Ladykiller (38 page)
Buckley might have been a man blighted by circumstance— at one point in his business history he had been made bankrupt and, at another, a former partner had reported him to the companies’ watchdog of the mid-1990s, the Australian Securities Commission. But he was damned if a lawyer was going to slur his name. He came back to Young snarling, ‘I am not changing my position at all.’
Young tried to throw doubt on Buckley’s claim that Burrell had asked him for a falsified letter about his employment. Young’s tone was acidly polite, ‘Sir, I suggest to you that the suggestion for such a letter was a total fabrication on your part.’
This infuriated Buckley. ‘Totally false?’ he spat out the words. ‘It is absolutely one hundred per cent correct that he asked me for that letter.’
After lunch, the Crown prosecutor sought to re-examine Buckley. It was an opportunity to allow the witness to again quote Burrell’s threat and Tedeschi mostly managed to conceal his delight in hearing it a second time in open court, albeit slightly paraphrased. In the gallery, on the jury benches, in the media seats, men and women leant forward to catch it. This time, Buckley used the word ‘fucking’ twice.
Two men in the public benches smiled appreciatively at Buckley’s newer rendition. It was a welcome distraction from frustrating days of long legal arguments and boring hours of defence applications. For the court-watchers, there had been a five-day gap in live witness evidence before the jury, and they had sought entertainment elsewhere in the Darlinghurst complex, sitting in on other cases while Dalton plighted his troth with Justice Barr. They were not legal experts, but outside the courtroom one observer told reporters he thought the case for Burrell’s innocence was floundering, that it was drowning in a sea of delays and faltering and useless entreaties to the judge.
David Dalton was pushing for more opportunities to argue one of the main thrusts of his case: that underworld criminals had caused Mrs Whelan’s disappearance and the police were too incompetent, or did not have the will, to investigate properly. Dalton wanted to delve into the Taskforce Bellaire running sheets, the daily records of Dennis Bray’s investigation, which included every scrap of information, each phone call, every anonymous tip-off , and each morsel of hearsay or just plain gossip. Dalton’s contention was that the police had never bothered pursuing new leads once Burrell stepped into their sights.
Dalton was chewing on an old bone though, and Justice Barr looked inclined to throw it out. He was not convinced he should allow the running sheets to be included in the evidence and Tedeschi warned him that, if Dalton got his way, the Crown would be forced to comprehensively disprove that Karl Bonnette, or Bernie Whelan’s adopted son, or any dark figure from the Whelans’ distant past, might have taken Kerry. That might require the Crown calling twenty or thirty witnesses, perhaps from the United States; the trial would be very prolonged. Dalton reminded the judge that it ‘was always part of the defence case that a major attack would be made upon the effectiveness of the police investigation’. Justice Barr said he would think about it.
By the next morning, Dalton had conceded to the Crown’s advice: that he was not going to win the right to raise hearsay evidence from the police running sheets, so he would have to stick to cross-examining Dennis Bray about the ‘failure to investigate a number of other suspects’.
Dalton continued to insist he needed more time. Justice Barr said he was keen to keep the trial ticking over, with the jury in the court. He wanted to end the examination-in-chief of Bray and to hear a particular witness who had journeyed down from Cairns to appear in the judge’s court. Dalton countered that he needed time to re-examine and analyse all the papers found in Burrell’s farm house, the formidable twenty-two bags of documents seized by Taskforce Bellaire. His Honour scotched the application almost immediately, but Dalton argued on. He had an enormous exercise to go through all the documents.
Justice Barr apologised to the jury for the hours and days of exclusion from the courtroom. ‘I am sure you will understand that criminal trials don’t just happen,’ he said in his avuncular manner. ‘Barristers don’t just stand up, call a name and a witness walks through the door. An enormous amount of work has to be done in the preparation of any criminal trial . . .’
The next witness who walked in through the door was a bottle blonde with a plump face and prominent bags under her eyes. Although her appearance would be brief, she looked terribly unhappy to be there. Bruce Burrell’s sister, Debbie, bore a slight family resemblance to the accused, who put his head down as she took the stand after lunch. Her evidence was lacklustre. She denied ever providing financial support to her brother, other than $50 for bread and milk following a farm stay at Bungonia while police were searching the property.
