by Bob O'Brien
Also, there were no fibres from the maroon seats of the Toyota, which von Einem said he was driving that Sunday night. The seats in the Toyota had characteristics which indicated ‘medium shedability’. That finding indicated that Richard Kelvin wasn’t in the Toyota as von Einem said. That made it more likely he was in another car — possibly von Einem’s Falcon sedan, which he sold a week after Richard was dumped.
Von Einem could have remained silent during the trial and Barry Jennings would have argued to the jury that they could not be sure that he was guilty of murder and should acquit him. He should have the benefit of the doubt. The law allowed this to happen. He had two other choices — to give sworn evidence from the witness box or to give an unsworn statement from the dock. The defence team thought he should present some explanation to counter the evidence that had been pieced together, but von Einem did not enter the witness box like Dr Millhouse did during his trial. Millhouse was in the witness box for three days giving sworn evidence and being grilled by the prosecutor. This time, Barry Jennings and Helena Jasinski elected for von Einem to give an unsworn statement from the dock so that he could not be questioned by Brian Martin.
Von Einem started reading his statement in his normal impassive way of speaking and acting. There was not one nervous mannerism.
‘Ladies and gentlemen of the jury, I am not guilty of the murder of Richard Kelvin. I am thirty-eight years of age. I am single and, as I told the police last year, I am a homosexual. Up until my arrest I lived with my mother at . . . Paradise. We moved there in late April 1983. Before that we lived for five years at . . . Campbelltown.
‘I worked for eighteen years at Pipeline Supplies of Australia at South Road, Regency Park as an office accountant.
‘In 1982 I bought a Ford Falcon, registration number SXK–257, from Pipeline Supplies and sold it to Mr Bondarenko on Saturday, 16 July 1983. The registration of that vehicle expired on the 13th of July 1983. I sold that car because I did not need two cars and I wanted some money for my overseas trip.
‘In or about Christmas 1981, before I bought the car, the muffler was replaced at premises on the corner of Main North Road and Grand Junction Road near Gepps Cross. After that time it had a normal exhaust. There was rust in the boot from a leaky esky and window seal. I painted the boot with epoxy resin to cover the rust and prevent it from spreading. I did that on a Saturday afternoon, either the 2nd or the 9th of July 1983. I am not sure which.
‘The silver Toyota Corona was my other car. I was using that in June and July of last year. It, too, had a normal exhaust.’
Von Einem was explaining that he painted his boot because it was rusted and he wanted to sell it, not to hide any evidence. Also, he was saying that both of his vehicles had normal exhausts and was suggesting that the noisy car that was used to abduct Richard Kelvin was not one of his cars.
‘On Saturday, 4th of June 1983, I had a garage sale at . . . Street. My mother stayed that night at the Alcorn’s house at Houghton. I was going to go out that night but did not because I began to feel ill. Later that night I locked myself out of the house and had to go up to Houghton to get door keys from my mother. I think it was about 10 p.m. I then came home and went to bed.
‘On Sunday 5th June 1983, I went to the Railway Museum at Mile End with my nephew, Robert, in the afternoon. I was wearing my old brown cardigan because at the Railway Museum I was climbing all over engines and carriages. Robert and I went back to my place and Robert left.
‘I then decided to go to O’Connell Street, North Adelaide to buy some fish and chips or a hamburger. I realise there are fish and chip shops closer to my home, but I fairly often used to go to O’Connell Street to get takeaway food.’
Earlier in the trial Brian Martin had the owners of five fish and chip shops situated between von Einem’s home and North Adelaide give evidence to say whether or not their shops were open that fateful Sunday night. Brian was showing that von Einem was on the prowl that night, not just out buying fish and chips. Now von Einem was answering this evidence.
