Hicks sentence will never end family's pain

HARLEY HICKS TRIAL Full coverage of the murder trial.

HE was just a baby. A tiny, perfect little baby.

A baby growing too quickly into a little boy... but a little boy who was never given the chance to become one.

A little boy who had never celebrated a birthday. Never played in mud puddles or raced to the gate to greet his mum or dad after work.

He had taken his first few steps, but never run his first race. He hadn't had much time to wrestle his brother, choose a favourite football team or line his parents' walls with art.

He barely had time to live.

Because on one horrific night in June 2012, a monster entered his home and bludgeoned him to death.

The helpless, beautiful little boy was struck 25 times to the face and at least eight times to the head with a blunt instrument as he lay in his cot. The baby monitor was turned off in the minutes before or after the killing, and his blankets were placed up to his nose before his killer left him to die. He could have already been dead.

Weeks later, that instrument was found to be a home-made baton made of copper wire and electrical tape - and it was covered in the little boy's DNA.

It was also covered in DNA that matched his killer.

Almost two years after 10-month-old Zayden Veal-Whitting was killed, Harley Hicks will this week be sentenced for his murder.

He is yet to tell the court why he stole the life of a helpless baby - and has shown no remorse for the brutal killing.

On the morning of June 15, 2012, Bendigo woke to a tragedy beyond comprehension.

What started as a report to police of a burglary at an Eaglehawk Road home was quickly followed by a desperate call to paramedics to help revive a child.  As investigators were called to the scene, tongues were already wagging and finding reasons to place blame. But blame in all the wrong areas.

Casey Veal had just found her beautiful little boy beaten to death in his cot. Her then partner Mathew Tisell heard her chilling scream and ran to help.

As Zayden was taken to hospital, police tape was put around his home on Eaglehawk Road. It became a crime scene.

Zayden's father received a call to go to the hospital. He had no idea why, but the house where Zayden was staying with his mother and then stepfather was on the way. James and his mother Anne drove past the police tape. They had no idea what had taken place. No one did.

It was at the hospital James was told by a social worker she was sorry for the loss of his son. He was lost. Shattered. Confused. James still didn't know what had happened, or which son had died.

Casey didn't have the answers, other than that she had woken to find their baby bruised and limp.

Her house had been burgled and their son had been killed.

James knew neither Casey nor Matt were responsible for the death - but who was?

The microscope was on anyone who had any association with the Eaglehawk Road home.

But as the family came together in the hospital to learn the shocking and heartbreaking news, police started receiving reports of a number of burglaries in the Long Gully area on the night of Zayden's death.

More reports would follow in the next few days.

There were similarities at many, including the burglary at Eaglehawk Road.

That was when police turned their attention to known offenders in the area - and their intelligence turned them to Green Street - the home of Harley Hicks.

An initial warrant allowed police to search for stolen goods by known thieves living at the address on June 17.

They were looking for goods stolen from properties throughout Bendigo and Long Gully on June 14/15.

Even the most experienced investigators were confronted by the filth they saw during that search.

But among the rubbish they found a set top box stolen from a property across the road from the Eaglehawk Road home where Zayden was killed, which put one of the occupants of the house in the area at the time of the burglaries and the death.

Each of the occupants was interviewed, but Hicks had already fled Bendigo, leaving for Gisborne the day after Zayden's murder, a day earlier than planned.

The Victoria Police Homicide Squad believed Hicks was 'merely a person of interest' because he was a known burglar and stolen goods were found at his address, so they set about finding him.

Hicks was in Gisborne with his then-girlfriend Martina at that stage - searching the burglaries and the baby's death on the internet. He had also cut up his tracksuit.

When Martina told him she had received a phone call to say the police were looking for him, Hicks fled. He spent the night at the Gisborne football oval, before phoning his father John Hicks the following day.

Police received information to say John was travelling to Gisborne to collect his son and return to Bendigo on June 19, so detectives set up an intercept at Big Hill.

It was there that Hicks was arrested, while hiding in the rear seat of his father's car.

At that stage he was only a suspect for the burglary at Eaglehawk Road.

But it was from that moment, the pieces started coming together for investigators - and it was Hicks himself who gave it away.

He soon became a person of interest regarding the death of Zayden, but there was still nothing that put him in the house.

