Lambs to the Slaughter

by Debi Marshall

  If a prisoner pleaded not guilty by reason of insanity, the powers available to the judge were different from other cases, but Melbourne's legal fraternity was well aware that the decision to air this fact to the jury at the opening was ahead of its time. Normally the defence sat on its hands and waited for the prosecution to show its case, and it would ultimately still be up to the jury to decide whether the defendant was guilty or not.

  The prosecutor, Mr Fitzgerald, acknowledged the unusual nature of the opening. 'Your Honour, if I may say so, as at present advised it appears to me this is one of the few cases I have ever presided over at a criminal trial at which I have been told what the defence was before the case even started. Mostly I'm waiting until counsel has all sat down to find out what it is going to be.'

  Hampel asked Justice Pape if he might instruct the jury accordingly. 'I would be willing to say it,' Pape conceded. 'The only difficulty about it is when it ought to be said. If one tells the jury that before the opening, it is rather like having three Princes of Denmark in a performance of Hamlet, isn't it? You are telling them something before they've got any idea of what the case is all about.' But say it Pape did, and Percy's sanity or lack thereof at the time of the incident became the only issue at trial. His confession to police, the filmed reenactment and the overwhelming evidence against him, including him directing police to Yvonne's body, all pointed to his guilt. Percy could take refuge in no defence except one: the claim that he was insane either before he murdered Yvonne Tuohy or at the time of her death and he was thus not guilty by reason of insanity. Hampel also did not object to Pape's waiving of the rule that witnesses cannot be led, that is, asked questions in the manner which suggests the desired answer.

  Percy, quiet and withdrawn, did not take the witness stand. His solicitor, Graham Berkovitch, in consultation with George Hampel, decided it was in his best interests to remain silent. With the jury seated back in the courtroom, the horror of what happened to Yvonne on her stroll to the beach unfolded. The court heard about the abduction, the murder, the police evidence, saw the photographs of Yvonne's body in situ. Events leading to Percy's arrest were described and the quiet voice of Dr McNamara detailed Yvonne's injuries, how her throat was slashed when she was still alive and her body smeared with human excreta and semen. A female juror, overwhelmed at what she saw and heard, fainted and an adjournment was called while a doctor attended. Other jurors put their heads down, choking back tears, fumbling awkwardly for handkerchiefs in small vinyl handbags as the men crossed their arms on barrel chests or portly stomachs, shuffling uncomfortably in their seats.

  Outside, in the court hallway where she could hear none of the evidence nor see the jurors' faces, Elaine Percy, jowls sagging with the weight of the circumstances, cut a solitary figure, sitting alone and worrying her fingers together as if she was kneading dough. Ernie was at home in West Ryde but Elaine made the trek into court alone every day from the Melbourne caravan park where she was staying under a false name, so the media wouldn't recognise her. She didn't want to get into the thick of it, she would later admit. It was her son in there, sitting in the dock, but she wanted nothing to do with it. It wasn't their fault, what he had done, and they couldn't be blamed one skerrick for it. Elaine Percy wore denial like a thick woollen coat.

  Prior to the mid 1800s, the simple litmus test for insanity was whether the accused was totally deprived of his understanding and memory and did not know what he was doing, any more than a wild beast or an infant would have. But the test that is applied today is the McNaughton rule. In 1843, Daniel McNaughton attempted to assassinate British Prime Minister Robert Peel and the House of Lords sought the advice of a panel of judges to establish guidelines for juries in cases where the defendant pleads insanity. The test, as ruled by the House of Lords, has been used ever since. 'To establish a defence on the ground of insanity,' it reads, 'it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' If an accused satisfies the test rules, the court can take a humanitarian approach by treating the illness rather than punishing the individual, sentencing the defendant to a secure hospital facility for an indeterminate time, instead of a sentence to prison.

