Ladykiller

by Candace Sutton

  Bruce’s sister became the centre of attention when she shuttled her children around in a battered white Mitsubishi sedan. Tonia was used to screaming at reporters to get the hell out of her face. This time she marched towards a group of reporters: ‘No one is going to speak to you. We all know you can’t lie straight in bed at night.’

  Tonia said that her brother was in Bali but it soon became clear she was lying: a steady stream of people arrived, carrying in cases of beer. Burrell was having a party and among the guests was his neighbour, Bob, who arrived wearing a mask from the teen horror film Scream. A man of Islander appearance turned up in the driveway in his sports car. He was a truckie friend from Bruce’s latest job at Watts Waste in Oxford Falls. When he looked around and saw the cameras, he yelled, ‘Fuck off , he’s not coming out.’

  Bob staggered out several hours later and boasted that he had photographs of ‘Bruce’s last party’. Another man fell over on Tonia’s driveway and cut his arm. The boozing continued into the night. A group of young, drunk neighbours returned home from a night out, and called out, ‘Tell us where the bodies are buried, Bruce.’

  In the morning, Burrell poked his head out of a window for a second, but found the media were still waiting. A photographer, hiding in a house next door, managed to snap a frame of his freshly shaven face.

  At 10.45 a.m., Tonia arrived back home from a shopping excursion. In the back of her car were her kids, Taylah, Courtney, Morgan and Leely. She entered via the side of the cream brick house, into Bruce’s quarters, and emerged two minutes later, tense and angry. She walked over to a group of reporters and said, ‘Please be respectful of my children.’

  The following day Burrell’s face appeared on the front page of the Sun-Herald under the headline ‘Hello, Bruce!’

  A week later, on 27 September 2002, before a packed session in the New South Wales Supreme Court, Burrell pleaded not guilty to the kidnap and murder of Kerry Whelan. A trial date was fixed for 28 April 2003. Prosecutor Mark Tedeschi, QC, told the court the fresh arraignment followed new evidence which emerged during the inquest. Allan Burrell agreed to put up $20 000 bail for his son.

  Burrell’s barrister, David Dalton, said he would seek a permanent stay of proceedings, arguing there had been an ‘abuse of prosecutorial discretion’. Dalton’s stay application would be among several the lawyer would make as he fought to stop the trial going ahead. Many more twists and turns lay ahead for the parties and many more days in court.

  On 12 October bombs ripped through two nightclubs on the Kuta Beach tourist strip in Bali, Indonesia. The country was still focused on the disaster when, on 18 October, Nicholas Cowdery’s office of the DPP served a second ex-officio indictment on Burrell. For the second time in six weeks, Bruce Burrell appeared in the New South Wales Supreme Court, charged this time with the murder of Dorothy Davis. Maree Dawes was relieved to see her mother’s murder formally acknowledged.

  ‘I am innocent of that charge, Your Honour,’ Burrell told the court. Cowdery issued a statement requesting that ‘media outlets respect the need for a fair trial, according to law, by not publishing potentially prejudicial material in advance of the trial’. For once, Burrell was left alone. Reporters were busy with stories about the Bali terrorist attack, which had left eighty-eight Australians dead.

  34 INTENSIVE

  CARE

  Despite their persistent pleas, Kerry had refused to allow her sons to play rugby. ‘It’s too rough, boys,’ she would tell them at the beginning of each season, ‘you’ll get hurt.’ Instead they played soccer, and Kerry would ferry them each Saturday to the sports ovals where she would barrack ferociously from the sidelines.

  In the months after their mum disappeared, sport took a back seat. Matthew eventually returned to it, launching himself into rugby, playing breakaway for the Penrith Emus. He was a good player but by the age of twenty he had developed a very lanky physique. He had that most dangerous of physical attributes on a rugby field—a long neck. His coach had advised him to give the game away, concerned he would be injured. Matthew agreed.

  His final game was at the Nepean Rugby Club on Saturday 17 April 2004. His girlfriend of four weeks, Meg Ryan, cheered him on in his second-grade game. He showered and was ready to relax when the A-grade team called on him because they were short of players. With five minutes of play left , Matthew ran on and caught the ball from a kick-off. The ruck closed in around him and when the players dispersed, Matthew lay there, unmoving. For him, the world had gone black. He was paralysed up to his neck and he could not scream for help. The other players were oblivious to what had happened and his side had gone on to score a try. In a panic on the side of the field, Meg caught someone’s attention and the cheering stopped. A new crisis was about to envelop the Whelan family.

