University of South Australia and Flinders University

Tags: Emily Perry, archival material, Donna Lee Brien, Death and Dying, Special Issue, true crime, Albert Haag, Ethical challenges, crime fiction, Ken Perry, Francis Montgomerie, Australia, arsenic poisoning, attempted murder, crime writing, legal profession, Flinders University, Supreme Court of South Australia, CAASA, University of South Australia, Francis Montgomerie., South Australia, criminal justice system, The High Court, true crime stories, practical legal training, Spencer Ethical challenges, criminal trial, creative writing, Picador Haebich, legal system, profession, Trudy Haag, legal practitioners, Helen Garner, legal practitioner, professional misconduct, Haebich, South Australian Police, true crime writing, Supreme Court, Rachel Franks, Rachel Spencer
Content: Spencer Ethical challenges of using archival material University of South Australia and Flinders University Rachel Spencer Dignifying the poisoned chalice: the ethical challenges of using archival material in a narrative about death and arsenic Abstract: In 1981, the trial of Emily Perry in the Supreme Court of South Australia for the attempted murder of her husband by arsenic poisoning was a legal and media sensation. During her trial, strong circumstantial evidence was produced linking her with the deaths by arsenic poisoning of three other men. This article will explore aspects of the process of writing a true crime narrative in relation to writing about real deaths from a particularly brutal and painful case. It will also examine why the confrontational aspect of original archival material was important for the author to fully appreciate the moral challenge of writing about unsolved murder. Biographical note: Rachel Spencer is the Director of Professional and Clinical Programs in the School of Law at the University of South Australia. Rachel has broad experience as a barrister and solicitor. Her academic experience also includes expertise in practical legal training. Rachel teaches and researches in: legal ethics; civil procedure; clinical legal education; law, art and literature; lawyers and the media; law and popular culture; life writing; and, crime writing. Her publications include book chapters, peer-reviewed journal articles, an academic text book, newspaper columns and training videos. Rachel also writes creative non-fiction and has a particular interest in life writing and true crime. She is a PhD candidate in creative writing at Flinders University. Keywords: Creative writing ­ True crime ­ Biography ­ Death ­ Emily Perry
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Spencer Ethical challenges of using archival material Introduction: from dance partner to defendant For decades, the Arthur Murray Dance Studio in Adelaide has enjoyed the reputation of being `the place to go' to learn how to waltz, foxtrot and tango. Defying the disco trend of the early seventies, a debonair divorcй named Ken Perry joined up at Arthur Murray, and one evening in 1972 he met the attractive and vivacious Emily Roberts. They were engaged within the year and married on 24 April 1973 (CAASA 1981: 1618). Dancing played a major role in their lives. Ken was a Freemason, and he was permitted to use the Freemason's Hall in the upmarket Adelaide suburb of Walkerville as an occasional venue for their dance club. One weekend, Ken and Emily Perry arranged an excursion for the club to visit a farm in Strathalbyn, a picturesque country town about an hour's drive out of Adelaide. The old farmhouse was a treasure trove of knick-knacks and antiques, including a Pianola-brand player piano that captivated the attention of the newlyweds so much that Ken bought one soon afterwards. They kept the Pianola in an old barn at their home in Fairview Park. After a while, it deteriorated and they could not find anyone to fix it, so Ken started reading about restoring Pianolas and repaired it himself. So began a hobby that quickly became his passion. He read as much as he could find about player pianos and orchestrelles and wrote to overseas experts. He spent all of his spare time in his dusty workshop tinkering with the crumbling lead pipes and dusty wooden casings (CAASA 1981: 3580). One morning in July 1976, Ken went to see his doctor about a sensation of pins and needles in his arm (CAASA 1981: 149). By October, the sensation had spread to both legs, his buttocks and his feet (CAASA 1981: 177). He continued to suffer a range of symptoms over the next couple of years, including stomach aches (CAASA 1981: 1508, 282-6). On the evening of 4 October 1978, Ken and his wife arrived at their local medical clinic. Ken was in great distress. Emily told the doctor that Ken's week-old cough was much worse that day and he was short of breath. His face was white, his chest was crackly and his heart