An inquiry has heard a flawed police investigation in the aftermath of the death of a gay man in Wollongong in the 1980s made it impossible to determine whether it was a hate crime.
The Special Commission of Inquiry into LGBTIQ hate crimes is investigating whether unsolved cases between 1970 and 2010 may have been targeted hate crimes.
The inquiry on Thursday heard evidence about the death of Scottish national William "Bill" Rooney who was found severely injured in Crown Lane in central Wollongong on February 14, 1986.
He was taken to Wollongong Hospital where he died of his injuries six days later.
A post-mortem examination at the time found Mr Rooney's injuries were most likely sustained from a 3-metre fall, which police also came to accept as the likely cause of death.
A coronial investigation, however, found the cause of his injuries was "undetermined".
The inquiry heard in the three and half years after Mr Rooney's death there was a series of attacks on 12 men, many of whom were gay, around the Wollongong area, the first of which occurred just three weeks after Mr Rooney's death.
In 1989 police arrested Mark Anthony Scerri and charged him over a series of "vicious assaults and sexual assaults".
The charges led to four trials with just one of the proceedings, involving three men, leading to a conviction.
The inquiry heard many of the attacks bore similarities to Mr Rooney's death, and one occurred in the same laneway where Mr Rooney was found.
Mr Scerri was questioned for the first time this month in a private hearing, but his evidence will remain confidential.
Counsel assisting Meg O'Brien told the inquiry the failure to obtain sufficient forensic evidence from the scene and during the post-mortem destroyed any chance of a successful prosecution.
"Whereas the other victims were also sexually assaulted, there is no evidence as to whether or not that was so in the case of Mr Rooney because no tests were carried out, either on his admission to hospital or in the post-mortem examination in relation to that possibility," Ms O'Brien said.
"If it were to be assumed that Mr Rooney's death was a homicide, and that homicide was committed by Mr Scerri, there would be ample grounds for a conclusion that Mr Rooney's death was a crime involving LGBTIQ bias."
"However, in this case, the available evidence does not allow either of those assumptions to be made.
"There exists a reasonable alternative hypothesis other than homicide, namely that Mr Rooney sustained his injuries as the result of an accidental fall."
'Shortcomings' of police investigation
The inquiry heard that on the morning when Mr Rooney was discovered and taken to hospital police failed to secure the area.
Despite police attending the scene at 9am, before the forensic team arrived at 11am, the lessee of the retail premises had hosed down the crime scene.
"This limited the ability of investigators to properly assess the area and recover any exhibits of any forensic value," Ms O'Brien said.
The inquiry heard Mr Rooney's partner Wayne Davis told police that Mr Rooney had previously spoken to a "well-known poofter basher", Leslie Harrison, who went by the pseudonym "Radar".
Mr Harrison, who died in 2004, was interviewed by police at the time. However, the inquiry heard police failed to check his alibi, which claimed he was home with his girlfriend Joanne Garbett.
In a statement to the inquiry, Ms Garbett recalled that she was living in Coffs Harbour at the time of Mr Rooney's death.
In 1991 and again in 1993 the Office of the Director of Public Prosecution found there was insufficient evidence to lay charges.
"The advice of Mr Tedeschi QC in 1993 demonstrates that the failure to examine Mr Rooney for signs of possible sexual assault has severely impeded the possibility of investigating and/or prosecuting Mr Scerri or indeed anyone else in relation to Mr Rooney's death," Ms O'Brien said.
Strikeforce Parrabell 'devoid of nuance'
The inquiry also criticised a review of Mr Rooney's death carried out by Strikeforce Parrabell, which submitted its final report in 2018.
The strikeforce revisited some 88 cases and concluded less than one-third of the cases involved or were likely to have involved "gay hate" features.
The review found that on all 10 bias crime indicators, Mr Rooney's death displayed no evidence of a biased crime.
However, Ms O'Brien noted that despite this finding the review found it was "likely that Mr Rooney's death had been caused by an assault rather than a fall".
"Overall, the treatment of this case by Strikeforce Parrabell … and case summary appears to have been devoid of any analytical sophistication or nuance."
"Strikeforce Parrabell had originally recorded Mr Rooney's last name as 'Rudney' and hence, for some time, could locate no material about the case, or whether this indicates a more systemic problem with the work of Strikeforce Parrabell, or both, is unclear."
The inquiry continues.
