Call Me Cruel (25 page)

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 older 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.

On one occasion, Healey even visited Mooney Mooney Creek himself to look for the grave at a location identified by Wilkinson. This is not the sort of thing barristers normally do; presumably, he was becoming frustrated. After failing to find the grave, he tried to have a conversation about this with Wilkinson, who refused to talk about it. Healey didn't say this in court, but Wilkinson must have been the client from hell. Healey was asked, as McGowan had been, to recall the conversation on 4 November in which Wilkinson had said he would plead guilty to killing Kylie.

‘He didn't want to cause his family, his parents, the stress of going to trial,' the barrister recalled, ‘and his words were, “Well, I killed her, I murdered her. I am pleading guilty to murder.” ' The following conversation had then occurred.

Healey: ‘Do you really mean that, Paul?'

Wilkinson: ‘Yes.'

Healey: ‘Do you understand the implications of what you have just said?'

Wilkinson: ‘Yes.'

Healey: ‘That you deliberately murdered her.'

Wilkinson: ‘Yes.'

In the dock, Wilkinson, who for today's appearance had shaved his head, listened impassively. Maybe he didn't realise how bad all this made him look. Or maybe he was just happy people were still talking about him. It's not as though he or his family were paying: his defence was funded from the public purse.

Later, Sutherland told the court, ‘I had intended to call my client. My instructions today are that he does not wish to give evidence. I have explained to him the effect that will have on the weight the tribunal will give to the assertions in that affidavit.'

Wilkinson kept staring at the front of the dock. As always, he had avoided direct confrontation with people in authority. He might hate them but he could never deal with them.

*

Justice Johnson was to give his big decision on 21 April 2009. Would Wilkinson go to trial or was he guilty once and for all of the murder of Kylie Labouchardiere?

The judge was a few minutes late coming into court and the lawyers chatted among themselves, more relaxed than previously; their work was done, at least for the moment. Some of the other detectives who'd worked the case had turned up in their dark suits and sat with Glenn Smith. John and Michael Edwards weren't there: they were out of the country.

Carol and Leanne were sitting on the hard wooden benches, with relatives who'd come along to support them. A female Salvation Army officer sat next to Carol, trying to comfort her by patting her leg. Wilkinson's family was there too. Five court marshals were present in case of trouble, with four standing at the rail dividing the public gallery from the rest of the room.

There were few journalists present. Because of the prolonged nature of the proceedings, and a suppression order that had been placed on coverage for a long time while the searches for Kylie's grave occurred, the media had largely forgotten about the case.

There was the sudden customary knock on the door to one side of the judge's chair and Justice Johnson came striding in, wearing wig and gown, his head bowed and some legal texts clasped under one arm. He sat and abruptly started to read his judgement, going through the psychiatric evidence and concluding that Wilkinson had been mentally fit to plead guilty.

One reason for this was that the defence had asked another psychiatrist, Bruce Westmore, to examine Wilkinson on 31 March 2009, and he had concurred with Allnutt's view. Johnson noted that ‘The various psychiatrists who have examined [Wilkinson] have referred to his evasiveness and propensity to make misleading statements in various respects. There is a live debate as to whether the applicant suffers from any psychotic disorder.'

He then turned to the question of why Wilkinson had pleaded guilty to murder, and said he was satisfied he did so ‘in the face of a very strong circumstantial case against him, and in circumstances where he believed that such an approach would operate to his advantage on sentence.'

This was not uncommon and provided no basis for a grant of leave for Wilkinson to withdraw his plea. Johnson determined that, on the whole, Wilkinson had been well served by his lawyers. He noted that he had changed his plea twice (from not guilty to guilty and back to not guilty), which did not help his case, and concluded: ‘The applicant has failed to establish that the plea of guilty to murder was not really attributable to a consciousness of guilt.'

