About similar fact evidence
WRITER: Rachel Spencer
PHOTOGRAPHER: Randy Larcombe
The Emily Perry story and the 'right to know' in the context of a fair re-trial.
The most cursory glance at the shelf space devoted to ‘Crime’ in just about any bookshop demonstrates the apparently insatiable appetite of the public for this genre. And when crime is fact rather than fiction, the news it generates is a valuable product.
When a crime is committed, two opposing forces come into play: the right of the accused to a fair trial, and the right of the public to know what is going on. The principle of open justice is a longstanding and fundamental aspect of our legal system. Members of the public are entitled to know what happens in the courts in order to maintain confidence in the administration of justice. However, the general entitlement to publish reports of open court proceedings does not include an entitlement to publish any information about the accused that the public might find ‘interesting’.
A journalist might argue that as much information as possible ought to be published about an event or a person, in order that the whole truth will eventually emerge, and the public will be accurately informed. A lawyer, on the other hand, acting in the best interests of the client, will argue that the client has the right to a fair hearing (including the benefits of the rules of evidence), and the right to hear all allegations before commenting or pleading. Where an accused is to be tried by a jury, media comment prior to trial has the potential to influence and prejudice potential jurors.
In South Australia in 1981, Emily Perry was tried for the attempted murder of her husband. The Crown case was that Mrs Perry had administered small quantities of poison in her husband’s food and drink, over a long period of time, intending to kill him. An important component of the Prosecution case was a narrative about the earlier deaths from poisoning of three other men who had also been closely associated with Mrs Perry. However, the alleged victim in the trial denied that his wife had ever attempted to harm him or kill him. The defence claimed that Mr Perry received his lead and arsenic poisoning from repairing an orchestrelle which had contained lead arsenate. In and out of court, Mr Perry staunchly defended his wife. This was unique in South Australian legal history. The Prosecution was unable to give the ‘victim’ the expected role in the attempted murder narrative because he refused to accept it.
The trial, which lasted for sixty days, received vast media attention. 164 witnesses gave evidence. The trial judge spent considerable time addressing the jury about how the ‘similar facts’ about the deaths of the three other men could be used. The jury found Mrs Perry guilty of attempted murder. She appealed to the South Australian Court of Criminal Appeal, arguing that the evidence relating to the deaths of the three other men should not have been disclosed to the jury, but the appeal was dismissed. Mrs Perry then appealed to the High Court of Australia whose Chief Justice described it as a ‘difficult case’. The High Court quashed the conviction and a re-trial was ordered. But the prosecution never re-tried her.
The Emily Perry story is an example of the opposing perspectives of lawyers and journalists. It is unlikely that Emily Perry could have obtained a fair re-trial in South Australia after the narrative about the three earlier deaths had been given such vast media attention. Once the media had published its own narrative, could the justice system really ever deal with it? Would it have been possible to find an untainted, unbiased jury for a re-trial? The right to a fair trial will always struggle for supremacy when pitted against a voyeuristic public with a keen ear for a good story.
> This research is part of Rachel Spencer’s PhD candidacy at Flinders University. To find out more, please contact Rachel through the UniSA School of Law