The next family witness looked nothing like his relative, but then Trevor Ross Whelan was adopted. A trained shipwright who now lived in Cairns, Trevor Whelan’s difference from his father was more profound than just in appearance. Where Bernie was the neatly pressed executive, Trevor was a working-class man. Balding and bearded, he wore a black T-shirt and a tattoo on his forearm.
Only a year younger than his murdered stepmother, Kerry, Trevor said he had resented Kerry when she came into his father’s life, suspecting she was ‘a money grubber’. Trevor then thirty-six, had gone to the family home in Castle Hill after he learned his parents had separated and found Kerry there. He believed Bernie’s new relationship financially disadvantaged his alcoholic mother who, he claimed, had been pushed aside in the marriage settlement.
Trevor agreed with Tedeschi that a violent confrontation in which he threatened Bernie with a knife had played out in front of Kerry. At the time he was working for Bernie’s boat company, Whelan Marine. Bernie cut his son from his will and Trevor disappeared to northern Queensland. Over time, the animosity abated and, though distant, Trevor had reconciled with his father.
David Dalton asked Trevor why his father had named him as a suspect to the police investigating Kerry’s disappearance. ‘Do you agree with your father’s assertion, in May 1997, that you are a “violent and disturbed person . . . capable of many things?”.’
Trevor Whelan answered in a soft voice, ‘I am capable of a lot of things. I had my problems, yes.’ The adopted son appeared a rather mild man, perhaps not so unlike Bernie after all. He left the court complex in the sunshine and a flash of media cameras and made his way back to Sydney airport.
The sex bomb, as an old court-watcher had taken to calling one of the women jurors, was wearing a coral-coloured frock and silver hoop earrings. She was smiling, although behind the scenes the twelve members of the jury were bogged down in conflict and arguing daily about the case. But the ‘gypsy’, as she was known among the reporters covering the case, looked around the courtroom as if she wanted to chat, so convivial was the atmosphere on that balmy afternoon of Thursday 29 September.
Rays of sun beamed through the high windows down on to the heads of the courtroom participants. On the media benches, the
Telegraph
’s Nicolette Casella joked with the television reporters. With the good weather, and no expectation of serious evidence to note down for the day, had come a holiday feel and only Bruce Burrell, his lips pursed in that pious way he had, seemed to disapprove. He stared on balefully as the female reporter laughed and he put his hand to his mouth. The chain-smoker had a persistent cough.
David Dalton resumed his work on Bray and kept at it all morning, as he had the previous day, to negligible effect. The
Herald
’s Malcolm Brown ventured that for all his thrashing, no doves of freedom had flown from the bush. Despite the effort Dalton had put in to building up to this apogee for the defence case—that the police inadequately investigated the Whelan kidnap—Dalton seemed to have parked himself in a corner and he was frustrated.
After the long sessions of legal argument, the defence seemed to become stalled in a history lesson about old Sydney crims. Dalton was very interested in why Mr Whelan had sought protection, twenty-five years previously, when the late transport millionaire, Sir Peter Abeles, set one of his goons on Bernie with a threat against Kerry and the children because Crown was perceived as a business rival to Abeles’s company, TNT.
Tedeschi objected. What relevance could a threat so many years ago have?
‘I think the early eighties,’ Justice Barr said, ‘is a bit too early.’
Was it possible Kerry Whelan departed the country under a false name, leaving a hapless Burrell to take the blame? ‘You . . . did not concern yourself with other lines of enquiry that presented themselves,’ Dalton said, ‘that might suggest she had been the architect of her own disappearance or someone other than Mr Burrell had been responsible for her disappearance. Isn’t that right?’
Inspector Bray did not accept that.
‘You kept an open mind about it?’
‘Yes.’
The questioning stretched on into the afternoon as Dalton picked the eyes out of the police running sheets. Hadn’t Don Moxham from Radio 2GB heard a story about someone who had a conversation with Kerry Whelan in a bank and Kerry had said she was considering changing her lifestyle?
That, Tedeschi rose to object, was double hearsay.
Regularly, the judge had to eject the jury so legal argument could ensue. It was clear this did not sit well with the judge. He hated the idea that his trial might not be running well, or that the case might have become disjointed for the jury.