‘I was driving the Toyota along O’Connell Street in a southerly direction but did not see a car park. I decided to drive around the block and turned left into what I now know was Boulton Street. I was driving along Boulton Street in a northerly direction. I was drinking a can of beer. At the time it was on the seat between my legs. When I was at about the junction of what I now know to be Marian and Boulton Street[s], a youth whom I now know to be Richard Kelvin ran in front of my car from Marian Street. I had to brake to avoid him. He was running. I wound my window down and he came over to the driver’s side. He rested his arms on the roof, as I demonstrated to Detective Kipling on my interview on the 1st March this year and as you have seen him demonstrate to this court.
‘I have heard Detective Kipling’s evidence of the interview he had with me on 1st March this year. In that interview I did my best to tell Detective Kipling truthfully what I could remember of what happened between Richard Kelvin and I on the night of Sunday, 5 June last year. What I told him is what happened that night. There is nothing else of importance that I can remember now. I told Detective Kipling the truth and I ask you to accept what I told him as part of my statement to you.
‘The last I saw of Richard Kelvin was when I dropped him off opposite the Royal Adelaide Hospital on that Sunday night. I do not know anything about what happened to Richard Kelvin after that. At no other time was he at . . . Street.
‘After I dropped Richard Kelvin off I returned home. I was going to pick up my mother but did not feel well enough to do so. Later I drove to my sister Carlien’s to ask her to pick Mum up from the Alcorn’s but I thought it was too late. So I rang up the Alcorn’s house to say that I would not be up that night but would pick Mum up the next morning. I went back home and went to bed.
‘The next morning, Monday 6th June 1983, I had a head cold and a sore throat. I was not well enough to go to work. My sister came around at about 9.30 a.m. and then went to pick up Mum. My mother came home later that morning and she and I stayed home the rest of the day until I went to Dr Cowan’s surgery, but there seemed to be nobody there so I came home.
‘Later that night I went to Dennis St Dennis to get my hair done. His cousin and mother were there. I told them I had a wog. Dennis was going on holidays and it was the only time he could do my hair.
‘On Tuesday 7 June, I was feeling worse and my mother made an appointment for me at her clinic and I saw Dr Munro, as you have heard. He examined me and told me I had what was going around. He prescribed Amoxil, which I got from the chemist on the way home. He also gave me a sickness certificate for a week. My mother was home during that week and I slept a fair bit. Apart from taking my mother shopping at Target one afternoon, I did not go out at all later that week. Lynn Pratt from work came over on Thursday night with my pay. I was sick in bed when she came.
‘The next weekend was a long weekend. I do not remember doing anything on the Saturday but on the Sunday night I went out as I told the police. On the Monday night some friends from the Harp Society came to our place. I went back to work on Tuesday, 14 June and worked there every workday until I went overseas on 11 August 1983.
‘In the period from Tuesday, 14 June to Sunday, 10 July 1983, I do not specifically remember what I did most nights or on weekends. My mother was at home at nights and as far as I can remember at weekends too. My mother does not drive a car and if she went out at night in that period it would have been with me. I do recall that in the June/July period I worked back a fair bit as Mr Martin, my boss, said.
‘Three nights that I do specifically remember now are: Tuesday, 21 June, when my mother and I went to a dinner party at a member of the Harp Society’s house; Wednesday, 6 July, when I went to a Harp Society meeting; and Sunday, 10 July, when my mother and I went to a birthday party for a relative, Mrs Gladys Amoy.
‘I slept in as usual on the Sunday morning and we arrived at the Amoy’s some time late in the afternoon. We stayed there until about 1
0.30 p.m. or so. We took a lady by the name of Mabel Gough to her home and arrived home at about 11 p.m. I went to bed and did not go out again that night. I went to work the next day.’
It was interesting that everything that von Einem told about related to family and the Harp Society. Obviously, he didn’t want to talk about any of his other friends — the businessman, the transvestites, the transsexuals and his young male friends.
‘On Thursday, 28 July 1983 Detective Kipling questioned me about Richard Kelvin’s disappearance and death. As you already know I did not tell Detective Kipling the truth about my involvement with Richard Kelvin on Sunday, 5 June. I did not want my mother to know that Richard Kelvin had been in her home. I realise now that I should have told the police the truth but as time passed I was frightened to tell anyone.
