Zak Grieve, the man who wasn't there

Christopher Malyschko was bashing in the head of his mother's fiancé. Flecks of blood hit the ceiling of the brick unit in Katherine in the Northern Territory. It was around midnight on the night of Sunday, October 23, 2011. When the spanner came down, Zak Grieve, a 19-year-old Aboriginal man, wasn't there. That was the view of the judge. But, as always with murder, things are complicated.

Perhaps Grieve had originally agreed to be part of the murder, but pulled out. And if you fail to stop a murder, you can be found guilty of murder.

At Grieve's trial in late 2012 and early 2013, the jury decided that Grieve was guilty. In other parts of Australia, the guy who bashed in the head can be punished more severely than the guy who didn't turn up. Not up north. Since 2004, the Northern Territory has had a mandatory minimum sentence for murder: 20 years' non-parole. That was that for Grieve.

"I take no pleasure in this outcome," Justice Dean Mildren told Grieve. "It is the fault of mandatory minimum sentencing provisions, which inevitably bring about injustice."

Jailed: Zak Grieve received a 20-year non-parole sentence, due to the NT's mandatory sentencing laws.

It got more infuriating for Grieve. Ray Niceforo, the dead man, had previously threatened to kill Malyschko, the guy with the spanner. This triggered a rare exceptional circumstance, and the judge was allowed to knock a couple of years off Malyschko's non-parole sentence. The Man Who Wasn't There got more time than the killer.

In January, the Supreme Court of the Northern Territory rejected Grieve's bid to have his 20-year sentence reduced.

I'm in a Darwin office, fan blades whooshing, sitting across from a powerful man with a velvet voice. We're haggling over what I can call him in the story. A Man Close To The Case is as high as he'll go.

"If only it had crocodiles," he says, disappointed the case never got Azaria Chamberlain-like traction. "It very nearly could have had crocodiles. They had the option of chucking him in the river, which was full of crocodiles."

Victim: Ray Niceforo, who died a violent death after being held in a headlock and hit on the head with a spanner.

This is what happened instead of crocodiles. A man called Darren Halfpenny held Ray Niceforo in a headlock while Malyschko struck him with the spanner. The friends, both in their early 20s, loaded the 41-year-old Niceforo into a van. Halfpenny says Grieve was there. Malyschko insists he was not.

Justice Mildren said Halfpenny was "a practised liar and clearly an untrustworthy witness". Forensic evidence placed Malyschko and Halfpenny at the murder scene, but not Grieve. The Crown explained this away by saying Grieve got lucky.

Jailed: Christopher Malyschko hit Ray with the spanner. His sentence was reduced because the victim had threatened his life. Sentenced to 18 years non-parole.

The original plan was to dump Niceforo in a sinkhole outside of Katherine. Instead, Niceforo ended up, badly hidden, by the side of an often-used road. One theory: this suggests Grieve was not there. The boys, realising Grieve had heard the original plan, switched locations, so he couldn't help the police trace the body.

"Halfpenny was a not particularly sharp white kid," says A Man Close To The Case. Malyschko is white, too, as was Ray Niceforo. "The trial was not only an insight into Katherine, which is like an alien planet that's somehow managed to manifest itself in 21st-century Australia, but a metaphor for the future of many young, white rural people, who are going nowhere fast." Halfpenny had epilepsy, no job and subsisted on ganja and video games. "It was, in a sense, a consequence of the mechanisation of agriculture in Australia. A hundred years before, he would be working happily away as a labourer on a farm."

Jailed: Darren halfpenny held the victim in the headlock. He pleaded guilty to murder. Sentenced to 20 years non-parole.

Halfpenny, Grieve and Malyschko were part of an informal circle, bonding in lounge rooms over anime, Xbox and cannabis. Grieve stood out. He had loving, married parents, a job and the charm to woo girls.

A whisper seeped into the circle sometime in October 2011. Malyschko's mother, Bronwyn Buttery, wanted her fiancé dead. And she was willing to pay.

