THE crime he’s accused of is not the only thing that shocks about the man in the dock. The first time we see him, there is the shock of recognition. He is so ordinary – so obviously one of us. A suburban husband and father, bland to the bone. Who could guess at the fatal fantasies hidden behind that mask?
Mark John Smith is 37 but looks younger, almost boyish. He’s clean-shaven, and his dark hair is cut short and neat, with no sign of grey. Despite being held on remand in prison for months, his wiry frame is close to what it was when he trained regularly on his bicycle. His voice, heard in court only in taped interviews, is light and pleasant. And a touch too deferential, a juror might think, as if he’s trying to be agreeable to police, when another man might be angry at being accused of such a crime.
Not quite handsome, not dashing, but trim and fit-looking, he wears square, fine-rimmed glasses and, even in a civilian suit, has a faintly military bearing that comes from being in the air force since high school.
A harmless nerd, some might assume. Others, stealing a look from jury box or press bench, might think his lips thin and mean, but that would be unfair. The fact is, he wouldn’t look out of place in the jury box, press bench or bar table. He’s the man next door. Even his name sounds like a lame alias in a hotel register joke. Which is ironic, because Smith’s downfall, if you believe the police and the prosecution, began with his infatuation for another woman.
THE prosecution case against Smith, which reached court in late 2000, was forged from a chain of circumstantial evidence. But at its heart is a scenario as shocking as an axe murder.
To find him guilty, and not just seriously misunderstood, the jury had to believe that this mild-mannered, air force computer technician got up one morning, showered and dressed, took his baby son from a bassinette in another room and put him in bed next to his sleeping wife, soaked a handkerchief in ether (or a similar flammable anaesthetic), held it over her face until she lost consciousness, set fire to the bed and drove to work. Calmly planning, in a prosecutor’s bleak and carefully-chosen word, to ‘delete’ his family so that he could start a new life in a new country with a new woman and her child.
Unless a jury believed Smith capable of such chilling premeditation, the prosecution and police had wasted hundreds of thousands of dollars over several years, twisting together strands of evidence to form what the prosecutor described as ‘an unbreakable rope’.
It is the web of circumstance – the ‘timeline’ of events, before and after the fire that killed Smith’s son and maimed his wife – that the prosecution relied on to show that murder, and not a tragic accident, unfolded at the unremarkable house at 7 Lorena Close, Hoppers Crossing, on the morning of 4 October, 1995.
Investigators uncovered a lot about the accused man in the five years after the deadly fire, little of it in his favor, but they produced no ‘smoking gun’ – the alleged anaesthetic, a witness, or a confession – that would, itself, nail down charges of murder and attempted murder. The result is that Smith was charged and tried on the basis of a ghastly and compelling story – yet another variation of the ancient theme of sex, betrayal and death.
The question was whether a jury would buy it.
HIS Honor, Justice Frank Vincent, has seen a lot of accused murderers in his time. He defended dozens of them before rising from bar table to bench, and has sentenced plenty since. Each one different, but many of them classifiable into broad groups. There are the mad, the bad, the greedy and the pathetic – part of a vicious life cycle where violence begets violence. There are others caught in circumstances beyond their control that force them to lash out with fatal results.
But how do you classify Mark John Smith, who has sat in the dock at the Supreme Court, facing Justice Vincent – and some disturbing questions – for a month?
Smith’s defence counsel, Stratton Langslow, has, inside and outside the court room, depicted a mild and inoffensive man bewildered by the awful fix he’s in. So bewildered, in fact, that the kindly Langslow didn’t put him in the witness box to be exposed to robust cross-examination by the prosecution.
Langslow, a pipe-smoking, rumpled, Rumpolean figure, without benefit of script-writers to ensure witty ripostes and happy endings, boxed on like the old trouper he is, reminding the jury at every chance that no matter what else it heard, no-one could prove absolutely that his client had used a bottle of ether and a box of matches instead of filing for divorce.
Smith sat stock still and silent, meanwhile, as a passing parade of witnesses – one by video link-up from America – dissected key parts of his private life in the past decade.
SMITH was not charged with contemplating or consummating an affair with the other woman, with sending her his entire superannuation and severance payout of $110,000, with buying her an expensive engagement ring and a cheap car, or lying to cover up the above. But, in effect, those actions have been put on trial. Because it is in the context of such behavior that the fatal fire at Hoppers Crossing began to look sinister to police, who initially suspected no more than an accidental tragedy caused by an aromatherapy oil burner.
In his closing address the prosecutor, Bill Morgan-Payler, summarised the Crown case, detail by damning detail, to paint a picture of a man so obsessed with his lover and her baby (not his) that he would set up a fire to kill his wife and child.
Smith, bright younger son of a respectable Cobram dairy farming family, joined the air force as an apprentice in the early 1980s. He did well, and in 1991 was chosen in a team to go to the United States to work on new systems for F-111 fighter aircraft. The year before, he had met Nicole Taylor, a Queensland-born teacher, and they had become engaged. When the Florida posting was confirmed, they moved the wedding forward to marry before leaving.
