i­dence – and tagged along with Micetic on the day he was shot, when he drove his girl­friend, San­dra Aquilina, to St Kilda, so she could so­licit for sex in Grey Street to pay off their drug debts. While Aquilina looked for cus­tomers on the streets, Niedzwiecki and Micetic ended up at the Gatwick Ho­tel, a nearby room­ing house renowned for its some­times wild scenes and drug-abus­ing clien­tele. There, Micetic talked with a man called Ben Frigula. Via video link from in­ter­state, Frigula de­scribed how he and Micetic spoke about Croa­tia, be­cause they were from “the same sort of area” – un­til Micetic be­came “quite drunk and bel­liger­ent” and Frigula “wanted to bash him”. CCTV footage from the Gatwick on the night had been “mis­placed” by po­lice, an over­sight de­fence coun­sel sug­gested wasn’t in­no­cent. Frigula couldn’t re­mem­ber if the last thing he had told Micetic was “Fuck off” or “You’re go­ing to get your­self shot!” “I didn’t ex­pect by a po­lice of­fi­cer,” he ex­claimed, “but by a drug dealer! I mean, Mel­bourne, the un­der­world’s there, it’s a dan­ger­ous place … You can end up dead quite eas­ily.” Niedzwiecki told the court that Micetic had in­jected drugs the morn­ing of the day he was shot, had “kept drink­ing and drink­ing” whisky and Coke, and had been “very, very in­tox­i­cated” at the Gatwick. Post-au­topsy pathol­ogy sam­ples re­vealed Micetic had a blood al­co­hol con­tent of .14; had in­gested ice, or methy­lam­phetamine, in the 24 hours be­fore his death, and di­azepam, a seda­tive, in smaller quan­ti­ties; and had a small amount of mor­phine, from an in­de­ter­mi­nate source, in his sys­tem, plus or­phenadrine, a cen­tral ner­vous sys­tem de­pres­sant, which mixed with al­co­hol can be “po­ten­ti­ated”. “Symp­toms of metham­phetamine psy­chosis,” Ian Hill queried the tox­i­col­o­gist in court, “are known to be char­ac­terised by para­noia and hal­lu­ci­na­tions … such as feel­ing overly sus­pi­cious of other peo­ple? Feel­ing like other peo­ple are out to get them? Hav­ing strange be­liefs

In fact, five knives were found in Micetic’s car after the shoot­ing in Union Street.

about things that are not plau­si­ble … that can lead to a per­son act­ing in an ir­ra­tional and un­pre­dictable way?” To which the tox­i­col­o­gist an­swered, “Yes.”

The gun Ti­mothy Baker killed Vlado Micetic with was kept in a sealed plas­tic bag, un­der lock and key, be­hind a door near the jury. It was brought out by the tip­staff for the jury’s in­spec­tion. It was a Smith & Wes­son .40 cal­i­bre semi-au­to­matic pis­tol, or SAP for short, which all Vic­to­rian po­lice of­fi­cers are equipped with, and which they store in a Sa­far­i­land brand hol­ster on their equip­ment belts. A po­lice SAP has a small il­lu­mi­nat­ing torch on it that shines down the bar­rel in a tar­get’s di­rec­tion. Po­lice re­ceive “sig­nif­i­cant” train­ing, and reg­u­lar six-month test­ing, in draw­ing SAPs from a hol­ster, and fir­ing. In cross-ex­am­i­na­tion, Hill sug­gested to De­tec­tive Se­nior Sergeant Stephen McIn­tyre, the trial’s in­for­mant and lead in­ves­ti­ga­tor, then with the Homi­cide Squad and now part of Vic­to­ria Po­lice Crime Com­mand, that of­fi­cers can with­draw a SAP and fire it in less than 1.5 sec­onds. McIn­tyre replied, “It de­pends whether they are aware of a stim­u­lus to draw the firearm.” (Later in the trial he ex­panded on this, say­ing, “You would not be able to re­spond to a stim­u­lus, say, a tar­get pop­ping up in front of you, go­ing for your firearm, then do­ing the un­lock­ing mech­a­nism and pulling it out in that pe­riod of time.”) “Some po­lice,” Hill in­sisted, “can do it in less than a sec­ond.” McIn­tyre, cryp­ti­cally, replied, “I’m pretty fast.” The de­fence wanted it known that it wasn’t un­usual to draw a SAP and fire it in un­der three sec­onds, while “re­spond­ing to a stim­u­lus”, be­cause this is what Baker had done. In the space of 2.2 sec­onds, ac­cord­ing to the de­fence’s ac­count of events, Baker had seen Micetic de­ploy his switch­blade, pulled his weapon, ex­claimed “Po­lice, don’t move,” and fired. The Crown wanted it known that, as Tin­ney force­fully ex­claimed, if a po­lice of­fi­cer “is go­ing to say to some­one, ‘Po­lice, don’t move’, hav­ing drawn their re­volver, they are go­ing to give the per­son a chance not to move. That’s sort of the whole point of it.” The pros­e­cu­tion also pointed out that Baker’s hand hov­ered over his hol­ster, in an an­tic­i­pa­tory move, be­fore Baker al­leges Micetic flashed or pulled a knife; this can be seen clearly on the footage, just be­fore both men dis­ap­pear from view. Why, then, had a lethal weapon been de­ployed, in­stead of other de­fen­sive means? How po­lice are to use their OC spray and in what cir­cum­stances is out­lined in a man­ual writ­ten in 1988, which Ian Hill asked McIn­tyre about. “You’ve read [it], no doubt?” “Pos­si­bly,” McIn­tyre said, air­ily, non-com­mit­tally, “at some stage.” “If you’re very close,” Hill asked him, “you don’t use pep­per spray?” “De­pends what you mean by ‘very close’,” the de­tec­tive said. The man­ual, Hill said, rec­om­mended 60 cen­time­tres. “It’s ei­ther 30 or 60, but you’re in the ball­park,” McIn­tyre of­fered. But Baker – de­spite stat­ing to of­fi­cers both at the scene and again later that he’d, var­i­ously, reached for his OC spray to use on Micetic, had the spray out, and dropped it dur­ing his scuf­fle with Micetic – did not use his OC spray at any stage, in Union Street. There is noth­ing on the dash-cam footage that shows him tak­ing it out or go­ing to use it on Micetic. His OC spray can was found snug in his vest, as the two back-up of­fi­cers who ar­rived sec­onds after the shoot­ing at­tested to. Bal­lis­tics ex­pert Lead­ing Se­nior Con­sta­ble Dar­ren Wat­son, who, with of­fi­cers from the Ma­jor Crime Scene Unit, pored over the scene through­out the night and fol­low­ing morn­ing, gave ev­i­dence that Baker’s OC can­is­ter had not been cracked opened or used. The Crown ar­gued these were in­crim­i­nat­ing lies by Baker. The de­fence re­sponded that they were the in­no­cently con­fused “mis­takes” – as in mis­taken mem­o­ries – of a po­lice of­fi­cer who’d been un­der ex­treme duress. Baker’s OC spray nar­ra­tive sounded, to me, like a ret­ro­spec­tive cor­rec­tion, as in he’d known what the train­ing man­u­als and pro­to­cols say but the train­ing hadn’t stuck on the night.