  Bernie and Debra arrived at the ground as Matthew was being carried on a stretcher to a rescue helicopter. He was flown to the Royal North Shore Hospital where a scan showed he had severely injured his spine. At 10 p.m., he underwent a delicate three-hour operation to fuse the C3 and C4 vertebrae. After Matthew underwent numerous tests, Bernie was told the prognosis was not good. His son was a quadriplegic and was unlikely to walk again. Doctors advised Bernie and Debra to go home and get some rest. Kerry’s brother, Brett Ryan, decided to stay, scared that his nephew would wake to find no one with him.

  Matthew was in the cardiac section of the intensive care unit, the only wing where he could be found a bed in the overstretched public health system. A year earlier, in April 2003, as he was preparing for his trial, Bruce Burrell was treated in the same ward, undergoing a triple heart bypass. As the Whelans now kept vigil over their son, the nurses would gossip to them about Burrell, who was ‘demanding and abusive’ to staff. His sisters, Tonia and Debbie, were often heard, in raised voices, insisting the nurses ‘attend to Bruce’. Burrell, even while recovering from major surgery, was bossy and rude, saying ‘Get me this. I need a drink, now.’ In the end, the nurses would draw straws on who had to answer his constant calls.

  The Whelans were the opposite. Bernie had retired a month earlier from Crown and he drew up a family roster to ensure someone was with Matthew twenty-four hours a day. During those first few weeks, Matthew drifted in and out of consciousness. The paralysis meant he found it difficult to breathe and he required assistance through a ventilator, which was fed by a tube down his windpipe. It was heart-wrenching for his family to watch the once-active, lively young man lie conscious, but powerless.

  Most days and nights Matthew sobbed for his mother; it was the first time he had properly grieved. The accident had opened up the emotions he had kept so tightly in check. Sarah had flown back from her new life in Queensland to be at his bedside where she tried to fill the void left by her mother.

  Matthew was still in intensive care on 6 May. Nobody mentioned it was Kerry’s anniversary, although everybody thought of it. Sarah knew the day would be hard for him. ‘Hey, baby, I’m here for you.’ Sarah kissed Matt’s forehead as soon as she walked into his hospital room. Tears rolled down Matt’s cheeks. ‘You know what day it is, sweetheart?’ Matthew nodded. ‘That’s why I’m here with you. It’s okay.’

  Matthew was eventually moved to the hospital’s spinal unit and, determined to prove the doctors wrong, he gradually made small improvements. After six weeks he was able to lift his right hand, then his left, and he began to breathe on his own. The specialists were impressed and transferred him to a rehabilitation hospital where his girlfriend Meg and his best mate Drew Bolton spent long days by his side for five months. Matthew was bent on making it home for Christmas—and he did.

  Meanwhile, Bruce Burrell was suffering continuing problems from his own hospitalisation for heart surgery a year earlier. He had caught a post-operative staphylococcal infection, was put on heavy doses of medication and was in and out of hospital, rendering him unable to appear in court, according to his defence lawyer. His trial had been set down for 28 April 2003 in the New South Wales Supreme Court, but his
illness caused further delays, no doubt to the delight of Burrell, whose counsel was continuing to fight for a permanent stay of proceedings, submitting that the intense publicity that surrounded the case made it impossible to get a fair hearing. The stay application was vacated and the months rolled by. Crown prosecutor Mark Tedeschi was maintaining the fight to have the Whelan and Davis matters heard together, but he was also unsuccessful. Trial dates were set again and again. For the Whelans, the legal wrangling was an aside. Matthew was Bernie’s priority at the moment and the young man had a long road ahead of him.

  35 A GENTLEMAN

  OF VERONA

  Mark Alfredo Guido Tedeschi, QC, is an advocate of clarity. You might say this is most important in his second profession of photography. But it was absolutely vital in his first vocation, the law. What was the worst sin an advocate could commit and still remain professionally ethical? The New South Wales Chief Crown prosecutor often posed that question to the young legal minds who turned up for instruction at his office, but they rarely got it right. The worst sin barristers could commit when presenting their case in court was to bore their audience. The object was to convince them, and that cannot be done unless the advocate has the jury’s attention.