was racing. The doctor took one look at him and sent him to hospital (CAASA 1981: 265-6). Tests revealed that Ken was suffering from arsenic and lead poisoning (CAASA 1981: 333). He was gravely ill and spent two months in hospital. The police became involved and an extensive investigation began. Ken insisted that his arsenic poisoning came from the corroded lead pipes in the old player pianos. But when detectives discovered that in 1961 Emily Perry had been married to a man called Albert Haag, and that Albert Haag had died of arsenic poisoning, the investigation intensified. It did not take long to discover that Emily's brother, Francis Montgomerie, had also died from arsenic poisoning in 1962, and that Jim Duncan, her de facto husband before she met Ken, had suffered from arsenic poisoning and died from an overdose of barbiturates in 1970 (CAASA 1981: 101). In April 1980, Emily Perry was charged with the attempted murder of her husband Ken (CAASA 1981: 758). The trial of Emily Perry in the Supreme Court of South Australia began in March 1981 (CAASA 1981: 1). It became one of the most highly publicised criminal hearings in the state. It was an intriguing story that captivated the media in Adelaide and across the country. The trial was one of the longest in South Australia's criminal history at that
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time. The admissibility of evidence about the three earlier deaths of Haag, Montgomerie and Duncan became the subject of protracted legal argument and complex legal reasoning, which is documented throughout the 4,141 pages of trial transcripts, but the jury found Emily Perry guilty and she was sentenced to fifteen years imprisonment (Kernahan 1981: 1). The arguments about the `coincidence evidence' surrounding the three earlier deaths were elevated into the South Australian Court of Criminal Appeal, where three of the sharpest judicial minds in the state gave their views about how `similar fact evidence' should be used in a trial, and unanimously opined that it had been correctly used in Perry's trial (The Queen v Perry 1981). Perry appealed to the High Court of Australia. The earlier deaths, argued her lawyers, were circumstantial, irrelevant and purely coincidental. This time, four of the most senior judges in the country grappled with these questions and in 1982 the High Court of Australia declared that certain principles regarding `similar fact evidence' had not been adhered to by the South Australian justices. The High Court decided that the previous deaths should not have been brought to the attention of the jury. The High Court quashed Emily's conviction and ordered a re-trial (Perry v The Queen 1982). Emily was released from prison. But the Crown did not bring her back to court. The police file has been marked `not to be opened' for 100 years'1, and when she died in 2012, Emily took the truth with her. The High Court's decision in Perry became a binding, influential and very important reference for courts when deciding on how much `coincidence information' should be heard by a jury.
True crime as a literary genre through a lawyer's lens Many years ago, as a junior legal practitioner in a busy law firm, I became fascinated with the way law affects the relationships between people who become entangled within its complex web. My interest was drawn less towards the mechanics of legal doctrine and legal argument, and more in the direction of the effect of law upon citizens, and how people are expected to react before the law. In teaching law, my focus is on encouraging law students to view the law through the lens of their clients, at a human level. This is the philosophy behind the writing of The Emily Perry Stories, a Work in progress. The focus of The Emily Perry Stories is on how the life narrative of one woman was shaped and coloured during her trial for the attempted murder of her husband. The terrible deaths of her two former partners and her brother were pivotal to the prosecution case, but also the source of legal arguments (and ultimately judicial decisions) that still apply in Australian courts today. The text that I am writing is situated within the overlapping genres of true crime and life writing. The true crime genre has been said to rely `simultaneously upon a rhetoric of truth claims and the activation of myth, superstition, gossip and story as its narrative strategies' (Smith 2008: 18). As a writer, I admit that I see the myth, superstition and gossip as rich pickings for a potential bestseller. As a lawyer, I see my role as exposing them for what they really are, and allowing a critical analysis of these various narratives to show the reader the different contexts in which these different narratives have been able to flourish. But I also seek to explain the legal context in which these narratives occurred. I propose to situate my work in the genre Smith has described as `analyses of