Why, asked Dalton, had Inspector Bray not pursued a claim by a chauffeur called Ivan Pierre? Pierre said he drove Russell Goward and Kerry Whelan from the Parkroyal on 6 May to an address in Strathfield. In the car, Mrs Whelan said she had caught her husband cheating on her. ‘I would seek to cross-examine the detective inspector over his failure to locate this particular limousine driver.’
Tedeschi was incensed. ‘My learned friend could have called Mr Goward. He could have interviewed Mr Goward.’
It became a tennis game. Dalton would suggest an area of enquiry; Tedeschi would demand he explain its relevance. More than once, Justice Barr would rule Dalton’s questions too remote.
Dalton who seemed to be gaining only the irritation of the judge, returned to his favourite crim, Karl Bonnette, and said there had been an allegation that Bonnette and a hit man called ‘little Joe’ were connected with the kidnapping of a union organiser.
‘I think this is too old,’ Justice Barr said.
Dalton said a little tersely that he did not require the inspector for any further questioning.
A dramatic if brief highlight of the day occurred when David Dalton recalled Bernie Whelan to ask him a leading question. It was a moment of pure grandstanding by the defence, intended to remind the jury that at least one camp still believed it was possible that the husband might have disposed of his wife. ‘Were you involved in the disappearance of your wife Kerry Whelan?’
Bernie’s answer was short and simple, ‘No I was not.’ On the media benches, reporters looked at each other and rolled their eyes.
The following Monday was a beautiful spring day, with virtually no wind and bright patches of sky between some clouds. After eight weeks of prosecution evidence, the Crown case was concluded. Dennis Bray’s wife Narelle arrived with her husband and they chatted with members of the Whelan family. The case had enveloped Narelle’s life as much as her husband’s; and she wanted to hear Tedeschi’s closing address.
In the Darlinghurst complex courtyard, reporters stood on the grass, talking and laughing. There was a general air of excitement. At a distance, Bruce Burrell was puffing on a cigarette, looking edgy.
The jury filed into court three, the woman who looked like a gypsy, frocked up in a billowy green and brown dress, sat in the second row. Twenty-one-year-old Matthew Whelan was pushed into the courtroom, brought to a stop next to his father. One of the court-watchers nodded at the Whelans and flashed Matthew a kind smile. It was the defence’s chance to call witnesses and the only opportunity for the accused killer to give his version of events and to explain his innocence.
Dalton stood: ‘We do not propose to call Mr Burrell, the accused.’ Two of the jury members exchanged glances as Dalton moved on: he would open and close his case in around twenty minutes.
He called a witness, Dr Alan Charles Watts, for Philip Young to examine. The tall and distinguished-looking doctor recounted a wool hook injury sustained by the accused in the early 1980s when two pieces of metal pierced his buttocks. Questioned by Young, Watts agreed the wound was ‘roughly in the same vicinity’ as the sciatic nerve and might have caused some damage but there was no written confirmation because hospital records had been destroyed.
The defence case was now finished. Justice Barr addressed the court: ‘That concludes the evidence of the case and we move now to the final stages of the trial.’
Tedeschi’s closing speech, like his opening, was destined to be interrupted. Tedeschi said Burrell’s kidnap of Kerry had been some months in planning, but he was not as clever as he needed to be. He told the jurors ‘three completely independent bodies of evidence’ implicated Burrell and represented the kidnapper’s most ‘crucial errors’. There was the CCTV footage from Parkroyal Hotel, Parramatta, of a two-door, two-tone Pajero pulling away only seconds after Mrs Whelan was last seen alive. Burrell had not anticipated the hotel would have security cameras; the recordings put him at the scene because he was in possession of a matching four-wheel drive model.
Nor had he anticipated that police would find the dot point notes among his private papers at the farm, which showed his plot to abduct Mrs Whelan and hold her for ransom. But the most fatal mistake for Burrell’s claims to innocence was the call made to Crown from a Goulburn phone box on 23 May 1997. He telephoned Crown Equipment from Goulburn’s main street and used a code from the ransom note which identified him as the killer, then, thinking he must have been under surveillance, identified himself a few weeks later as the caller from the box. Altogether, Tedeschi told the jury they constituted ‘irrefutable proof he abducted and murdered Kerry Whelan’. The Crown’s manner was crisp and animated; reporters were elbow to elbow, writing rapidly.