Chapter 13

Ambush and Retreat

When the inquest resumed on 8 December 1997, Mr Rapke spent four days with other witnesses rather than recalling Helen Golding to allow Mr Gullaci to finish his cross-examination. Then he called a surprise witness, Lynne Tanner, on Friday 12 December.

By this time Lynne was emotionally spent. For a year and a half she’d been trying to protect her children from the public trashing that surrounded them. To make things even harder, both of her parents and her favourite aunt had all died just before the inquest started. Her brother couldn’t help because he lived in Brisbane, and Denis couldn’t help because he was in Melbourne preparing for the inquest, so Lynne had battled on her own. To top it off, she’d just discovered that Helen Golding, her best friend and godmother to three of her children, had tried to set her up in a police trap.

The media coverage had become frenetic. Her kids were being photographed at home and in the schoolyard. Some of their school friends had actually thrown stones at photographers, and teachers had asked the press to leave. Photographers were stationed outside and opposite the Tanner home like crows on a fence. For the past two months the threatening letters to Golding had dominated the media. Lynne’s life in Benalla was hell.

The day before the inquest started, Kale Taskforce detectives had accosted her in Benalla’s main street, put her in their car and offered her and the children a new identity if she would leave Denis. She refused.

Lynne was called to the inquest with no prior notice. Internal affairs served the witness summons on her on the evening of 11 December, and she had to be at the inquest in Melbourne at 9.30 the next morning. She was alone caring for her four children, the youngest of whom was only two years old, and already had specialist medical appointments scheduled in Shepparton for that day. When she protested at the short notice, the officer told her that she’d be arrested if she didn’t attend. Fortunately she was able to reschedule her medical tests and find a friend to look after her kids.

The day before she appeared, the police alerted the press to the fact that she would be a ‘surprise witness’ the next morning; June Tanner and Denis’s brother Bruce would also be called. Forewarned, the media made hell of Lynne’s day in court.

In evidence Lynne claimed that Denis had been at home on the night of Jennifer’s death and that she recalled him still being at home when she awoke during the night to feed her baby. She said, ‘If he had not been home I would have been angry with him.’

Although the inquest was about Jennifer Tanner, Lynne wasn’t questioned about Jennifer Tanner. In Lynne’s taped conversations with Golding and Kerr, as well as in Kerr’s notes, it was clear that she and Jenny had a close sister-like friendship and that she thought Jenny was having trouble coping. She wasn’t asked about any of this.

Instead, she was examined about Denis and the cleaning of Springfield. Lynne said, ‘I never went to Springfield…Denis did when the car broke down; he hitchhiked there and got tools, came back to the car and we travelled straight through. We broke down seven ks from Springfield, a passer-by picked him up.’

Mr Rapke then diverted to a transcript of the Ibis Hotel meeting tape that Kale had prepared after Golding had been stood down as a witness two months earlier. Tanner’s counsel had only been given copies of the seven Ibis cassette tapes and 143 pages of transcripts as the inquest resumed, so they’d had no time to check the accuracy of the transcripts against the tapes. I quote the exchange with the disputed words in bold:

 

Rapke: Did you say to Helen Golding when you were in the Ibis Hotel with her she was…if my friends have the transcript it’s p. 30, ‘She wasn’t coping very well, she hated living on the farm, I remember, you know, no big deal about it, I just remember Denis being so angry with her and being so anti about her – about the way her and Laurie’s marriage was?

Lynne: I don’t recall saying them.

 

The truth was that Lynne didn’t say those words; they were Golding’s. It was another transcription error. Mr Gullaci intervened:

 

Gullaci: Your Worship, I’d ask my friend to check whether that’s on the tape or whether it’s a mistake. I haven’t personally checked that particular part of the transcript but there are numerous mistakes in that transcript. If he’s going to put that to her, put those words as being the words of this witness, then in my submission he ought to find the passage on the tape and let her hear it, or alternatively assure you that he’s checked it and what he’s putting to her is accurate.

