Justice White, of the Supreme Court, presided over the case, and he sat on the one chair behind the largest desk in the room. The bench stretched almost across the full width of the room. In front of the judge’s desk was another one about half the size and the judge’s associate, clerk of court and stenographer sat behind it. The courtroom’s design reinforced society’s hierarchy — the judge being the most important person in the room. We hoped his views would consider the prosecution case in a positive way, but you could never be sure.
Two rectangular stalls were built against the walls on both sides of the room and each enclosure contained seating for twelve people. The box on the right contained seats for the jury, which would soon contain twelve people from the community while the box on the left allowed up to twelve accused to sit in it. But only one person would fill that box. Trevor and I would have liked more in there but it wasn’t to be.
In the middle of the room another large rectangular desk covered the plush carpet. The defence counsel sat on the left of the table and the two prosecutors sat on the right. Behind them two curved rows of seating spread across the room for additional solicitors and support staff. The remaining area of the court at the rear provided seating for 100 people in five rows of seats. They filled on the first day and continued to be busy with people over the next fifteen days.
The trial started with the selection of the jury. Fifty people picked from the electoral roll were selected for one month’s jury service. They entered the room and sat in the public gallery. The judge, prosecution and defence counsel all had lists of the names of these potential jurors. Brian Martin, Queen’s Counsel, who would lead the prosecution case for the D.P.P.’s office, read out the list of witnesses who would be called during the trial and the potential jurors were asked to leave the room if they knew any of the witnesses. Two stood up and moved towards the Sheriff’s Officer to have the opportunity to be selected for another trial.
The clerk of the court read out names of the potential jurors and one by one they stood up and moved from the body of the court to the juror’s box. The defence and prosecution counsel each have an opportunity to refuse three people without giving any reasons. The process finished quickly and the twelve seats in the jurors’ box filled. Over the coming days, the seven women and five men found their preferred positions in the jury box, where they were as comfortable as they could be as jurors in the murder trial of one person accused of killing another.
Brian Martin addressed the jury to open the trial. Paul Rofe supported him. Brian started putting the jigsaw together, which, when complete, would provide a picture of the prosecution case. He addressed them at the start of the trial by giving a description of the evidence that he would be piecing together.
Helena Jasinski briefed Barry Jennings and together they defended von Einem. Barry was a smaller man than the two prosecutors and completely different in appearance. His black curly hair spread out over his head and surrounded his glasses. He was a prosecutor before he went into private practice and knew the tactics that Brian and Paul would employ.
Brian Martin emphasised that von Einem committed Richard Kelvin’s murder with other people. By saying he did not act alone, the easiest scenario for the jury to accept was presented. It would have been difficult for one person to keep Richard captive for five weeks, especially when von Einem was at work from the second week of the disappearance. He wasn’t with Richard for all of the time he was kept captive. Also, there was the evidence from witnesses that more than one person was heard when Richard was grabbed at the corner of Margaret and Ward Streets, North Adelaide.
Another point that Brian Martin made during the trial was that the actual cause of death could not be known for certain. Ross James, the pathologist, could say that Richard Kelvin didn’t die from natural causes. All of Richard’s vital organs were healthy. He could say that the beatings did not cause Richard to die. The subdural haematoma, where blood gathered between the skull and brain, was life threatening but he survived that injury. Also, although the anal injury to Richard caused massive bleeding and shock, it could never be proved that it actually caused his death. We always believed that was possible, but Ross could not discount other possible causes of death: for example, he could not discount the possibility that Richard was suffocated.
The Crown case involved proving different points. Firstly, murder would be proved by showing Richard was forcibly abducted, he had been injured and heavily drugged during his captivity and he had no defensive injuries.
Proving von Einem was implicated in the murder would be shown by the facts that: von Einem had the opportunity; he had access to the necessary drugs; he had been away from work during the first week of Richard’s disappearance, which provided him an opportunity to help keep Richard captive; he sold his car six days after Richard Kelvin was dumped, and he repainted most of his boot before it was sold, indicating that he had something to hide; scientific evidence would show that von Einem was with Richard Kelvin in his home; and he had denied being