The application to withdraw the plea was rejected: Paul Wilkinson was (still) guilty of murder. There was a gasp from Carol but nothing more: she seemed stunned. Wilkinson, staring down for most of the judge's speech, looked up as he announced his decision. He had already told Sutherland that he would appeal such an outcome, and now, after a fleeting expression of anguish crossed his face, he entered into an animated conversation with his lawyers. Maybe he was still trying to kid himself that he had some kind of control.

They asked for a brief adjournment, and Sutherland spoke to Kiely and Rallis, who then took Carol and Leanne aside. Yet again, Wilkinson was offering to reveal where Kylie was buried.

Carol said to Leanne, ‘How can we change our decision when half the family's overseas and can't be involved? We can't do that.'

She told the lawyers the earlier family decision still stood, and everyone went back into court, where Wilkinson was told the news.

‘He slumped,' Carol later recalled, ‘he was like a broken person. I looked at him and thought, “I've cut the power. He doesn't have that hold over this family anymore. I've cut it.” '

Sutherland asked for an adjournment until another day to prepare further for the sentencing process, and Johnson refused. This case had gone on long enough.

When deciding how long a convicted person should go to jail, a judge is required to consider various guidelines, including mandatory minimum penalties and previous sentences given for the same offence. The judge must take into account aspects of the case that might reduce the sentence, including any discount to be given for a guilty plea and any remorse shown by the prisoner. The prosecution and the defence barristers make oral and written submissions on these and other matters during a sentencing hearing, which takes place in open court and typically lasts for up to a few hours.

Another element in these hearings is the reading of victim impact statements, by those who were close to the person who was killed. The terrible effect of the crime on these people, usually family members, is now acknowledged in the judicial system by the term used to describe them: ‘secondary victims'.

So it was that on 21 April 2009, soon after Justice Johnson had rejected Wilkinson's attempt to reverse his plea, Leanne Edwards was called to the witness box to read the statement she'd prepared. She spoke in a soft voice, on the verge of tears but becoming more confident as she went on. She recalled the confusion of the first week after Kylie's disappearance, when no one had any idea what had happened. Then came the need to try to explain to her daughters, aged four and seven, why their aunty had gone away.

Three years later, when Paul Wilkinson was charged, ‘All hope of seeing her, hearing her and speaking to her again, everything was gone forever.' Wilkinson, she said, ‘has robbed me of us growing together as sisters by spending quality time together—like going shopping or going out to watch a girly movie. [He] has robbed me of being an aunty in the future and us sharing experiences as mothers. [He] has robbed me of being able to celebrate with my sister all special occasions, Christmas, birthdays, achievements made by her nieces, and all family gatherings.'

Carol Edwards wrote (her statement was read for her) that Kylie's disappearance had aged her own mother, Louisa Windeyer, twenty years and affected her health, thereby ‘doubling the pressure I have been under with the worry of her wellbeing . . . It has been a living nightmare for myself and my family since Paul Wilkinson was arrested as Kylie's alleged killer eighteen months ago. My daughter Leanne and I have attended each and every court session, and every time feel more despair as he fails to reveal the whereabouts of her remains. He continues to play these games at the family's expense . . . Whatever sentence is given to Paul Wilkinson for murdering my daughter will never compare with the life sentence of grief he has given to me and her extended family.'

Statements from John and Michael were read out by members of the Homicide Victims Support Group. John, after recording the disintegration of his life, wrote: ‘I am no longer the same person I was when Kylie was alive.'

Paul Wilkinson leaned slightly forwards during these statements and stared straight ahead, a half-smile occasionally on his lips. It was as though he had no idea of the seriousness of what was being said. Never had the gap between him and other people seemed greater. Carol glanced at the back of his head and thought about the knowledge stored there that might have been such a comfort to the family, had he chosen to reveal it.

After the victim impact statements, John Kiely said some words in support of a fourteen-page written submission he'd given the judge. It was his last contribution to the matter. He summarised the Crown's argument that Wilkinson had killed Kylie because he feared their relationship (and Kylie's pregnancy) was about to become known to Julie, and that this would destroy his marriage, which he wanted to preserve. The Crown submitted that ‘the prisoner has been guilty of conduct so reprehensible that the only sentence appropriate in this case is that of a life sentence'.

