Ladykiller (28 page)
Bray handed him the next exhibit. The ransom note. Burrell read it through the plastic sleeve it was contained in. He shoved it back to Bray. ‘It means nothing to me.’ To Bray’s trained eye, the witness looked deeply unsettled. He became combative, telling Bray that he could ask all he liked but he would not be saying a word. Question after question prompted answer after answer of ‘no comment’.
Bray showed him the dot point notes, then asked him to read the statement from Crown’s secretary Kathleen Pemberton. Pemberton had taken the call from the kidnapper. No comment again.
Burrell was mute and his mouth was dry. ‘Can I have a glass of water?’ he asked at 8.22 a.m., ‘I’ve got a dreadful cold.’
When the interview resumed, Bray showed him the transcript of the 15 June police interview conducted at his home. Burrell did not read it; he didn’t need to. Perhaps, he had gone over and over the admissions he made to Bray on that fateful day long ago and realised his mistake.
Bray put to him the final three pieces of evidence: the Canon typewriter, the phone call he made to Canon, and the chloroform bottle. Burrell said nothing.
‘Is there anything further you wish to say about this matter?’ Bray asked.
‘No, there is not, except that I am not involved,’ Burrell said with disdain.
The interview finished at 8.50 a.m. and shortly after 9.30 a.m. a press release, which had been prepared earlier, was faxed to newsrooms, informing them of a media conference. At 10 a.m. the head of Crime Agencies, Clive Small, addressed a crush of journalists at the College Street headquarters. It was probably Bray’s right to do so, but Small was fond of the limelight.
‘A short time ago Crime Agencies detectives charged a 46-year-old man with the abduction and murder of Mrs Kerry Whelan,’ he said. ‘He will be appearing in Central Local Court later today.’
Everyone knew the unnamed man was Bruce Burrell, but until his court appearance his name was not able to be reported.
Burrell arrived at court in a police Holden Commodore with four detectives. He sat in the middle of the back seat with a white towel over his head. During the fifteen-minute hearing, the prosecution told the court the kidnap and murder charge relied on a five-folder brief of evidence. Included in it would be an allegation that Burrell wrote two notes, outlining a kidnap and ransom demand, which were found in his house with an empty bottle of chloroform. The court heard that Burrell was serving prison sentences for five convictions and was not due for release until April 2001. The magistrate, Michael Price, asked the media to show caution in reporting matters in the prosecution’s summary of the case which might not be relied upon or admissible at trial. Burrell then went back on the truck to Silverwater, en route to Kirkconnell prison farm near Lithgow.
‘He isn’t pleased, of course,’ Burrell’s barrister, Mr John Doris, told a reporter outside the court. ‘But he’s keeping his spirits up as best he can.’
Mr Joe Scarcella, Crown Equipment’s solicitor representing the family, described the charges against Burrell as ‘a major development . . . I can’t comment a great deal more other than to say Mr Whelan has faith in the judicial system,’ Mr Scarcella said.
‘I plead not guilty, Your Honour,’ boomed Bruce Burrell from the dock of the New South Wales Supreme Court.
Burrell had not spoken publicly in two years. He stood, in a crushed navy suit and scuffed tan shoes, with his head cocked back. A shabby briefcase, which looked empty, lay on the seat beside him. He was this time represented by Legal Aid, unable to afford the services of private counsel, John Doris, and stared directly ahead as he was formally indicted for the kidnap and murder of Kerry Patricia Whelan.
It was 5 May 2000, almost three years to the day since the mother-of-three had disappeared. Burrell’s lawyer, David Dalton, a stocky man with a square head and little-to-no neck, leapt to his feet, telling Justice Michael Kirby that the pre-trial legal argument, or
voir dire
, would be lengthy. A trial date was set for many months down the track, in the new year.
When the case again reached a Supreme Court room, it went before the dapper Justice Brian Sully, a lover of legal tradition and loather of the media. On 29 January 2001, Dalton rose to object to fourteen pieces of Crown evidence, in particular the admissibility of the dot point notes, which had been seized from Burrell’s house on 25 May 1997, two days after the search warrant had expired. Dalton also claimed that the dot points had been found during an ‘unlawful, mass sweeping up of any and every piece of paper in the home’. Burrell was enjoying this show of strength; a smirk drifted across his face. His hands were clenched in his lap.