From the minute he was arrested on the Calder Highway, Hicks immediately put up a false killer. He started shooting off at the mouth, telling police from the outset he was with another man on the night of the burglaries. Naming an innocent man as being with him that night.

Over three days, Hicks told the story of being out that night with that man and parting ways when they got to Eaglehawk Road.

That man was arrested on June 19, but there was a problem with Hicks' story. He had an iron-clad alibi. He was never out that night with Harley Hicks. He did not commit any burglaries and did not kill Zayden.

That information led police to a second search of the Green Street address.

This time they found a wallet reported stolen by Mr Tisell in a car outside the home of the Hicks brothers, which the occupants used for 'storage' - and, they found a baton. It was still some time before that baton was connected to the killing.

Throughout the trial, Hicks' brothers tried to say that instrument was used as a dog's chew toy, but there was no evidence a dog had been anywhere near it. Martina, however, had seen that baton hidden behind a picture frame. It was the murder weapon.

Hicks was not questioned over the murder, but on the morning of June 21, he offered a plea of guilty without admission to a series of thefts, burglaries and attempted burglaries overnight on June 14 and 15 - 11 matters in total, but excluding that at Eaglehawk Road.

He also pleaded guilty to 10 other offences relating to thefts and burglaries committed prior to that night.

Hicks was sentenced to 12 months' youth detention.

Those pleas were excluded from the Supreme Court murder trial because Hicks' defence successfully argued it would be unfair to have them admitted in circumstances where he pleaded guilty to avoid being remanded in custody in an adult prison.

Hicks told his legal team he didn't want to go adult prison because of an allegation of sexual assault he had previously made against an inmate at Port Phillip Prison. He wanted the matter finalised that day so he would more than likely go into youth detention.

Hicks admitted an attempted burglary at 23 Duncan Street, a burglary at 30 Wilson Street and the theft from a vehicle in Jackson Street, where the set top box was stolen, but denied any involvement with the other offences that night at Dillon, Bray and Bolt streets and Havilah Road. His defence team said he pleaded guilty to all matters, knowing that if the matter was adjourned he would be remanded in adult custody because of outstanding matters before the court.

Hicks' defence lawyer David Hallowes further submitted that if the pleas of guilty were admitted in the trial, his lawyer would need to be called as a witness and that would reveal that Hicks had previously spent time in an adult jail, which would be prejudicial to his client.

Crown prosecutor Michele Williams SC argued Hicks knew what he was doing and did not dispute or deny any of the allegations in the police summary. She said Hicks was familiar with the legal system having had previous court appearances in other criminal matters and was looking after his own interests.

In ruling against allowing the pleas of guilty to all matters during the murder trial, Justice Stephen Kaye said the decision was not clear cut as Hicks knew precisely the charges brought against him and there was no evidence of any misconception or misunderstanding.

But he said Hicks was a young man with a pressing reason for not wanting to return to adult custody and based on the admissions he had made during his interview with police, there was a strong likelihood he would have been given a custodial sentence.

Justice Kaye said Hicks' lawyer at the time did not have sufficient information to properly advise her client as he had entered the guilty pleas so quickly after a three-day interview with police and the police brief had not been compiled.

He said there were significant questions as to the reliability of the pleas of guilty as truthful admissions by Hicks of his guilt and it seemed clear he pleaded guilty by way of expediency rather than because he admitted the allegations against him were true.

On June 21, 2012, Hicks was sent to a youth detention centre for the thefts and burglaries. But the investigation into the murder of a child continued.

Hicks by now was a suspect. He had put up lies about being with another man that night and a wallet belonging to Zayden's then stepfather was found at Hicks' address.

His three-day interview with police, and time spent in the holding cells with an undercover police operative, revealed information only the killer would know.

In the pre-trial arguments, Hicks' defence team tried to have the record of interview excluded from the murder trial, but their request was denied.

Sitting in his office reviewing the evidence some weeks after Hicks was sent to youth detention, Detective Senior Constable Tony Harwood of the homicide squad compared baby Zayden's injuries with a baton collected during a search of Green Street. It was sent for forensic tests. There was a match.

One end of the baton was covered in Zayden's DNA - the other carried the DNA of Harley Hicks.

