Call Me Cruel (24 page)

The sentencing was further delayed for various technical reasons, including the difficulty the defence was having in obtaining a report from the psychiatrist Olav Nielssen. At a court hearing on 2 December, one of Kylie's cousins had an altercation with Wilkinson's mother outside the court. Fortunately, Glenn Smith came around the corner and got between the two women. When the court reconvened and the judge came in, Wilkinson said, ‘Could I just say some thing, your honour?'

Johnson said, ‘I suggest you don't say anything without speaking firstly to your counsel.'

‘No, I'm going to say something,' said Wilkinson. ‘I can well understand the family's got the shits with me, I can well understand that, but don't take it out on my mother, don't take it out on anyone else in the family. If you want to have a problem with me, have a problem with me.'

To which Johnson replied, ‘Yes. Just have a seat, thank you, Mr Wilkinson.'

On the same day, during an adjournment, Wilkinson said he wanted to talk to Glenn Smith. Helen Rallis and Wilkinson's lawyers witnessed the conversation.

‘At about 10.15 p.m. I phoned Alan about the body,' he said, presumably referring to 28 April 2004. ‘But Alan has moved it on the left of the clearing on the left of the slope.'

‘You mean your uncle Alan?' said Smith.

‘Yeah . . . someone told me, but I'm not saying who, that Alan has gone back and moved the body.'

There is no evidence that Alan Wilkinson had any involvement in Kylie's death or in the disposal of her body.

Wilkinson asked Smith if he'd received a letter he'd sent him about Julie. Smith hadn't, but the letter turned up a few days later. It read: ‘Detective Smith, Julie is involved much more than you realise.' It claimed Wilkinson had never taken her to an alleged gravesite in the Royal National Park. Most of the rest of the three-page letter consisted of ravings about the alleged rape of 2001. Like much else that Wilkinson said and wrote, it makes a layperson curious about how the psychiatrists found him sane.

*

At what was to have been a sentencing hearing on Monday 15 December, John Kiely stood up and announced yet another surprise. Wilkinson had sacked Terry Healey and Frances McGowan, the lawyers who'd been representing him for three and a half years.

McGowan had received a letter:

Dear Frances,

After an extended visit with family this morning I regret to inform yourself and Terry that I will be seeking further legal representation. I sincerely apologise for any inconvenience that this decision may have caused, my decision is based upon the family pressure I am currently experiencing. I wish to thank both of you for everything that you have done for me over the time.

Yours truly,

Paul James Wilkinson

PS Gaol is hard enough without family and friends continuously bombarding me at every given chance.

The new solicitor, Paul Donnelly, was in court. He had been hired two days earlier, and asked for an adjournment until Friday so he could bring himself up to date and hire a new barrister. Johnson, plainly concerned at the introduction of further delays—it was now two months since the trial had been due to begin—mentioned that the case ‘already has a long history' and ‘a change of legal representation at this stage has a significant impact upon the administration of justice. What do you expect to happen on the next occasion, the sentencing hearing to proceed?'

Donnelly had one more surprise for the court: ‘My instructions are that he wishes to withdraw his plea of guilty.'

For a while there it had looked as though this stage of the suffering of Kylie's family was almost over. Now Paul Wilkinson had made everything uncertain once again.

In order to change a plea from guilty to not guilty, you need to have a good reason. Wilkinson claimed he'd been duped into pleading guilty by false information from his lawyers. The only ‘trial' Paul Wilkinson would ever have was about to begin, however it was not he who was being accused of anything but his barrister and solicitor. The six-day hearing that followed, spread over several months, was to expose details of the dealings between lawyers and client, something not often done because they are usually confidential, being protected by legal privilege.

In an affidavit, Wilkinson set out his argument, all of which was later denied by his former lawyers. He admitted giving police false statements about Kylie's grave and how she died: ‘I did so at the time because I was deeply depressed and saw it as a form of retaliation against my aggressors.' He said his lawyers had told him there were to be 150 witnesses for the prosecution, and he didn't know who they would be or what they would say. He was depressed by this and ‘decided to enter a plea of guilty to end it all . . . I was aware that any person who had been charged would receive reduced sentence if they entered a plea of guilty.' He had not been informed of the conclusions of the psychiatrists who had interviewed him, and if he had been aware of Olav Nielssen's original concerns about his fitness, ‘I would not have entered a plea of guilty for murder or manslaughter'. He had been influenced to plead guilty because his barrister, Terry Healey, had said to him, ‘Your sentence could be anywhere from sixteen years to eighteen years.' Wilkinson said, ‘I thought about the length of the sentence and was of the opinion that I could serve such a sentence' [but not the longer one he now knew was standard]. Finally, he wrote, ‘I state clearly that I did not kill Kylie Labouchardiere. I am not aware that she is dead and alternatively if she is dead I do not know where the body is currently located.'

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'. Nielssen 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.'