Coincidentally, Kevin Duggan was appointed the trial judge. This was appropriate because he now intimately knew the case and the evidence which would be presented. When the trial started on Wednesday, 19 December 1990, the judge intimated at the very beginning he would let B give evidence but would hear defence objections to his story as he went along. However, he excluded the evidence of the murder of Richard Kelvin and the evidence of the hitchhikers and von Einem’s associates. The similar fact evidence of the associates and the hitchhikers showed that von Einem picked up and drugged boys but it didn’t prove he killed them — the evidence was just not similar enough for the law. Brian Martin’s prosecution case just fell apart.
On Friday, 21 December 1990, Brian Martin received instructions from the Attorney-General not to proceed with the Mark Langley murder charge against von Einem. Brian was going to try to fight on with the remaining murder charge. He still had von Einem lying about knowing Alan Barnes and witnesses would say Alan was with von Einem the day before he was murdered but, without the evidence of the hitchhikers, he knew he was still in trouble with his case. And on 1 February 1991, over eleven years after the murder of Alan Barnes — the first of the murders, the final murder charge against von Einem was pulled. The Attorney-General advised prosecutor Brian Martin to enter a nolle prosequi — the charge was not to proceed, although this does not mean he can’t be charged again if more evidence is found.
Unfortunately, the drama didn’t stop there. Von Einem and his defence team have used legal ploys without success to have his case reopened. In September 1996, about fifty boxes of police files were seized after an application by defence solicitor, Mark Griffin, for the investigation to be reviewed. They were alleging that von Einem was under police surveillance at the time Richard Kelvin was being held captive and therefore he couldn’t have been involved. This was soon discounted because surveillance didn’t start until after we first interviewed von Einem on 28 July 1983, after Richard’s body was found. This aspect was reviewed by an independent legal expert from Victoria and he found no basis for the claim. The Liberal Attorney-General Trevor Griffin (no relation to the defence solicitor of the same name) accepted the review’s findings and the application to reopen the case failed.
By 22 December 1997, a new defence solicitor was in on the case. Michael Abbott, Queen’s Counsel, the high-profile defence lawyer, petitioned the Governor, Sir Eric Neale, for mercy for von Einem. He argued that there was new evidence to support von Einem’s alibi. A witness said that he saw Richard Kelvin in Rundle Mall after Sunday, 5 June 1983 when Richard was abducted. His statement, if true, meant that von Einem’s alibi was right after all and the Governor should accept a plea for mercy. The difficulty was that the man was an admitted bisexual and he knew von Einem. Also, his description of Richard was inaccurate when he said that he was wearing earrings in both ears and one in his nose. Richard didn’t wear earrings in his nose and the post-mortem showed no holes to indicate that he ever had worn them there. The Governor refused the petition on advice from the then Attorney-General Griffin.
Through all these legal machinations, von Einem continued to protest his innocence, repeating his alibi about taking Richard Kelvin home to show him his harp, and denying that he killed the boy.
His claims of innocence were ironic in a way. Everything he said simply knocked over any remaining doubts of his guilt the people of the city of Adelaide may still have had.
Even though the world had been involved in a revolution of social customs, religious beliefs, and sexual politics — and Adelaide was not immune to any of it — there was still a sense in the minds of much of the community that this was ‘little old Adelaide’. Life was safe here, not like in the bigger cities of Sydney and Melbourne. Adelaide was not the kind of place where this sort of thing went on.
Von Einem put paid to that very smartly. He was the latest in a long line of killers who had stalked the city’s streets and public places and snatched away its youngsters. He was obviously not responsible for all of the serial killings that had occurred over the decades — but he certainly was one of our weirdest murderers.
Chapter 14
The Rumours
Tolerance and freedom were the buzzwords of the 1960s and 1970s as established cultural and social patterns were changing everywhere. People were experimenting with drugs and sex; normal conservative couples were wife swapping and homosexuals were coming out, seeking to be considered as normal members of the community. Sexual preferences were a private matter, just like politics or social attitudes.
In an extraordinary leap from conservative backwater to liberal (small ‘1’) frontline, South Australia found itself forging a reputation for being a reformist state. Liquor licensing and gaming laws were eventually relaxed, and, in time, homosexuality between consenting adults in private was legalised. It was the era of a brave and charismatic premier, Don Dunstan, whose government was, in his own words, ‘democratic socialist’. He practised liberalism in its broadest sense and set about promoting changes right across every spectrum of society, including in the political and legal fraternities.
Don Dunstan wrote about this in his own book, Felicia. After his Labor Party came to office he was made Attorney-General, and when it came time to appoint a Chief Justice, after the retirement of Sir Mellis Napier from the position, Don Dunstan decided it was time to break with tradition. He nominated a notable law lecturer at the University of Adelaide, Dr John Bray, rather than selecting one of the existing