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Spencer Ethical challenges of using archival material the legal system', in which she includes the Underbelly television series, Peter Carey's True History of the Kelly Gang, and Helen Garner's Joe Cinque's Consolation (Smith 2008: 20). One of my goals is to explain the law as it applies to `similar fact evidence'. As a lawyer, I acknowledge that I bring certain biases to my writing. I write with an `insider' knowledge of the legal profession and the criminal justice system. Unlike, for example Helen Garner, Chloe Hooper and Truman Capote, through whose journalists' eyes their stories about trials are recounted, I write with a technical understanding of the law and a bias as regards the role of the lawyers and the court procedures. One of my aims for The Emily Perry Stories is to present the story of a trial that is fully explained to the reader. Instead of presenting the view of an external, perhaps ostracised, onlooker, I write through what I hope are the eyes of the lawyers involved. My view is not from the public gallery. It is from the bar table where the lawyers sit. I can write as if seeing the story through this lens, not because I was there, but because I am able to explain and imagine how and why the lawyers said what they said and did what they did. I also have professional ethical obligations to consider. I am a qualified legal practitioner ­ an officer of the Court. Upon being admitted to practice, I swore a public oath that I would diligently and honestly perform the duties of a practitioner of this [Supreme] Court [of South Australia] and will faithfully serve and uphold the administration of justice under the Constitution of the Commonwealth of Australia and the laws of this State and the other States and the Territories of Australia. (CAASA 2006) Inherent in this oath is the acknowledgement that I will respect the legal profession and uphold its ethical traditions and not bring the profession into disrepute. In writing this book, if I somehow bring the profession into disrepute, I could be found guilty of professional misconduct and be struck from the roll of legal practitioners. I have had, therefore, to be mindful of the issue of whether questioning the adversarial system and analysing the role of each character in this very high profile case (in which many of the legal characters are still playing important roles in the legal profession) might be considered disrespectful or unprofessional. I also have other legal issues to acknowledge. Firstly, I may not ask the lawyers involved to breach client confidentiality (Law Society of SA 2014: 9). There is likely to be a great deal of information that would be a writer's `gold', but that will be protected by legal professional privilege, meaning that it stays confidential between lawyer and client, forever, even after the death of the client (Dal Pont 2013: 336). Breaching confidentiality would be professionally unethical and therefore potentially an act of unprofessional conduct that could jeopardise their practising certificates. I cannot attempt to procure information that would be in breach of any lawyer's duty to a client or duty to the court. Secondly, I cannot be in contempt of court. Had I written this book before or during the trial, I could have been accused of prejudicing the accused's right to a fair trial. But that is no longer a risk, because the accused is now deceased (Hunt 2014). A third issue relates specifically to the jurors who sat through the trial and found Emily Perry to be guilty. How fascinating it would be to interview some of them, but alas, I would be unable to talk to them even if I could find
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them. Speaking to jurors about a case is specifically prohibited by law (S 246, Criminal Law Consolidation Act 1935). I have been very conscious of conducting this research in an ethical manner, which requires a level of attention and consideration beyond technically ticking the requisite boxes on the university's ethics application form. It means conducting research that will do no harm. Ethics is said to be `the study which arises from the human capacity to choose among values' (Preston 2014: 7). In general, ethics is concerned with what is right, fair, just or good, about what we ought to do. It is the study of values or moral philosophy, the actual values and rules of conduct by which we live (Preston 2014: 7). In writing and reading about death and dying, it is easy to become side-tracked by the `whodunnit' aspect of crime writing and the minutiae of the legal principles involved in a criminal trial. In writing about a series of deaths that perhaps were murders, a whole raft of ethical issues becomes important.
