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.
Tedeschi mentioned ‘the jigsaw’ of evidence, but did not get much further. The jury foreman was signalling to Justice Barr that one of the jurors was ill, and a female sheriff helped the sick woman from the room.
When the court resumed on Wednesday 12 October, it was raining and Inspector Bray stood outside holding an umbrella over Bernie and Debra Whelan. Inside the court, Tedeschi talked and joked with his junior, Sevinch Morkaya. Burrell, wearing a gold tie, sat in the dock, separate from any laughter or conversation. Even his counsel was otherwise occupied. Journalist Malcolm Brown was studying a chorus and muttering under his breath in Italian. He was due to tour Europe soon with the Sydney Welsh Choir and had songs to learn in three languages.
Justice Barr banged his gavel on the bench.
Tedeschi: ‘No problems, Your Honour?’
Barr shook his head. ‘We are one sheriff down this morning,’ he said, and called for the jury, waiting for the last juror to be seated before commenting, ‘Good to see you are all well this morning.’ He flashed the jury a grin from under the long ringlets of his wig.
The jury members looked rested and alert today and stole glances at Burrell when they were not watching Mr Crown as he continued his summing up from two days earlier. Standing straight, Tedeschi told the jury he was ‘obliged to prove a motive’ and Burrell’s was simply money. The motive was ‘very, very clear’ because Burrell was a ‘man facing financial doom’. ‘This is a man who is in a desperate financial state,’ Tedeschi said, his tone matter-of-fact. ‘On April 16, 1997, he takes his first steps towards taking a last desperate financial gamble for money. If it had come off, it would have solved all his financial problems, probably for the rest of his life—$1.25 million Australian dollars. One million US dollars, that is what he was asking for.’
He said the defence’s theories about Kerry Whelan’s disappearance were ‘fanciful’, of the kind to be found in an Agatha Christie murder mystery, or the TV comedy Get Smart. The Crown had its own proposals for the jury. ‘What was it that the accused, Bruce Burrell, and Kerry Whelan, discussed together on Wednesday 16 April that caused Kerry Whelan to try and keep his visit secret? What was it that they discussed which caused her not to tell her husband about his visit, a husband that she discussed everything with?’
Tedeschi knew that these questions would be niggling at the jurors, just as they had taunted anyone who knew the case well enough. There had been speculation that Kerry was having an affair with Burrell, but police were certain this was not so. Some observers wondered whether Burrell had lured Kerry to a meeting with a promise of information relating to Bernie—an affair, or an involvement in a dodgy business deal. Was Burrell blackmailing Kerry to keep the purported indiscretion quiet? Or had he spun Kerry a sob story about his ‘brain tumour’ or his marriage break-up with Dallas and hit her up for a loan? Kerry had a reputation for opening her cheque book when people were in need. Either way, Burrell had told her a lie so convincing that she had agreed to meet him secretly and had gone to her death.
Tedeschi could not afford to distract the jury with any stories and told them it was one of the ‘enduring mysteries’ of the case: ‘We don’t know what it is that the accused said to Kerry Whelan that caused her to react in that way and made her arrange to meet him,’ he said. ‘But whatever it was, it is not accountable by the explanation that the accused has given to police. So, ladies and gentlemen, what we submit that you can be satisfied of is that they were not having any sort of clandestine relationship.’
Tedeschi reminded the jury that it was the Crown case that Burrell gave Kerry a lift somewhere. ‘She voluntarily got into the car . . . and it wouldn’t have taken terribly long after this lift commenced, certainly within an hour, the accused converted a voluntary lift into a forced abduction.’ He paused briefly for emphasis. ‘Did she die then and there? Possibly. Although not necessarily. We don’t know.’
In the back of the courtroom, Dennis Bray looked grim. Among the taskforce’s theories was that Burrell had made a fatal error very early on in his kidnap plan. Police believed that Burrell attempted to subdue Kerry in his car by chloroforming her but she may have suffered a reaction—a heart attack or asphyxia—and died suddenly. Bernie would not have delivered the ransom money without hearing his wife’s voice. The mistake deprived Burrell of the ransom’s reward, and forced him to rapidly devise a new plan.
