Emily’s long awaited trial began with Jury selection. Duncan used his challenges — the option to exclude a person from jury selection without reason — to try and select more women than men on the jury. He believed that women would be more compassionate to Emily’s plight.
Duncan also tried for younger aged jurors. It was his theory that the younger were more open minded to accept Emily’s psychic abilities, compared to the closed minds of the older generations.
The long process culminated with a Jury of seven women and five men selected and sworn in. The average age of the Jury was around late thirties to early forties, which Duncan was satisfied with, given the average was artificially bolstered by two Jurors of retirement age.
A throng of television media recorded Emily’s arrival at court, as she stepped from the prison van into the court building. From there she was taken to a holding cell while waiting to be called into court. The cell was a stark room with no toilet, no bed and timber bench seats lining the wall.
Emily sat in the corner of the cell quietly passing assessing eyes over the other four people in there with her; three males and one female. Every one of them was heavily tattooed. To Emily, they all looked rough around the edges; people who had lived tough lives.
Most of them had poor dental hygiene. Numerous teeth were missing, while those teeth that remained were crooked and heavily stained.
Their conversations bordered on moronic. None were foreigners to our shores, but many of them failed to articulate sentences remotely resembling the English language as she knew it. Obtaining an education was clearly not the priority for any of these cell mates, she mused.
Emily was thankful to be the first from the cell to be called forward. A Corrections Officer escorted Emily through the inner bowels of the court building to a timber door. When the officer opened the door, bright light flooded in. Emily stepped into the prisoner dock located off to the side of the Supreme Court.
She passed a nervous first time glance around. The large open room was brightly lit with timber lined walls and high ceilings.
At the front of the room was the large elevated timber bench. An empty high-backed leather chair sat below a framed picture of a much younger Queen Elizabeth II.
Rows of empty chairs provided for the public gallery were positioned behind the bar table, which was currently occupied by numerous lawyers fussing about.
For Emily it was like stepping back in time to the English 1800s. There were so many wigs and black robes worn by the legal counsels.
She had only seen Duncan wearing his bespoke suit at the Magistrates Court. Standing at the bar table with his colleagues, he now wore the uniform of the Queens Counsel, colloquially referred to as ‘Silks’ because of the black full length silk robes they wore in the higher courts.
Duncan appeared so different to how Emily remembered him. He wore the Barrister’s traditional off-white, horse-hair wig with tight curls and little pony tails hanging down. He also wore the full-length black silk robe with a white jabot, which is a type of white bib with a plain collar and two strips of straight white fabric Barristers wore around their neck.
As a first timer to this level of court, it was all very regal in appearance to Emily.
Emily took her seat in the dock. She didn’t like sitting over there. She was not the criminal they’d made her out to be, yet she was forced to sit in this open, timber enclosure with a Corrections Officer escort. The whole process of being treated like a convicted criminal before her court trial, undermined her presumption of innocence.
The judgemental scrutiny Emily received from public and press as they filed into court offended her dignity. The whole process was humiliating. She was effectively put up on a pedestal for all to see and judge.
At the instructions of the Tipstaff—the Judge’s court room assistant—all present in court stood for the Judge’s entrance. The Judge ambled in through a door located beside his bench. Dressed in a regal red gown and white wig, the Judge was an older man, probably in his mid to late sixties.
He instantly commanded a presence in the room. Following the standard bow, everyone sat. Emily frowned across at the empty Jury box. Where’s the Jury? I thought Duncan said they’d already empanelled a Jury.
Duncan stood and introduced himself to the court. This was followed by the Crown Prosecutor doing the same.
Following conversations between the Judge and Counsellors at the bar table, of which Emily couldn’t follow, the Judge asked Duncan for the defence’s plea.
‘How does your client plea to the charges Mr Jervis?’
Duncan jumped to his feet. His focus shifted to Emily. He gestured to her to stand, which she did. ‘Are you happy to accept the plea through me, Your Honour?’
‘Is your client’s ability to speak in some way impaired?’
‘No Your Honour.’
