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A state of Injustice - Dr Robert N Moles
Chapter Seven - Arsenic and Old Cases - Emily Perry 1981

A state of Injustice: table of contents

Also by Dr Moles - Losing Their Grip - The Case of Henry Keogh - Definition and Rule in Legal Theory

This case is an interesting example of the problems caused by speculation and inferences. There were no problems with the autopsy – there wasn’t one because there was no deceased. The person, who according to the prosecution was supposed to be the victim, was still alive, but was never examined by a forensic pathologist.

Attempted murder of Ken Perry

Mrs Emily Perry was charged with two counts of attempting to murder Ken Perry, her third husband. The prosecution alleged that between July and November 1978, and again between February and October 1979, she administered poison to him with the intention of killing him. Mrs Perry was convicted on both counts and sentenced to 15 years imprisonment with hard labour. There was no evidence directly implicating her, and no suggestion that she had poisoned her husband unintentionally. So as to establish a ‘course of conduct’, the prosecution relied on inferences that she had also been responsible for the deaths of three other people with whom she had had a close relationship.

Her appeal to the Court of Criminal Appeal in South Australia was dismissed. She then appealed to the High Court on the basis that the judge had wrongly admitted evidence which, according to the prosecution, showed that her second husband, her brother and a de facto partner had died of poisoning.

The High Court accepted that at various times Mr Perry had become ill from poisoning by lead and arsenic, probably in the form of lead arsenate. It was clear that Mrs Perry had the opportunity to administer the poison to him. She also stood to benefit financially from his death under various insurance policies. The defence claimed that Mr Perry had accidentally ingested the poison and that Mrs Perry had no involvement in that. Mr Perry liked to renovate old pianolas and organs and these often had rat or insect poison in them. The defence claimed that the poison contained arsenic and the instruments also contained dust from crumbling lead pipes. The pathologist on the case, Dr Manock, did not examine Mr Perry’s workshop.

As part of their case, the prosecution alleged that in an 18 year period Mrs Perry knew three people who were said to have died in suspicious circumstances. She was never charged in relation to these deaths at the time when they occurred. Nevertheless, with the benefit of hindsight, the prosecution included those three deaths as part of the narrative of her wrong-doing, and evidence in relation to them was given at her trial although they were not part of the charges before the court. As it turned out, the High Court was critical of the inclusion of this other evidence. [1] The appeal was successful and a new trial was ordered. The prosecution then conceded that there was no adequate basis upon which they could proceed to trial again. The three deaths that were raised in Mrs Perry’s trial were as follows. [2]

Albert Haag

Albert Otto Haag, Mrs Perry’s second husband, was a police officer. It was said at her trial that Haag had died on 13 March 1961 of acute arsenical poisoning. He had been ill in December 1960 and again in January 1961. Mrs Perry was said to have stood to benefit from insurance policies on his life. The defence said that he might have eaten some corn that had been sprayed with weed killer which may have contained arsenic. Otherwise, he might have committed suicide. The prosecution said that Mrs Perry had some knowledge of poisons, that she had bought the weed killer which Haag had used for spraying, and that she had the opportunity to administer it to him. There was some evidence of domestic problems, and that Mrs Perry had made false statements about her knowledge of the insurance policies and the state of her relationship. An inquest had been held but no charges had been laid against her.

Francis Montgomerie

Francis William Montgomerie was Mrs Perry’s brother. He died on 9 April 1962, about one year after Albert Haag. It was said at her trial that he too had died from acute arsenical poisoning. He had been an alcoholic and given to moodiness and depression, and he had been admitted to a psychiatric hospital on at least two occasions. He had been living with a woman who had left him just two days before he died, after he had attempted to strangle her. The day after the woman left, Mrs Perry took her mother to Montgomerie’s house so that she might look after him. Mrs Perry said that he was incoherent, as he usually was after drinking heavily. She left her mother there and picked her up again at the end of the day. The next day, 9 April, Mrs Perry telephoned Montgomerie and, receiving no response, she went to his house where she found him dead. It appears that the lining of his stomach was badly burned from ant poison that he had apparently swallowed. Mrs Perry might well have been the last person to see him alive, and the first to find him dead.

