It is unusual for someone to apply to reverse a plea, and Justice Johnson had to determine whether he had the right to consider such an application. He heard arguments on 19 December from a barrister hastily arranged by Wilkinson’s new solicitor. The proceedings then ran into the courts’ long Christmas break, and resumed on 29 January 2009 with another barrister, Robert Sutherland SC, who had been retained just two days earlier and had not had time to prepare properly. Sutherland, who was to take the matter through to the end, was a big man with a fleshy face and a short beard. His red and white reading glasses provided a touch of colour rarely seen at the Sydney bar.
The court sat that day in the King Street Courts. As always, there was a huge amount of paper. The judge had a revolving bookcase next to his chair, and before he appeared his associate brought out two thick binders full of laws and cases, several books and three thick ring-binders. John Kiely arrived dragging a small suitcase on wheels and carrying a large folder beneath his arm: the prosecution by now had ten thick white binders of documents, which had to be brought by Helen Rallis from the DPP’s offices at the other end of the city. Wilkinson, as always, appeared in court in his prison greens. His little beard was gone.
Attending court continued to be deeply disturbing for Kylie’s family. Leanne later recalled, ‘I continually had to readjust my plans, like my roster at work and care of my children. I was torn between being at court for my sister and being a mother to my girls.’ Her daughters had to deal with serious adult issues: ‘Whenever I’ve been in court [and come home] they ask every time, “Was he there today?”, “What did he look like?”, “Did he say where Aunty is?” and “Did he say how he did it?” ’
Carol suffered post-traumatic stress following Kylie’s disappearance and was under the care of a psychologist. She took extensive periods off work and struggled financially during the long months of the court hearings.
Rebekkah Craig was keen to attend all the hearings. It’s something police like to do when they’ve been involved in a long investigation, partly from the satisfaction and partly in case the lawyers need any information in a hurry. But the process was drawn out and she gave birth to her second child on 5 February, which marked the end of her attendances. In any case, she hadn’t spent much time inside the court—Wilkinson noticed her there three or four times and demanded she leave. He had no right to do this but she left anyway, to avoid any outbursts from him. On those occasions she waited outside, and Smith would later tell her what had happened. It was yet another example of Wilkinson’s efforts to retain some sort of control.
On 29 January and several other days over the next few months, the court sat to consider various technical matters. Sometimes the hearings were brief. Some of the professionals involved were frustrated by various aspects of the long-running case, even those who had come onto the scene more recently. On 31 March, solicitor Paul Donnelly, under pressure from the judge to speed things up, told him, ‘I have seen Mr Wilkinson in total eighteen times, your honour, and on each of those occasions the instructions have varied greatly. It is very difficult to get reasonable instructions from him . . . His stories border on the sublime to the ridiculous. It just goes from one end of the spectrum to the other.’ Donnelly’s own performance was later criticised by the judge.
Johnson decided he did have the power to make a decision on Wilkinson’s application to change his plea, and on 1 April 2009 he began to take arguments for and against it. This was three and a half months after Wilkinson had announced he was not guilty after all, a regrettably long time for the suffering of Kylie’s family to be extended. There had been various reasons for this delay: nothing happens quickly in the courts, and when something unusual occurs, things slow down even more. The next day Johnson said, ‘The way in which this application has proceeded now over months, ultimately doesn’t show great credit on all involved, including, I suppose, myself for not more fiercely case-managing it.’
The problem was that Wilkinson was being dealt with by a system designed to protect the human rights of those caught up in it. Considerable amounts of time and money are spent to ensure a fair outcome, even when this involves a delay in the judicial process because of some unusual or even unreasonable action by the accused. This is the price of justice, and most of us accept that it is worth paying.
But there is an assumption the number of such delays will be small in any one case. Wilkinson, with all his lies and changes of mind, introduced far more delays than is normal, and the system is not designed to respond to this. It plodded on, without taking into account the cumulative effect of what Wilkinson was doing, in the same way the police complaints system had plodded on in the case of Geoff Lowe.
