Ladykiller (33 page)
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 her 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.
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.
Having pleaded ‘not guilty’ and therefore presumed innocent until a jury found otherwise, Burrell made his daily appearance in the dock, where he rose and sat, dutifully, as the jury came in and out, his hands clasped around his belly. For the next few months, he would keep his expression mild; an occasional smile was permitted and the odd blush of red up his fleshy neck was unavoidable.
Tedeschi explained the rules to the jury: ‘The Crown has to prove the case against the accused . . . beyond reasonable doubt. There is no legal magic to those words. Those words have their ordinary English meaning. It’s a little bit like you are being asked to do a jigsaw puzzle, with each piece of the puzzle being a piece of evidence . . . It might be that at the end of the day there are . . . some holes left in the puzzle. Some pieces that are missing. Now, that doesn’t matter.’
If it was not for the seriousness of the case, Tedeschi could have been relaying the script of a TV crime drama that might be interesting to solve. He provided folders for each juror with copies of the main clues. ‘It is as though, let us say, you are asked to do a puzzle and, at the end of it, you can see that it is a picture of the Sydney Opera House and the Harbour Bridge and there are a few pieces of sky missing. There might even be some pieces missing from the sails of the Opera House or some pieces from the Harbour Bridge, but you can still look at it and definitely say, “That is still a picture of the Opera House, the Harbour Bridge”.’
Tedeschi moved through the story of the murder. He outlined the life and times of Bruce and Dallas Burrell: how Bruce lived off his wife, even when she was having chemotherapy for her cancer; how he had ‘pestered’ a friend for money and borrowed $15 000 from his father. Bruce Burrell’s finances in 1997 were an ‘unmitigated disaster’, Tedeschi said. ‘For the first five months to May, here was a man who was unemployed, with no substantial income since 1990; his reliance on his wife had ended.’ Burrell looked down at his hands during this. Anyone listening could not have thought anything but what a dreadful sponger he was.
Tedeschi continued with the Burrells, how their lives had intersected with the Whelans, parted, then converged again and how, on 16 April 1997, Burrell turned up unannounced at the Whelans’ property. Tedeschi took a breath. ‘Now, ladies and gentlemen, the Crown case is that there is a strong possibility—and I won’t put it any higher than that—there is a strong possibility that the intention of the accused was to abduct Kerry Whelan that day and there are three pieces of evidence that the Crown points to, to support its case. The first was his lie to his father. The second . . .’
In the public gallery, Bernie Whelan was listening hard and, alongside him, the court-watchers hunched forward in seats as Tedeschi took the story through the weeks leading up to Kerry’s disappearance. He showed jurors a map of the Whelan house, and of the Crown headquarters at Smithfield, and the Parkroyal Hotel at Parramatta. He showed them a hotel plan and the last images of Kerry Whelan alive, walking up the car park ramp at 9.38.02 a.m. on 6 May 1997. The jurors stared at the frames.
Next, Tedeschi flashed a photograph of further CCTV security footage from the Parkroyal Hotel. ‘The Crown case is that the irresistible conclusion is that Kerry got into the vehicle seen on camera seven, the very same kind of vehicle as that possessed by the accused, Mr Bruce Burrell. And having stepped into Bruce Burrell’s car’—Tedeschi paused—‘Mrs Whelan was always going to die once she accepted the lift.’
Someone in the public gallery sucked in a breath, then the courtroom fell completely still, with no rustling of papers or possessions; each person in the room, except Tedeschi, seemed to be holding themselves in. Some journalists watched Burrell for a reaction. His cheeks were stained a light pink.
‘The Crown case is that the accused gave her a lift, a voluntary situation where she went with him,’ Tedeschi cut through the silence. ‘At some stage during that trip, the accused converted a voluntary lift into an abduction. Having kidnapped her, he was never ever going to let go of her because he was known to her. In all probability it was within half an hour from the time she got into the car and within the confines of the city of Sydney.’
The radio reporters were up and out, filing a lead for the next half-hourly news bulletin. Tedeschi continued: the case had many twists and turns, many pieces to place in the puzzle. He read out the ransom note and said it was the Crown case that ‘somebody with quite a sophisticated knowledge of the English language’ had written it. Bernie Whelan had followed the ransom note to its last instruction. Seven days after Kerry’s kidnap, he placed an advertisement in the
Daily Telegraph
.