The research process In conducting archival research into this case, I was looking with a lawyer's eye, searching from a legal perspective for why the case evolved as it did. I was given access to the written transcript of the whole of the trial ­ over 4,000 pages of evidence about Ken's symptoms of arsenic poisoning, and about the other three men who had died in mysterious circumstances. The trial record brought to life the transcribed voices of those who spoke about the death of Albert Haag ­ Perry's second husband ­ twenty years earlier. Back then, Emily lived a completely different life as Trudy Haag (her first name was Gertrude). Trudy and Albert lived in Moorabbin, an outer suburb of Melbourne, with their three little girls and Trudy's son Robert from her first marriage to a war-damaged soldier who had deserted her some years earlier. Albert died an agonising death in a hospital corridor on his way to have an x-ray, wracked with the pain of arsenic toxicity that overcame his body in the early hours of Easter Monday morning. An inquest was held. No charges were laid, but the sensationalist Truth newspaper headlined Albert's brother Gustave Haag vowing to find `my brother's killer' (Wright 1961: 1). In May 2015, I caught The Overland train from Adelaide on a quest to read the original inquest files held at the Victorian Archives Centre in North Melbourne. I was excited to have the opportunity to look at this archival material. Looking at original documents reminds us as writers that we are only witnesses to events, not participants, and we are privileged to be able to encounter the recorded evidence of historical reality. It was during the course of this visit that I became acutely aware of the very human side of the story that I am attempting to write. When the file of the inquest into the death of Albert Haag arrived at the counter, I carried its plastic-sleeved contents to one of the long brightly-lit tables in the public viewing section. Flicking through the pages of typed witness statements and details of forensic investigations, notes of scientific analyses and letters to, and from, police officers, I was suddenly reminded of the humanity of my subject matter and the fact that `encountering the archive is often an ambiguous, unsettling and uncertain project'
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(Doyle 2013: 2). Amongst this bundle of officialdom was another official, yet intensely personal document. It was a black and white photograph, professionally developed. It was a photograph that seemed so intensely private that I felt I should not be looking at it ­ a picture of someone's brother, son, husband, friend, mate, daddy. It was a closeup photograph of Albert, dead. I found this photograph intensely confronting. I quickly turned it over, unable to look at it, because suddenly this narrative was not merely a sensational story about arsenic and murder. It was about a real person, a man who had lived an unsensational life, but who had, in death, become a headline. It was the first time I had seen a photo of a dead person. This was a real person who had lived and loved, fathered children, gone out to work each day, celebrated family Christmases, pottered in his vegetable garden. At the time of seeing that photograph, I had managed to live for over half a century without ever looking at an actual death. The photograph brought the true crime narrative back to the reality that death is personal; it is intensely interlinked with life and it unites us all, from time to time, in one of the most intimate of human experiences. The photograph was unlabelled and undated. It bore no notes on the reverse side. Susan Sontag has argued that using photographs `to prove that something happened in the world' is problematic and that a photograph is only `given meaning by its caption' (1973, cited in Biber 2006: 22). In this instance, meaning could only be derived from the context of the photograph and the fact that it was included in an inquest file about the circumstances of the subject's death. At Emily Perry's trial twenty years later, Albert Haag's brother Gustave was questioned about the colour and length of Albert's hair shortly before he died. The prosecution case was that Albert Haag had been poisoned by arsenic over a period of time, causing his normally thick, dark, wavy hair to turn white. His wife encouraged him to get a crew cut, which was not his usual