22.

In early February 2007 some material relating to the intercepted phone calls was finally handed over to the inquest in two folders labelled SF1 and SF2 which related to the two periods of telephone taps by Strike Force Willenhall: 2003 and 2006. The folders contained notes police had made of anything relevant to their inquiries that they had heard when listening to the three to four thousand calls.

By the next sitting, in July, that material had still not been looked at to decide which of the calls the inquest considered relevant. Then, during the last, three-week sitting period, Milledge, Hoenig and Cate Follent, their solicitor, worked late hours to select the calls they believed relevant; and finally instructed the police which calls they wanted copied onto discs.

After some public bickering over the delays with the lawyer acting for the NSW Police Commissioner, Milledge decided she also urgently wanted transcripts of the calls. She eventually contracted a private firm to hurriedly transcribe the more than five hundred calls that had been selected, yielding ten lever-arch folders of paper.

The telephone intercepts in May 2003—when officers had come to Adelaide to show the men the photos retrieved and tell them how Dianne had died—had apparently revealed evidence of other criminal activity, unrelated to Dianne’s death. South Australian police were alerted by their NSW counterparts; but they had not shown much interest in pursuing these matters, apparently afraid that doing so would blow their cover on a bigger operation.

Eventually only three of Mark’s calls from 2003 were tendered at the inquest. In one he arranged for someone to pick up 50 dollars worth of ‘that stuff that we put in the spa sometimes . . . spa cleaner’. In another he also seemed to be using code when ordering between six and ten ‘kids’ cars and lunchboxes and shit’ from a friend. In a third he advised a friend who was facing a choice between two women: ‘Do what most human beings would do, see one and then say, “Oh, we’re done” and then see the other.’

But the references to Dianne’s death in those calls were obscure, showing perhaps how little the death dominated his thinking at a time when it was not the focus of a lot of publicity.

When the intercepted calls from May to November 2006 were produced at the inquest in July 2007, Hoenig, as if to justify the way the inquest was being conducted, said the calls would show how the media publicity had generated conversations between the men. But the material posed several problems.

Firstly, for procedural fairness, the men should have had access to the calls before they gave evidence, so they would not be entrapped into lying. By the time the calls were produced, four men had already given evidence and four more were still to be called. Those who had already appeared—including Leo and Ryan, who had been captured in hundreds of calls—would have to be recalled and given a chance to address any contradictions, the court heard.

The second problem arose when the tone and content of some of the calls became clear. In some of the first calls played to the inquest, Leo, Mark and Ryan spoke in abusive terms about Dianne.

‘Their little fucking Miss Innocent and proper little girl decided to experiment, you know what I mean,’ Leo said to Ryan, mocking newspaper reports about the family’s pain. ‘At the end of the day, she drew the black card—she drew the joker.’

Mark also labelled Dianne ‘a dirty rag, out for a fucking root’, suggesting, ‘She also had a dark side as well . . . She wasn’t attractive, but she was a pretty decent person.’ If he had not taken fantasy that night he would not have gone near her, Mark insisted.

After some of these calls had been played, James Stevens, the Brimbles’ lawyer, argued strongly for a permanent suppression order to ‘protect the memory and dignity of Mrs Brimble’. He pleaded, ‘I appreciate . . . why it’s necessary to play these calls, but from what I understand, everything, every piece of abuse and speculation and false innuendo that Mr Wilhelm has said is going to be straight into the newspapers and on TV.’ Playing more of those calls, and allowing their publication, would add further devastation to the family.

Attempting to be light-hearted, Milledge said, ‘You haven’t heard what they’ve said about me yet.’

But this just enraged Stevens further: ‘I don’t really care what they say about you, with respect, Your Honour.’

‘No, but you should care.’

‘I wouldn’t take any notice of what they said about Your Honour anyway, it doesn’t matter. What matters to me and my clients is Mrs Brimble’s dignity and memory.’

In a private discussion, Milledge was then told that a member of Dianne’s family was fragile and had threatened suicide if the material was aired. Unfortunately this provided no legal grounds for granting a suppression order, especially since the family wanted the reason kept confidential.

This created a third problem: the media, unaware of the real reason for the temporary suppression order, sent their lawyers to challenge the coroner’s order, and seek access to the material that had already been tendered. Milledge was between a rock and a hard place.

