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Police, don’t move!
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, down-filled 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 mind-numbing 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 self-defence 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: 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.
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?”
“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 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.
“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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