Jailed: Bronwyn Buttery organised the hit, but was allowed to plead guilty to manslaughter as Ray had been violent towards her. Sentenced to eight years, four years non-parole.

"Ray wasn't entirely gorgeous as a victim," says A Man Close To The Case. In the mid-1990s, intoxicated, he shot a bloke in the main street of Katherine. The gun misfired and no serious harm was done. Ray Niceforo somehow avoided prison. He started boasting he had shot a bloke and got away with it.

Niceforo's violent nature was known throughout the town. In fact, when his corpse, at first unidentifiable, turned up on the side of the road, people were asking, "Who has Ray killed?"

A sorry tale: The murder scene.Credit: courtesy of the Katherine Times

In June 2011, Bronwyn had obtained a domestic violence order against her fiancé. She said Ray Niceforo had choked her, burnt her with a cigarette, pointed a gun at her, pinned her to a wall with a shopping trolley, forced himself upon her sexually and threatened her with a hammer.

Bronwyn owned Waterworks Laundry in Katherine. Niceforo had worked there before she filed the domestic violence order. Now Niceforo, unemployed, was demanding Bronwyn hand over the business to him. He also demanded she wash tea towels for his friend. She refused to do either and Niceforo sent her a series of text messages, including: "You better realise your genetic code sitting beside you will disappear and there's no turning back," followed the next day by, "You had better think about - you are doing real quick today could be the day you lose someone close to you [sic]."

Zak Grieve's parents, Glenice and Wal Grieve. Credit: courtesy of the Katherine Times

Despite these threats, fairly interpreted as threats against her son Christopher Malyschko, it was another incident that tipped her over the edge. Niceforo rushed into the laundromat, where Malyschko worked, called him a faggot and a poof and said that he, Niceforo, had "f...ed his mum up the arse and made her bleed and f...ed his mum and made her squeal".

Soon after, mother and son agreed that Niceforo needed to die. Malyschko said he needed $15,000 to pay people to do the hit. This sounds more interesting than crocodiles, I think to myself.

"With the money - what did they do? They certainly didn't buy any books," says A Man Close To The Case. This is one of many digs at the hicks he says I'll find on this alien planet called Katherine.

Katherine is three hours' drive south-east of Darwin, past termite mounds as tall as people and bushfires no one is putting out because they will just burn out themselves. One abandoned family van on the side of the road looks as if it has smashed into a brick wall. It has actually hit a buffalo, which lies dead but otherwise in perfect nick nearby.

Katherine is a heartland of the "Intervention", the Howard government's response to allegations of rampant child abuse among Aboriginal communities. An Aboriginal woman, Chongy, who works for the local legal service, drives me through the communities. One has a lush, well-manicured footy field, which is at odds with all around. People outside tin sheds and under trees wave as Chongy drives by. The humiliating signs put up as part of the intervention, "No pornography", have been taken down. Chongy points to a recent addition, giant street lamps outside a community's entrance. Too many drunk men, Chongy says, were falling asleep on the road and being squashed by cars.

There is an urban centre to tiny Katherine, with pubs and drive-through bottle shops, fast-food joints and a Woolworths. This was where Malyschko bought the rubber gloves and shower caps, accurately predicting that snuffing out a life is messy. Grieve belonged to urban Katherine, with a black mother and white father. He worked in their sunglasses shop. He joked to friends that he was the albino Aborigine.

There is a huge turnover in Katherine's white population. They secure short-term government job contracts in areas like Aboriginal health, and just come and go.

The Aboriginal communities and the urban centre are not the only sides to Katherine. There is a third. Beautiful farmland stretches out on both sides of a wide sandy road. Drive far enough and you reach a set of gates, grand enough for Michael Jackson's Neverland Ranch. Behind it, the yard is spotted with large and colourful animal statues. An elephant, a lion, a giraffe. Giant peacocks guard the stairs leading to the door.

Ray's brother, Nino, a handsome blend of Dutch and Italian, stands between the peacocks and underneath the night sky. "The f...in' black c... was there, right?" snaps Nino. "He was there."

Grieve might have thought he was the albino Aborigine, but to Nino he was black.