Rapke: If my learned friend wants to play the tape then we can do that. It will mean we’ll be here for some considerable time longer. I can then ask the witness whether she admits that these are the words that were used.

Lynne: I don’t recall saying them.

Rapke: You don’t recall saying that to Helen Golding in the hotel?

Lynne: What was I supposed to have said?

Rapke: ‘I just remember Denis being so angry with her and being so anti her about the way her and Laurie’s marriage was?’

Lynne: No, I don’t remember even saying that. If I said it, I said it, but I don’t remember.

Gullaci: Your Worship…

Coroner: Just a sec, Mr Gullaci. I’m just wondering whether as a question of fairness to the witness the tape ought to be played in relation to that…Mrs Tanner, do you wish to presumably have this matter finished as soon as possible?

Lynne: Look…I guess so.

Coroner: That’s what I understand you were about to say. I don’t think it’s appropriate that you agree or disagree to things when there’s a perfectly reasonable way of dealing with that and that is playing the tape, letting you hear it?

Lynne: OK.

 

But the tape couldn’t be played:

 

Rapke: If that’s the step that’s required I’ll have to stand the witness down to get the tape and line up the various passages I want to put to her, but this is not the only passage I’m going to ask her about.

Coroner: It seems to me that if that’s the case, then the witness needs to come back on Monday.

Rapke: Yes.

Lynne: I can’t do that.

 

This day was a Friday, and Lynne had rescheduled her specialist medical appointments for the next week. She also had her job commitments, which the publicity hadn’t made easy for her, and she had four kids to look after. She’d come all the way to Melbourne and was now being sent home.

 

Coroner: What day would be convenient for you?

Lynne: None of it is very convenient. I’d rather do it today if I can.

Coroner: Where is the tape, Mr Rapke?

Rapke: I’m just asking…

Lynne: I’m really sorry, but…

Coroner: You don’t have to apologise. What date next week would suit?

Lynne: None of them next week.

Coroner: How long do you think it is going to take to find the passage?

 

Mr Rapke said the tape wasn’t available:

 

Rapke: I don’t have the tape. It was sent away for transcription, Your Worship, and we got transcripts back. I’ve asked Mr Calderbank to make enquiries as to whether we have the tape. I can’t imagine it taking very long if we have it. We have just been delivered seven cassettes, which have been transcribed into the 143 pages of transcript, and I’m happy to proceed to try and find the various passages.

Coroner: I’ll leave the Bench while it is set up. (Short adjournment)

 

Something was wrong here: Mr Rapke said that the tapes had been sent away for transcription, but according to the report of Operation Trencher they’d been transcribed in the homicide office; they could have been at the court inside ten minutes.

After the break, Mr Rapke announced that the tapes couldn’t be set up in the time available and proffered this alternative:

 

Rapke: If I were to use this transcript and invite the witness to accept for the present purposes that it’s an accurate transcript of the tape, and ask questions on that basis, in the meantime – that is, after we complete this witness – we’ll have the tape and these passages checked. If there turns out to be any discrepancy at all, I’ll advise Your Worship and my learned friends of that and give the witness an opportunity of returning should she desire to do so to deal with that discrepancy should one emerge.

 

Mr Gullaci objected, arguing that that Lynne could not reasonably be cross-examined on the basis that particular words came out of her mouth unless the accuracy of the transcript had been confirmed. He went on:

 

Gullaci: I might say that these tapes have been in the possession of the Taskforce since they were obtained at the Ibis some twelve months ago or thereabouts. I might say that when we became aware of them, which was a short time prior to adjourning last time, my learned friend announced that they were in the process of being transcribed and that we would have the transcript as soon as they were completed, and I might say that they were delivered when we resumed, so that there hasn’t been a great deal of time available to us to do any form of checking on them.