  On the last day of Percy's trial, the media filed into the press box, pens poised. With the crown case running dead, the drama had largely been removed from this trial. The best they could hope for was an outburst from the prisoner, but looking at him in the dock, ashen and withdrawn into himself, that seemed highly unlikely. The public came too, eager to see this deranged man up close, many of them slipping into the public gallery and out again soon after, uninterested in the drone of psychiatric opinion. In the dignified majesty of this Supreme Court, all appeared quiet, ordered.

  Detectives Knight, Delaney, Porter and Robertson sat at the back of the court watching proceedings. As Robertson looked at Percy, he remembered Yvonne Tuohy at Devon Meadow, remembered, too, how Percy had admitted to him in an earlier interview that while on beaches in New South Wales he had entertained sordid thoughts towards children and might well have committed other offences had they not been in the company of their parents. How many other children had this bloke murdered? he wondered. How many others?

  Knowing how the system works and how the best investigations can be pulled apart, thread by thread, by expert witnesses or a bewildered jury, the detectives were not hopeful of achieving the outcome they thought Percy deserved.

  The death penalty.

  26

  Three psychiatrists took the stand during Percy's trial. All were of the same opinion, that he suffered from 'an acute psycho-sexual disorder' and that while, with hindsight, he knew what he had done was wrong, his mental disturbance was so great during the actual murder his reason failed him at that time. Percy, Bartholomew intoned, could appear to be a 'normal chap' but he could also, at the same time, be ill.

  'In other words, you can have a good day and a bad day. Is that it?' Justice Pape asked.

  'Yes,' Bartholomew agreed, 'except I think I would be inclined to say that . . . he is an ill individual but on some occasions he is manifesting it very, very clearly and on other days he is not.'

  Dr Bartholomew was already acquainted with Percy, having examined him numerous times since he had first entered prison nine months before. During his years at Pentridge, Bartholomew had been involved in the review of more than 1500 cases but he admitted he was at a loss to categorise Percy's sadistic paedophilia as he had no previous experience with that unique condition. In seeking to find whether Percy was fit to plead, he had read all his notes and the police records of interview, perused the depositions of witnesses and examined Percy's disturbed drawings. He had also given him several tests: recording his brainwaves, checking for any chromosomal disorders and examining him psychologically. Privately, Bartholomew confided to colleagues that what he needed to argue in court did not exist as a defence in Australia – the notion of diminished responsibility based on a psychopathic disorder.

  Part of the common law of Scotland and later introduced in the UK, the concept of diminished responsibility ruled that a person who would, in ordinary circumstances, be found guilty of murder, not be convicted of such if their reasoning was impaired by an abnormality of mind caused by an underlying condition, or if that impairment – psychopathy or severe personality disorder – was so great that a manslaughter, as opposed to a murder, conviction was warranted. While the defence of diminished responsibility later became available in revised form in some Australian states and territories, the concept of a person being only partly responsible for their actions was rejected as questionable by the Law Reform Commission of Victoria in 1991, twenty-one years after Bartholomew rued that it was not available as a defence for Percy.

  Bartholomew told the court that, when interviewed, Percy had ventured not
hing beyond answering the questions asked of him and that while he had recognised in early adolescence that his excretory habits, his highly sexualised jottings and interest in children were different from other boys, he never thought he would be game enough to act out his fantasies. The psychiatrist could find no outward physical reason to support his 'disease of the mind': no drug addiction, alcoholism or head injuries, which can trigger violent episodes. Percy, he said, showed an 'extraordinary flat emotional state and coldness' and while it was not known in medical circles what caused his condition, this 'gross psycho-sexual disorder', he could not form a notion of wrongness about what he was doing. No tag, such as schizophrenia, fitted him but he suffered, Bartholomew stated, from 'hysterical repression', which is different from amnesia, a defence often used in courts when defendants do not wish to remember. Repression, he continued, is the cause of Percy's amnesia, enabling him to forget things he is not proud to remember or which are horrifying to him.