The couple lived happily in Orlando, Florida, according to Nicole Taylor’s later evidence, for more than two years. Smith’s subsequent version of events was that he’d grown unhappy with the marriage – a claim dismissed by the prosecution as a ploy to explain his behavior before and after the fire.
In early 1994, the RAAF project team was moved from Orlando to the Palm Bay area. The secretary at the new office was a local, Donna Wilkinson. Single, young, blonde, pretty and popular, she became friendly with several of the team, including Smith. She became pregnant at an office party later that year.
Nicole Taylor once called at the office to pick up her husband and found him washing Wilkinson’s car, an incident she then ignored, but was later to recall in a harsher light. Taylor, who had feared infertility for medical reasons, also fell pregnant in late 1994. This, she believed at the time, made her husband happy, although they had an argument when he told her he had accompanied Wilkinson to the doctor’s when she’d (Wilkinson) had an ultrasound scan. In the heat of the moment, Taylor accused him of being the baby’s father (not true; another Australian was) but the argument blew over.
They returned to Australia around Christmas, 1994, and moved to Hoppers Crossing, near Werribee, in the new year. Adrian Kingsley Smith was born on 25 July, 1995. Smith seemed delighted. But he kept in touch with Wilkinson who, meanwhile, arranged a sham marriage with another Australian airman, so that she could come to Australia in early 1995 in time for the birth of her daughter, Melissa. She stayed in a rented unit in Queanbeyan, near Canberra, where she knew other members of the RAAF project team she had met in Florida. This seemed an odd arrangement, and not one that was explained in court.
There has been no evidence that Wilkinson travelled to Australia to see Smith, nor that he visited her in the first months of her stay. But, on 3 September, he went to Canberra for a conference, leaving his wife and six-week-old son home for several days. It was then, the prosecution argues, that Smith’s private ‘obsession’ with the American woman turned fatal.
The accused, Morgan-Payler told the jury, wore a white tuxedo to accompany Donna ‘in an evening gown’ to a dinner. Later they, with others, shared a spa at the hotel where Smith was staying.
Back home in Hoppers Crossing, strange things started happening. Two weeks after the conference, on 17 September, Taylor noticed a smell of gas in the house. A plumber found an unexplained leak near the main stop-cock and mended it. On 22 September, Smith’s 32nd birthday, Wilkinson returned to the US. Four days later, late at night, there was a mysterious fire in the Smiths’ kitchen rubbish bin.
Taylor’s recollection of the incident was that she was woken by a smoke alarm and went to the kitchen, where her husband was standing over the burning bin with a fire extinguisher. His version was that he woke to find Taylor at the burning bin with the fire-extinguisher. Morgan-Payler said the jury should believe Taylor, that the fire was a ‘dry run’ by Smith.
The next day, 27 September, Smith signed discharge papers – but didn’t tell his wife. When police later asked about this, Smith claimed that filing the papers didn’t mean he had to leave the air force when his three months’ notice ran out, because the papers could be held by his immediate superiors as long as he wanted, and be sent to Canberra for approval only when he found an outside job.
However, on 3 October, Smith’s superior officer noted that he ‘can’t be talked out of leaving’ the air force, apparently indicating that Smith firmly intended, at that point, to resign.
On 4 October, the second mysterious fire in eight days struck the Smith house, but this time there was no extinguisher. Some time between 7.20am and 7.30am a neighbor heard a smoke alarm, and saw smoke coming from the house. She woke her husband and ran next door, where she found Taylor slumped on the patio, half in a doorway. Her hair was burned off, and her right arm badly burned, the charred skin peeling off. Taylor was conscious and distressed. ‘My baby’s in there,’ she moaned.
The neighbor’s husband went into the house several times, but couldn’t find the baby near the bassinette in the living-room, where the distraught mother told him he should be. He wrapped a wet towel around his face and fought his way through smoke to the bedroom door, which was hot to the touch. He was too late. When he opened it, he saw the baby’s body burning on the bed.
Outside, he could not tell Taylor her baby was dead. He rang Smith at the Laverton air base, about ten minutes’ drive away, and told him his son was missing and his wife had been taken to hospital by ambulance.
Smith drove straight to the hospital rather than going home to find baby Adrian – indicating, the prosecution contended, that he was worried by what Taylor might remember about how the fire started. When Taylor was transferred to the Alfred Hospital by helicopter, air force colleagues drove him there, and he spent several days at her bedside.
The defence says this was the act of a devoted husband whose wife had lost her baby and an arm. The prosecution says he wanted to find out – and cover up – what she remembered about the fire. That Smith was already planning to leave her while she was in hospital somewhat weakened the devoted husband theory, the prosecution argues.