P&O’s barrister John Sheahan, SC came up with a solution: one of the calls had mentioned that Mark had received death threats from some of the other men—it was in the public interest to suppress the call on that basis, he said as he argued for a permanent suppression order.

Lawyers argued the legalities and practicalities for days. Those acting for the police also argued that the copying of the material to provide it to the media breached federal laws about telephone intercepts. Initially tendered, the material was then quickly withdrawn. Eventually, Milledge granted a temporary suppression order until transcripts had been typed up, giving the Brimble family time to address their welfare concerns.

This was not the conclusion to the inquest that Milledge had planned. Nearly all the lawyers and some of the court staff had caught a cold and were working long hours. She was frustrated. Days later, the tapes were re-tendered and publication permitted; and some weeks later full access was granted to the media.

Dianne Brimble’s mother, Betty, had not lived to see her daughter’s inquest concluded. She had died suddenly at her home, in March 2007, aged 73. Jacqueline Milledge had at that time conveyed her condolences to the family: ‘It’s a very sudden death for us and I am very, very sorry that she can’t be with us any more.’

The extent to which Dianne’s fate and the family’s quest attracted public sympathy had become evident six months earlier than this, when two male council workers had dropped off two bunches of roses for Alma and Betty Wood at the court. They had just wanted to do something nice for the mother and daughter, who were going through such a tough time. ‘We wanted to show them that all men are not like the ones they met on the boat . . . I feel very sorry for both the women. What happened was terrible,’ they explained to the Daily Telegraph.

But during the final chaotic days of the inquest, Milledge had to deal with another disappointment. A new State Coroner had been appointed; Milledge had lost out on the job. In fact, she had also lost her job as deputy. Publicly she insisted it had been her own wish to return to being a magistrate at a local court; however, it appeared pressure had been brought to bear on her and another deputy coroner to move on.

The Herald had published an article revealing the criticism of her inquest in legal circles. In court, Hoenig publicly defended their handling of the inquest and praised the reform of the cruise ship industry as ‘a significant result’. He declared, ‘So without fear or favour, affection or ill-will is Your Honour’s obligation as a judicial officer to proceed . . . [and] I will be conducting myself in accordance with Your Honour’s instructions, without fear or favour or affection or ill-will.’

Milledge also had the next, high-profile inquest—into the death of Private Jake Kovco—taken off her. And in a further humiliation, she was told no courtroom was available at the Glebe Coroner’s Court for the final weeks of hearing of the Brimble inquest. The new State Coroner, Mary Jerram, was using the main courtroom for another major inquest, and the second, smaller room at Glebe was deemed inadequate.

But at least the inquest was moved to a city courtroom, in a secure building, two days after a stranger had appeared during Matt’s evidence. To begin with, it was allocated a room with only about 20 seats in the public gallery for solicitors, media and the public. Even the space for lawyers was restricted.

Finally, the big day had arrived—on July 25 Mark Wilhelm had been called to the inquest. What did he look like now? What would he say? How would Dianne’s family react to seeing this man? The anticipation was great—as was the clamour of reporters and cameramen outside the court.

It was little surprise that the new courtroom could not hold everyone interested in wanting to see and hear Mark’s appearance. Journalists were standing in the doorway and outside the room, where the air quickly became stifling. Then a court officer ruled no-one was allowed to stand, for reasons of fire safety.

Ironically, at the same time the media’s lawyers were arguing against the suppression orders on the telephone calls which had already been played. It was a disgrace, Hoenig argued: ‘Some other mechanism needs to be employed, to ensure that there is open justice and Your Honour’s conduct and mine are subject to public scrutiny.’

This had the potential to become an embarrassing story if the media could not report on Mark’s appearance.

The court adjourned, once again; eventually a larger courtroom was found in the Downing Centre court complex, and legal argument continued over the taps. The media wanted access to the calls; Dianne’s family argued against this; while Mark’s barrister, Michael Abbott, QC, challenged the legalities before arguing the inquest should be closed down and the matter referred to the Director of Public Prosecutions. Even lawyers for the South Australian Police were back. It seemed like every lawyer was jostling for their place on the stage one last time.

Meanwhile Mark was sitting in the front row, waiting. It was 3.39 p.m.—21 minutes before the end of the court day—when he was finally sworn in to give evidence. Milledge asked him to sit down before Hoenig started the questioning.