So too, did the stolen set top box - stolen from a property Hicks had admitted being at on the night of the killing.

On September 24, 2012, Harley Hicks appeared briefly in the Melbourne Magistrates Court charged with murder. He later entered a plea of not guilty.

When his first lie about a false killer didn't work, Hicks turned to the DNA evidence as his defence.

The trouble with the DNA was that Hicks had an identical twin, and identical twins have identical DNA.

As that fact was told to the Supreme Court by a forensic officer, Harley winked at Detective Harwood from the dock. It was a glimpse of the cockiness shown during his record of interview with police.

But that argument only pointed further to his guilt.

Harley’s twin, Ashley Hicks, also had an alibi. Despite the defence team doing its best to ask the question as to just which twin killed the baby, Ashley's alibi stacked up.

He was at home with his father that night. John Hicks supported his son’s story.

Ashley didn't kill Zayden.

Harley Hicks did.

The court was told that Hicks was out committing a series of burglaries overnight on June 14/15, 2012, when he entered 10-month-old Zayden's home and killed him. No one knows why, but the prosecution put to the jury that it was possible the baby woke and Hicks needed to silence him to avoid being caught stealing from the house. He had 'hit the jackpot' Ms Williams said, finding almost $2000 in cash, and did not want to be detected.

Earlier in the night, Hicks told his brother Josh, Josh's girlfriend Danielle and Martina he was heading out. Over his shoulder was a black bag. Josh said his brother always carried that shoulder bag. The same bag described by a couple who chased a man from their yard about midnight. The chase during which Hicks would lose his shoes.

Martina would later tell the court Hicks left twice that night, once to buy drugs, and later again.

The jury heard Hicks told police he was on the shard that night; crystal methamphetamine, known as ice.

But he said the man he was out with that night - the false killer he put up - had been using the methamphetamine ice and was “really, really aggressive … scary aggressive".

The prosecution said Hicks was actually talking about himself.

But the jury couldn't be told the extent of Hicks' habit - and for how long he had been a drug user.

Hicks’ history includes years of repeated drug abuse, including cannabis, heroin, ecstasy, alcohol and ice.

Nor could the jury be told of his priors, which were escalating.

They knew Hicks was already on the run from police that night. Indeed, only three days earlier officers had gone to his home looking for him.

But the jury didn't know Hicks had a long criminal history, which started at the age of 14, and included thefts, criminal damage, aggravated burglary and armed robbery.

The murder and series of burglaries and thefts were committed two months after Hicks was placed on a Community Corrections Order for armed robbery.

But on this night, Hicks was still stealing whatever he could from easily accessible places - glove boxes in unlocked cars, and houses.

The back door at Eaglehawk Road could not be locked.

But because his earlier pleas of guilty to those offences in the Magistrates Court, excluding the burglary at Eaglehawk Road, could not be admitted during the trial, Detective Harwood had to reinvestigate each one.

He needed fresh evidence during the Supreme Court trial – but this led to a hiccup in proceedings.

The chase where he lost his shoes was pivotal. So too, were his movements afterwards - and just what was he wearing on his feet?

Martina reported Hicks was wearing a pair of motorcycle boots the day the pair left for Gisborne on June 15. She had never seen them before and they were far too big for him.

But the occupants at a house in Dillon Street burgled on June 14/15, 2012, knew the boots only too well, as they belonged to them.

But it wasn’t until a fresh statement was made by the Dillon Street occupants on March 13 this year that the boots were reported stolen that night. It was two weeks into the murder trial.

The prosecution then sought to have the boots admitted as evidence so the sole could be compared to a footprint on a couch in the rear yard of the Eaghlehawk Road home where Zayden was killed.

That new piece of evidence brought the trial to a standstill.

Sixteen prosecution witnesses had already been called and the trial was well-advanced.

A day was set aside for legal argument, during which the defence put to Justice Kaye that the evidence had come to light late in the trial and the prosecution had opened the case stating no link could be drawn between a mark on the couch, which had been pushed by the residents at the property against a fence, and the accused man.

Mr Hallowes said the prosecution had access to the boots before the trial and knew Hicks was wearing them from June 15 to 18.