What the unfortunate woman remembered was enough, ultimately, to swing suspicion towards her husband. She recalled having something held over her face against her will and smelling a pungent chemical odor she associated with dental surgeries. She did not recall asking Smith to get the aromatherapy burner she had bought two days earlier, put it on her bedside table and light it. Nor did she support Smith’s explanation that, because she had a cold, he had put Vicks Vaporub on a handkerchief and put it over her face as she slept, accidentally scaring her so that she reared up, throwing him across the bed.
They did have Vicks Vaporub in the house, but he had never before put it on a handkerchief over her face. Smith concocted the Vaporub story to explain away his wife’s increasingly dangerous recollections, Morgan-Payler argued. The defence countered that Taylor’s memory was suspect and that her sensory perceptions were disturbed by her ordeal, and so couldn’t be relied on – especially in view of her subsequent separation from her husband, which would make her hostile and vengeful.
There were other holes in Smith’s story, according to the prosecution. Although the baby had often been in bed with both parents, Smith had never before fetched him from his bassinette and put him in bed with Taylor when he left for work.
Smith made a statement to a detective called Andrew Bona, then of the arson squad, a week after the fire. For Bona, it was the beginning of a long and complex investigation, complicated by the need to interview witnesses interstate and in the US, which he was to visit twice in compiling the brief of evidence against Smith. As, bit by bit, he learnt more of Smith’s behavior, he and other police grew increasingly suspicious.
A WEEK after the fatal fire and three days after his child’s funeral, Smith wrote to Wilkinson: ‘Hi Donna, I was worried you wouldn’t be able to read my writing. But then I remembered that you had to interpret my scribbles back at Harris.
‘As you can see, here is another cheque. I’ve put it in your mum’s name so she can easily put it in her account.
‘I checked out a few things yesterday, about Nicci. All her expenses are paid by Medicare, and she will be entitled to a disability pension. I think I was a bit worried about that. I don’t love her, but I’m not cold and heartless either.
‘I am looking forward to so many different things when we get started in the US. I can’t remember if I said this, but any amount of money I send over can be used for whatever purpose you see fit. (Including your personal loan). You would manage money better than me anyhow. Give Melissa a kiss for me, and say hi to your mum and dad. Talk to you soon.’
On 22 November, seven weeks after the fire, he paid for a one-way ticket to Florida – a reservation he’d made weeks before, and wrote a letter which included the line: ‘Yay! One month and one week to go.’ He also sent $2000 (not the first time he’d sent money) and asked for the address of ‘our place’. Two days later he opened a separate bank account in which to deposit some $110,000 in superannuation and severance pay, leaving only a few thousand dollars in the joint account held with Taylor.
Three days later, on 27 November, he told Taylor – still in hospital – that he was leaving his job and their marriage. He didn’t tell her he would soon be transferring almost all their money to Florida.
‘And on 27 December,’ said prosecutor Morgan-Payler grimly to the jury, ‘he flies out … three months to the day after lodging his resignation papers. He never once wavered in his intention of going to Florida to join Donna Wilkinson.’
It is a terrible story. The defence case, of course, was that it missed a vital passage on which everything hinges. No-one could prove that Smith obtained ether or a similar volatile liquid and used it to knock out his wife. Nor could they prove that the fire, despite all the expert evidence suggesting otherwise, wasn’t accidental. It just looked that way.
But the jury found otherwise.
JUSTICE Vincent gave no clues of what he thought of the evidence until the jury had returned its verdict, but, weeks later, when sentencing Smith, he was free to speak his mind.
‘You placed a cloth impregnated with a volatile anaesthetic, possibly ether, over the face of your sleeping wife. She awoke and struggled as she inhaled its acrid fumes, but you held her down until she lost consciousness. You then took Adrian from the bassinette, in which he had been placed by Nicole in the loungeroom after he had been fed at about 5am, and put him into the bed beside her. Then, using an aromatherapy burner that had been purchased only a few days earlier, you staged a setting, designed to indicate that an accidental fire had occurred and set fire to the bed. You left the house and went to work as if nothing abnormal had happened.
‘After considering the substantial body of evidence adduced in the trial, including the letters set out, and having observed you over a period of several weeks in this court, I have concluded that you are a self-centred individual who, lacking any sense of compassion for your wife and child, and possessing a great deal of confidence in his own capacities, simply decided that the deaths of your wife and child in an “accidental” fire would resolve all such issues and leave you completely free.
‘Your action in attempting to conceal the money that you received when you resigned from the air force is consistent with this approach. More significant in the same context, is the creation by you, at some stage, of a family tree in which Donna Wilkinson appeared as your wife and her child, Melissa, as your natural child, with no reference to Nicole and your own child, Adrian. They were disregarded as if they had never existed.
‘You are, I consider, a calculating individual who, having decided what he wanted, was prepared to let nothing stand in the way of the achievement of his desires, not the life of his child and certainly not that of a wife of who he had grown tired.’
Justice Vincent sentenced Smith to a minimum of 22 years. Smith says he didn’t do it.