‘Can you tell Her Honour your full name please?’

‘Mark Robin Wilhelm.’

‘Did you on 23 September 2002 board the Pacific Sky vessel on a cruise?’

Before Mark could reply, his barrister jumped to his feet and announced Mark would decline to answer on the grounds that the answers might incriminate him in an offence.

Milledge ruled the application was justified and thanked Mark for attending: ‘I accept that you do have difficulties in relation to answering questions. I don’t propose to grant you a certificate [against prosecution] and I will excuse you.’

‘Thank you, Your Honour.’

It was over in a flash. An anti-climax. The man who had been dying to tell his story availed himself of his right to silence.

The next day the Daily Telegraph featured his photograph large on its front page under the headline ‘Face of a coward’.

That day—after hours of further legal argument—the court eventually heard some more of the phone calls. The eight men were suddenly coming alive, as people with distinctive personalities and existences beyond the witness box.

‘When you’re listening to Mr Losic there and you’re comparing to the over-the-top conversations that we’ve been hearing from everybody else, he seems to be a very measured person compared to the others,’ Milledge observed to the courtroom at one stage. ‘I mean Mr Pantic has been presenting as an entrepreneur, who’s willing to set up websites and do all sorts of things, and Mr Kuchel seems to be puppeteering a lot of what’s going on and—but Mr Losic creates the impression that he just wants it all to go away and is very sensitive to the fact that members of his family have been targeted.’

She was facing another problem in assessing these calls. Were the men speaking freely? Were they lying? Or were they hamming it up, because they were aware they were being listened to?

The recordings covered an inordinate amount of time. One critical blow against the attempt to keep the existence of the phone taps quiet had been an accidental reference by Milledge in September 2006 in open court to ‘lawfully intercepted information’ and the ‘Telecommunications Interception and Access Act’. It was a day when Ryan was continuing his evidence and Pete was waiting to be called. Both had their lawyers in the court building.

Even though any publication of, or reference to, the comment was immediately suppressed, information travels fast. In any case, the men’s lawyers had been warning them from the very beginning that their telephones would probably be listened to. Some of the men had themselves raised concerns about intercepted calls. Dragan and Pete hardly discussed the inquest on their phones at all. Some of the men frequently said they could not talk about something on the phone, or made arrangements to meet in person.

One of the first of the recorded telephone calls played at the inquest was one of the last, from October 2006—about six months after the first of the 2006 telephone taps. It was a voicemail message Mark left on a friend’s mobile phone: ‘G’day Grillsey, ah, and hi to Operation Willenhall, ah the cops, whoever are listening to my phone. Call me back Grillsey. Ciao.’ It was a clear indication that Mark believed his phone was being intercepted at the time.

In another call, Leo told his girlfriend: ‘I gotta watch what I say on the phone now, I suppose—a bit more etiquette.’ But Ryan, Leo and Mark had made hundreds of calls which were intercepted. Granted, they also used public phones, the phone of a friend, maybe their work phones, and Internet communication. But it would seem an extraordinary length to go to, to put authorities on a false trail.

But not long before that call Mark had had phone sex with Trudy, and had boasted to a friend about his threesome with her and Karen. In one of the calls Mark and Trudy talked about consuming drugs, and she had suggested G’ing out their respective partners. Hoenig argued these calls might show ‘a course of conduct’ relevant to finding out how Dianne had died. And they could be used to decide if Mark would have spoken that way had he known the call was being intercepted.

Sometimes their voices changed and it appeared as if some of them were agreeing on a rehearsed version of events. At other times they were being evasive and made cryptic references to events. It is probably these references, more than anything, that convinced the coroner and police that Ryan, Leo and Mark simply did not have enough experience and mongrel instinct to fabricate a consistently false story stretched over thousands of phone calls.

In June 2006 Pete told Ryan he was sure the phones were being intercepted ‘since before we even found out about this’. He said, ‘I can guarantee you . . . We sometimes get little birdies telling us our phones are tapped.’ When Ryan passed on the warning, Leo said, ‘You know what, I don’t care, because everything I’ve said is truthful, you know what I mean.’

One thing the men were hardly talking about in the calls given to the inquest was drugs. Occasionally Mark spoke to Karen, who remained in Adelaide while he was at Mildura, about plants, lighting and cooling. Once, a phone call revealed that a friend had picked up a ‘can of paint’; while another was taking some ‘fig jam’ Karen had made to someone else to see if they liked it.

