Ladykiller (40 page)
Within days and bowing to political and public pressure, State Attorney-General Bob Debus announced that the government would introduce 11-1 majority verdicts, despite a new Law Reform Commission report warning against such a move. Debus said eighty New South Wales trials resulted in hung juries each year and he wanted to prevent single jurors from forcing mistrials. ‘I’m not criticising the jury system. It’s been in existence for centuries,’ Mr Debus said. ‘Nobody’s suggested to me that there’s any possible substitute for it that could be anything like as fair and effective. Nevertheless, occasionally there is a rogue juror.’
Responses to the decision were predictable. Victims of crime groups welcomed it. Defence lawyers and civil libertarians warned it could lead to wrongful convictions.
In his unremarkable office overlooking the old Mark Foys building, where a column of lawyers and clients came and went to hearings of the lower courts, Mark Tedeschi might have felt cheered by the debate. He did not have a strong emotional investment in a trial’s outcome and was satisfied if the evidence came out as best it could, but he was an avowed supporter of majority verdicts. He believed each time a rogue juror materialised in a jury room, it was ‘a nail in the coffin’ of the jury system. For the Whelans, however welcome the change was in this aspect of justice, it came too late. Even when the case underwent a new hearing the following year, it was conducted under the old system of unanimous verdicts.
A long, hot summer lay between the two trials, although Sydney did not endure the dire predictions of a ‘black Christmas’ as the state imposed a total fire ban. The Sydney media became preoccupied with other news; race riots erupted at the southern Sydney beach of Cronulla; Australia’s richest man, Kerry Packer, died; and Bradley John Murdoch, who was found guilty of murdering a British backpacker and hiding his body in Australia’s remote outback, was sentenced to 28 years in prison. In our great southern oceans, protestors tussled with Japanese hunters in pursuit of whales. Down on the New South Wales south coast, hammerhead sharks lurked in the shallows off Hyams Beach, scaring swimmers from the waves.
Bruce Burrell had avoided a jail cell, but the police focus on him as a suspect had made him something of a social pariah. As the old year ended, he was almost a prisoner, squatting in the converted concrete garage under his sister’s house in Sydney’s northern beach suburbs, his home since 2003. Late at night, local youths sometimes stopped outside the North Narrabeen property and screamed obscenities or threw rocks before burning their hotted-up cars off into the blackness.
Burrell had few visitors and spent most of his time behind the roller door, flopped out on second-hand furniture with Rebel, his kelpie, beside him on a grubby mattress. He stepped out to get his mail, to visit the bottle shop and drive three times a week to Dee Why police station to fulfil his bail conditions. When a reporter from the
Sunday Telegraph
accosted him once more, he responded angrily to her questions. ‘Leave me alone, stop bothering me,’ he bellowed from his cave. He had been the sole suspect for Kerry Whelan’s murder now for almost a decade.
If Burrell was in limbo, the Whelan family was still unable to obtain closure. Bernie was now sixty-seven years old and he looked it; the ordeal had drained his health. On 14 March 2006, two days before the second trial was due to commence, Bernie walked out into the front yard of his property and over to the rose garden Debra had encouraged him to plant in front of the house. It was the closest thing they had to a grave for Kerry. ‘We’ll come back stronger than ever,’ Bernie said. It was half-declaration, half-prayer.
Bernie had called the first trial a ‘dress rehearsal’. The second trial, he said, was to be ‘the main event’. Yet when
Regina
v
Bruce Allan Burrell
opened on Monday 13 March 2006, there was no fanfare—and it was a half-empty house. Gone were the newspaper, television and radio reporters who had crowded into the uncomfortable wooden benches the previous year. Instead, a lone court reporter, Malcolm Brown, would sit through every day.
Gone too were the court-watchers, fickle folk who had moved on to the Coroner’s Court and the more enthralling case of Diane Brimble, a young mother who died after being drugged and raped on a cruise ship. Even the Whelan family did not bother turning up for Tedeschi’s opening performance: the script had not changed.
