This man was convicted of murder. But his childhood friend says ‘it should have been me’ – RN
Khalid Baker was found guilty of murder, but maintains he is innocent. (ABC RN: Fiona Pepper)
It’s not unusual for a convicted murderer to protest their innocence — but you don’t normally hear of someone feeling burdened by a not guilty verdict.
- Khalid Baker was found guilty of murder but maintains he had nothing to do with man’s death
- ‘LM’ was acquitted but describes himself as “100 per cent” responsible for the death
- There were conflicting eyewitness accounts of what happened
- Experts have cast doubt on Baker’s conviction
But that is the case for Khalid Baker and LM, whose real name cannot be used.
The childhood friends stood trial for murder a decade ago, and have recently had an emotional reunion, opening up about an event that shattered many lives.
They were accused of killing Albert Snowball, who was pushed from a window at a warehouse party in Melbourne in 2005, and died of his injuries two days later.
Baker, an 18-year-old champion boxer, was found guilty. LM, who was 17 and an aspiring hip hop musician, was found not guilty.
The outcome still hangs heavy over both men.
Baker maintains he had nothing to do with the death, and should never have been sent to jail.
“Me, it should have been me,” LM says.
LM says he was the last person to touch Mr Snowball. He says he pushed him away, but didn’t see him go through the window.
“Do I feel that I murdered him? No, I don’t feel that. Was it an accident? 100 per cent,” LM says.
“It was not Khalid that it did it, 100 per cent it was not him.”
After 13 years, LM maintains he pushed the deceased
LM and Baker, both Ethiopian Australians, had arrived at the party in a car with three other men, including one named Ali.
There was a diverse crowd of about 200 people at the party. LM had been invited to perform a few songs with one of the bands.
Shortly after LM’s performance, Ali, who is not African-Australian, started a fight.
There are two very different versions of what happened next.
Khalid says he and LM went to break up the fight but the crowd turned on them, forcing them to fight in self-defence.
In stark contrast, many partygoers gave evidence that Ali and Khalid started viciously attacking people at random.
It was the prosecution case that Ali, Khalid, and, to a lesser extent, LM, were highly aggressive and that partygoers, including women, were punched and struck with bottles.
The prosecution described these attacks as “unprovoked” and “marked by the most extravagant violence”.
LM says as he was trying to leave, Mr Snowball attempted to start a fight with Ali.
“I was standing between them, arms out, so there was no further fight happening. As I did that the guy hit me, the guy that has passed away, Snowball,” he says.
“I’m like, mate, why did you do that? We got into a scuffle.
“We were possibly maybe a metre, a metre-and-a-half away from the window at the time. And then I pushed him away, I turned around and I walked out down the steps.”
When LM emerged onto the street, Mr Snowball was lying on the ground.
At that point, the five young men who had arrived together fled the scene.
The day after the party, LM told this version of events to police in an hour-long recorded interview.
This interview was played to the jury at trial, and he stands by the account 13 years later.
“I don’t feel like I was the person that pushed him out the window but I feel guilty that because of that situation a life has been lost,” LM says now.
Different witness accounts
There were conflicting witness accounts of the fight with Mr Snowball.
Four white witnesses pointed the finger at Baker, while three witnesses of African descent singled out LM.
LM says no-one at the party knew them well enough to say who was who, while Baker says the white witnesses were mistaken.
“When, say, a white person sees an Asian and [says] they all look alike, they can’t really tell the difference, it was like that with the white witnesses,” Baker says.
“They couldn’t really tell who was who.
“But when it came to the black witnesses, some of the black witnesses who knew LM could know the difference between myself and LM.”
Both Baker and LM were charged with murder; the prosecution argued that the pair had intended to cause “really serious harm” to Mr Snowball.
The trials took place in 2008, and neither LM nor Baker took to the witness box to give evidence in their own defence.
In his summing up, LM’s defence barrister argued that the evidence of these three African witnesses was flawed.