When the foreper­son de­liv­ered the ver­dict, Baker didn’t re­act, but the court around him was con­vulsed. Micetic’s fam­ily ap­peared blind­sided.

It was dif­fi­cult to imag­ine him draw­ing a loaded pis­tol and killing a per­son, but he had.

“Heav­ens above,” Andrew Tin­ney raged about Baker’s be­hav­iour, later in the trial, “if [Baker] had his [OC] spray out and he had a locked hol­ster, don’t you think he would have let off the spray … in the face of Vlado Micetic?” Baker’s face reg­is­tered noth­ing as these mat­ters were fought over. He sat numbly in the dock, through­out the weeks, a study in af­fect­less­ness. Apart from a wilted look that some­times over­came him, he mostly sat up­right, star­ing blankly ahead. It was dif­fi­cult to imag­ine him draw­ing a loaded pis­tol and killing a per­son, but he had – a fact I was re­minded of ev­ery time De­tec­tive McIn­tyre en­tered or left the court. Over the weeks, McIn­tyre had ducked down dra­mat­i­cally, each time he passed in front of Baker, so as not to ob­struct the ac­cused’s line of sight to Jus­tice Beale, but, to the unini­ti­ated, he looked to be mak­ing a point to the court of the need to get right down low and out of Baker’s range of fire. Jus­tice Beale’s sum­ma­tions to the jury took three days. He warned them that even if they agreed with the Crown that Baker had told a num­ber of lies – among them, that he’d used his OC spray; that Micetic had pro­duced a knife early in their strug­gle; that Micetic had tried to strike him, had ad­vanced on him – they shouldn’t “rea­son that just be­cause a per­son is shown to have told a lie about some­thing he must be guilty”. Beale re­minded the jury that the DNA ev­i­dence on the knife was in­con­clu­sive and that “the cen­tral ques­tion in this case [is] … ‘Are you sat­is­fied be­yond rea­son­able doubt that the ac­cused brought the knife … to the scene and planted that knife after shoot­ing the de­ceased?’” The trial’s ver­dict piv­oted on these cir­cum­scribed, tech­ni­cal points, but the trial’s ev­i­dence, in gen­eral, raised much broader and press­ing is­sues. Ques­tions con­cern­ing po­lice train­ing, pro­ce­dures, and po­lice con­duct in po­ten­tially fraught sit­u­a­tions, among oth­ers, couldn’t be ad­e­quately ad­dressed, though they de­serve com­pre­hen­sive re­sponses and an­swers from those charged with their over­sight. When the jury re­turned from de­lib­er­at­ing, Ti­mothy Baker stood to meet their gaze. One juror, a woman, be­stowed a warm smile on him. Not guilty. When the foreper­son de­liv­ered the ver­dict, Baker didn’t re­act, but the court around him was con­vulsed. Micetic’s fam­ily ap­peared blind­sided. The broth­ers dou­bled over in their seats. The sis­ters re­strained them­selves, al­though a young woman be­tween them couldn’t hold back sobs of dis­be­lief. They gath­ered them­selves to­gether, and left the court promptly. Baker’s part­ner headed into the court from the gallery and em­braced the ex–po­lice of­fi­cer tear­fully. Baker hoisted a Crum­pler bag over his shoul­der, and stepped away from the dock – an in­scrutable man, whose re­spon­si­bil­i­ties had just been light­ened.

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