 

In the light of Mr Gullaci’s objection, the Coroner ruled that the matter be adjourned so the tapes could be checked before they were put to Lynne.

This left Lynne stranded. She was easy prey for the media, which portrayed her as a hesitant witness caught out telling lies, when in fact she was simply a victim of poor process and a disgraceful police transcript.

•••

It was two months before the inquest resumed and Lynne was to be recalled. Mr Rapke advised Tanner counsel that the inquest was to sit for ten days over two weeks.

During this two-month break, the Tanners and their counsel had discovered that Lynne Tanner had never said the words that had halted the previous proceedings. Helen Golding, not Lynne, had made the remarks about Denis being ‘anti’ Jenny Tanner, and Lynne had disagreed. The police transcript was wrong in this and dozens of other instances.

By this time Lynne had had a breakdown under pressure of the media onslaught, the debacle of the inaccurate transcript and her efforts to protect her kids. A psychiatrist was now involved, and he reported to the Coroner that unnecessary examination would cause significant harm to her mental health.

The Coroner excused her and later that day he adjourned the inquest indefinitely. The inquest had only sat for one day of the proposed ten. Tanner’s counsel had been booked for these ten days, so Tanner and his counsel suffered another significant financial hit.

This issue disclosed serious problems in the approach taken by the Crown lawyers and police. In the two-month break, they should have checked the disputed transcript quote and tapes. By the time Lynne Tanner was recalled, Mr Rapke should have known (or been advised) that the police transcript was wrong; that it wasn’t Lynne who’d made the mistake. So I question why the Coroner wasn’t told that the transcript quote was wrong, and that Helen Golding had made the disputed comment, not Lynne.

Mr Rapke went on to use this inaccurate quote in his final submission, and the Coroner used it as justification in his finding:

 

The real difficulty with accepting Mrs Lynne Tanner’s evidence are the contradictions contained in the taped conversation with Golding at the Ibis Hotel in 1996. For example Tanner said: ‘And she wasn’t coping very well, she hated living on the farm. And, But I remember, and you know, no big deal about it. I just remember Dennis being so angry with her and being so anti her, about the way her and Lawrie’s marriage was.’ [sic]

 

Mr Rapke didn’t tender the tapes and the transcripts to the Coroner during the hearing, so the Coroner couldn’t have checked the tapes and transcript for himself. The tapes were tendered to the Coroner as a final inquest gesture on 29 July 1998.

 

Rapke: Could I – it seems to me, Your Worship, that I omitted to tender a particular exhibit at the time that reference was made to it, and indeed it was used in these proceedings, and that is the tape and the transcript of the conversation between the witness Helen Golding and Lynne Tanner. Your Worship might recall there was a conversation, which was recorded in a hotel in Melbourne. It was the subject of reference by both those witnesses and I seem to have omitted to formally tender both the tape and the transcript and I do that now.

 

This was twenty-two months after the tapes were recorded, ten months after Golding had given her evidence, and eight months after they were transcribed. By this time the Tanners had withdrawn from the inquest in disgust.

Helen Golding was never recalled to be cross-examined and she was never shown or asked to check the transcripts. The reader will no doubt question that this can happen in any judicial system; in my thirty years I saw nothing to match it.

Media assault

The daily media assault on the Tanners at the inquest was like a rugby scrum, relentless and frighteningly intrusive: photographers were filming when the Tanners arrived at the court, when they went to have a coffee, when they returned, when they went for lunch, when they returned and when they went to their cars. Others were filming the Tanners at home. The Tanners’ counsel had repeatedly complained to the Coroner throughout the inquest, and the stress eventually caused Laurie to have a breakdown.

The Coroner decided to do something on 11 December 1997, the day before Lynne Tanner was called. Through court information officer Prue Innes, he ‘asked’ the media to stop taking film of Laurie and Denis.