‘As you have heard, the police found a number of different types of drugs at my home. You have also been told about medication that has been prescribed for me over the years. All the drugs found at my house were prescribed for me. Over the years I have required a lot of drugs for nerves, sleeplessness, anxiety and depression. The medication which I did not often use was kept on a ledge behind the mirror of my wardrobe. I have never been prescribed, nor have I ever used, Amytalobarbitone.
‘On the night of Sunday, 5 June 1983, I did not give Richard Kelvin any drugs; I did not abduct Richard Kelvin or have any further contact with him after I dropped him off on North Terrace that Sunday night. I do not know what happened to him after that.
‘I ask you to find me not guilty of murder.’
Von Einem’s statement would have been written for him. He was intelligent enough to make up one of his own, but obviously Barry and Helena wanted to cover all of the points given by the witnesses. Von Einem’s unsworn statement did not address the issue of hair and fibres. His defence team knew that would get him into trouble, so they left it alone.
Barry Jennings then asked Janet Amoy to take the stand. This was one of the defence team’s last throws of the dice. Janet Amoy was the daughter of an elderly relative of Bevan’s mother and she told of a birthday party for her mother that happened on 10 July 1983, the day Richard Kelvin was most likely dumped at the airstrip. She said that von Einem and his mother were at the birthday party from about 5.30 [p.m.] until 10.30 p.m. on that Sunday. If this was true, then at the most likely time Richard was dumped von Einem’s presence was not possible.
Evidence was given by the dog man that he was walking his terriers on the airstrip on that Sunday afternoon. He walked his four dogs into the scrub where Richard was found and the body wasn’t there at that time. Therefore, Richard had to be dumped on Sunday night, after von Einem had taken his mother and her friend home. This was a problem for our case. If Barry Jennings could raise doubt about any of our case we could be in trouble. Little things like that could bring us undone. The jury could imagine a person who worked a normal week dumping someone at night on a weekend. Sunday night would be nice and quiet but if von Einem was with relatives that night then jury members would start hesitating about any decision that they may make.
Brian Martin questioned Janet Amoy closely. Yes, she was sure that it was Sunday 10th July. Her mother’s birthday was the next day but she wanted to have the celebration on the weekend. Also, her brother works on the Saturday in a hotel and she wanted him there. Yes, it was that weekend, there was no doubt in her mind. No, nobody suggested that she should come forward. She had been reading about the trial in the paper and remembered that the party was on that day.
How is Brian going to handle this? I thought. He hasn’t knocked out her story.
Could we have made a mistake?
Barry Jennings called his next witness. It was Thora von Einem, Bevan’s mother. She was seventy-four, grey and small, but she moved confidently and without support to the witness box. She opened her evidence by telling the court that she was a widow with two sons and a daughter. She had lived with her son Bevan von Einem at Paradise since April 1983. Before that, she lived with her son in a unit at Campbelltown for five years. Three days a week she was a volunteer at the North Eastern Community Hospital near her home.
Her evidence supported her son’s story. She said that her son was home the weekend Richard went missing and was in bed with the ’flu most of the following week. He couldn’t have been with Richard. However, under cross-examination, Brian Martin broke her story. Brian did a fantastic job but he had to be careful not to put the jury offside by attacking an elderly woman who appeared genuine and honest.
Brian reminded Mrs von Einem of a conversation she had with me when I spoke to her in August while her son was overseas in Europe between 11 August and 22 September 1983.
‘Did you say to Mr O’Brien, “So Sunday he didn’t go out. Saturday night you know he didn’t feel well enough.” Did you say that to Mr O’Brien?’
‘I don’t know about that, whether I did or not. I could have. I don’t know. I’m sorry.’
‘In fact, he did go out Saturday night, didn’t he?’
‘Yes.’
‘He came up to Houghton.’
‘Yes, that’s right.’
‘You don’t know, do you, whether he went out on the Saturday or not?’