Dalton grilled Detective Mick Howe over the orders the detective had given to officers searching Burrell’s house. ‘Did you ask the police to remove every scrap of paper or every document that you found?’ Dalton said.
‘Yes,’ Howe replied.
‘Did you ever look at the search warrant?’
‘Not that I recall.’
Howe said he told his officers he wanted ‘everything’ from the house.
‘Did you wonder whether you were empowered to do that under the search warrant?’
‘No.’
Justice Sully shook his head slightly and picked up his pen. His response was formalised a week later, on 6 February when he ruled in favour of Burrell. The documents had indeed been seized unlawfully but the judge said it would be up to the Crown to argue that despite this, the document held high probative value which far outweighed the prejudicial element.
Over the next weeks, Crown prosecutor Barry Newport and Dalton were at loggerheads, challenging the admissibility of the evidence. Newport was called on to prosecute the case at the last minute because Mark Tedeschi was required to appear at the murder trial of former Fairfield councillor Phuong Ngo, who was accused of the assassination of his political rival, John Newman. Tedeschi, who had been liaising closely with Bray from the outset, was disappointed he could not run the Whelan trial but it could not be helped. Burrell was enjoying the legal stoush. He had been in jail since 1998 and his excursions to the dock of the Supreme Court relieved him of some of the tedium of life behind bars.
On 5 March, six taskforce detectives and a lone court reporter, Cindy Wockner from the
Daily Telegraph
, filed into the court for Justice Sully’s judgment. His Honour’s face was unreadable under his long wig. The judge turned to the fourteen disputed pieces of evidence. He ruled that the dot point notes were authentic and written by Burrell, but had been obtained in a ‘cavalier approach’ by police. ‘The relevant authorities would have only themselves to blame if this court were now to exclude the evidence on that account. And yet in the present particular case, there are powerful countervailing considerations. If Mrs Whelan was indeed abducted and murdered, then whoever abducted her committed . . . what is one of the most serious crimes known to law.’ Justice Sully said it would be ‘an outrage upon common sense and a defiance of elementary justice’ to exclude the dot point material.
In the court, Howe relaxed his shoulders somewhat. But if the taskforce believed the decision was an indicator of the rest of the judgment, Howe and Dennis Bray would be disappointed. Sully disallowed nine pieces of evidence because their ‘prejudicial nature’ to a jury far outweighed their ‘probative value’. He struck out the highlighted list of rich Australians in the
Business Review Weekly
magazine. He excluded the evidence that Burrell had told a friend that ‘you could bury a body’ on his property, and he would not allow evidence that Burrell had enquired about setting up a winery around the time that Kerry Whelan disappeared.
Expert analysis which found the author of the ransom note had experience as a copywriter was struck out because it could be ‘misused by a jury’. The judge also excluded Burrell’s phone call to the Help desk at Canon. The chloroform bottle found in the accused’s home could not be put before a jury because ‘the jury will reason impermissibly that the evidence has a significance’, Justice Sully said.
He also barred James Whelan’s evidence about Burrell’s secret visit to Kerry. The ‘risk of misuse is significant’, Justice Sully said. Parts of Amanda Minton-Taylor’s account of that visit were struck out too. Burrell’s defence had objected to the admission of Mrs Whelan’s comment, ‘That bastard, why did he do this to me?’ Justice Sully said the words were ‘vague’ and ‘obscure’, and it was not known who Mrs Whelan was referring to. Sully firmly ruled out the evidence of Burrell’s arsenal of weapons. He said a jury could conclude ‘that Burrell was a man who . . . kept unlicensed weapons . . . and who was therefore just the type of violence-prone individual quite capable of murdering Mrs Whelan’. It was the judge’s ninth and final exclusion. It had taken His Honour just thirty-five minutes to smash apart four years of investigative work. But there were still enough pieces left for a conviction, Bray believed.
Burrell had admitted to making a phone call on 23 May 1997, at the same time the kidnapper used the phone to call Mr Whelan’s office. That alone, Dennis Bray believed, was enough to put him behind bars. And there was the security camera footage of Burrell’s vehicle at the Parkroyal Hotel. Justice Sully had permitted the evidence relating to Crown’s secretary, Mrs Kathleen Pemberton, who identified Burrell’s voice as the kidnapper who called Whelan’s office on 23 May.
