AFTER nine long years of searching, sometimes with their own bare hands scrabbling around in the dirt, the parents of Matthew Leveson could be about to find the body of their missing son.
On Friday, an excavator began digging in the Royal National Park, south of Sydney.
Yet, due to the “peculiar situation” of an immunity deal, if Michael Atkins, Matthew’s boyfriend at the time he vanished, leads police to a burial site he will never face prosecution for any crime.
This week’s events, in an already tortuous case, are extraordinary and may never have happened but for an admission about lying to the Coroner by Mr Atkins.
However, in a legal quirk, it’s only if a body is not found that Mr Atkins could be prosecuted as this will forfeit his earlier immunity deal. In that case he could face case a potential 10 year jail sentence for perjury.
The parents of Matthew Leveson, Mark and Faye Leveson, arrive at the site where it is believed their son is buried in the Royal National Park, south of Sydney. Picture: AAP/Dean Lewins.Source:AAP
Not far from where 20-year-old Matthew lived in Cronulla, the Royal National Park is somewhere Mr and Mrs Leveson have been far too many times before.
The couple, and their family, have spent weekends scouring the bush, looking for their son.
“If a person is scared, in the dark of the night time, trying to get rid of a body, what would you do?” Mr Leveson told reporters at the site. “That’s how we have to think.”
In May, Mr Atkins was given immunity from prosecution for any evidence that he gave at an inquest into Matthew’s death. It’s understood the Levesons agreed to the deal to try and break the case’s deadlock.
On Friday it emerged Mr Atkins was given a second deal, this time by NSW Attorney General Gabrielle Upton, to encourage him to reveal what happened to Matthew.
“Of all Atkins’ lies this is his last chance,” Mr Leveson said.
Matthew disappeared in September 2007. He was last seen leaving the ARQ nightclub in Sydney’s Darlinghurst with Mr Atkins in the early hours of Sunday morning.
Hours later, Mr Atkins was seen returning to the club. The next afternoon, CCTV footage at a Bunnings store saw him buying a shovel, mattock and duct tape. They have never been recovered.
Michael Atkins arriving at Glebe Coroners Court to give evidence in the disappearance and presumed death of his boyfriend, 20-year-old Matthew Leveson.Source:News Corp Australia
He was acquitted of Matthew’s murder in 2009 during a trial in which he exercised his right to silence.
In May, the coroner announced a new inquest into Matthew’s disappearance. But in an unprecedented step, she invoked section 61 (s61) of the Coroners Act, which gave Mr Atkins a certificate that protected him from self-incriminating evidence.
The only loophole was if he lied to the Coroner, he could be prosecuted for perjury.
The reason for giving him a potential get out of jail free card? Because of a terrible Hobson’s choice.
If Mr Atkins kept silent, as he did at the trial, the inquest would essentially finish before it began. So to compel him to speak, nothing he said could be used against him in any other proceedings.
Matthew Leveson was reported missing from Cronulla, Sydney.Source:Supplied
“It’s a trade-off. (The coroner) looks for an answer to find out where (Matthew) is, what happened to him, can we recover the body that might give some closure for the family?” said Sydney criminal lawyer Sam Macedon on radio station 2UE on Friday.
“But at the same time you have a situation where the family might think for the rest of the days ‘we know who did it, but we can’t touch him’.”
While he now had to talk at the inquest, Mr Atkins was sticking to his story.
No, he had no idea where Matthew was.
The Levesons were still no closer to any answers.
Then on November 4 something astonishing happened. Mr Atkins admitted he had lied
about telling the truth during in his first police interview, telling the Coroner that the reason he had lied to the police was because he was scared of them.
That evidence contradicted earlier testimony from Mr Atkins that he had always been truthful with the police.
Perjury was not covered by the immunity deal and meant police could look to charge Mr Atkins.
Potentially, that could be used as leverage.
The search for a gravesite was launched after Mr Atkins struck a new deal with the NSW Attorney-General that extended his immunity to cover perjury as well — but only if a body was found.
NSW Police and National Parks and Wildlife officers begin excavating the site in the Royal National Park. Picture: AAP Image/Dean Lewins).Source:AAP
“This was a peculiar situation because he was found not guilty of murder,” said Mr Macedon.
“The Coroner forced him to give evidence but on condition he be given immunity. So, as a result anything he might say or disclose as he gives evidence can’t be used against him.”
In addition, if the body was eventually found without Mr Atkins’ help, this would not be covered by the Coroner’s s61 certificate. If Mr Atkins’ does know where Matthew’s remains are he may have concluded it makes sense to reveal that now rather than it come to light later.
It seems Mr Atkins cannot be tried again, under any circumstances.
Not completely. In 2006, NSW changed the law regarding double jeopardy which had previously prevented someone from being tried twice for the same crime.
A person can now be tried again, but only if “fresh and compelling evidence” emerges. Even if a body is found, Mr Atkins’ s61 certificate and immunity deal would remain in place.
“(The police) can’t go back and say, well the only reason you knew where the body was because you had something to do with putting it there,” said Mr Macedon.
In a statement on Friday, the NSW Police said a second persecution could only be made if a successful double jeopardy application was made and the s61 certificate would get in the way of this
“The effect of s61 certificate is that any evidence given by Mr Atkins in court at the inquest, or any evidence secured as a result of what he has said, can’t be used against him.”
For Mrs Leveson, a prosecution is no longer the priority. “The main objective is to bring Matt home. Bring him home to say our goodbyes,” she said on Thursday.
“We’re going to give him somewhere where he can lay to rest. Where his brothers can come to talk to him. Where we can talk to him,” she said.
“He’s never been given that opportunity, he just dumped him like a piece of rubbish.”