‘No.’
Mrs von Einem also said in her statement to me that her son did not go out on the following weekend, but when Trevor interviewed him at the Adelaide Jail he said that he picked up two hitchhikers the following Sunday night. He was out and about picking up boys. Brian showed her to be a mother who would say things to support her son whether they were true or not yet he didn’t show her to be an out and out liar. He just showed that she didn’t really know what her son was up to.
Barry Jennings didn’t re-examine Mrs von Einem. He appeared to accept that only more damage would be done. Mrs von Einem was Barry Jenning’s last witness. He then presented the defence case. Barry was very clever in his summing up. He was cool and clinical. He stressed to the jury that his client did not have to prove his innocence. It was up to the prosecution to prove that von Einem murdered Richard Kelvin. Barry conceded that someone had killed Richard although the actual cause of death could not be proven. Barry Jennings may have made a mistake by conceding this. He did not have to do so. He could have stressed that it was up to the prosecution to prove murder — the intentional killing of a person. If the prosecution couldn’t prove a cause of death, then the case is just that much weaker. Barry could have raised doubts in the minds of the jury about this point.
He stressed to the jury that although von Einem admitted he was a homosexual, this was no longer a crime in South Australia and being a homosexual did not make a person a murderer. He was appealing to the jury members’ rationality, suggesting they should not be emotional with their decision. Barry Jennings also did not talk about the evidence of the fibres and hair in his summing up. He knew that it would remind the jury of this strong evidence against von Einem.
While Barry Jennings was cool and clinical, Brian Martin was far more emotive. He did not rant and rave, but the words were passionate and penetrating. During his address Brian did not refer directly to the damning evidence presented from the finding and examination of the hair and fibres but made the assumption that the jury accepted Richard was with von Einem. He talked about Richard’s death.
‘If the death resulted from an accident or if the death resulted in some way that was not murder why hasn’t the accused told you? Why hasn’t he stood up and said, “Look, it wasn’t murder. I have done something wrong but it wasn’t murder.” Instead he’s continued with his second false story. His first one goes way back to July. The only reason he changed that, you might think, was because the Crown could prove that [Richard Kelvin] had been in his house. He’s continued with that.
‘He cannot even get close to the truth for you because it’s obvious that to do so would mean disclosing the names of his accomplices. Why wouldn’t he be prepared to do that? Why wouldn’t he tell you who they are? It is a fairly simple an
swer. He knows that if they are located they will further implicate him in the murder. If he’s had nothing to do with the killing at all, why not say, “Yes, it was so-and-so and so-and-so, and go and see them.” But he can’t, because he knows that they probably know the truth of the matter, that they will, to use the colloquial expression, “put him in” for murder.’
Brian reminded the jury of the evidence of Richard’s mother. This was a smart move. Recalling the evidence of Betteanne Kelvin balanced the more recent evidence of Thora von Einem, who said her son was home most of the first week Richard was missing.
‘ “Mum, I’m in love with Brigitta and I think we’ll get married and have lots of kids.”
‘That, ladies and gentlemen, is the young man that this accused says just wandered up to the car, arms on the roof: “Can I have a beer?” Hopped in, “Let’s go for a drive, let’s go to your house. Forget about ringing [his girlfriend]. Forget about seeing the movie with Mum and Dad; don’t worry about the fact that Mum and Dad are going to go around the bend because I’m not home.” I could use a lot stronger word than nonsense to describe the story. If I did I would probably get into trouble.’
Brian asked rhetorical questions for the jury to ponder:
Why did von Einem drive in the opposite direction to North Adelaide when he was due to go and pick up his mother at Houghton?
Why didn’t von Einem pick up his mother on the Sunday night?
Why was he travelling south along O’Connell Street when he saw Richard Kelvin? If he had just come in to town from home he would have been travelling north along O’Connell Street.
Why carry an esky in his boot when he drinks in moderation?
Why did he pick up Richard Kelvin?
Why did he take him home?