‘Then I’ll hear the plea through the accused directly.’
‘Very well, Sir,’ Duncan said.
The Judge’s firm glare shifted to Emily. ‘How do you intend to plead in relation to the charges against you?’
All eyes in the court were now on Emily. Her heart rate instantly rose. She rubbed her hands together as her gaze shifted to Duncan. Her eyebrows lifted. Is this where I say not guilty? Duncan gave a single nod of reassurance. That was enough for her.
‘Not guilty, Your Honour,’ Emily said in a firm tone. She wanted to sound convincing.
‘Ah, that plea applies to all of the seven charges Your honour,’ Duncan clarified.
‘Thank you. I have recorded a plea of Not Guilty to all charges.’
Duncan took his seat. He gestured to Emily to sit, which she did.
The Judge instructed the Tipstaff to bring the Jury in.
A door opposite where Emily sat, opened. Emily watched the twelve people chosen to decide on her future, file in and take a seat in the Jury box. Most glanced straight across at her. She felt them judging her.
The door to the rear of the court room opened. Emily smiled when Boyd entered, followed by her mother and father and Naomi. Trailing behind them was her older brother and his wife and her younger sister, who had flown over from Perth to show her support.
They moved to sit in the first row, behind the Bar table. Emily smiled her welcome to each of her support team. But it was her husband she couldn’t take her eyes off.
The opening arguments were presented. The Crown was first to summarise what they would prove to the court. A heavy focus was placed on Emily’s list and how the accused knew the location of seven missing persons, each of whom had been murdered.
The Prosecutor briefly touched on Emily’s claim to possess psychic abilities, and how scientific theory questioned such an ability. He closed by adding a comment about when the Jury learned that the accused failed to present any evidence to validate these psychic skills, they would have no alternative but to return a finding of guilty.
Duncan stood from his seat and addressed the Jury. ’Throughout this trial you will hear evidence from the Crown about how psychic phenomena, in particular, the psychic ability to communicate with people who had passed on, is not supported by modern science. That is merely a heavily debated and inconclusive scientific finding.
’People in nearly every culture have believed that communication with the departed is possible. Ghosts and spirit communication appears in classic literature, including mythology, the Bible and Shakespeare’s plays.
‘Some of you may have heard of an American woman by the name of Alison Dubois. Ms Dubios is a psychic medium who studied to become a prosecuting attorney…’ he said gesturing towards the Crown Prosecutor. ’Until she decided she could offer more by using her mediumship abilities professionally.
’Today she is one of America’s most sought after mediums, regularly employed by law enforcement agencies to assist in solving crimes and locating missing persons. They even created a TV series about Ms Dubois called, “Medium”. Some of you may have seen that show.
’You may be interested to learn that Ms Dubois volunteered herself to be subjected to a variety of tests and experiments to prove her abilities. The results are all published and they demonstrated, not only did she possess genuine mediumship abilities, but these abilities were considered exceptional.
‘But whether you are a believer or a non-believer in psychic phenomena is irrelevant to these proceedings. You are not here to find on the existence of the afterlife, or one’s ability to communicate with the dead. Your job is to decide on whether the Crown proves beyond-a-reasonable-doubt,’ he said with deliberate emphasis, ‘I’ll say that again…’ he paused to eye each of the Jury members. ’The Crown needs to prove beyond-a-reasonable-doubt….that my client is guilty of these charges of murder.
‘If you remain impartial to your beliefs on life after death and find solely on the evidence presented to this court, you will find that the Crown has no evidence linking my client to the crimes for which she had been accused and you will have no option but to return a verdict of Not Guilty. Thank you.’
Duncan returned to his seat at the bar table.
Based on Emily’s understanding of court room procedure acquired from watching movies, most of which were US movies, they were standard opening arguments presented by each team.
Before commencing, the Crown Prosecutor asked the Judge to direct all witnesses involved in this matter be excluded from sitting in the court.
The judge responded by directing all witnesses to wait outside the court until called to present evidence
Emily’s disapproving gaze watched her husband and friend, Naomi exit the court room.