"Oh shut up!" Nino's wife, Tina, yells to the dogs circling our feet.

"You know why I know he was there?" Nino says. "Because one of the guys that killed my brother, believe it or not, was a family f...in' friend.

That's Darren Halfpenny. So why does Malyschko insist Grieve wasn't there? Threats from Aboriginal prisoners in Darwin jail, Nino explains. "A group of them black bastards run that jail. They promised Malyschko protection if he would plead Zak was not there. That he pulled out at the last minute." Nino stares at one of his dogs. "Come and have a look where Ray is buried."

An old woman in a pale-blue nightie, Nino's mother, sits on the back porch. She's looking at a gravestone in the backyard, barely visible in the night.

"That f...in' slut of a bitch, right?" Nino is speaking of Bronwyn. "That misled my mum, that my mum had faith and trust in. She was drugging Ray. She drugged him that night with hashish in cookies."

This was to make him woozy, less likely to fight back. Nino's not the only one accusing Bronwyn of something like this. In court, a housemate of Bronwyn said she had heard her talking of poisoning Ray Niceforo. But, as I find out, so much of this case rests on: what was hyperbole? What was joking? What was someone speaking literally?

"But what's her motivation for killing him?" I ask.

"Money," he says. "She wanted all the money from the laundromat."

I had been told Bronwyn owned it outright, but Nino says it was more complicated than that. He had initially owned the business, and says he sold it to the couple, dirt cheap, as a favour.

Was there a lot of money in the business?

"There was f...-all money: 350 grand."

"Oh yeah, oh ... but that's still a lot for someone."

"It's nothing for me."

Nino and Ray's parents came to Katherine in 1958 and set up the first general store.

"My mum and dad built this town," he says. "They've worked their arses off - seven days a week. And Katherine's been good to us. Really good to the Niceforo family. But f..., we've given a lot back to this town. Half of everything out there we owned, we built, we sold. We did the lot. Restaurants, Tosca milk bars, the bakery. Nino's Pizza Bar was mine, f...in' Sign Shops was mine."

Nino was a Katherine alderman for 10 years.

"She's pure evil," Tina says of Bronwyn from behind the kitchen bench. "That's all I can say."

Bronwyn moved from Adelaide to Katherine in 2007, leaving her son Christopher Malyschko behind. Tina says Bronwyn lured Malyschko to Katherine some eight months before the murder with the promise of a job at the laundromat.

Bronwyn consciously brought him over to organise the hit? "She did," Tina assures me.

"The thing that hurts me the most - that f...in' slut bitch, Bronwyn - she was manipulating these kids," Nino says. "She was brainwashing, giving them drugs, giving them what they wanted. She'd go over to their house, telling them things."

Bronwyn would take Nino's mum to the pokies. According to Tina, on a trip in early 2011, Bronwyn yammered to Nino's mum that she was putting money away. She'd saved $10,000 but said she needed $15,000. That was the amount she handed over for the hit. More evidence, Tina says, she'd been planning it for a while.

"My brother never touched her," Nino hisses. "And I'll tell you why he never touched her. Because she would come here often and pick my mother up in short-sleeved shirts and short shorts. And I never saw a bruise on the bitch. I never saw any burn marks like she's supposed to have. It was a load of shit."

"Really good actor," Tina says. "She could put the tears on for anyone."

If you believe Nino and Tina's version, Bronwyn got away with murder. The Crown allowed her to plead guilty to manslaughter because she had told them she was a battered woman who was at the end of her tether. If you believe Bronwyn coldly plotted the killing and Grieve never turned up on the night, Grieve's situation is more frustrating. The puppet master got eight years, four years non-parole. She can leave prison 16 years earlier than The Man Who Wasn't There.

An ex-friend of Grieve's, ex because he talked to the cops, is sipping Japanese beer on my motel balcony. "In a perfect world, I would have kept my mouth shut. But I got backed into a corner. It's always better to know nothing and to say nothing."

His house was a party house, and he says Grieve was there before the murder. "Yeah, Zak and the other two would come over. Yeah, there's like, you know, playful discussion on how you would successfully dispose of a body."