He said had the boots been tendered as evidence earlier, the defence may have approached the case differently and cross-examined witnesses in another manner.

Justice Kaye agreed the evidence was produced late in the trial and whilst he accepted the statement from the Dillon Street resident might have prompted investigators to look at the link, there was sufficient evidence to draw the link beforehand.

In his ruling, Justice Kaye said it was “a pity this has come to pass’’.

“I am loathe, in a case like this, to shut out evidence of this type and I certainly do not wish to be critical but the fact is little new has emerged. The police had the boots in their possession, they had a cut out of the print, they had Martina Lawn’s evidence in relation to her understanding that the boots had been stolen that night and the matter was raised by Mr Hallowes at the committal. In addition, we had two weeks of pre-trial argument for the Crown to consider issues such as this. It is not my role to punish or criticise the prosecution, but in weighing up the fairness of excluding it, it is a factor that must be taken into account.

“Fundamentally,  my role is to ensure that the accused man receives a fair trial. In my view, as I have stated, there would be strong prejudice to the accused in the conduct of the trial if were to admit the evidence.

“No direction given by me could allay that prejudice before the jury. I am of the view that prejudice does outweigh any probative value of the evidence and so I have come to the inevitable conclusion that I must exclude it.’’

Few could argue Hicks wasn't afforded a fair trial.

The law dictates all accused persons are entitled to the presumption of innocence - and that must be the starting point. It was up to the prosecution to prove Hicks guilty.

The ruling about the boots was made and the trial continued.

But at the same time, something changed.

In the early days of the five-week trial, Hicks took notes. Pages and pages of colour-coded scrawl. Some in red, other lines in blue. He seemed to be paying attention. But as the trial went into days and weeks, the notes slowly stopped. His attention was sporadic and on one occasion, he could be heard snoring in the dock. A break in proceedings was called before the jurors picked up on his nap - but there's no doubt some would have noticed.

This jury was astute. The prosecution, defence and Justice Kaye spoke several times of the particularly careful and observant group that formed the jury.

A jury charged with the responsibility of a harrowing trial. A jury charged with taking everything in.

And they did.

They would have known each time Hicks started shaking - a shake of the leg that became louder and louder each time evidence linking him to the murder was put before the court. The shaking alone told a powerful story - he was nervous, and more so at certain times. They would have noticed.

And they certainly noticed the antics of Hicks' supporters in court. The interaction between Hicks and his brother in the witness box, which attracted a caution. The note-taking by Hicks' fiancee,  who followed witnesses from the courtroom – actions that came close to having her found in contempt of court.

They would not have known about the stern warning given by Justice Kaye to Hicks' mum about posting photos of her son in the dock on Facebook - but that would have been the exception.

This jury didn't miss a trick, and there were a few of them.

But importantly, they never lost a sense of why they were there - and that was to deliver a verdict in a trial involving the horrific, violent death of a baby.

They listened to, and considered, every piece of evidence. They questioned. They asked for breaks when everyone grew tired. It was exhausting.

But they also watched a family sitting in the courtroom in the hope of justice being served for their beautiful little boy. They were told to separate emotion and look at the facts, which they did. But there was no doubt they were well aware of the trust Zayden’s family put in them to do that properly.

Little Zayden's family attended court every day. Their heads would fall every time a new piece of distressing evidence was put to the court, but their strength kept them there.

No one in court could ever properly express just how brave that family was.

The brave mother who told her story of finding her baby beaten to death in his cot.

The last time she saw her son alive was when she gave him a bottle and helped him re-settle. He had a cold and needed some medication.

The next day her little boy's injuries brought the most hardened police and paramedics to tears.

A brave father and his partner who never got to hold their little boy and say goodbye. Who listened to every word said to defend their son's killer.

A father who remembers a little boy who only a day before he died said the word dad for the first time.

Grandparents equally heartbroken and robbed of the love of a small child who was their world.

The pain of the trial ended for them when the jury delivered a guilty verdict. Today, Justice Kaye will hand down his sentence.

The legal process will be over. Hicks will be sentenced for his heinous crime.

But there will never, ever be justice for baby Zayden, or those who loved him.

This tragedy does not end with Zayden's death. It does not end with a verdict, or a sentence. It will never end for those he is survived by. Their pain will never, ever end.

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