The main characters were there when the curtain rose, though; centre-stage was a bright-eyed Tedeschi, a sullen looking Dalton and Justice Graham Barr. Burrell had piled on the kilos over the summer; his suit jacket was now two or three sizes too small. Burrell had turned fifty-three over the summer break and looked glum and depressed. He had still not shaken the flu that dogged him during the first trial, and would continue to cough and splutter his way through this one. A different jury of eight men and four women was in the same venue, the Darlinghurst complex, court three. The trial would be slightly shorter than the first, but still twenty weeks.
Both parties and the witnesses knew the drill and their dialogue—the questions and answers—barely changed from the first trial. The only surprise was Bernie Whelan, who this time came prepared for Dalton’s second assault on his character. Dalton zeroed in on Bernie’s troubled first marriage, his first wife’s alcoholism and her subsequent death, and how, six months after Kerry vanished, he had hooked up with his third wife-to-be, Debra. As Dalton fired the bullets, Bernie deflected them, for although the accusations were the same Bernie’s voice was strong.
‘Did you have an affair with anyone else during the course of your marriage to Kerry Whelan?’ Dalton asked.
‘No. The only affair I had was with my wife. We had a beautiful affair, called a marriage, with three children, and we were extremely in love and happy, and a certain person destroyed that, but we’re hoping there will be some justice on that finally.’
‘You have practised that answer, haven’t you?’
‘Look, no, I hadn’t. It is easy because you make me angry, Mr Dalton, when you make those sorts of accusations.’
Amanda was equally forthright. ‘Stupid and ridiculous,’ she said to Dalton’s claims of adultery, ‘if anyone knows me, they know that I love younger men.’ It was true: Amanda had always dated younger men and now her husband was ten years her junior.
In all, seventy-five prosecution witnesses and two defence witnesses turned up to give evidence and all seemed to be going well, for a while. The first sign of trouble came three days before the jury retired. Bray looked up during Dalton’s dreary closing address to discover the jury had changed its foreman. The conservative forty-something man who wore a blazer and tie, and laughed at inappropriate times, had been replaced. Now, a bespectacled man aged in his fifties sat in his spot, at the front and nodded to the judge. It unnerved Bray and Tedeschi, who feared more jury-room dissension.
Justice Barr completed his summing up on Thursday 25 May 2006, and the jury retired to the ‘tomb’ to consider its verdict. Bray and Nigel Warren resumed their positions in the room next door to the court. Brett Ryan turned up one rainy, dreary day to brighten their moods and break the monotony. Warren taught him how to solve the puzzle, Sudoku. Tedeschi popped in another afternoon with his camera, snapping Bray and Warren surrounded by sixteen volumes of evidence. Perhaps it would make it into the prosecutor’s next photographic exhibition.
By day seven of deliberations, there was not a whisper from the jury room, and both the detectives and the Whelans were convinced it would be a repeat of the first trial. The days stretched on, the detectives fidgeted in their room and an air of pessimism set in.
On Monday 5 June a juror sent a private note to the judge. ‘Dear Justice Barr’, it began, ‘I am sad that there are things that I need to inform you of, so that you can make a decision, based on what you feel is right to do’. In the two-page letter, the juror wrote that he may have disobeyed directions by attempting to take some of the trial documents home to allow him to do some extra work at night. The juror said he had also looked at a map to find the location of Guyra. ‘Before you ask—this is the first, and the LAST of any “external research” on my part’, the juror wrote. ‘If you feel that I should be censured . . . I respectfully submit myself to your consideration, and will accept anything you feel is appropriate.
‘The second matter is that we have been a hung jury now for days . . . I firmly believe it is time to bring this trial to an end as swiftly as possible.’ He called on Justice Barr to dismiss the jury because a unanimous verdict could not be reached. The letter was signed ‘Juror 19 91 024’.
Justice Barr reconvened the court and assured the juror, whoever he or she might be, that they had done nothing wrong. He asked the jury to retire again, and to calmly consider the evidence—listen to the arguments of other jurors, he stressed.
In the dock, Burrell looked smug. He raised an eyebrow to Dalton once the jurors had left the court. Burrell was feeling so confident that the next day he drove himself to court in his old Mitsubishi Sigma coupé and parked on Oxford Street, outside the courthouse. Burrell had a ‘disabled’ parking sticker on the windscreen so he did not have to worry about parking officers swooping on his vehicle. He grabbed his brown suit jacket and strolled to the court.