style at all. In order to contradict the suggestion that Albert had been ingesting arsenic for some time, defence counsel showed the deceased's brother the photograph, challenging him over the fact that the hair was not in fact white. Sontag's assertion was proved correct by his reply: A dreadful thing about this particular photograph ... I was informed by one of the attendants there that ­ that they had sewed his scalp on back to front after the post mortem. So that could result in the darkness on the front. Instead of being to the rear, it is ... on the front. (CAASA 1981: 2451) `We don't know what we are seeing until we are told what it is' (Biber 2006: 22). The confrontational aspect of this original archival material was important for me to fully appreciate the moral challenge of writing about suspected murder. When I first started researching, my attention centred on the lawyers. I thought about the work they did and what was involved. I originally focussed on the legal complexity of the case. I wanted to present the story as an accurate representation of the series of events that covered a quarter of a century ­ from Emily's first marriage, to her marriage to Albert Haag, the death of her brother Francis from arsenic poisoning, her next relationship with Jim Duncan (who subsequently died from poisoning), and then her marriage to Ken Perry. When Ken Perry had arsenic poisoning, and his wife was charged with attempting to murder him, in and out of court he staunchly defended his wife, denying
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Spencer Ethical challenges of using archival material any claim that she had tried to kill him. This created an unusual predicament for the prosecution. Normally, a victim of attempted murder is expected to give evidence against the accused, and assists the prosecutors. Ken refused to co-operate with the police and the prosecution. This added a curious level of legal complexity as well as narrative tension. The focus of a criminal trial, and the focus of true crime stories, is primarily upon the person accused of committing the offence. The finder of fact at a trial (usually a jury but sometimes a judge) must make a decision about whether or not it is beyond reasonable doubt that the accused committed the crime as charged. Details about the cessation of life of a homicide victim tend to be dealt with as clinically as possible during actual hearings. Prosecutors are required not to use scandalous language or to sensationalise any aspect of a criminal trial, so as not to unfairly prejudice the jury. When we move from reality to crime writing, the emphasis is on working out who the culprit is and catching the killer. Publishers generally agree that putting the word `murder' on the cover of a book increases the chances of a sale (Wade 2009: 6). Both Emily and Ken are now deceased. Emily died in 2012, never having been re-tried but never having quite been able to escape the stigma and the popular mythology that followed her throughout her life after her trial in 1981. The High Court decision remains an important case on law student Reading Lists in relation to `similar fact evidence'. But law students are not encouraged to ponder the ways in which the deaths that they are calling `similar facts' altered the lives of others. Seeing that photograph of Albert Haag recalibrated something within my understanding of what I am writing about in telling Emily's stories. As I sat there at the Victorian Archives Centre, I turned to the photograph again and looked at it for a longer time. I kept putting it out of sight, then reaching for it again and again. I was simultaneously repelled and attracted; I felt that I was violating the most sacred of privacies, and yet I was drawn to this image in a crudely voyeuristic way. Suddenly my research was not merely about a woman accused of attempted murder, but about a man who was unable to tell his own story. I wanted to draw something from that photograph. I wanted some sort of truth to emanate from the glossy page. He was a well-built, strong, handsome man. I knew that, before he became ill, he had had a beautiful head of dark wavy hair and a deep strong voice (CAASA 1981: 2470, 2476). I wanted his `muffled and buried voice' (Doyle 2013: 2) to speak to me. I was `looking ... for hints, for directions, for inspiration' (Doyle 2013: 2) from this archival material. Did he suspect that his wife had