  Tedeschi was known in the business as something of a maverick. The son of a German Jewish mother and Italian father who fled Nazi Europe in the 1940s, he says he first imagined a legal career from the age of four, when his father worked as a court interpreter, one of several jobs the immigrant held down to support his family. Young Mark relished those times when his father Robert returned from work to regale the children with tales from the bench.

  When he grew up to become a commercial law barrister and sought out a transfer to criminal law, he applied for a job at the Public Defender’s Office, where he might have spent a career defending murderers like Bruce Burrell. He was denied even an interview and instead joined the Director of Public Prosecutions’ office in 1983. If that was reason enough for defence counsel to curse him, Tedeschi’s success in winning over juries to the prosection might be reason enough to hate him. More than twenty years later, the runs were on the board: Ivan Milat, serial killer; Phuong Ngo, political assassin; Kathleen Folbigg, baby killer; Neddy Smith, murderer; Victor Chang’s killers; paedophiles Robert ‘Dolly’ Dunn and Philip Bell; and Sef Gonzales, slayer of his entire family. All in jail, many of them for life.

  Tedeschi’s direct, methodical style belied the fact that he adored his work. He put in meticulous preparation and was a tenacious hunter of facts; he would patiently argue every point in a courtroom. But he was a hard head with an artistic side. He took up photography after buying his first SLR camera for a holiday to Bali in 1988. Now he won competitions with pictures shot while undertaking his leisure pursuits of bushwalking, travel and genealogy. He had a photograph of the variety store on the spot where his ancestor, Marco Tedeschi, ran a shop in 1870 in the ancient Roman town of Verona, in northern Italy. In 2005, when he was prosecuting former Fijian prime minister Major General Sitiveni Rambuka for mutiny in the Suva High Court while another coup raged in the foreground, he won a local photographic prize.

  Tedeschi tried not to run over three hours for an opening or closing address and, better still, he often stuck to under two. Legal colleagues regarded him as a ‘wonderful diagnostician’ of complex cases, although Tedeschi himself has said the importance lies in ‘storytelling . . . you have a lot of complex material which you have to make digestible for ordinary people, so they can understand it, remember it and, hopefully, come to the right conclusion’.

  The legendary Chester Porter, QC, the once prominent and now retired defence lawyer, described Tedeschi’s style as ‘restrained, but convincing, which is the proper style for a Crown prosecutor . . . A defence lawyer is entitled to be more flamboyant, but a Crown prosecutor shouldn’t be too wild or woolly. [Tedeschi] is remarkable for taking a case with an enormous amount of detail and putting it together convincingly for a jury.’ Such was the Whelan case: detailed, circumstantial and troubled by the lack of a body.

  As it turned out, another legal bump along the road was to delay proceedings further. Following the jury empanelment on the trial’s opening day, the judge had patiently asked the twelve members if they understood what lay ahead. Did any of the selected jurors have a reason not to spend perhaps the next sixteen weeks of their life in this courtroom trying an alleged murderer? Not one did, until they went home, at which time a male juror, later castigated in his absence by the trial judge Graham Barr, found he had a job offer and, overnight, had written His Honour a letter asking to be excused; a second juror discovered she was ill and acquired a medical certificate saying she was unfit to serve.

  By law a twelve-person jury can be reduced to ten jurors, but if another were to fail, the trial would have to be aborted. Justice Barr ‘reluctantly’ discharged the jury, expressing his ‘great disappointment’. ‘The court and counsel went to a great deal of trouble yesterday to head off the selection of any jury member who had a difficulty on any count,’ said the judge, who resembled a kindly old headmaster but had a reputation for running a disciplined trial. ‘I think it irresponsible of that juror who wrote the letter to have kept quiet about the circumstances which were likely to happen. It is no little inconvenience for everyone concerned with this case, including your fellow jurors, that a trial should be stopped and restarted.’