One person who was no longer in court was John Edwards. After stopping work in mid-2008, he’d gone to Thailand a few times with Michael. They visited the sights, and also sat and talked. It was a valuable experience: John realised, after collapsing outside the court back in Sydney, that he had been alone with his emotions for too long. On one of his trips with Michael, his son told him about the new lease of life he’d found in Asia. ‘Dad,’ he said, ‘when you go back to Australia, you’ll hate it.’
Michael took him for a ride up one of the rivers in a long boat, and it brought back memories of the time John had spent in Asia when he was a young man in the army, a happy time. He started to cry, realising he’d forgotten how simple life could be, and thought, ‘I need this. This is where I really need to be.’
When he reached Sydney Airport after one of these trips, John went through Customs and was waiting to collect his bag. He looked around and saw aggression everywhere, in the way people were standing and speaking, even in the way they looked at each other. He thought, ‘This is dog-eat-dog—there’s no respect for anyone here. In Thailand, they all respect one another. If someone falls over in the street, three or four people will go and pick you up. In Australia, they’ll kick you to see if you’re still alive.’ And there was, of course, the fact that Kylie lay somewhere in its soil, in an unmarked grave. That continued to tear at his heart, and while he was in Australia he would always be thinking of little else. In January 2009 he moved to Thailand.
The case wore on, now in Court Five on the St James side of the old court complex, with the judge and the barristers in their yellowed wigs and their gowns. At times it seemed as though it might continue forever. Carol Edwards noted bitterly that Wilkinson himself, whose changes of plea were largely responsible for the absurd length of the proceedings, didn’t appear in the witness box once. His affidavits (there were two of them now), containing his claims as to why he had pleaded guilty, had been received by the court on the assumption he would be cross-examined over them. Surely this ought to have been a requirement, given that the court had taken his change of mind and his allegations against his lawyers so seriously. But legally it wasn’t compulsory, and the only people who did go into the box were the two psychiatrists, Olav Nielssen and Stephen Allnutt, and Wilkinson’s sacked lawyers, Terry Healey and Frances McGowan.
The legal point being considered was not Wilkinson’s guilt but the integrity of his plea of guilty. There were two broad issues to be determined: whether he had been mentally fit enough to make the decision, and whether, as he claimed, his lawyers had misled him on some of the relevant facts.
The psychiatrists disagreed on whether Wilkinson had been fit to plead. Stephen Allnutt, for the prosecution, was an older man, balding and with a big head. He spoke carefully and sometimes licked a finger before turning a page of his notes. He had interviewed Wilkinson several times, including on 10 November, the day Wilkinson had given signed instructions to his lawyers to enter a plea of guilty, and was in no doubt about his fitness.
Olav Nielssen, on the other hand, had provided a report on 30 January saying that responses in the interview he’d conducted with Wilkinson on 6 November ‘raise significant concerns about his fitness to enter a plea and his fitness for trial’. Ni
elssen was much younger than Allnutt, a keen man with short, sandy hair and glasses, who appeared to be chewing gum while under cross-examination. He said it had not always been easy to assess Wilkinson’s state of mind: ‘I should probably describe how unusual Mr Wilkinson is to interview . . . [He] is one of the very unusual people that I have had the opportunity to interview on three occasions and I have not been certain as to what is wrong with him. I am guessing that there is an underlying psychotic illness but it is a guess, because I don’t know if he is pulling my leg or not half the time. That’s the fact of the matter.’
It was nice to hear that Wilkinson had managed to puzzle an expert, as well as just about every one else he’d had dealings with.
Wilkinson himself spoke in court only once during the six days of this hearing. John Kiely had just asked Nielssen why he’d described Wilkinson’s original explanation of Kylie’s death as ‘bizarre’, and the psychiatrist said it was bizarre ‘when you put it in its context with all the other crimes he claimed were related to this event. For example, the missing rocket-launchers.’