After Sully adjourned the court, Dalton called on the director of the Department of Public Prosecutions, Nicholas Cowdery, to dismiss or ‘no bill’ the charges due to ‘insufficient evidence’. Cowdery read Dalton’s submission and consulted Barry Newport, who confided that he believed there was no reasonable prospect of conviction on the admissible evidence. Other senior counsel within the DPP strongly disagreed, but could not convince the prosecutor otherwise. On 17 April Cowdery quietly informed the parties he was dropping the charges.
The taskforce was shattered. Newport took Bernie Whelan into his office to inform him. Before he could get the words out, Bernie butted in, ‘You’re here to tell me you’re not going to proceed.’
Bernie went home in a daze. He sat at his kitchen table and poured himself a whisky. It was three o’clock. The children would be home from school soon. How could he tell them?
Bruce Burrell was triumphant as he packed up his belongings in his cell. At 8.05 p.m. on 17 April 2001, he strode out into the night air, once again a free man. Two days later, on 19 April, Sydney’s
Daily Telegraph
broke the story. Its front page trumpeted: ‘Free to Go—Bruce Burrell released after evidence is dismissed’. Burrell was photographed outside his sister’s house unloading a carton from the boot of his car. The logo on the box read ‘Victoria Bitter’.
Nicholas Cowdery had said that fresh charges could be laid only if additional evidence became available, but Dennis Bray refused to be beaten. He was renowned for his doggedness in an investigation. From his late teens, he had wanted to be a policeman, but his parents put the kibosh on that career when two officers were shot while attending a domestic dispute in suburban Sydney. They did not want their son suffering the same fate. So Bray reluctantly entered the sedate world of banking. His parents did not know, but their son would be armed with a long-nosed .38 pistol to protect him against bandits in the wild western Sydney suburb of Blacktown. Each week Bray, who worked at the Rural Bank, collected a bag full of cash from the post office, 200 metres away. With a gun and a leather bag full of cash he would traipse back to the bank, keeping an eye over his shoulder.
Despite the weekly excitement, Bray was bored, and in 1974 he decided he could make his own decisions and enrolled at the Police Academy. For the first eight years Bray worked on the toughest patrol in the state—Mount Druitt and Blacktown—at a time when there were no such things as domestic violence orders (AVOs), or portable radios. Bray moved into plain-clothes as a detective in 1982 and worked in the armed hold-up, drug and later homicide squads and gained a strong reputation for his persistence and single-mindedness, attributes which would become imperative to the Whelan matter.
After the kidnap and murder charges against him were dropped, Burrell made an audacious announcement—via a press release—that he would sue the DPP for ‘malicious prosecution’. In his statement, Burrell said he wanted compensation for the ‘extraordinary damage this prosecution has caused to both myself and my family’. Burrell accused the police of a ‘complete failure to properly and efficiently investigate’ the crime.
Bray was peeved and slightly amused. Burrell’s statement would only cement the detective’s resolve that the case was far from over.
Six months later, on 12 October 2001, State Coroner John Abernethy announced an inquest into the disappearances of Kerry Whelan and Dorothy Davis. Bruce Burrell would be the principal witness called to give evidence.
Glebe Coroner’s Court is an inconspicuous cement building on Sydney’s busy Parramatta Road. Most people are unaware of its location, except those unfortunately drawn there to find out how and why their relative or friend died, often violently.
Unlike in a trial where the judge or jury must decide a person’s guilt, a coronial inquest is an investigative process to shed light on the cause and circumstances of a death. Families see it as an opportunity for answers, some use it to ensure their loved one’s death was not in vain, and others want the coroner to direct the case to the Department of Public Prosecutions for charges to be laid.
Each year at Glebe, some 2000 ‘unnatural or suspicious deaths’ are investigated. Many are routine enquiries, such as a cot death or a fatal fall during a home renovation. These are dispensed with by the coroner through a written notation. Approximately seven per cent—around 140 a year—are more complicated and require a hearing. They include incidents such as a five-year-old girl who died of meningococcal disease after being turned away from a hospital, or a workplace accident that left an apprentice dead, or a death resulting from a police pursuit gone wrong. For the New South Wales State Coroner, John Abernethy, the cases of missing people and unsolved murders are the ones that he finds the most fascinating.