Once the last of the witnesses had exited, Detective Sergeant Max Higgins was the first witness to be called. The rear door opened and Max entered the court room. Emily watched the Sergeant amble through the court and enter the witness box. The Tipstaff swore him in.
Emily listened with interest as Max presented his evidence to the court. Not surprisingly, the evidence he presented was the same as what they presented at the committal.
The Crown Prosecutor stood at the bar table while Max gave his evidence. The Prosecutor was a short, weighty man with a thick head of dark hair protruding from under his wig. He wore armless, narrow reading glasses perched on the end of his nose.
Like Duncan, the Prosecutor also wore the traditional horse hair wig and full-length black silk robe and jabot.
During his evidence, Max introduced how Emily attended at the Geelong Police station with a list containing seven names. He referred to it as Emily’s list.
‘What was so significant about that list of names the accused gave to police, Detective?’ The Prosecutor asked Max.
‘It contained the names of seven, long-term missing persons I was investigating at the time, each of whom was suspected of having met with foul play…and it also contained the location as to where their bodies could be found.’
‘I see…So each person named on that list the accused gave to police, was deceased?’ He said, as a question then glanced at the Jury over the top of his glasses.
‘We were not aware at the time we received the list, but yes, when police later found each victim, they were deceased.’
‘How was it police found these seven bodies, Detective?’
‘As I said. The list the accused gave to police provided the location of where the seven bodies were located,’ Max said.
The Prosecutor shifted his focus to the Jury. He folded his arms across his corpulent stomach. ‘The list the accused gave to police provided the location of where the seven bodies were located,’ he repeated to the Jury for emphasis. ‘Did the accused explain how she obtained these names and whereabouts of these seven long term missing persons…?’
‘She did. She said she was a Medium…’
‘A Medium…’ The Prosecutor said. ‘Like a Psychic Medium...Someone who claimed they could communicate with people who had died…?’
‘Correct. The accused said the spirits of each missing person came to her and asked her for help in locating their bodies. She said their spirits told the accused where their bodies were located. She said she later prepared the list to help police find the bodies.’
Max introduced Emily’s list and entered it as an exhibit.
‘That’s extraordinary,’ the Prosecutor said. ‘Did the accused provide any evidence of this so-called ability to communicate with people from the afterlife?’
‘No. She said she was not able to.’
‘So…Even when faced with seven counts of murder…and the prospect of life in prison…’ The Prosecutor cast his eyes over the Jury. ‘The accused was unable to produce any evidence to prove she had this ability to speak to the dead?’
The Prosecutor scanned the Jury again. ‘I see… Could you please indicate on the large map on the easel beside you there Detective, where each body was located.’
One-by-one Max used an extendable pointer to identify the location of each victim’s body on the map.
Max also presented photographs of the crime scenes along with close up photos of the victim’s injuries that ultimately caused their deaths.
’As the investigating Detective, prior to receiving this list from the accused… did you have any knowledge as to whether any, or all of these seven missing person were alive or dead…
‘Yet the accused did, didn’t she? She even provided you with the locations of where to find their bodies.’
‘What did you conclude from the information contained in Emily’s list?’
‘Given the circumstances surrounding the murder of each victim, I formed the conclusion that only the person, or persons involved in the murders would know where the bodies had been dumped.’ Max glanced across at Emily. ‘From the information the accused provided on the list she gave to police, it was evident the accused knew where the bodies were located.’
The Crown Prosecutor returned to his seat.
Emily rubbed her perspiring hands down her thighs. Her eyes met her family gazing back at her. She forced out a straight-mouth smile. She’d heard it all before at the committal, but it was still overwhelming to listen to.
Duncan stood to his feet. He held an A4 sized yellow note pad. He flipped a page and scanned it. He flipped a second page. He continued his theatrics by turning a third page on his note pad. ‘Forgive me Detective…I must have missed some of your evidence…’ he said while scanning his notes. He glanced down at the Prosecutor seated beside him. ‘Can you remind me where your evidence linked my client to each victim?’ He said sarcastically.