One African witness, who didn’t know either of the accused, said he saw two fights.
He said LM was fighting the deceased when the window smashed, and at that moment Khalid was fighting someone else.
LM’s barrister described this witness as unreliable because in a previous police statement he said that he wasn’t on the landing at all.
The two other African witnesses had come to the party in the car with the accused.
One said that while he was restraining Ali, he saw LM fighting the deceased.
The other said he was holding back Khalid, also preventing him from re-joining the violence.
Although these two men were friends of LM and had only recently met Khalid, LM’s defence barrister implied that they both had a strong self-interest in presenting themselves as peacemakers, well away from the violence.
LM says he was “pretty rapt” when he was acquitted; and expected a similar result for Baker.
“But then a week later I find out that Khalid was found guilty. I was shocked really,” LM says.
Under hearsay evidence rules at the time, Baker’s defence team had not been allowed to remind the jury about LM’s admission that he was the last person to touch Mr Snowball.
In 2012, Baker went to the High Court arguing that this was unfair, but the court disagreed.
It found that because four witnesses had identified Baker as the attacker, it was open to the jury to find him guilty.
In light of this, the High Court was not prepared to overturn the established law (in Victoria at the time) in the absence of a miscarriage of justice.
“Appeal courts defer a great deal to juries,” explains David Hamer, an expert in evidence law at the University of Sydney.
“Even though there were conflicts in the evidence, a jury might well have accepted the evidence which pointed the finger quite clearly at Baker.”
‘We don’t have the whole story’
However, those conflicts in evidence don’t sit well with Professor Hamer on a personal level.
“Personally I see problems in this case,” he says.
“Which isn’t to say he is necessarily innocent — just given the state of the evidence, given the amount of confusion, there were different witnesses saying different things and then you’ve got LM’s admission exonerating Baker — in all of those circumstances I don’t have a great deal of confidence in the conviction of Baker.”
Michele Ruyters, the director of the Innocence Initiative at RMIT University, believes the case involves a miscarriage of justice.
She plans, down the track, to lodge a second petition of mercy to the Victorian Government.
“We don’t have the whole story still,” she says.
“The use of racial lenses in … in misidentifying people is very well documented.
“Add the potential of alcohol and drug use to the lenses through which they identified someone — race, alcohol use, drug use — then you’re starting to get probably a very unreliable picture of what happened on the landing.”
Pardons are as rare as hen’s teeth, but Dr Ruyters says that’s “absolutely no reason not to persist”.
“Our job is to uncover as much as possible,” she says.
“While there may not necessarily be a legal outcome that’s going to benefit Khalid, we can certainly do as much as we can to uncover what we believe are the injustices … that lead to miscarriages of justice in the first place.”
‘I feel pain for the family’
Talking about what happened a decade ago was an emotional moment for the pair.
“I can’t imagine what it’s like to do that much time and come out like this,” LM says.
“I am an emotional person, so I’m feeling this. It’s good to see that his spirit is still … bright.”
Baker says seeing LM’s smile again brought great comfort.
“It brings the memories back,” he says.
“I love the bloke. I know that he truly loves me too and I know that he suffered too.”
Both men also express sadness for the family of Mr Snowball, who was 22 when he died.
Baker says he thinks of Mr Snowball every day.
“I have no remorse because to have remorse is to say you’re guilty of something, to be guilty of what happened that night,” Baker says.
“I don’t have remorse but I feel for the family, I feel the pain for the family.”
In his victim impact statement, Mr Snowball’s father Jonathan said his sorrow was without end.
“Albert Snowball was my first born son. I sat him on my knee. I read stories to him. I carried him against my chest. He was a good and honourable human being … This is not the future I cherished for him.”
LM maintains that what took place was an accident, but describes himself as “100 per cent” responsible for the death.
Asked if he might be guilty of manslaughter, he replied: “I can’t answer that question. I don’t know how I would answer that question for you.”