This had no perceptible effect. Outside the Coroner’s Court on 12 December, the entire family was surrounded as they tried to walk to their car. Denis and Bruce were escorting June and Lynne through the raging throng when a Herald Sun photographer was struck in the groin by Denis Tanner’s briefcase. The media cried foul, and police internal affairs charged Denis with assault.

The assault charges went to court in January 1999 at Melbourne Magistrates Court before Magistrate Greg Levine. In his statement, the photographer involved gives a revealing glimpse of the media response to the Coroner’s order.

When the court adjourned for lunch, Denis Tanner came out and walked towards the line of press. As the photographer described it:

 

He walked straight towards me and I had to move to the left to give him room to get past; he couldn’t have walked around me on that side because of the hedge. I think it would have been the most direct route to the coffee shop over the road, however he did not say ‘excuse me’, just kept his head down and walked straight ahead.

 

After lunch, the photographer went into the courtroom. He said, ‘I was amazed to see his wife on the stand bawling her eyes out.’ After Lynne finished her evidence, he left the room with the Age photographer and the Channel Nine cameraman, hoping to photograph her on the way out:

 

My journalist had instructed me to get photographs of Lynne and Bruce Tanner, but not June…at about 4.15 pm the family came out…Denis Tanner, Bruce Tanner, June Tanner, Lynne Tanner and two counsellors…

When they first came out, June was in front. I thought ‘She’s there. I’ll just get a couple of quick photos of her.’ She was actually quite quick for someone that’s seventy – she’s almost jogged to the car park. I had to actually run around in front of the two cameramen and photographer to keep up with her at this stage. I’m now running towards the car park, she was heading straight to the car park at this stage; I got a couple of side shots of her, then I started to turn around and out of the corner of my right eye I saw Bruce. I’ve continued to turn and started to walk backwards quickly in a straight line and managed to get a couple of pictures of him. He was fairly close; I don’t know if he was in focus or not.

At this stage I stepped off the gutter onto the car park, on my immediate left I noticed Michael Clayton-Jones [of the Age] directly in front of the family group taking pictures I think of Lynne. I was in front of the group but off to their left, when out of the corner of my eye I saw Denis Tanner surging forward from the family group and deliberately charging Michael Clayton-Jones. He shoulder-barged Clayton-Jones, knocking him backwards and stopping him taking pictures. I still didn’t have any pictures of Lynne…

I’ve stopped momentarily, Denis and Bruce have gone past me and Lynne and the two counsellors have been level with me. I’ve run towards the far side of the car park, past Bruce and Denis, so that I could get in front of Lynne and get a clear front shot of Lynne. I’ve started moving backwards, but not as fast as the group walking towards me, thus the distance between myself and Lynne and the two counsellors was decreasing. I’ve seen Denis on my right but in front of me about a metre away, Lynne was about 2–3 metres away from me directly ahead.

Whilst I was concentrating on taking pictures of Lynne, I’ve slowed down and Denis walking fast has walked right up to me until he was two or three inches away from my body and has deliberately driven his briefcase into my groin with his right hand. He appears to have done it as hard as he could without doing a long wind-up. I doubled over from the pain and shock and yelled out ‘Fuck’.

 

A state forensic physician examined him and found no serious injury except for ‘superficial red bruising on his penis’.

Denis Tanner testified that if this happened it was unintentional; he was trying to protect his ageing mother and sick wife from the media scrum. Senior Sergeant Ed Phillip, a former homicide colleague of Newman’s, was the star police witness in the case: he claimed that he viewed the incident from his office at the Coroner’s Court and saw Denis Tanner lash out at a photographer with his briefcase and strike him in the groin. Defence counsel Con Heliotis QC challenged Phillip, claiming that from his office he could not have seen anything more than perhaps the head and shoulders of people in the car park through a narrow opening in the hedge outside the window.