Max attempted to answer. ‘The list your client gave to police provided the location of — ’
‘Yes. Yes,’ Duncan interjected. He arrogantly waved the back of a hand. ‘I heard that part.’ He turned towards the Prosecutor. ‘Surely you have more than a vague list…?’ he said before returning to face the Judge. ‘Surely you have some forensic evidence that connects my client to each of the victims.’ His tone was intentionally questioning and condescending. ‘DNA, clothing fibres, transfer, witnesses…anything?’
‘No. Just the list.’
‘I see,’ Duncan said. He placed the pad on the table and leaned on his hands. ‘You gave evidence that you located the bodies of…’ Duncan turned a page on his notes, ‘Brian Taylor, Jenny Cox and Malcom Denyer in a mine shaft near the town of Steiglitz.’ Duncan lifted the evidence bag containing Emily’s list. ‘Please explain to the court where this list stipulates those three bodies were in a mine shaft at the location where you found them,’
Duncan approached Max and handed him the list.
Max didn’t read the list. He placed it down on the front ledge of the witness stand. ‘The list doesn’t provide an exact location of where the bodies were located.’
On his return to the bar table, Duncan stopped and over dramatically pirouetted around to face Max. ‘I’m sorry. Can you please repeat that response, Detective…’
‘I said, the list doesn’t provide an exact location of where the bodies were located,’ Max repeated.
Duncan cupped his chin and scanned the Jury while Max repeated his answer. He approached the Jury. ‘The list doesn’t provide an exact location of where the bodies were located…’ Duncan repeated. He stopped in front of the Jury box and individually met the gaze of each Juror. He wanted them to remember that evidence.
Duncan’s focus remained on the Jury while asked his next question. ‘Your evidence here today, Detective was that only the person or persons who murdered these victims would know the whereabouts of their bodies...?’ He turned and approached Max. He gestured to Emily’s list. ’Yet that list you so heavily relied on for your evidence…does not provide any location for those three bodies in Steiglitz, does it? I’m confused Detective. If my client’s list didn’t lead you to the location of the bodies…How did you find these three bodies in the mineshaft near Steiglitz…?’
‘Like I said earlier, Malcolm Denyer’s mobile phone was found in his abandoned car. The Police technicians used data from the phone, as well as the phone’s inbuilt GPS to triangulate phone towers in the area. From that they provided me with a general location.’
’Ah yes. Mr Denyer’s mobile phone provided you with a general location…’ Duncan repeated. ‘So…without Mr Denyer’s phone, you had no idea of the location of the three bodies, despite being in possession of what you referred to as Emily’s list?’ Duncan said as a question.
‘That is correct. The phone gave us an area to search.’
‘The phone gave us an area to search…’ Duncan repeated as he passed his eyes over the Jurors. ‘Not Emily’s list…’
‘Well, the list sent us to Steiglitz, but the phone narrowed it down.’
Duncan held up a finger. ‘That’s not your evidence-in-chief Detective…’ Duncan said. ‘Allow me to remind you of what you said.’ He quickly returned to his desk and flipped through the pages of his note pad. ‘My learned colleague asked you…’ Duncan read from his notes. “This list provided you with the whereabouts of each victim’s body”...You replied, “That’s correct”...’
Duncan moved to stand in front of the Jury. He passed his eyes over each jury member as he continued. ’But what you are now telling me is, in actual fact, the list did not provide you with a location of the victim’s bodies, did it Detective…? Data extracted from Malcom Denyer’s mobile phone by police technicians provided you with the location of the three bodies in Steiglitz.’
‘Would you have discovered these bodies in Steiglitz without my client’s list, but by using Malcom Denyer’s mobile phone data?’
‘That’s hard to determine…’
‘Is it? I suggest it is straight forward, Detective. Did the list my client gave to police…this Emily’s list, provide you with the location of the victims’ bodies? It’s not that difficult of a question Detective.’