At this point, Wilkinson said from the dock, ‘I’m not going to sit through this.’
‘Please sit quietly, Mr Wilkinson,’ said the judge.
And he did.
John Kiely asked Nielssen, ‘There was no other psychiatric tool you could hang anything on, other than these bizarre beliefs, that led you to the belief that he was unfit to plead. Is that right?’
Nielssen: ‘Yes, and they are presented in such a way, I almost wondered if he was pulling my leg. I did ask him that: “Are you just pulling my leg?” ’
Kiely: ‘You have heard me quote from Dr Allnutt’s report that [Wilkinson] was not being honest with the forensic psychiatrists. Did you think for one moment that he might have been swinging the lead, so to speak, to try and get into this position?’
Nielssen: ‘Yes, I certainly considered that. That is apparent in my conclusion, the difficulty I had in reaching a firm opinion.’
When Allnutt gave evidence, he noted that Wilkinson had actually told a prison psychiatrist who was treating him that he had not been open with the forensic psychiatrist (that is, Allnutt himself or perhaps Nielssen). Allnutt recounted how Wilkinson had talked to him about hearing voices.
Kiely: ‘Did that cause you to have any suspicion about the validity of his claim?’
Allnutt: ‘Yes, it did.’
Kiely: ‘In what way, doctor?’
Allnutt: ‘. . . he didn’t appear to be able to spontaneously describe those experiences to me and that was on both occasions that I interviewed him [on 10 November and 20 February] . . . I got the impression that he couldn’t find words to describe it. And most people who have true auditory hallucinations, especially for the length of time he describes them, would have no difficulty in describing those experiences. So that was the one thing. The other thing was that I thought there were some atypical aspects to the voice in particular on that occasion . . . I asked him whether or not he heard the voices in stereo or in one ear or the other, and he answered “One ear”, which is a highly atypical way of experiencing voices, in one ear. I found him to be relatively evasive when I started challenging him in regard to that, so at that stage I was sceptical.’
Allnutt’s view of Wilkinson after last interviewing him had been that ‘some of his answers appear to be part of a deliberate attempt to confuse the interviewer’, so that ‘whether or not he suffers a mental illness is in question’.
In conclusion, Allnut continued, ‘While I accept that he likely has in the past and could currently suffer depression and anxiety symptoms, I am less sure that he suffers active symptoms of psychosis; and [at] this stage I would defer making a diagnosis of psychosis.’
In their attempt to reject Allnutt’s opinion, the defence was relying on the report it had requested from Nielssen and obtained on 30 January 2009, which said briefly that Wilkinson had not been fit to plead back in November. The problem with this was that, as we have seen, on 13 October Nielssen had found him fit to be tried, and there was no record of any subsequent deterioration of his mental state.
Nielssen said he had interviewed Wilkinson again on 6 November 2008 and changed his mind. But with further questioning by Kiely, it emerged there was no indication of this in his notes of that interview, which actually recorded that Wilkinson’s condition had improved. There was also the question of why, if Nielssen had changed his mind about Wilkinson’s fitness on 6 November, he hadn’t communicated this to Wilkinson’s lawyers, given the guilty plea that was made less than a week later. These were serious matters.
Questioned by Justice Johnson, Nielssen agreed that the Expert’s Code of Conduct for the state of New South Wales places certain obligations on someone in his position. These include ‘an overriding duty to assist the Court impartially on matters relevant to the expert witness’s area of expertise’. He acknowledged that the failure to advise Wilkinson’s lawyers, or the Court, of his lack of fitness to plead back in November had been ‘a failing in my duties in that regard, your Honour’.