The Crow
n finished just before the lunch break and at 2 p.m. David Dalton stood. ‘Good afternoon ladies and gentlemen, this has been a difficult trial,’ he said. In a submission that would last days, he began by telling the jury the trial was ‘certainly nowhere near the easy proposition as suggested by m’learned friend’. It was ‘not a case of Bruce Burrell versus Bernie Whelan’ and Dalton would need to analyse the other potential suspects for the kidnap. The barrister began to meander from one subject to another and it seemed to be his aim to not only muddy the waters of the Crown’s clear summation, but to make Tedeschi’s submissions a distant memory for the court. He sought to argue by weight of words that if Kerry Whelan was dead, and not just on an extended holiday from her life, she had been killed by a network of crooks who the police neglected to find.
On the media benches, Malcolm Brown lured another journalist into playing noughts and crosses, bringing his pen down triumphantly for the final mark when he won a game, which was every time.
Dalton’s summation was littered with pauses and gesticulations and demands and entreaties like, ‘What’s to be made of that?’ His principal argument for Burrell’s innocence was the alibi of Bruce’s bad back, which incapacitated him on the day of Kerry Whelan’s disappearance. He postulated that the person who made the call from the Goulburn public phone box might have been a ‘rogue cop’ who was frustrated by a lack of progress in the enquiry. Unfortunately for Dalton, the one possible candidate, a named officer in the case, had already and easily been cleared from being in the phone box on the day. Dalton’s submission that the police investigation was flawed was based on his argument that detectives got ‘a hunch’ early on and failed to properly probe Bernie Whelan’s possible guilt.
Dalton looked grave. He had further matters to bring up with Justice Barr. Could the jury be excused while he made an application? The jury left and Dalton argued.
After several minutes, Justice Barr shook his head. At this late stage, he was not willing to open up another road of enquiry. ‘If I go into this . . . I am going to have to go into all sorts of matters. I will finish up with an address as long as yours.’ Barr grinned broadly at his joke. The judge called for the jury to return.
In the dock, Bruce Burrell was coughing and sneezing. Like many people in the court that day, including the jury, he was dressed up. His outfit—a charcoal suit, white shirt and blue, red and mauve diamond-patterned tie—was smart, except for the crumpled handkerchief with which he blew his nose. Bernie Whelan, his wife, Debra and son Matthew, sat among eighteen members of the public gallery. Even the court stenographer, Michael Campbell, looked formal, in a matching turquoise shirt and tie.
As Barr began his closing address to the jury—‘This is a case with a mass of factual evidence . . .’—a man came through the side door and bowed before carefully moving to a spare seat among the court-watchers in the public gallery. It was Allan Burrell.
After an hour of speaking, Justice Barr called for the morning tea break. He looked over to the dock and spoke directly to the accused: ‘Take heart,’ he said, and they exchanged a smile.
Everyone was being friendly to the condemned man.
42 CANNED HEAT
On the afternoon of Thursday 20 October, the jury went into a windowless room to consider its verdict. In the tiny ‘tomb’ at the back of Darlinghurst Court three was a table, twelve chairs and a whiteboard. The court sheriffs served them egg sandwiches for lunch. The jury would spend their days there until they had reached a unanimous decision about Burrell’s guilt or otherwise.
During the deliberations, the court still required the attendance of the accused; the judge sat in his court chamber and Inspector Bray and Detective Nigel Warren were in a nearby room, completing paperwork as they waited. The pair had become used to the long days, familiar too with letdowns; Bray tended to be a pessimist about jury outcomes. It saved disappointment later.
Outside the court complex, life returned to normal. The reporters went back to other stories and personal preoccupations. While waiting for the call, Malcolm Brown was preparing for his choir trip; Nicolette Casella had a wedding to organise and Sarah Mealey, the ABC reporter, was close to giving birth.
Eight hot days passed before the jury sent a note to the judge on the afternoon of 31 October, informing him they were having trouble reaching a verdict. On two handwritten pages were questions about the aspects of the trial on which the jury, as a whole, could not agree. After reading it, Justice Barr called the jurors into the courtroom and addressed them. He acknowledged it was a complex case and was then interrupted by the foreman, who said: ‘These are not questions that all the jury needs to know. They are questions that some, or one, might need to know.’ Justice Barr looked at them and his eyes bulged slightly. It was clear to him that the majority of the jury was ready to convict, with a single, or perhaps two, dissenters. Justice Barr then gave them the Black Direction. ‘Listen carefully and objectively to the views of other jurors . . .’ he began. Developed by the High Court of Australia, the Black Direction encourages juries to deliberate further on the evidence and to each consider the opinions of other jurors. It arose from a case in which a Sydney man, Michael Black, was convicted of setting fire to a house in the far-western suburb of Airds. From his jail cell, Black appealed to the High Court, which quashed his conviction, taking into account the pressure that was said to have been applied to the jury by the judge at the first trial. The direction said the judge must not pressure or induce jurors to accept the view of the majority, or to compromise their views in any way. Previously, a judge would simply tell the jurors to get on with it and that if they could not, then some other jury was going to have to review the same evidence all over again, at great cost to the community.
