Saga ends with lives still to heal, questions to be asked

GEESCHE JACOBSEN – Sydney Morning Herald – April 22, 2010.
http://www.smh.com.au/national/saga-ends-with-lives-still-to-heal-questions-to-be-asked-20100421-t0m7.html

Both the inquest into the cruise ship death of Dianne Brimble and a criminal trial came to similarly sad finales, writes Geesche Jacobsen.

Dianne Brimble was killed by some person or persons, by someone slipping her a lethal dose of a date rape drug without her knowledge for the sole purpose of their own sexual gratification and the sexual assault and abuse of Mrs Brimble.

So began the opening of the coronial inquest four years ago into Dianne Brimble's death. This alleged fate of the Queensland mother - being drugged and raped and left to die on the floor of a cruise ship cabin shared by four men - unleashed unprecedented public interest in the case. The enormous sympathy for Brimble's family was matched only by the antipathy for eight Adelaide men who were at least once all painted as rapists and murderers. The behaviour of some, especially Leo Silvestri, before and after the death did nothing to endear them to the public.

At the end, charges were recommended against three of them but yesterday's decision to drop manslaughter charges clears the supposed main player, Mark Wilhelm, of any criminal responsibility for her death, ending the saga.

The decision, however surprising to the public, was made after what a judge yesterday called the ''rumour, misinformation, supposition and conjecture'' of the inquest died down. This allowed a close look at the relevant evidence and legal principles.

The contrast between the 12-week inquest, which ran from March 2006 to July 2007, and yesterday's outcome could not have been greater. The shift was already apparent during Wilhelm's trial late last year when a jury could not decide whether he was guilty of Brimble's manslaughter. A retrial was averted by yesterday's decision to drop the manslaughter charge.

The inquest, in the small, bright court room at the Glebe Coroner's Court, had been driven along by colourful characters, incriminating photos and sordid details.

Every day the seats in the public gallery were filled by Brimble's family, court watchers and representatives of nearly every major media outlet in Sydney.

Headed by Jacqueline Milledge, the former senior deputy state coroner known for her compassion for victims, the inquest looked at what had happened on board the Pacific Sky cruise ship before and after Brimble's death. It looked into the police investigation and the cruise industry in general.
 
Last year's trial with Justice Roderick Howie - known for his sharp legal mind and impatience with wordy lawyers - presiding, was held in a vast, austere, dark-panelled Supreme Court room at Darlinghurst with an almost empty gallery.
 
No family, hardly any media and only a few court watchers saw the case unfold. There were 35 witnesses, compared with the 95 who had appeared at the Coroner's Court.

Much of what had caught the imagination of the public at the inquest - allegations Silvestri had offered drugs to passengers on board, suggestions some of the men had propositioned several young women and comments by Silvestri blaming Brimble for ruining his holiday - was now irrelevant.

There were no allegations about alleged criminal activities by some of the men back in Adelaide or criticism of investigating police who had danced with witnesses.

No evidence was led about Brimble's supposed prudish and conservative nature, her reluctance to show her body or her old-fashioned sexual attitudes. Instead, by then it was accepted that Brimble had not been drugged, that she had taken the drug willingly, just as she had willingly embarked on the sexual encounter with Wilhelm. There was not enough evidence, beyond reasonable doubt, to suggest otherwise.
 
Despite the inquest's approach, the case was not about moral responsibility, about what ought to have been done. And ''bad, loutish or maybe even insensitive behaviour'' as Justice Howie called it, is no crime.

Should she have been photographed during sex?

Should she have been kicked off the bed?

Should she have been left lying on the floor, having defecated?

Should people - young men and four young women from another cabin - have laughed about her, even looked at her, and done nothing?

The answers appear obvious in the sober light of day. But these are largely moral questions, not matters of law. There was no general duty to help a stranger in distress, however unusual that seemed, Justice Howie told the jury after the prosecution acknowledged in the final days of the trial it could not prove Wilhelm had had a duty of care towards Brimble. No legal duty. Nor could it prove whether she was still alive when he first learnt of her distress and if therefore he could have done anything to prevent her death.

This left the Crown trying to prove Wilhelm was legally responsible for her death because he had given her an illegal drug, gamma hydroxybutyrate, which ''substantially contributed'' to her death.

How far back, the judge asked rhetorically, do you go in the chain of responsibility? Do you blame the person who sold Brimble the ticket for the cruise? Do you blame Wilhelm, who made the drug available to her? Or do you blame Brimble, the ''42 year-old free-thinking adult'' for accepting the offer?

Ultimately, the prosecution's case came down to a short conversation between Wilhelm and Brimble seven years ago, overheard by cabinmate Ryan Kuchel, who had said he had been woken when Brimble and Wilhelm came to his cabin.

''I remember hearing a voice … and the voice asked Mark what he was doing. He told the female voice that he was having some fantasy. He asked her if she wanted any. She asked what it was. He said it was like ecstasy but it made you 10 times hornier. She was not quite sure. She asked whether it was dangerous. He said no, it was just like ecstasy.''

In intercepted telephone calls Wilhelm disputed part of this version. ''That's the thing. I actually didn't offer it to her. She asked what it was. I told her, she said she wanted to try it,'' he said in a conversation with an unknown male in June 2006.
 
The result must come as a great relief, and vindication, for Wilhelm - and to a lesser extent the other seven men - but the day is tinged with sadness. Sadness not just about the needless death of a woman who was loved by friends and family. Sadness for the impact this had on so many lives. And sadness about the failings of someone to step up and fulfil the moral obligations we all would hope for if we were in Brimble's situation.

Geesche Jacobsen is writing a book on the Brimble case.