’No…The list did not provide you with a location of the victim’s bodies...’ Duncan repeated for the benefit of the Jury. ‘Malcolm Denyer’s mobile phone data did…’ Duncan flipped a page on his pad. He flipped a second page. ‘You seized my client’s mobile phone under search warrant, Detective. Did your IT technicians employ the same techniques used on Malcom Denyer’s phone, to place my client at the location where the bodies in Steiglitz were located?’
‘I see…And what did this technique conclude?’
‘There was no evidence that placed the accused in Steiglitz. But maybe she didn’t have her phone with her at the time.’
’I see. But we work on fact not “Maybe” Detective…?’ Duncan said. ‘I put it to you, your police technicians couldn’t find anything on my client’s mobile phone GPS because she wasn’t anywhere near Steiglitz.’
‘That is possible.’
‘Is it your evidence today Detective that there was no evidence located through analysis of my client’s mobile phone’s GPS to place her at the Steiglitz location where the bodies were located?’ Duncan re-clarified for the benefit of the Jury.
‘Did you use this same technique of tracing movements through the mobile phone towers and GPS to try and place my client at any of the other locations where the remaining four bodies were found?’
‘And what was the outcome of this technical analysis of my client’s mobile phone GPS and other data, Detective?’
‘There was nothing found that placed the accused at any of the locations where the remaining four bodies were located.’
Duncan glanced at the Jury as he repeated Max’s comment. ‘There was nothing found that placed the accused at any of the locations where the remaining four bodies were located…’
Duncan moved to the large map on an easel. ‘It is your evidence that the body of Libby Vassilliou was located here in the Otways Forest,’ he pointed to the location on the map. ’I’ll refer you my client’s list in front of you… please demonstrate to the court where Emily’s list directed you to that specific location.’
‘We only had a general location.’
Duncan over dramatized throwing his arms in the air. ’You only had a general location…’ Duncan repeated for the benefit of the Jury. ’It was your evidence, Detective that my client’s list provided you with the location of all seven bodies…But that is not accurate, is it Detective? My client’s list did not direct you to the three bodies in the Steiglitz mine shaft…Malcolm Denyer’s mobile phone did…And my client’s list did not direct you to where Ms Vassilliou’s body was located?’
‘No. But the list provided a general location,’ Max said. ‘From there we searched the area and located Libby Vassilloiu’s shallow grave.’
‘I put it to you Detective, that the reason my client only provided a “general location” on her list, was because my client had never been to the place where Ms Vassiliou was buried. I put it to you that through my client’s unique abilities as a Medium she was contacted by the spirit of Ms Vassilliou…Ms Vassilliou’s spirit only provided my client with the “General Location” of her body…because Ms Vassilliou didn’t know where she was buried…My client could only record on her list what she was told by Ms Vassilliou.’
‘Your client failed to prove that to me…’
‘Isn’t the fact that my client assisted you with the whereabouts of the seven missing persons proof enough that she communicated with them?’
‘Not to me. She would know where they were buried if she killed them.’
‘But of course, you have no evidence of that, do you Detective? You have not presented any evidence linking my client to these murders.’
Max didn’t respond.
One-by-one Duncan pointed to the locations on the map where each body was found. He asked Max to show where this location was mentioned on Emily’s List. Each time he received the same response; the list did not record the exact location.
’Your evidence today would suggest, my client did not provide you with the locations of any of the seven victims. Wouldn’t that be the case, Detective?’
‘The locations on the list were close to where the bodies were found.’
Duncan crossed his arms. ’Close to where the bodies were found…’ Duncan repeated. He moved to the large map. He pointed to the area on the Aireys Inlet coast line. ‘You gave evidence that Dale Cartwright’s body was located here. You initially searched this area way over here…’ he said pointing several kilometres away, near Fairhaven. ’Because Mr Cartwright’s mountain bike was found on a track in that area… Not because my client’s list sent you to that location. As a matter of fact Detective, the location where Mr Cartwright’s body was found was a distance of 3.8 kilometres away from where the mountain bike was located, wasn’t it?
‘I have no idea of the distances involved.’