In its original form in fourteenth-century England, where the system of unanimous verdicts evolved, there was a natural trigger for jurors to reach consensus: at the end of a trial, juries were sequestered without food, drink or heating until they brought in a unanimous verdict. Winter in England in the 1390s was not a time to linger in a damp stone building sans gruel, and juries came to swift decisions. In twenty-first-century America, juries stay sequestered until they have passed a verdict, but in Australia they are usually allowed to go home overnight. Juries in this country find it much harder to agree, notwithstanding the discomfort of jury rooms such as the one behind Darlinghurst’s court three.
The Burrell jury retired once more. It was doomed to fail. Tempers in the jury room were frayed and it was later said there had been plenty of shouting as, at the end of every point of debate, the lone juror went against the tide. The others felt he was irrational. He seemed amused at their frustration. Bitterly, they would later recall that they took notes in court while he doodled, penning caricatures of the trial’s ‘cast’.
After two weeks of deliberation, around 3.40 p.m. on Wednesday 2 November, the jury members filed into the courtroom appearing grim and pensive. The foreman looked as if he was in pain. His shoulders were hunched over and his voice seemed to catch in his throat as he spoke. He told Justice Barr that the jury, as a collective, could go no further and there was no prospect of reaching a unanimous decision.
The court hung heavy with disappointment and a sense of fruitless endeavour. The journalists in the courtroom studied the jury for a flicker on one of their faces to mark the dissenter. Burrell let out a soft sigh and, still on bail, he walked from the court. Dennis Bray was resentful towards the jury. He felt they had not done their job. Bernie Whelan was disappointed but more concerned about Bray who had dedicated so much time and effort to the case.
Sydney Morning Herald journalist Malcolm Brown described the ‘highly circumstantial’ nature of the case in his report the next day, as always ‘going to be tough’ for the prosecution: ‘There was no body, no weapon; there were no direct witnesses, no DNA evidence. It was all circumstantial and Burrell, a Buddha-like figure whose contribution to solving the mystery was recorded in police interviews but no sworn evidence, was ha
rdly helpful.’
Following media reports of the hung jury, a male juror called Daily Telegraph reporter Nicolette Casella to say the deliberations in the jury room ‘made you feel you were inside’ the insane asylum in the Jack Nicholson film One Flew Over the Cuckoo’s Nest. ‘It made you feel sick inside. It was heated as hell,’ the juror said. Australian law prohibits public identification of jurors, or journalists from speaking with them, but jurors are entitled to speak with anyone they choose after the case is finished.
‘We scrutinised and examined every bit of evidence very conscientiously,’ the juror told Casella. ‘But any obstacle we put in front of the one person with the opposite view, he would jump onto the next evidence.’ He described the rogue member as ‘irrational’ and said he would throw up ‘any obstacle imaginable’ rather than reach consensus. ‘The guy was at the point that he seemed to be getting enormous satisfaction from controlling an important situation,’ he said.
A woman juror told the Telegraph she had been unable to sleep since the decision and thought she would need counselling after the ‘life-changing experience’. ‘I am terribly disappointed and extremely exasperated,’ she said. She also rang Malcolm Brown at the Herald to explain that ten of the jury members were firmly in favour of a guilty verdict, another was wavering and open to persuasion and then there was the lone rogue. It was with a sense of shame that they had not convicted the person they were sure had killed Mrs Whelan. ‘We are devastated at the outcome of this case and, to use an understatement, we are shattered,’ said the woman, who supported the idea of majority verdicts. So did Bernie Whelan whose photo and story were splashed across the front page of the Sunday Telegraph three days later under the headline ‘Change This Archaic System’. ‘Let’s bring justice into the twenty-first century’, the paper recorded him saying. Bernie felt it was about time New South Wales followed the lead of other states. In fact South Australia, Tasmania, Victoria, Western Australia and the Northern Territory allowed 10-2 or 11-1 majority verdicts, but not in murder trials. The United Kingdom and some US states had permitted majority verdicts for years.
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