He still doesn't know what was Grieve clowning around and what wasn't. "You know, you get the piss on, and then you just chat about crap. The last thing you can seriously think is, 'Jesus Christ. The nicest bloke I've ever met is just about to actually go and kill someone.' "

"Do you reckon," I ask, "there's any chance that, because Zak was a nice guy, who would stick up for friends, that if Christopher was saying, 'Oh listen, my stepdad is just an arsehole and he abuses me and abuses my mother,' that Zak could get caught up in it?"

"Yeah. I kinda could see that. My father was the first person to bring that up to me and I only started noticing that a little more now, how impressionable Zak was."

One big thing that looks bad for Grieve: he was suddenly flush with money just before the murder. "Coming up to it, he started purchasing a lot of things, like there was a Nintendo DS 3D. And brand-new clothes, like proper Nike, and going and paying 90 bucks for a bloody Puma."

"Do you think Grieve deserves to be in jail?"

"I would love to say he doesn't deserve it at all." The ex-friend looks pained. "I'd love to say he wasn't there but, again, I don't know what happened after they left my house."

Maybe drawing these opinions is making something murky that need not be. Unlike Halfpenny and Malyschko, no forensic evidence placed Grieve at the murder. Maybe the anguished question is: could Grieve have called the cops and stopped it?

Zak's dad, Wal, has a tag dangling from reading glasses, so he can return them to his sunglasses shop later. He is always misplacing his own pair. Brothers and sisters and cousins and aunts pass around barbecued sausages on the porch of a Darwin home.

"He was a real softie," Zak's mum, Glenice, says, drawing on her cigarette. "He wouldn't harm a butterfly."

"That was his grandfather's dreaming," Wal adds.

"It's an Aboriginal thing," Glenice says. The animal that wanders into the family's life around the time of a child's birth becomes that child's dreaming. Zak's dreaming story sounds like hard times were pre-destined. Wal accidentally crushed a nest of blue-tongue lizards when Glenice was pregnant. "When Wal told me, I went into a gasp: 'Oh my God! That's his dreaming!' "

Zak came out purple and bruised, the same colour as the squashed blue tongues.

"And Wal seen him then and went, 'Oh. You weren't f...n' joking.' When Zak's mouth come, ahhh, even his tongue was blue."

Zak's brother's partner leans in. "You know," Shannon says, "had they charged everyone in the same position as Zak, with the same knowledge as Zak, they would good and well have 20 people in jail."

Matthew, a friend of Zak Grieve's, has imprudently typed on Facebook that, following the logic that has locked up Zak, "I should go to jail."

Glenice remembers the first murmur. Zak called to say, "Mum, you might have to come over and see Matthew, because he's just seen someone down the pub offering some money to kill someone."

The talk built. One day Glenice walked into the sunglasses store. Zak was behind the counter. Matthew was there, it was like half the kids in town were there.

They were discussing how much money a person should get for a hit. "I just piped up and I said, 'Youse need to stop talkin' this f...in' shit, 'cause it's something that can land you in big f...in' trouble.' Darren was hiding in the corner like I didn't see him. I've seen him. That's how much of a dingo he is. Just an absolute prick."

No crocodile, I think to myself, but at least there's now a dingo. Glenice says Halfpenny and Malyschko were trying to lure Zak in so they could blame it all on him.

For the Grieves, this is a story about racism in the Northern Territory. If Ray Niceforo had been black, he would have been locked up for threatening and hurting Bronwyn. Police are driving into Aboriginal communities and plucking out men for domestic violence all the time. Then Malyschko wouldn't have been pushed into a corner, needing to defend his mum. Then Zak Grieve wouldn't have been dragged into this.

The NT has Australia's highest incarceration rate: 821 people per 100,000. Incredibly, this is more than three times the incarceration rate of the silver-medal holders, Western Australia. Yet the white man from the wealthy family somehow avoided prison when he shot a man in the main street.

"This is little Mississippi," Glenice says.