‘In fact, the only reason you found Mr Cartwright’s shallow grave was because a dog uncovered Mr Cartwright’s foot after unseasonal heavy rains…Not from information contained in my client’s list. Isn’t that correct?’
’So explain to the court how my client’s list provided you with a location that was “close to Mr Cartwright’s body”?’
‘The list said the body was somewhere near Aireys Inlet and it was.’
‘I see…’ Duncan said, cupping his chin. ‘Somewhere near Aireys Inlet…’ Duncan repeated. He approached the map and pointed to Anglesea. ’Anglesea is “somewhere near Aireys Inlet…” Fairhaven is “somewhere near Aireys Inlet…” Yet the distance between Anglesea and Fairhaven is some thirteen or so kilometres Detective… Somewhere near Aireys Inlet is not directing you to the location of Mr Cartwright’s body…’ Duncan lifted his note pad. ‘Did you execute a search warrant on my client’s former employer?’
‘Why did you do that?’
‘I wanted to see if there was any evidence on banking records that connected the accused to any of the victims.’
‘I see. Why did you think there would be banking records linking my client to any of the victims?’
‘My inquiries showed that each of the victims was a customer of the same bank the accused worked for.’
‘I see.’ Duncan crossed his arms. ‘And did you locate any evidence from that search warrant executed on my client’s employer that connected my client to any of the victims?’
‘You looked but you couldn’t find anything. Is that correct Detective?’
‘So…let me see if I understand your evidence correctly…’ Duncan began. ‘You have not presented any evidence that places my client at any of the five locations where the victims’ bodies were buried or dumped.
‘You have not presented any evidence…forensic or through association…connecting my client to any of the victims… What you have presented is a list of missing persons’ names with very vague locations as to where the victims were buried…A list my client prepared from the information she received from the victims themselves, through her mediumship abilities and she voluntarily gave this list to the police. You formed the conclusion that because the accused knew the approximate whereabouts of these seven missing persons, then she must be the murderer…?’
‘Did you at any time consider my client may actually possess these mediumship skills she so openly claimed to have?’
‘I required hard evidence, not psychic phenomena…’ Max said.
‘I see. So you’re a sceptic.’
The Prosecutor leapt to his feet. ‘Your Honour my Learned Colleague is—’
Duncan held up a conceding hand, while interjecting. ‘I’ll withdraw Your Honour,’ He returned his focus to Max. ‘You mentioned that you required “Hard Evidence not Psychic Phenomena”…But you failed to present any such hard evidence, Detective…’ Duncan slid into his chair.
By the end of his cross examination, Duncan had grilled Max in the witness box for over three gruelling hours. He dissected and rebutted Max’s evidence to cast doubt over its accuracy and credibility. All he had to do was create an element of doubt in the mind of the jury in relation to the Crown’s evidence. He successfully achieved that.
When Duncan was done, the Prosecutor jumped to his feet to re-examine Max, to try and counter the points raised by the defence’s cross examination. But the damage had been done by Duncan. The message for the Jury from this police witness, was that police did not have any evidence connecting Emily to the seven bodies and Emily’s List they relied so heavily on, did not provide police with the location of the seven bodies.
Emily was happy with how that went. From her perspective, Duncan made the Detective Sergeant look a little foolish. She hoped the Jury saw it that way as well.
Towards the end of the long day, Emily found it difficult sitting still for so long. Her bum ached. Even though this was her future playing out in front of her, on some occasions, her fatigued eyes closed; long blinks she called them.
The clock on the wall above the witness box showed 4.30 when the Judge adjourned for the day.
Once the Jury had filed out, the Judge left the court room. The escorting Corrections Officer tapped Emily on the arm. ‘Let’s go…’ she said.
Emily stood from her chair and stretched into a long yawn. Her bum was stiff. She looked to her supporting family. Her Dad gave her a thumbs up. He too must have approved of Duncan’s work.
Before stepping through the doorway, Emily paused and turned to her family. She blew her supporters a kiss. From court she was escorted to a cell in the Geelong Police station, where she spent the night.