Leo was also recorded talking to a friend who had asked Leo to send him ‘a full deck of cards’ to play poker with. It had cost him $400, Leo told him, and the man complained that, the last time he had ordered ‘half a deck’ from someone else, it had not arrived.

In July 2006, after months of intercepted phone calls, Ryan arranged to speak to Leo on a new mobile phone, obviously in the hope of avoiding detection. ‘When you get a number give me a call,’ Leo told Ryan.

Ten days later Ryan phoned Leo, and asked him when he would be training at the gym the following day. Leo did not appear to understand, answering ‘whenever’ and asking why Ryan wanted to know.

Two days later Ryan again asked Leo, ‘When are you going to train, man?’

‘I do it at home, I’ve got some weights at home,’ Leo replied.

‘Argh. Alright. When are you going somewhere secure?’ Ryan asked, apparently resigned to the fact he had to spell it out for Leo.

‘Aah, you want a phone? Give me your number. You’re ready . . .’

‘Not from where you are. No,’ said Ryan.

‘When I go for a jog, I’ll give you a call,’ said Leo, now lapping up the sporting metaphor.

‘Alright. No worries. Just let me know. I can basically be at a different number in half an hour’s notice,’ said Ryan.

About three hours later Leo told Ryan his new mobile number, but by now the new phone was also being intercepted by police. Leo and Ryan appeared to be speaking more freely, and seemed preoccupied with discussing how to avoid pitfalls when giving evidence at the inquest. The subjects of this call were similar to what they had discussed before: what would they tell the inquest about Dragan and Pete’s movements in the crucial hours, and how could they prove Leo had been asleep?

After a few cryptic references, they agreed to catch up in person when Leo came to Sydney to resume his evidence at the inquest.

After listening to some of the calls, the inquest decided that— even though the men suspected, at least later on, that their phones were tapped—most of their conversations were credible.

In one of the last conversations played at the inquest, Mark talked of the morning Dianne died: ‘She actually shit herself, that tells me it is all over. She was very cold and clammy to touch.’ He also said Dianne had been put in the shower to try to warm her up, insisting, ‘I did not think she was in that much trouble.’

The moment had arrived. It was late afternoon on Thursday, July 26, 2007. After 60 hearing days over 17 months Milledge had finally heard enough.

It had been an exhaustive inquiry, and an exhausting few final days. Before announcing her decision—by now obvious to everyone in the room—Milledge took a few more moments to thank everyone.

To Hoenig she said, ‘I knew the matter of Mrs Brimble was coming to inquest. I thought that you would be best for it, and you haven’t disappointed me at all, and I chose you because of your integrity, your commitment and your decency.’

She then thanked the lawyers, police, court staff, and journalists.

Facing the family, Milledge said: ‘Family, this has been a very agonising event for you. I know you’ve said it yourself. You’ve always been kind enough to acknowledge the good work that’s gone on behind the scenes and I thank you for that. There’s a lot for you to be displeased about, in terms of getting things up and running, but I can assure you at a time when you were agonising, thinking that no-one was listening to you, all of us were doing the very best we could, with the resources that we had behind the scenes, to make sure that we got Mrs Brimble’s death properly scrutinised so that we could understand the circumstances of her demise, because it was something that should not be visited on any family.’

She continued, ‘It doesn’t give anyone any joy in having to deal with the circumstances of anyone’s death at inquest when we have to dissect situations to such extent where we are looking very personally into other people’s lives. But that has happened in Mrs Brimble’s life and also has happened, there’s no doubt of that, in the lives of the persons of interest and other witnesses that have been part of these proceedings and that is regrettable but it was necessary.’

The coroner took a deep breath before uttering the words everyone had waited to hear for so long: ‘I find that Dianne Elizabeth Brimble died on 24 September 2002 in cabin D182 of the P&O cruise ship Pacific Sky. I am satisfied that the evidence before me is capable of satisfying a jury beyond reasonable doubt that known persons have committed an indictable offence and that there is a reasonable prospect that a jury would convict the known persons of an indictable offence in relation to the cause of death of Mrs Brimble. I therefore terminate this inquest pursuant to s 19 of the Coroner’s Act of 1980 and refer all the papers to the Director of Public Prosecutions.’