Chapter 13
Additional Charges
Bevan Spencer von Einem was automatically sentenced to life imprisonment for the murder of Richard Kelvin but it was the non-parole period that was important. The non-parole period determined the amount of time that he had to spend in jail before being released, and it was up to Justice White to fix that period. He summed up his feelings:
‘I deal with your case solely upon what has been proved in this court. Whatever may be the public or police suspicions so widely and so recently published alleging suspicion of some connection of this case with other cases, I must, and I do, fix this non-parole period solely on the basis of the facts proved beyond reasonable doubt in this case.
‘The horrendous nature of this crime, involving, as it did, a long period of imprisonment and ill-treatment prior to murder, has added a new dimension to the kinds of murder committed in the State, with which the community has to live . . .
‘You do not show remorse. You do not admit guilt. You showed yourself to be cool and violent at the time of abduction, inventive and resourceful during imprisonment of the youth, ready to resort to lies and false alibis after discovery of the body, and you are unrepentant at the moment.
‘I fix a non-parole period of twenty-four years.’
The Attorney-General appealed straight away against lack of severity of von Einem’s term of imprisonment. Twenty-four years imprisonment meant that he could be out of jail in sixteen years if one third of the non-parole period was taken off for good behaviour while in prison. They argued that twenty-four years imprisonment was too light and Brian Martin on behalf of the Attorney-General asked the Court of Criminal Appeal to increase the sentence.
On 29 March 1985, Chief Justice King and Justices Jacobs and Olsson handed down the results of the appeal. They said in their findings:
‘The present crime . . . indicates such depravity of character on the part of the perpetrator that his absence of previous convictions loses its significance. The abduction, captivity, sedation, homosexual abuse and murder of the boy did not occur on impulse and could only have been perpetrated by a person or persons of grossly depraved character.’
The Supreme Court increased von Einem’s non-parole period to thirty-six years’ imprisonment, the highest imposed on anyone in South Australia to that time. With remission, von Einem would be out of prison during 2009. He would be sixty-two years of age.
After the end of the appeal, Barry Jennings had moved on but Helena Jasinski was still involved with the von Einem defence. David Peek now came on board as the barrister for von Einem. The new defence team appealed to the Court of Criminal Appeal. They complained about the evidence which related to Richard being against homosexuality and not having homosexual inclinations. Peek challenged the relevance of this evidence and the way it was introduced into the trial.
Also, references to von Einem’s homosexuality were given during his trial. The defence team submitted that this evidence showed von Einem to be of bad character and would have caused the jury to be biased against him. They also argued that Justice White’s address to the jury did not summarise the defence case. He ignored the evidence of von Einem’s relatives, which indicated that von Einem could not have dumped Richard at the time suggested — on Sunday, 10 July 1983. Finally, they argued that there was a miscarriage of justice caused by the way in which Justice White summed up the case. They argued that the judge invited the jury to speculate rather than to consider the evidence.
The Appeal Court rejected most of the defence arguments saying that von Einem’s crime revolved around homosexuality and abuse, and Richard’s views about homosexuality helped the jury consider whether or not von Einem’s alibi was likely to be true or not. Richard would not have behaved the way von Einem said he did if he was against homosexuality. Also, the Appeal Court pointed out that just because von Einem was an admitted homosexual, it did not mean that he committed homosexual crimes. Von Einem’s crime was proven by other evidence and not by his admissions about his sexuality.
The Appeal Court agreed that Justice White’s address to the jury would have been better if the evidence disputing the time of dumping was mentioned. However, the appeal judges thought that, overall, Justice White put the defence case to the jury ‘fully and fairly’ and that his discussion of theories and explanations about Richard’s murder were quite proper.
Justice Olsson as a member of the Appeal Court said:
‘The plain fact of the matter is that it is difficult to see how, upon a dispassionate review of the evidence, a reasonable jury could have brought in a verdict other than that which it did. The whole of the circumstances established by the Crown pointed unerringly to the guilt of the accused and I consider that no substantial miscarriage of justice occurred.’
We were pleased after all this time that an independent review of the evidence and court proceedings found we had a strong case that was handled well by Brian Martin and Paul Rofe. Finally, when discussing von Einem’s non-parole term, the appeal judge said:
‘As a sole murder, the accused’s crime has established new depth of depravity in South Australia’s history . . . Indeed I would go so far as to say that the circumstances of this crime are such that they must come very close to the borderline of constituting a special reason for declining to fix any non-parole period. The community has every right to expect that its judges will do their best to ensure that a person who has been party to and/or capable of conduct so abhorrent as that revealed by the evidence and who has shown no remorse whatsoever will not be released until it appears clear that he will no longer constitute a danger to others.’
Trevor and I, as a team,