poisoned him? Or, like Ken twenty years later, would he refuse to accept that? Did he really die from eating corn cobs sprayed with weed killer, as his widow suggested to police? Or from breathing in the dust of old lead-based paint? I wanted that glossy photograph to give me the answers. And from those selfish desires, those personal needs to get inside the story, came a more profound understanding of what I was doing. It was not about him speaking to me. I needed to speak for him. Given that my work `draws upon narratives of lived experience' (Carey 2008: 2), writing about Emily Perry means I must decide whether I will provide a voice for everyone involved in each of the stories that made up her life, or `grapple with the issue: whose voice is allowed to speak in the final text?' (Carey 2008: 2).
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Spencer Ethical challenges of using archival material Ethical challenges Clichйd images of death by arsenic poisoning have populated the pages of both fiction and non-fiction for centuries, and expressions such as `poisoned chalice', `black widow' and `Lucretia Borgia' extend the clichй of the female poisoner. Arsenic has been described as `one of the most ubiquitous of poisons' (Brien 2012: 6). Its ingestion causes particularly unpleasant symptoms including painful abdominal cramps, vomiting, diarrhoea, headache, dizziness and sometimes death (for a historical overview of arsenic used as a poison, see Brien 2012). All of these symptoms were suffered by Albert Haag, Jim Duncan and Ken Perry. (Less is known about the symptoms suffered by Francis Montgomerie.) Urban myths about Emily Perry in my home town of Adelaide are usually told through sniggers about poisoned sandwiches and polite refusals of cups of tea proffered in the church hall. The debilitating symptoms suffered by Emily Perry's alleged victims are rarely mentioned. Very few fictional accounts of murder by arsenic confront the horrible reality of this form of death. For example, the classic film Arsenic and Old Lace is presented as a black comedy. A notable exception is Flaubert's iconic Madame Bovary, whose protagonist suffers a horribly lingering death from ingestion of arsenic. Flaubert punishes his adulteress, taking ten pages to graphically and brutally describe the effect of the poison on Emma's body. In writing about the deaths of three men, and the near-death experience of another, my own text must balance the trauma experienced by those who died, the presumption of innocence due to my protagonist, and a conscious avoidance of clichйd stereotypes about the use of poison. This ethical consideration compounds the conundrum of true crime writing which is not as neat and compartmentalised as Crime fiction. Authors of `true crime' have long established their work as a genre in its own right. In (white) Australia, true crime texts date back to bushranging tales such as Michael Howe ­ The Last and Worst of the Bushrangers of Van Diemen's Land, printed in the colony of Van Diemen's Land in 1818 (Smith 2008: 18). Today, as in the past, the daily reporting of real crime in our own neighbourhoods plays a large part in popular culture. Trials have been described as `boundary maintaining devices' that `help cement Social Solidarity by re-defining and proclaiming the norms' (Friedman 1989: 1594). Crime reporting reinforces the maintenance of these social boundaries. This is partially because the presumption of innocence sits uncomfortably within the detective formula found in crime fiction. Reasonable doubt is not satisfying, but new Australian true crime titles appear with a regularity that suggests not only that there is an insatiable market for these works, but also that this genre is accepted as genuine literature, arguably displacing earlier assertions that `works of True Crime have rarely been able to transcend their general assessment as cheap and nasty' (Brien 1999: 131). Instead, more recent `literary and filmic depictions of crime in popular culture often question the value of the criminal justice system and its effectiveness in maintaining our humanity' (Spencer 2015: 83), especially in the context of crimes against the person, including murder and attempted murder. The Emily Perry Stories will be an example of `a way of explaining and critiquing the way the law responds to human behaviour at its most challenging and often most primal level' (Spencer 2015: 83).