Some bottles were found on a bedside table, including a bottle containing a small quantity of wine and some arsenic. The autopsy showed the presence of arsenic in the body. There was evidence that one of Mrs Perry’s sisters had bought some weed killer a few days before, but the evidence did not establish what type it was. However, it seems that it had been placed by Mrs Perry on a shelf at her mother’s house. It was said that this showed that she had access to the poison. The defence argued that the facts pointed to suicide. The prosecution argued that if it had been suicide, then one would have expected to find the container which had had the arsenic in it before it was put into the wine bottle. None was found. However, there was evidence that some old bottles at Montgomerie’s house had been cleared up and thrown out by Mrs Perry and her sister on the morning of his death. It was also said that she gave her name as Emily Hulse, Hulse being the name of her first husband. Many of the facts that the prosecution put forward were contested. Montgomery had no insurance policies and Mrs Perry did not stand to gain from his death. The prosecution argued that the motive was to rid the family of a tiresome burden.

Jim Duncan

Mrs Perry had a de facto relationship with John Alfred Jameson, also known as Jim Duncan, who died on 21 March 1970 from an overdose of barbiturates. Duncan began to live with Mrs Perry from the end of 1967. She had arranged insurance policies on his life during 1968 and she received payment under them after his death. He had swallowed about twenty barbiturate tablets. It was unlikely that she could have forced him to take them. The prosecution suggested that she may have persuaded him to take them, but there was no evidence of this. Medical evidence showed that Duncan was in poor health long before being acquainted with her.

Duncan was also a heavy drinker and it was possible that he had committed suicide. However, the prosecution put forward evidence that Duncan had suffered from arsenical poisoning over a considerable period before his death. He had had operations for haemorrhoids in 1944 and 1957. By the beginning of 1968 he was seeking medical treatment for anal trouble and had another operation for haemorrhoids during that year. Around the end of 1968, he was complaining of some loss of bowel control and pains in his lower abdomen. By the end of 1969 and in 1970 he was complaining of diarrhoea, incontinence, vomiting, pain and other symptoms, including enlarged breasts. None of the many doctors who examined him diagnosed heavy metal poisoning, and no test was made before his death or at autopsy for the presence of arsenic. Dr Manock had performed the autopsy. He said at Mrs Perry’s trial that the symptoms described to him were consistent with, but not specific for, lead arsenate. However, he said that he had seen no signs of heavy metal poisoning when he conducted the autopsy of Duncan.

Another doctor who had been involved in the case thought that such a diagnosis was unlikely, with some signs that were not consistent with heavy metal poisoning. The prosecution accepted that if Duncan’s case was viewed in isolation it would be insufficient to find that he died of heavy metal poisoning.

The case against Mrs Perry

In summary, the case against Mrs Perry involved the allegation that she had attempted to murder her husband, Ken Perry, with arsenic. The associated allegations, which were introduced to show a course of conduct, were to the effect that she had murdered two previous partners and her brother in a similar manner.

A doctor who had been treating Mr Perry at the hospital sent the case notes to Dr Manock seeking his opinion. Dr Manock said that the symptoms were consistent with poisoning, and suggested that investigations should be made into the possibility of malicious administration. In his letter to the doctor, Dr Manock said that ‘the information contained in the case notes seems to have excluded the common accidental sources’. He reached his conclusions even though he had not examined Mr Perry, nor had he been to his place of work. Mr Perry has stated that the first time he saw Dr Manock was when Dr Manock was in court giving evidence. He said that Dr Manock had formed his opinions from reading the other doctors’ reports in the various cases, and had made no attempt to examine him or conduct any tests. [3]

The High Court appeal

The appeal to the High Court took place in 1982. [4] The prosecution conceded that if each of the alleged poisonings was considered in isolation, the evidence would not justify a finding that Mrs Perry had poisoned any one of them. The prosecution said that it was the cumulative effect of the evidence relating to all four of them which justified the verdict of guilty. That is, the prosecution was claiming that the only rational explanation for the deaths of Haag and Montgomerie, the sickness of Duncan and the poisoning of Mr Perry was that Mrs Perry had deliberately poisoned all of them with arsenic.

Justice Lionel Murphy (in referring generally to ‘the modern forensic scientist’) said that the prosecution’s evidence fell far short of the proper standard. He said that if the expert assistance available to the prosecution in this case was typical, then the interests of justice demanded an improvement in both the investigation and the interpretation of data – and their presentation to the court by witnesses who are substantially and not merely nominally experts in the subject which calls for expertise.

Justice Aickin, who was on the court, died before the judgment was delivered. All four remaining judges agreed that the verdict could not stand. Justice Murphy was the most critical of the four judges who delivered the judgments. Chief Justice Gibbs said that his principal reason for overturning the verdict was that the evidence in relation to Duncan and Montgomery was inadmissible. Justice Brennan pointed out that in relation to Duncan ‘a pathological test gave a result which may have been inconsistent with arsenical poisoning’.