Magistrate Levine decided on an on-site inspection. When he arrived at the Coroner’s Court, Mr Levine was himself besieged by a massive media scrum; while trying to avoid them, he hit a post with his own car. Mr Levine dismissed the charges, saying, ‘It is not unusual in these unusual situations for contacts to be made, so in all the circumstances I am not satisfied that contact was intentional.’

The house raid

On 23 February 1998, the day when Lynne was excused from being recalled after the advice of her psychiatrist, the Coroner issued a warrant for the police to search Denis Tanner’s home for binoculars, car registration and insurance details and photographs of motor vehicles. On the same day Police Air Wing logs show that the Coroner’s office booked the police helicopter for 3 March.

Three days later Denis Tanner’s superiors ordered him to attend a crime conference on a houseboat at Lake Eildon, also on 3 March. Tanner resisted, instead offering to man the office at Wangaratta CIB, where he’d been temporarily working during the inquest, but his superior insisted, so he had no choice but to go.

An hour after the conference houseboat left the moorings at Eildon, internal affairs officers raided the Tanner home, armed with the Coroner’s search authority. A party of eight had met up at Broadmeadows in the morning: a superintendent, three inspectors, a senior sergeant, a sergeant, one senior constable and a policewoman. When Lynne answered the door, she was knocked over in the rush; they even insisted on watching her in the toilet. This raid came ten days after her psychiatrist had told the Coroner that she was mentally fragile.

Lynne broke down, and a local doctor and a local policewoman had to be called; the raiding party left. As a result of the raid, this formerly confident, happy, articulate woman developed a stutter that has never left her.

Wangaratta police called Denis Tanner on the houseboat and told him that internal affairs were raiding his home. While this was happening, the Coroner, Mr Rapke and detectives Newman, Calderbank and Allison were also at Lake Eildon in the police helicopter, inspecting Springfield and the Jack of Clubs mine. If they’d happened to look down, Tanner’s efforts to get the houseboat to shore would surely have provided a comic spectacle.

This house raid was a farce: Denis Tanner, not his wife, was the one named in the search warrant, but he was kept away. As anybody with average knowledge of criminal law would know, the police would have had problems if they’d discovered incriminating evidence: they would have difficulty proving ‘ownership’ and ‘possession’ without Denis Tanner being present.

Three pairs of binoculars were seized, goodness knows why, because they were never tendered in evidence. It took five years for Tanner to get them back, minus the lens covers.

Lynne complained to the Ombudsman, who found that the execution of the authority was unlawful: Inspector Calderbank was the only person authorised to search and he wasn’t there, because he was in the police helicopter. But the Ombudsman excused the unlawful execution of the warrant because the police had acted in good faith.

Andrew Rule published a blow-by-blow account of the raid and the helicopter flight, along with photographs. The Tanners’ framed wedding photo was seized during this raid and later published in the Herald Sun. When Denis Tanner asked the Herald Sun for its return, they gave him a framed copy. They said that the original contained script that would identify the person who gave it to the journalist.

The walkout

The extravagant methods employed to conduct this raid were the last straw for the Tanners and their counsel. They believed that the conduct of the inquest had become untenable. They were now convinced that the Coroner intended to find that Denis Tanner had committed murder, and in that case they would need to preserve their money to fund a trial.

When the inquest resumed on 2 April 1998, the Tanner brothers confirmed their right not to give evidence. Mr Gullaci then delivered a stinging address with a conclusion that shocked the Coroner.

Gullaci began by pointing out that Tanner counsel had not been adequately informed of the evidence to be called at the inquest:

 

Your Worship will recall we were told on Monday the 23rd of February this year, that this matter was listed for two weeks. My instructing solicitor Mr Hargreaves made enquiries as to what evidence was going to occupy that period of time and could we have that material available.

We were not told what material was going to be called and in effect, the response was that we would find out about it during the course of the two weeks.

We did not obtain any statements, as your Worship is aware, and when we turned up at court, evidence was called on Monday and then subsequently on the Tuesday, after some legal argument, the matter was stood down and I was informed by your assistant, that the matter was going to be adjourned further.