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Reader satisfaction from true crime is twofold: it comes first from the ability to identify the offender, and second from the comfort of a `guilty' finding (with no room for mitigation or explanation for the crime). There is something narratively satisfying about the finality of texts like Truman Capote's In Cold Blood, Helen Garner's Joe Cinque's Consolation and Carol Baxter's Black Widow. Capote famously narrates the guilty verdicts of Perry and Hicks for the Clutter family murders. Joe Cinque did die at the hands of Singh, although her culpability for murder was the subject of her trial. Louisa Collins outlived two husbands who died from arsenic poisoning, but was hanged. Emily Perry's final chapter was quite different; she lived life as a free woman, maintaining her innocence until she died at the age of 85. But her death sparked a final flurry of media attention. The Adelaide Advertiser published an article headlined `My loving wife was no serial poisoner' (Debelle 2012: 36). The article gives a brief history of the various court cases and evidence that was given, including that Mrs Perry stood to benefit from life insurance policies on the life of her second husband (Albert Haag), and the suggestion that she had wanted to rid the family of `a tiresome burden' (Debelle 2012: 36) by murdering her brother, Francis Montgomerie. Ken Perry, elderly but defiant, lodged a complaint with the Australian Press Council about this article on the grounds that the article was `unfair, unbalanced and showed inadequate regard for the privacy and sensibilities of her family and friends, especially as it was published only a few days after her death'. The Council upheld the complaint on the ground of lack of balance `in circumstances where it was of special importance' (Press Council 2012). Ken Perry's defiant defence of his wife, even after her death, renders the story difficult to classify as `true crime' because of the quashed guilty verdict. Whereas crime fiction `is understood to restore order, even to restore some kind of fabled, antediluvian peace to the everyday world, and to punish-lawbreaking' (Rolls 2016: 3), Seltzer argues that the true crime genre is a cult genre `which knowingly takes the crime novel as its prototype and tries it out on real life' (2008: 19), `by following the conventions of popular crime fiction' (26). It is a `cult of commiseration' that is part of contemporary `wound culture'; it facilitates commiseration via the mass media (13). Crime dramas `dramatise the conflict between good and evil' (Aoun 2004: 153). We want to see Perry as evil because to do so would be neat and conventional. Emily Perry was never re-tried for the attempted murder of her South Australian husband Ken Perry, and she was never tried for the murder of her Victorian husband Albert Haag or her brother Francis Montgomerie or her partner Jim Duncan, all three of whom died from poisoning. In strict legal terms, no crime can be said to have ever been committed, at least not by Emily Perry, so the `true crime' appellation sits uncomfortably in these circumstances. Under our criminal justice system, Perry is entitled to the presumption of innocence. Legally, she is presumed not to have committed any crime. The `truth' may never be revealed. Unlike crime fiction, where `the truth is always there waiting for us' (Rolls 2016: 3), the satisfaction derived from the finality of a guilty verdict or at least the disclosure of the identity of the perpetrator of the crime(s) will not be available for this narrative. This lack of finality will highlight the fact that the `criminal justice system relies, for its legitimacy, upon the repeated articulation of positivist binaries: innocent/guilty, normal/deviant, true/false, real/imagined' (Biber 2006: 23). Writers of true crime stories must be wary of accepting these binaries as the only narrative alternatives, because the criminal justice system actually operates in the context of
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Spencer Ethical challenges of using archival material human fallibility and the impossibility of articulating the whole truth. This is particularly poignant in the context of an adversarial trial, where witnesses only provide information in response to a series of carefully crafted questions and, for a vast number of reasons (a detailed explanation of which the scope of this paper does not allow), do not have the opportunity to tell everything they know about a given set of circumstances. Haebich argues that the rigid dichotomies suggested by Biber `give way in compelling works of scholarly crime history written across the boundaries of history and fiction, hovering between fact and poetic imagination' (Haebich 2015: 2). Wade argues that `the best crime writing comes from the understanding and re-telling of the human situation at the core of the story. Understanding that human dilemma is an integral part of writing that story. The moral consequences are as important and intriguing as the legal ones' (Wade 2009: 9). My challenge is to write a book which maintains the fascinating reality of a Remarkable Story, while presenting the narrative with compassion and preserving the dignity and humanity of all the characters. I seek to `tell a story about [other people's lives] in a way that does not hurt, exploit or misrepresent them, and ... in a way that preserves [my] integrity as the writer' (Carey 2008: 1). Conclusion While works of true crime may use the literary techniques of crime fiction to enhance suspense and enliven characters, an underlying ethical brake needs to be applied to true crime writing to prevent acceleration into the territory of giving offence and reviving pain for those whose lives have been affected. Had Emily Perry lost her High Court case, she would forever have been remembered as the woman who poisoned her husband. The High Court allowed her the benefit of the removal of that label, but only to the extent that she is now remembered as `the woman who was accused of poisoning her husband'. In re-crafting the narrative of the life of Emily Perry, and the lives of Albert Haag, Francis Montgomerie, Jim Duncan, and Ken Perry, I have had the opportunity to relate aspects of their stories that were never recorded in court or in the newspapers. These details help to provide a framework for readers to visualise Emily as a character more rounded than the stereotypical `black widow' caricature that is perpetuated in popular mythology. The aim of the narrative is to `successfully re-narrate the protagonists' stories in what could be described as fully fleshed, satisfying biographical studies' (Brien and Franks 2016: 2). However, it is also my ethical responsibility as a writer to ensure the three tragedies before Emily's marriage to Ken are honoured as such. In addition, the High Court decision and the absence of any further prosecution re-assert Emily Perry's right to the presumption of innocence. The Emily Perry Stories cannot tell the `truth' because no-one except Emily knows what really happened to Albert Haag, Francis Montgomerie and Jim Duncan. And only Emily knew what went on inside her marriage to Ken. But my responsibility in recounting this extraordinary story is to adhere as closely as possible to the authenticity of the history as it has unfolded to me. The book will hopefully remind readers that all cases that come before the courts are about real people with stories to tell. Some of
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those stories are ongoing. I honour all of those stories and respect the humanity of all those whose lives were touched by the life of Emily Perry.
Endnotes 1. Personal conversation between the author and South Australian Police (30 April 2015).