At 3.35 p.m., Tedeschi received word that the jury had reached a verdict. Whoever the juror was who had been holding out, he or she appeared to have bowed to the combined wisdom of fellow jurors. Detective Chief Inspector Bray had just enough time to phone Bernie at home to alert him that a verdict was imminent, and reporters rushed in, grateful to the judge’s associate who had phoned them.
Ten minutes later the twelve jurors filed into the court for the last time. The foreman stood. Justice Barr asked him how the jury found the accused on the charge of the wilful kidnap and murder of Kerry Patricia Whelan.
‘Guilty, Your Honour,’ he said and a murmur rippled across the court, along the packed media benches and through the half-dozen people in the public gallery.
Bray let out a sigh and bowed his head; nine years of investigation, an inquest and two trials, and they finally had Burrell.
Dalton leapt to his feet and raised a finger to the bench: ‘Your Honour, we’d like to check that every juror agrees with the verdict.’ Justice Barr looked at the jury and asked if the verdict was unanimous. ‘It is,’ the foreman replied, and the others nodded.
Burrell remained expressionless. He leant down from the dock to shake hands with Dalton, then nodded to a couple of court-watchers who had sent him a note saying they supported him, though not necessarily advocating his innocence. These watchers had attended this trial and the one before: they had been the government contractors who cleaned up following the gruesome slaying of his family by Sef Gonzales in 2001.
As Burrell was taken from the courtroom down to the cells, Bray and Warren walked over to Brett Ryan, the only Whelan family member present, and hugged him. No words were necessary.
The news was already on the Australian Associated Press wire service, and Bray’s mobile was beeping with text messages. At his western Sydney home, Bernie’s phone was ringing too but he refused to comment to reporters until he had spoken to the man on the spot. Bray called him and Bernie’s words spilled out, ‘Dennis, mate, I need to hear it from you. Is it true?’ Bray felt the lump in his throat as he confirmed what the family had waited so long to hear.
Bernie was overwhelmed with emotions: joy, grief and relief that there was not a second hung jury. Bernie cried— for Kerry. But the children, whose ears were pressed close to the phone, knew they were winning tears. Bray could hear Sarah in the background and the detective wiped a single tear from his cheek. It was the first time he had shown any emotion publicly. He, like the Whelans, had been carrying a tremendous load.
Six weeks later at the submissions on sentencing, Tedeschi called for Burrell to be jailed for life and never to be released.
The Crown compared the crime with a contract killing, saying it was motivated by greed, was executed in cold blood and was premeditated. But unlike a contract killing, Tedeschi said, where a person orders the murder, Burrell ‘did the dirty work himself ’. Dalton argued the crime was ‘in fact clumsy and amateurish’. Burrell would have hated his grand plan so described.
His Honour read through the victim impact statements of Bernie, his three children and Kerry’s brother, Brett Ryan, who described the pain and grief they had suffered. Brett Ryan read his statement to the court. He described how speculation about his sister’s murder had caused even greater hurt to his family. ‘I was gutted that the loss of my sister had become a spectator sport. Hearing people speculate that she may in some way have been involved in something shady was more than I could stand.’
Burrell’s sentencing was set down for 9 August 2006, and the media and the public were back in force to witness it. The murderer’s two sisters, Tonia and Debbie, were sitting behind the Whelan family, as Justice Graham Barr said Burrell’s ‘motive was the cold desire to enrich himself’. He said he was satisfied that Burrell intended to kidnap Mrs Whelan on 16 April 1997 and leave the note to be read by the first person who returned to the house. ‘The offender must have devised a plan to carry Mrs Whelan, unsuspecting, to a secluded place and there to overpower her. He must have taken care not to leave any trace of her in his vehicle. He hid her body carefully, probably in a place he had in mind before the abduction, and concealed it well enough to defeat a series of thorough police searches.’
The judge stressed that the defence’s criticisms of a flawed police investigation were unjustified, and he praised Bray and his officers for their thoroughness and persistence. ‘The Crown case against the offender was entirely circumstantial, but derived great strength from the range and independence of its several pieces or bodies of evidence. In my opinion the jury were right to return the verdicts that they did.’ Turning to Bernie, he acknowledged the additional hurt he had suffered during cross-examination by suggestions of adultery and that he was involved in his wife’s murder.