For the Grieves, this is also a story of human folly, a tale of cops covering their arses. They say NT police had screwed up a big murder investigation not long before. So when a member of a powerful family was found dead, half a dozen cop cars came down from Darwin. Halfpenny pointed a finger at Zak. This became the story, the genie that couldn't be put back in the bottle, even when forensics didn't fit.

Wal explains Zak's spending on Nintendo and Nike just before the murder. The tax department had just sent Wal a cheque. Wal rewarded his son for his hard work in the shop. That story pushes Zak away from the crime. Not all the Grieves' stories do.

"Here is a young indigenous boy," Shannon says. "Now, not through his own family, but through his people as a whole, he has seen the abuse of these women and of these children. So when someone steps forward to a boy like this and says, you know, 'Would you have my back if this guy came round and if he beat my mother up?' of course Zakkie was gonna say yes."

Zak grieve is big. Glenice complains he has lost 30 kilograms since they locked him up, but when we meet in prison in Darwin he looks healthy. He sports a blue T-shirt and shaved head, chomping chips at a metal table. He tells me he is writing a book. Glenice, like a stage mother, is flouncing around the metal table, telling me I have to get the manuscript to a publisher. When he talks about his book, he is smiling and alive. He's 400 pages in, close to finished. He writes it in pencil in his cell. It's set 100 years into the future. One main character has to go off with his sister and fight a war, and fight against the darkness.

He is at first calm when discussing the case. Anger takes over his eyes when he turns to Malyschko and his mother. How she was a victim of violence. And she was so small and Malyschko had told him Ray Niceforo was so big. He didn't know what Niceforo looked like until the cops showed him the bashed-in-skull photos. That upset him. He said he felt like a murderer for 16 months. He believed that in his heart, not just intellectually. It wasn't until inmates told him he wasn't a killer that he reflected "No, you're not. All you did was not make a phone call. You didn't know whether to take them serious or not."

He moves on to his fourth packet of chips. Wal is bringing them from the vending machine. He was confused when Halfpenny and Malyschko were telling their stories about needing to kill a man. He wanted to get out of the situation as soon as he realised it was becoming serious. He said it was ambiguous. Like should he call the cops or not? And afterwards he thought the cops were annoyed because he didn't help out straight away. But he only didn't help out because they kept talking about a dead guy lying on the street and it was not the place Halfpenny and Malyschko spoke of. He didn't even know at that point that the two had gone through with it, and the cops weren't saying what it was about, or naming anybody's name, so he didn't connect the dots.

He says prison has been a hard wake-up call, not being able to play Xbox. But he's pretty relaxed now because he gets to read books. (I think about A Man Close To The Case, who said Katherine people don't read books.) Grieve says after he got out of maximum security, he found it comforting, finding out how many family members were in prison with him. And they would come up to him, all these people he'd never met before, and it was a new chapter in his life.

He rolls up his sleeve and shows me a homemade tattoo, a symbol from Kingdom Hearts, a computer game in which you fight the blackness taking over the world. "Yeah, go on, say it," Grieve says. "It looks like a dick coming out of a heart."

Later that night, his brother, Terry, tells me: "Zakkie comes from a line of lawmen."

Around the time he was sent to jail, Zak Grieve was to decide whether to become a lawman himself, to take part in the secret Aboriginal initiations and ceremony. Now he'll be a boy until he's at least 40.

The Grieves are searching for a lawyer that will take Zak's case to the High Court. Maybe a court, outside of Little Mississippi, will see this in a different way.

Zak Grieve's story, lacking crocodiles, may not have made headlines across Australia, but locally it has become folklore, a cautionary tale about mandatory sentencing. Two tipsy lawyers in a Darwin bar tell me to call the president of the Criminal Lawyers Association of the NT, but warns me he's a little strange.

"Zak Grieve?" the president, Russell Goldflam, asks down the line. I hear him shuffling through papers. "I wrote a limerick about that case."

I tell him I'd like to hear it.

"Understandably, Grieve is aggrieved

By the sentencing. Not disbelieved Wasn't there. He got more

Than his mate, that's the law.

As for justice, that's hardly achieved."