In the decision he later handed down, Justice Johnson said he did not accept that Nielssen had really believed there were serious concerns about Wilkinson’s fitness at the interview of 6 November: ‘In my view, a proper understanding of the concluding sentence in Dr Nielssen’s report of 30 January [saying Wilkinson had not been fit to plead] is a form of after-the-event gloss which Dr Nielssen has placed upon earlier events.’
Once the issue of Wilkinson’s sanity had been thrashed out by the psychiatrists, his former lawyers were interviewed regarding his claims that they’d misled him. The first in the box was solicitor Frances McGowan. Wilkinson’s usual manner in court was to lean forward in the dock and stare at the low wall in front of him. Occasionally he would look around the courtroom with a faintly supercilious grin. But as McGowan gave evidence he sat straight and stared at her steadily. John Kiely asked her about Wilkinson’s claim that Healey and she had been to see him on only three occasions from the time of his arrest to the time the matter had been set down for trial: ‘What do you say about that, ma’am?’
She replied, ‘It’s incorrect. It is nonsense,’ adding that there would have been at least ten visits. Asked by Robert Sutherland about the importance of Wilkinson’s concern for his family in his decision to change his plea to guilty, she said, ‘That was at the end [of his reasons], right at the end.’
Sutherland: ‘What other reasons did he give?’
McGowan: ‘Well, that he did it. He said, “I did it.” ’
Her evidence over, McGowan left the courtroom, stared at by Wilkinson’s mother and four supporters who were there. One was the skinny Aboriginal woman, today wearing a top on which masking tape spelled out the words ‘MIN NO NIGGER’.
Wilkinson’s mum still looked angry, maybe scared. In one of the breaks she complained to her son’s solicitor, ‘You can’t hear a flipping thing in there. The only time they talk loud is when they want to talk about Paul.’
The hearing dragged on, day after day, and some of those involved seemed increasingly edgy. Glenn Smith had postponed his sergeant’s exam twice because of the prolonged court process: the case was now affecting his career. But he had to be there; the case had been part of his life for so long. Everyone was wondering whether Wilkinson would go into the witness box. The decision was his, and apparently he’d changed his mind several times. Most recently, he’d said he wouldn’t be cross-examined. As he was the one who had to convince the court to allow him to withdraw his plea, this would do him no favours.
Barrister Terry Healey was cross-examined, particularly in regard to Wilkinson’s claim that he had said the sentence would be between sixteen and eighteen years (rather than longer). He was an impressive witness, his answers prompt and definite.
Kiely: ‘Did you say that to him?’
Healey, an ol
der man with a beard and glasses, said, ‘No, I didn’t. In fact, they were Paul’s words. As I recall it, he said, “You can tell that Glenn Smith if he wants the body then I expect I should get only sixteen to eighteen years” and I said to him, “You can’t bind the Crown with that sort of thing, Paul. What I told you about the twenty-five years [as a minimum] is more likely to be the case if you recover the body.” ’
Healey was asked about his notes of his meetings with Wilkinson, which contain some curious passages. Here is one from 2 December 2008: ‘Paul initially instructed us this morning that his uncle Alan was present when an argument ensued between his uncle and Kylie. His uncle strangled Kylie . . . Paul and his uncle then buried the body near Mooney Mooney Creek . . . The shovel used was Uncle Alan’s.’
Wilkinson later said ‘he was responsible for Kylie’s death and that Uncle Alan only helped bury her with his shovel. Paul went back the following week . . . with Uncle Alan and they inspected the burial site together’. Later, ‘Paul informed us that he had been informed on the weekend from members of his family that the reasons for lack of recovery of the body where Paul insists she is buried is due to the fact that Uncle Alan has told Paul’s direct family that he had removed the body and buried it elsewhere’. At the end of this record of interview, Healey had noted, ‘Really do not know what to believe.’
As previously noted, there is no evidence connecting Alan Wilkinson to Kylie’s murder. Nor is there evidence linking any member of the Wilkinson family to knowledge of the disposal of Kylie’s body.
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