The day following the verdict in the notorious Domaszewicz case, sitting in the backyard over a quiet drink, an old friend posed a reasonable question.

"What do you think, was Domaszewicz guilty or not?"

"Not guilty," I replied without hesitation.

"So he didn’t do it?"

"Ah," I shot back, "now that’s an altogether different question."

On June 14 1997, 14 month old Jaidyn Leskie was left in the care of his mother’s boyfriend, Greg Domaszewicz. By the next morning Jaidyn had disappeared. Domaszewicz claimed to have left him alone in the house at about 2 a.m., when he drove to a nearby town to pick up Jaidyn’s mother from a pub. According to Domaszewicz, he returned to the house at Narracan Drive at 3 a.m. to discover the child missing, the windows broken, and a pig’s head lying on the front lawn. It is conceded by Domaszewicz that he told the mother (who apparently thought he was joking) that Jaidyn had been burned and taken to hospital. Two hours later he informed her that Jaidyn was in fact missing, and then apprised the police.

A few days later Domaszewicz was interviewed for eight hours by the Moe police. It was later revealed that the police had intercepted Domaszewicz’s car on the morning of the disappearance, and that he had not bothered to tell them the child was missing. By the beginning of July the police were treating the case as a homicide investigation, which led to a new round of interviews, searches of Domaszewicz’s home, and finally a charge of murder in the middle of July. On New Year’s Day 1998, a decomposing child’s body was found in nearby Blue Rock Dam, together with a crowbar and child’s sleeping bag. A week later Jaidyn Leskie’s body was formally identified.

When Domaszewicz and Jaidyn’s mother returned to the house, following her marathon drinking session in Traralgon, they were faced with an extraordinary scene. The windows of the house were smashed, and the severed head of a pig called Darren Millane (so named because he was black and white, after a deceased footballer who had played in a team of the same colours) was lying on the front lawn. And according to the defence, it was at this time that Jaidyn was first discovered to be missing. Coincidence? Not according to the vigorous defence of Lovitt QC. "This is a pair of bizarre coincidences and one of them must be true," he said in his opening statement. Did four people deliver their dismembered surprise on precisely the night that a child disappeared? Or had he already been murdered and removed by Domaszewicz? "One is left to wonder," Lovitt continued, "if they (the pig’s head team) took the child from that house in pain, possibly injured, possibly upset, crying, making a noise, needing to be quietened down. One is left to speculate what happened."

Could anyone write a credible script using this cast of characters? Kenny Penfold, Yvonne Penfold, Darrin Wilson, Dean "Dumb Dumb" Ross (described by Kenny as "when he’s there he’s not there. He’s a fella who never says anything at all…he’s a shadow") and Raymond "Tubby" Hopkinson. And the tangled web? Wilson was the former fiancée of Ms Penfold; she was the former lover of Domaszewicz ; Mr Penfold was the older brother angry at his little sister’s treatment by Domaszewicz following that relationship’s acrimonious break up (the year before, in an eccentric prelude to the pig’s head incident, Ms Penfold had slaughtered Domaszewicz’s pet pig Stinky and returned it as cuts of pork chops and bacon). On the same night that Jaidyn disappeared, the "team" hatched a silly plot to throw a pig’s head through Domaszewicz’s window. According to Mr Penfold, when Domaszewicz left the house to collect Ms Murphy from the pub, they "went and done the bizzo". "The bizzo" refers to the foray with the pig’s head, whose carcass had been previously hung in the shower for three days to bleed. Penfold claimed they then left the scene of this crime in a hurry, but later, Lovitt QC would paint "Tubby" as a violent and deranged personality quite capable of a "cruel, unplanned spiriting away and disposal of a child". Hopkinson did not help his case by being abusive in court and clearly showing his displeasure at being in the witness box. He reinforced Mr Lovitt’s description of him as "malevolent and clearly disturbed" by screaming obscenities during Lovitt’s cross-examination. When Lovitt asked whether he remembered the date of the pig’s head incident, Hopkinson replied "do you expect me to remember when I had my first tongue kiss?". In another exchange, he called Lovitt "a spaz". His Honour was not impressed.

As the prosecution explained, "there was no security camera playing in his (Domaszewicz’s) lounge room. There is no eyewitness account as to exactly how that poor child met his death." And there was precious little in the way of forensic evidence either. Instead the prosecution relied on many small pieces of circumstantial evidence. What does this mean? As Lovitt asserted, "all roads led to Greg Domaszewicz from virtually the moment that he went to that police station." The technical explanation? According to the High Court, circumstantial evidence is a "representation or information regarding a fact from which a jury is asked to infer a further fact". In plain English: if you have the pieces of evidence, but no one piece can be proved by an eye witness or other direct confirmation, will a picture nevertheless emerge when you put the pieces together together?

Lovitt made some telling points on the issue of "reasonable doubt":

• there was no direct evidence that Domaszewicz had in fact committed murder or manslaughter;
• the pathologist for the prosecution could not rule out death by epileptic seizure or asthma;
• the local police were characterised as prejudiced against Domaszewicz from the start;
• Domaszewicz had been relentlessly interviewed, but the houses of the "pig’s head team" were never searched;
• there was barely enough time for Domaszewicz to dispose of the body at the dam and conceal the crime;
• the police had too easily neglected the possibility that the "pig’s head team" were involved in the boy’s disappearance (as Lovitt commented with some understatement, "we are dealing with unusual people here");
• Jaidyn’s blood was not found in Domaszewicz’s car;
• there was a serious question as to the ownership of the crowbar found with the body, perhaps identified in a police photograph as being in Domaszewicz’s backyard the day after the disappearance;
• the mother of the boy was at times supportive of the defence’s case;
• Lovitt characterised the "calling card" of the pig’s head, at precisely the time Jaidyn went missing, as "the greatest coincidence in the history of criminal trials";
• Lovitt asserted, whilst cross-examining "Tubby" Hopkinson, that he had been seen in another town in the company of a toddler (strenuously disputed by the prosecution);
• Domaszewicz, who did not give evidence in the trial, was interviewed for ten hours. Through thousands of questions he did not admit to the crime, though he certainly gave contradictory and rambling responses.

The lessons from this case are not those trumpeted on talkback radio and tabloid columns. No, a killer did not patently go free; and no, the law and justice are not disconnected. But yes, the system works: Domaszewicz was tried by a jury of his peers, and at the end of the day, they were not convinced beyond a reasonable doubt that he was guilty. Should we be concerned? No, in fact we should celebrate a legal process that ensures a defendant will not be wrongly convicted, despite innuendo and the full weight of the State’s ability to prosecute, unless there is more than a possibility the right person has been accused. As I said to my friend in response to the query that began this Lawspot, "I bet you’d be the first to claim your right to a fair trial if you found yourself accused of a serious crime".