John Kiely said that the absence of information about Kylie's last moments made things worse.

‘That,' he said, ‘is what makes this case so difficult and so evil, in my submission, because . . . we will never know, no one will ever know how she died, where she died, or what happened to her.' But we can speculate, he noted, based on what Wilkinson had said about her death, and such speculation is not pleasant.

He summarised the macabre story Wilkinson had told the Police Integrity Commission. ‘The situation then is this,' he continued. ‘The family have that knowledge [of what Wilkinson told the PIC] and they are left with the situation of: I wonder if Kylie died this way? I wonder if that was what really happened and he was responsible and he did these things and he is the one now making the allegations that it was police officer Lowe who did it. It is often said that the worst thing in life is not knowing.'

It was a terrible thought but it had to be expressed, even if it presented the worst imaginable scenario. Anyone familiar with Wilkinson's ravings in the year before he was arrested must have wondered if some of his stories about Geoff Lowe's murder of Kylie were efforts to transfer his own guilt. ‘Call me cruel,' Wilkinson had written to Julie a long time ago, in the privacy of a text message. Now a Crown prosecutor was suggesting that's exactly what he was, in an open court. And he was basing that suggestion on Wilkinson's own words.

On the defence side, affidavits were presented from Wilkinson's parents. His father, Ron, said Paul had never been in serious trouble before, but his life had changed after being stabbed in the stomach with a syringe at work: ‘his circle of friends had grown smaller and he seemed continually worried . . . In my view he went through hell . . . At the time of my son's arrest I was extremely surprised, as it never occurred to me that my son could hurt anybody. Since his arrest, my wife and I have visited our son twice a week. I have noticed that he has become very withdrawn and he is not himself.'

Robert Sutherland argued that a life sentence was not appropriate precisely because nothing was known for sure about how Kylie had been killed: ‘It's difficult to see how one can cherry-pick through various assertions by Mr Wilkinson over the various passages of time in order to buttress one conclusion rather than another.' His lack of remorse, demonstrated by his refusal to say where the grave was, was relevant to the length of the sentence but had no bearing on the seriousness of the crime that had preceded it. That was simply unknown.

Justice Johnson went away to consider all this. He was to deliver his sentence on 22 May. The day before this, Carol Edwards went into a church and lit a candle for Kylie. That night she found another candle at home, one that Kylie had given her, and she lit that too. It shone through the night and she thought about her lost daughter.

She wondered if the family had made the right decision the previous November, when they told Glenn Smith they didn't want any more searches. It was a decision Carol had thought about every day since. That night, she told herself they'd done the right thing. Kylie was with God now—it was only her bones that were in the ground. At least the family was no longer in the power of Paul Wilkinson.

Kylie had given her the candle the Christmas before she'd disappeared, and now Carol read the card that had come with it and thought about tomorrow. Part of her felt terrible for what had happened to Kylie: she'd made some stupid mistakes in her own life, and when Kylie went missing they'd come back to haunt her. She felt deeply guilty about the decision she'd made years before to leave her children for Robert McCann. If she hadn't done that, she thought, Kylie would have grown up differently. She might still be alive.

The previous day, Carol had spent an hour with her psychologist, who'd wanted to see her before the sentencing. John had flown in from Thailand and spent a day reading the Crown's statement of facts at the DPP's office, learning for the first time many of the details of Kylie's life in the months before her death. Michael could not be there: he was in Singapore, responsible for the installation of 6000 security cameras in a casino that was opening later that year.

Carol was very nervous about the judge's decision: as far as she was concerned, he was going to say what her girl's life had been worth. She knew Wilkinson wouldn't get life, but he might get thirty years. He deserved it: he hadn't just killed her daughter, he'd killed her grandchild too.