He indicated to me that he wasn’t in a position to tell me why the matter was being adjourned, save an indication that Your Worship wanted further enquiries made and that if anything came out of it, we would be told in due course. He indicated to me that he wasn’t in a position to tell me what those inquiries were going to be.

 

Gullaci had also been kept in the dark about the Coroner’s purpose in his recent helicopter visit to the Bonnie Doon area.

 

Mr Rapke informed me…[that morning] it was proposed that Your Worship was going to have a view of the area around Springfield and that he didn’t wish to make an announcement in an open court to avoid the media becoming aware and perhaps attending.

He indicated to me that if Mr Hargreaves and I wanted to be present, we should be at Springfield property about 2 pm. We discussed it and naturally we respected his desire not to make the announcement in open court and we, on the material provided to us by Mr Rapke, decided that we wouldn’t attend the view.

 

Only afterwards had Tanner counsel discovered that the Coroner had also inspected the Jack of Clubs mine in company with detectives Newman, Calderbank and Allison. Mr Gullaci went on:

 

I want to make it quite clear that Mr Rapke at no time informed me that Your Worship had an intention to have an inspection of the Jack of Clubs mine and the surrounds of the mine from the air…It would be clear, we say, that the view which occurred relates to the Bailey matter and not this matter and it is of grave concern to us, that Your Worship…has had a view in the presence of the investigators, where things may have been said to you in our absence…It is my respectful submission that it was inappropriate that that occur.

 

Gullaci then addressed the conduct of the house raid on 3 March:

 

We had not been informed in any way, shape or form as to what evidence was obtained and are there any statements about what evidence was obtained? Is there any evidence relevant to this inquiry obtained during that search? It appears on the face of it that Mr Calderbank wasn’t present during the search. He is the only member of the police force…authorised to carry out these actions and we are concerned as to whether indeed the raid that occurred on my client’s premises was lawful. If Item C [the binoculars] is of evidentiary value in Your Worship’s mind, then why have we not been informed? Why are there no statements? Why is no evidence to be led? What enquiries are still being pursued that we are not aware of? What are the reasonable grounds for directing such search and seizure?

How can we consider making submissions when no evidence is led, no explanation is given? If the items are not of evidentiary value, why have they not been returned?

Why did it take six police members to carry out this raid on a day that Mrs Tanner was at home alone?…

Six members, one woman on her own; a sick woman.

 

Tanner counsel had discovered much of what they knew by reading the paper – specifically an article by Andrew Rule in the Age of 6 March, which had details of the raid and the Coroner’s visit to the Jack of Clubs mine. Mr Gullaci said:

 

We wonder whether Mr Rule has got a deep throat…available to him from the Taskforce, because the information that appears in that article certainly didn’t come from us. It’s fair to assume, in our submission, that the leak is either within the Taskforce or within the confines of Your Worship’s office.

 

As Mr Gullaci drew towards his conclusion, he pointed out how badly Denis’s family had been affected by media innuendo:

 

We have never sought any favours on behalf of Denis Tanner. We have been prepared to listen to the evidence. We have been prepared to listen to the innuendo and we have been prepared to put up with the media witch hunt, but surely somebody must consider the effect of these things on our client’s family; his wife is sick, his four children who attend school in the area.

 

Then came Mr Gullaci’s bombshell:

 

My client, in view of the matters that have occurred, has lost confidence in the way this inquest has been conducted and accordingly my instructions are to take no further part in it. I do not propose to take any further part. I propose to withdraw from these proceedings and indeed as a matter of courtesy, I seek your permission to leave the bar table.

 

Tony Hargreaves similarly withdrew, and with that the Tanners left. They took no further part in the inquest and made no submission.

The shocked Coroner adjourned the inquest for a further three months. It would be eight months before he made a finding.