LAWYERS defending the man accused of murdering baby Zayden Veal-Whitting have ruled out the child’s stepfather as a possible ‘other’ for causing the death – but have put to the Supreme Court that Harley Hicks is covering for someone.
Zayden was found bludgeoned to death in his cot on June 15, 2012.
Harley Hicks, 21, of Long Gully, has pleaded not guilty to murder, aggravated burglary and theft.
Defence counsel David Hallowes asked Zayden’s stepfather during the trial if he killed the baby, but Mathew Tisell said he loved his stepson and would never harm him.
Mr Hallowes told the court that after the pathologist’s evidence during the trial when she saw the baton for the first time and linked it to Zayden's injuries, there was no doubt the stepfather did not kill Zayden.
“On the basis of the pathologist's evidence we say to you Mathew Tisell did not kill, clearly did not kill Zayden, but what we do say is that the prosecution cannot exclude Ashley Hicks as the killer of Zayden,’’ he said.
“The baton … was the murder weapon but you can't find from that, that it was Harley Hicks who was wielding it that night.’’
Mr Hallowes said it was possible Hicks’ twin brother, Ashley, had visited Hicks’ Green Street home the morning after the killing and left stolen items including scales and sunglasses there.
He said there was unreliable evidence given about when bags and stolen items were seen at the property.
“In terms of whether things came out of bags, exactly what happened with bags, when people saw items that next morning … by the time those observations are being made there's plenty of time for Ashley Hicks to have visited, taken items around,’’ he said.
Mr Hallowes said almost $2000 reported missing from Zayden’s stepfather’s wallet had not been found, nor had car keys missing from the Eaglehawk Road home.
“The next two items that I want to take you to which have a connection to Eaglehawk Road but were certainly not seen in the middle of the night on June 15, not seen later in the morning and in fact not found on the search on 17 June are the wallet and the baton. It's highly unlikely either of those items would have been missed if they were there.
“I suggest to you all of that points to the fact those items, the wallet and baton, weren't there on 17 June. Therefore, they've somehow made their way to 2A Green Street between 17 June and 20 June. “And we know that it couldn’t have been from Harley Hicks. So it must have been from someone else. And if it's someone else who has the wallet and the baton; there's the link from Eaglehawk Road to 2A Green Street.
"That's the person who's likely to be the killer. Not Harley Hicks.
“I suggest that fact that those two items are found on the 20th, not on the 17th, point to Harley Hicks' innocence.’’