The sentence was handed down at the old sandstone Supreme Court building in Darlinghurst. Unlike the brick court complex in the city, this one has a large forecourt, with plenty of room for crowd control and the media. By now the case was attracting a lot of attention. Court Five was almost full with marshals, police, reporters, members of both families and some court watchers. John Edwards was no longer in the suit and tie he'd worn in court last year: he was tanned again and wearing a black, open-necked Thai suit.

Wilkinson was brought from prison in a van and put into one of the holding cells in the labyrinth of corridors beneath the building. The cells are dim places, with red bars and wooden benches. The corridors have concrete floors, low ceilings, flaking paint and hazard alarm buttons every few metres along the walls. Finally, Wilkinson, wearing his prison greens and white sandshoes, was brought up the steep narrow stairs leading directly into the dock. He chatted to his solicitor while they waited for the judge.

Johnson strode in, sat down and immediately began to read: ‘On 28 April 2004, Kylie Labouchardiere set off on a journey to meet the offender, Paul James Wilkinson.'

He read well, with more volume and emphasis than usual. He took his audience on a journey too, into a relationship that had really started when Kylie and Wilkinson became acquainted at Sutherland Hospital in December 2003: ‘I am satisfied that she responded positively, enthusiastically and happily to the developing relationship.' Between 21 December 2003 and 28 April 2004, he noted, the couple exchanged 23,836 phone calls and text messages.

‘I am satisfied,' said Johnson, after referring to the text message discovered by Glenn Smith in which Wilkinson said they would be in Dubbo together, ‘that Ms Labouchardiere and the offender made plans that he would leave his wife and child and move to Dubbo to take up a new life with Ms Labouchardiere . . . [But] when the offender set out to meet Ms Labouchardiere on 28 April 2004, he had no intention of leaving his wife and son to set up a new life with the victim. As with his approach to the female police officer in 2003, the offender was content to maintain a sexual relationship with Ms Labouchardiere while maintaining his marriage. However, he had lied to Ms Labouchardiere that he was prepared to leave his wife. The position was further complicated by the victim's pregnancy to him.

‘Although I do not think that the evidence permits a finding beyond reasonable doubt that the offender set out to meet the victim with the intention of killing her and disposing of her body, I am satisfied on the criminal standard that the offender realised that stern action would need to be taken by him to ensure that the victim did not cause him harm by informing others, especially his wife, of the relationship which had resulted in pregnancy.'

Johnson was satisfied Wilkinson had killed Kylie, but was not prepared to accept the account in his confession that he had strangled her. Wilkinson, he noted, ‘has demonstrated an extensive history of deception, motivated by self-interest, over a number of years.' He referred to the text message in which Wilkinson had mentioned a weapon, and said he thought Wilkinson had not revealed the whereabouts of the body ‘as he does not perceive it to be in his interests to do so'.

At first Wilkinson stared at the judge as he read the judgment, but Johnson did not see him: he did not look up once in the first twenty minutes.

On the public benches, Kylie's family listened, blank-faced. At one point, Wilkinson scratched ‘PW 09' into the heavy varnish covering the wooden dock just in front of him. For most of the last fifteen minutes of the judgement, he looked around. Johnson said he did not think the murder was in the worst-case category, but it did lie ‘clearly above the middle of the range of objective seriousness for the crime of murder'. The standard non-parole (that is, minimum) sentence for murder is twenty years; the maximum is life. He sentenced Wilkinson to twenty-eight years, with a non-parole period of twenty-one years.

Wilkinson was not looking around now but stared down at the front of the dock. Johnson turned to the second charge, of setting alight the house at Picnic Point. He said it had been done for the purpose of covering up the murder, which placed it towards the top of the range of objective seriousness for this offence, for which the maximum penalty is imprisonment for ten years. He sentenced Wilkinson to six years, with a non-parole period of four and a half. Some but not all of the two sentences would be served concurrently. In total, Johnson concluded, Wilkinson was to serve a minimum of twenty-four years in jail, held to have begun when he was arrested on 17 April 2007. The earliest date on which Paul Wilkinson can leave prison is 16 April 2031.