  On Wednesday 10 August 2005, the trial proper was ready to re-open at the Darlinghurst Court, a large complex of nineteenth-century courtrooms built from sandstone and now blackened by the traffic fumes along Sydney’s gay promenade, Oxford Street. In truth, ‘the pink mile’ was shrugging off its colourful past. Since the closure of neighbouring hotels, including the once-iconic Albury, the closest thing to a drag queen on the premises was His Honour dressed for the bench. The street and adjacent Taylor Square—the paved plaza opposite the courts and the former site of the colony’s first jail—were undergoing major renovations and the ground shook with tile-cutters and jackhammers.

  Photographers were not allowed through the court gates and massed on the footpath. As a large black van—the object of their greatest interest—passed through the Oxford Street driveway around 9.20 a.m., a blitzkrieg of flashlight erupted. Bernie Whelan parked the van in the courtyard and jumped out to open the back doors. Amid the whirring of cameras, the van’s doors opened and from inside there came a slow mechanical whine. A young man in a suit and tie, wearing dark sunglasses and leather handgrips, was lowered to the ground in his wheelchair. Matthew Whelan was pushed away from the vehicle by another young man, his friend Drew Bolton.

  Bernie Whelan looked nervous as he grimly gripped the hand of his wife, Debra, and they strolled beside Matthew’s chair towards the court. Burrell’s defence was not happy about Matthew’s presence in the courtroom suggesting to the judge that it created unfair prejudice and a sympathy vote from the jury. Bernie Whelan felt ‘nothingness’ about facing Kerry’s killer, except for some satisfaction that he was there finally in a criminal court and the case was proceeding with Burrell in the dock.

  Inside Darlinghurst Court number five, Dennis Bray and his offsider, Nigel Warren, sat close to the bar table, ready to assist when Tedeschi needed them. Bruce Burrell sat poised with a large folder and a pen. As soon as members of the media began seating themselves, he leant forward to his legal counsel and began chatting. After a few seconds, he laughed and then sat back with a half-grin, as if enjoying a private joke.

  At the empanelment of the new jury, Justice Barr again delivered his warning to the new candidates: ‘If you think you have made up your mind about this case, do say so now and I will excuse you.’ Kerry Whelan’s disappearance had attracted ‘an enormous amount of publicity’ and he would not be surprised ‘if every member of this jury panel had heard or read or seen something about this case. The court is anxious to ensure that every member of the jury which tries this case can be completely impartial. I do not want anyone to take his or h
er place on this jury if that juror cannot . . .’ Barr continued in his patient way, explaining the layout of the court, who was who in the various wigs and gowns, and a final remonstration not to speak with anyone outside the jury room.

  ‘I will ask you, please, as you are moving around the courthouse where this trial takes place . . . please be very careful to have no contact at all with anybody whom you encounter.’ Barr made reference to the recent retrial of gang rapist Bilal Skaf, whose first verdict was thrown out after two jurors made their own private tour of the park where at least one of the incidents had occurred. ‘The whole thing had to be gone through again, a substantial trial, with an enormous waste of public money, and the enormous increase in the anguish and anxiety that naturally occurs to witnesses.’

  When Tedeschi delivered his opening address it would prove explosive, although he began gently enough. ‘Ladies and gentlemen,’ Tedeschi said, and smiled at the jury.

  36 THE JIGSAW

  Court number five at Darlinghurst was crowded. Sitting in the public gallery next to the Whelan family, ancient court-watchers whiled away their retirement days.

  In the media seats, it was shoulder-to-shoulder and heads down as reporters tried to catch everything the Crown said. Malcolm Brown from the Sydney Morning Herald was the old court hand, a veteran chronicler of royal commissions, judicial enquiries, coroners’ inquests and murder trials such as this. Nicolette Casella, the Daily Telegraph journalist whose close resemblance to the newly crowned Princess Mary of Denmark resulted in her getting mobbed during the prenuptial hysteria for the Tasmanian bride, was planning her own wedding.

  The TV court reporters were mostly women, and included Sarah Mealey, an ABC journalist who was five months into her first pregnancy and already anxious that the birth might clash with the verdict. Radio reporters sat on the end seats to allow them to duck out easily to file updates for the hourly news bulletins. Some reporters recognised the accused’s sister, Tonia Pai, sitting stiffly in the gallery, staring at the back of her brother’s head.