  The detectives stole sideways glances at each other. Hysterical repression? What bullshit. They looked sideways again when Bartholomew raised the issue of what Percy might have done prior to his arrest. 'I am not sure whether this is a proper remark to make but it is not beyond the bounds of possibility,' he said, 'that there has been some other great harm done in the past and there is no way of knowing it.' And, he added, 'there is no correlation between this sort of behaviour and ability to argue that two and two make four. Some of the most disturbed people have been the brightest in history and some of the dullest people can be very disturbed.' Bartholomew was adamant: Percy was an ill individual whose aberrant behaviour varied in intensity depending on whether he was busy or alone with his fantasies. 'Without any shadow of a doubt,' he concluded, 'at all stages I have seen him, I would have certified him.'

  Psychiatrist (now Professor) Richard Ball undertook postgraduate training in psychotherapy and forensic psychiatry at the University of Toronto, Canada, before migrating to Australia from his native England in 1962. In 1965 he had various roles at Melbourne's Parkville Psychiatric Unit and the University of Melbourne's Department of Psychiatry. In the lead-up to Percy's trial, Ball asked to see the young man charged with the most heinous of child crimes. Dr Ball told the court of Percy's escalating deviancy, brought on in part by lack of parental constraints once he joined the navy and his increasing progression from his disturbed fantasy life to action. Sexual deviants, he said, could be placed into two distinct groups: those who were satisfied with their activities, such as exhibitionists, and those who were not. In the latter group, a person's inner conflict was not resolved and their deviant acts often escalated with the lessening of self-control.

  Psychiatrist Dr L. Howard Whitaker, describing Percy as a coprophiliac – a person with an abnormal, often obsessive interest in excrement, especially the use of faeces for sexual excitement – also admitted that he knew of no term that encompassed the act of smearing faeces on another person. But while Whitaker struggled to label some of Percy's fetishes, he was in no doubt about what the man was capable of. Killing, he later wrote, was for Derek Percy the ultimate sexual act. His instincts were clearly expressed through destruction. It was difficult to believe, he said, that Percy had not killed other children.

  Justice Pape praised the quick thinking of Yvonne's young friend, Shane Spiller. 'You may think that this lad was a very observant boy who gave his evidence very well indeed,' he told the court. 'It is plain that but for his accurate observation of this car and its occupants, the police may have had a very difficult task indeed in locating the girl's body and in apprehending the accused . . . Unless the accused had led police to the spot . . . where the child's body was found, it may have been a very long time indeed before that body had been found.'

  When the jurors struggled to comprehend the sexual sadism inherent in Yvonne's murder and the sometimes conflicting testimony of the three psychiatrists, Justice Pape sought to demystify it for them, asking them to not consider it in medical terms but rather to consider that Percy suffered a 'disease of the mind' which brought with it 'certain results and disabilities'. This jury of twelve, he reiterated, had to be certain, beyond a reasonable doubt, that the act that resulted in death was voluntary, or conscious, on the part of the accused.

  Percy's trial lasted six days. When the submissions had been heard, the jury filed out, solemn and quiet, and less than two hours later returned with its verdict. Not guilty, by reason of insanity. Percy, Pape intoned, should be held in safe custody until the Governor's Pleasure was decreed. In the dock, Percy's expression did not change when he heard the verdict. Outside, when told the verdict, Elaine nodded solemnly, picked up her handbag and walked out of the court precinct. A short while later, Percy left court for Pentridge.

  Several days after the trial, Elaine retrieved Derek's car for which they had gone guarantor. It was covered in police chalk dust and she obsessively boiled water in the caravan where she was staying, then scrubbed it clean in a paddock. She felt numb, dead, as if her heart had stopped beating.

  A month after Pape's ruling, the Governor's Pleasure was decreed. Percy would be kept in safe custody for an indefinite period of time.

  Home in Newcastle, Ernie Percy received confirmation of the sentence in an abrupt telegram from Derek's law firm. 'Derek found not guilty on defence raised. Stop. Letter to follow. Stop.' After Elaine returned, a letter from Berkovitch arrived and spelt out what they already knew. 'At this stage, Derek will be confined to Pentridge Gaol at the Governor's Pleasure. As mentioned to you previously, it would be unlikely that he would be released for a considerable time and in accordance with the Statutory Regulations he cannot be released until a responsible authority is satisfied that he is fit and able to be returned to the community at large.'