Works cited Aoun, Steven 2004 `True crime' Metro magazine 141, 152-56 Baxter, Carol 2015 Black widow: the story of Australia's first serial killer Sydney: Allen & Unwin Biber, Katherine 2006 `Photographs and labels: against a criminology of innocence' Law Text Culture 10 (19), 19-40 Brien, Donna Lee 1999 `True crime fiction as criminal history: illustrated with selections from the author's manuscript "The case of Mary Dean"' Australian Feminist Law Journal (13), 131-39 Brien, Donna Lee 2012 `The poisoner's cookbook' TEXT: Journal of Writing and Writing Courses Special issue 15, at http://www.textjournal.com.au/speciss/issue15/Brien.pdf (accessed 17 July 2017) Brien, Donna Lee and Rachel Franks 2016 `Trial by jury and newspaper reportage: re-writing women's stories from legal transcripts and contemporaneous journalism' TEXT: Journal of Writing and Writing Courses Special issue 37, at http://www.textjournal.com.au/speciss/issue37/Brien&Franks.pdf (accessed 17 July 2017) Capote, Truman 2000 In cold blood London: Penguin Capra, Frank (dir) 1944 Arsenic and old lace Burbank, CA: Warner Bros Carey, Janene 2008 `Whose story is it anyway?: ethics and interpretive authority in biographical creative nonfiction' TEXT: Journal of Writing and Writing Courses 12 (2), at http://www.textjournal.com.au/oct08/carey.htm (accessed 17 July 2017) Carey, Peter 2001 The true history of the Kelly gang St Lucia: U of Queensland P Criminal Law Consolidation Act 1935 (SA) (CAASA) Courts Administration Authority of South Australia 1981 `Transcript of the trial of R v Emily Perry in the Supreme Court of South Australia' (CAASA) Courts Administration Authority of South Australia 2006 The oath or affirmation of admission Supreme Court practice directions to operate in conjunction with the Supreme Court civil rules 2006, part I ­ practice directions as amended at 1 April 2012 (Amendment No. 22), at http://www.courts.sa.gov.au (accessed 17 July 2017) Dal Pont, GE 2013 Lawyers' professional responsibility Pyrmont: Thomson Reuters Debelle, Penelope 2012 `My loving wife was no serial poisoner: the husband of Adelaide's suspected "black widow" Emily Perry, stood by her until her death' The advertiser 4 February, 36 Doyle, Peter 2013 `The kibitzing archive' TEXT: Journal of Writing and Writing Courses Special issue 18, at http://www.textjournal.com.au/speciss/issue18/Doyle.pdf (accessed 17 July 2017) Flaubert, Gustave 2011 Madame Bovary London: Vintage Friedman, Lawrence 1989 `Law, lawyers and popular culture' Yale Law Journal 98 (8), 1579-1606 Garner, Helen 2006 Joe Cinque's consolation Sydney: Picador Haebich, Anna 2015 `Somewhere between fiction and non-fiction: new approaches to writing crime histories' TEXT: Journal of Writing and Writing Courses Special issue 28, at http://www.textjournal.com.au/speciss/issue28/Haebich.pdf (accessed 17 July 2017)
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Spencer Ethical challenges of using archival material Hooper, Chloe 2008 The tall man Camberwell: Penguin Hunt, Nigel 2014 `"Poisoned" husband loyal to the grave' Sunday Mail 5 October, 26 Kernahan, Jim 1981 `15 years for poison case wife' The News 28 July, 1 Law Society of South Australia 2014 The Australian solicitors' conduct rules, at https://www.lawsocietysa.asn.au/PDF/rules_of_professional_conduct.pdf (accessed 17 July 2017) Monaghan D and J Horsburgh (exec prods) 2008-13 Underbelly Australia: Nine Network Perry v The Queen (1982) 150 CLR 580 Press Council of Australia 2012 Adjudication number 1539, at http://www.presscouncil.org.au/document-search/adj-1539 (accessed 7 December 2016) Preston, Noel 2014 Understanding ethics Annandale: Federation Rolls, Alistair, 2016 `Creative, critical, intertextual: Agatha Christie's The murder of Roger Ackroyd' TEXT Journal Special issue 37, at http://www.textjournal.com.au/speciss/issue37/Rolls.pdf (accessed 17 July 2017) Smith, Rosalind 2008 `Dark places: true crime writing in Australia' Journal of the Association for the Study of Australian Literature 8, 17-30 Seltzer, Mark 2008 `Murder/media/modernity' Canadian Review of American Studies 38 (1), 11-41 Spencer, Rachel 2015 `Crime' in Melissa de Zwart, Bernadette Richards and Suzanne le Mire (eds) Law and popular culture Chatswood: LexisNexis Butterworths, 81-97 The Queen v Perry (No 5) 1981 28 SASR 417 Wade, Stephen 2009 Writing true crime Brighton: Emerald Wells, Thomas 1818 Michael Howe: the last and worst of the bushrangers of Van Diemen's Land, at http://gutenberg.net.au/ebooks06/0606831h.html (accessed 6 December 2016) Wright, Geoff 1961 `We will find my brother's killer' The Truth 2 September, 1 Acknowledgements The author would like to thank the two anonymous reviewers of this article for their very helpful suggestions. This article was, in part, supported by an Australian Government Research Training Program Scholarship.
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