In referring more directly to Dr Manock’s evidence, Justice Murphy said that Mr Perry had had a history of motor bike accidents, including severe injury to his facial structure and nasal passages which led to symptoms such as rhinitis (running nose). He said that the prosecution's expert witness had attributed this condition to arsenical or lead poisoning by Mrs Perry. The only problem with this theory was that the condition had existed years before Mr Perry had met her. The condition had, in fact, been the subject of a published medical article on facial reconstruction. [5]

Justice Murphy then went on to say as part of his general criticism of the case:

“The evidence, particularly in relation to Duncan, but also of the other alleged poisonings including that of Mr Perry, revealed an appalling departure from acceptable standards of forensic science in the investigation of this case and in the evidence presented on behalf of the prosecution.” [6]

He said that in his opinion, ‘The evidence was not fit to be taken into consideration’. He pointed out that, in his summing up, the trial judge had said that no one had even thought of lead or arsenic as even a possibility until the case against Mrs Perry began.

The cases of Haag, Montgomerie and Duncan had been introduced by the prosecution as evidence of ‘similar facts’. The Chief Justice of the High Court (Gibbs, CJ) said that in the way in which the prosecution case was presented, it was necessary to assume Mrs Perry guilty of the offences she was charged with in order to render admissible the evidence regarding the death of Duncan. He said that such a line of reasoning was obviously objectionable. [7]

The prosecution had raised the issue of the ‘Brides in the Bath’ case (R v. Smith). This was a nineteenth-century English case where a Mr Smith had sequentially married a number of young women, each of whom he drowned in a bath. In referring to this part of the prosecution case, Justice Murphy said that the case against Mrs Perry was not ‘in the same universe of discourse’ as R v. Smith or other similar-fact cases. The judge went on to explain that because the evidence was circumstantial, it was admissible only if there was no rational explanation of the victim’s sickness consistent with the accused’s innocence. [8] This is a point which prosecutors and judges appear to have ignored in some of the cases detailed in this book, and which we have already pointed out in the judgement in the Van Beelen case.

Fortunately, in Mrs Perry’s case, there was additional forensic evidence. As Justice Murphy remarked, there was important evidence in the form of a pathological test as well as that of an expert pathologist, which overwhelmingly discredited the notion of arsenical poisoning in the case of Duncan. But, Justice Murphy went on to ask, what would have happened here if the evidence of the pathological test had not been available?

Justice Wilson referred to the fact that Dr Manock had conducted the autopsy of Duncan and did not detect any sign of arsenical poisoning at that time. Cremation of the body meant that there couldn’t be any further examination. [10] This underscores concerns about using forensic evidence in trials where the body has been prematurely cremated, thus precluding the defence from properly examining the prosecution evidence.

Justice Murphy said that one of the greatest dangers of cases like the Perry case was that the presumption of innocence tends to be brushed aside. In the criminal justice system every person is taken to be innocent unless the contrary is legally proved. No one should be found guilty on appearances, suspicions, conjecture or anything but evidence establishing guilt beyond reasonable doubt. Moreover, the judge said that in Mrs Perry’s case there was a great temptation in weighing the evidence, and more particularly in deciding admissibility, to ignore the presumption of innocence and to replace it with a presumption of guilt. [11]

Justice Brennan said that if one attempted to prove a certain fact by a chain of reasoning which assumes the truth of that fact, then that would of course be a fallacy ‘repugnant alike to logic and to the practical processes of criminal courts’. [12]

Justice Wilson also pointed out that the evidence of Dr Manock was equivocal and, therefore, that fact alone should disallow its admissibility because it was a circumstantial case. He said that when all the other evidence is taken into account, the conclusion that Duncan suffered from arsenical poisoning was unsupported by cogent evidence. There could have been other causes for the symptoms displayed. Without there being persuasive evidence of the presence of arsenic, he said, the evidence possessed a speculative character and it should not have been admitted. [13]

In summary

One of the judges said that the details of all three previous cases should have been excluded. Another judge said that two of them should have been excluded, and another said that one of them should have been excluded. However, they were all agreed that the conviction could not stand.

Endnotes

1. The discussion of the Perry case is taken from Perry v. The Queen (1982) 150 CLR 580 (judgment dated 16 December 1982).

2. The details of the other cases are set out in the judgment of Gibbs CJ in the above judgment.

3. ‘Expert Witness’, 4 Corners, television program, ABC TV, 22 October 2001.

4. Perry v. The Queen (1982) 150 CLR 580 (judgment dated 16 December 1982).

5. Ibid., at 599.

6. Ibid., at 599.

7. Ibid., at 590.

8. lang=EN-US>Ibid., at 596.

9. Ibid., at 596.

10. Ibid., at 603

11. Ibid., at 594.

12. Ibid., at 612.

13. Ibid., at 608.

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