  Elaine filed the letter with newspaper clippings of the case.

  From then on, neither she nor Ernie would ever discuss what had happened. They figured what's done was done. And it couldn't be undone. When Derek's few possessions – some clothes, his guitar and its case – were returned to Elaine she was unsure what to do with them, and finally decided to put them in the spare room along with his other possessions that she wanted to keep.

  In 1978, influential legal Professor Glanville Williams asked: 'If the McNaughton rules amount to little more than a denial of mens rea (malice aforethought or evil intent), why can't the defendant say, "I am not setting up a defence of insanity. I am denying mens rea, with the aid of medical evidence, and although I may be a bit wonky upstairs, I want an ordinary acquittal, not your poisoned gift of an insanity verdict?"' The 'poisoned gift' is an apt description. It is a gift that Derek Percy would come to rue receiving, despite his escape, by virtue of the court's verdict, from the possibility of facing the hangman's unforgiving noose.

  Sitting quietly in the back of the prison van as it pulled away from court, Percy's face showed little expression. The van entered Pentridge gaol's imposing gates and disappeared beyond its bluestone walls. As they had when he had entered through the gates of HMAS Cerberus, once again officials recorded his details on arrival. Name: Percy, Derek Ernest. Date of birth: 15.9.1948. Place of birth: Strathfield, New South Wales. Prison number: 5392.

  Word had reached the inmates that Percy was coming in. Within the criminals' code of honour, rock spiders – paedophiles – are detested. Insane or otherwise, if they could get to this bloke, credited with the most shocking child murder in Australia, they would give him their special welcome, the so-called 'reception biff' and tear him apart, limb by limb. Authorities could take no chances with him. Percy was taken straight to G Division, a secure section of the prison which housed psychiatric and insane inmates and which had visiting psychiatrists. Despite the legal nuances of the insanity verdict, all prisoners deemed either mentally ill or insane exited through the same door from court, and all roads led to G Division. That would be his home for the next sixteen years.

  Staffed by male psychiatric nurses and uniformed officers, G Division contained
three exercise cells off a small yard covered by an iron roof with barbed wire edging, and an observation cell for difficult inmates. The single 3 metre by 1.9 metre cells had rudimentary facilities: a stainless steel toilet pan, wash basin, bed, bedding and blankets. Prisoners were locked in for fifteen hours a day.

  Percy settled easily into a prison routine. Sequestered away in protective custody with other sex offenders and those whose lives would be at risk in the general population, shortly after his arrival he started to play the guitar and tennis and in his cell he pored over novels with a sci-fi bent or stories involving the sea. But even in protective custody, he wasn't immune to the threats of cement-faced crims who hissed at him as he passed on his way to different areas of the prison, their knuckles, adorned with gaol tats, clenched into angry fists. Watch your back, maggot. You're a filthy little cunt, Percy.

  Before long, Melbourne's Herald newspaper had picked up the scent of Percy's possible involvement in other child abductions and murders, running the sensational story on its front page accompanied by photographs of the children and Percy. 'Killer Quizzed On Eight Child Murders' screamed the headline. 'Each time, he was close at hand, say police'. Quoting Dr Whitaker – 'his impulses to hurt, mutilate and destroy other human beings were a substitute for the normal affectionate, loving, warm sexual behaviour of an ordinary man' – the article incorrectly claimed that Percy was, without doubt, in Canberra for Allen Redston's death and in Adelaide for the Beaumont abductions. It was a misconception that journalists repeated every time they ran a story on Percy.

  From the outset Percy showed no interest in undergoing any ongoing one-on-one rehabilitation programs to address his sexual inclinations. Prison psychiatrist Dr Alison Levick treated him for a very short time in 1971 and he participated reluctantly in a group therapy program after his arrival at prison. But he only went a few times.