By PAVEL BAILEY
Tribune Staff Reporter
pbailey@tribunemedia.net
A WOMAN has been convicted of murdering her former boyfriend even though his body was never found, a verdict her attorney called unjust and legally troubling because prosecutors relied on a presumption of death while also arguing he died within a specific period.
Emajane Fitzgerald, 44, was convicted last week of murdering Keith “Fat Head” Russell, who disappeared more than a decade ago.
A jury returned a 7-1 guilty verdict on June 4 after a four-week trial that began on May 11 before Justice Andrew Forbes.
Terry Archer, Assistant Director of Public Prosecutions, appeared for the Crown, while Paul Wallace-Whitfield represented Fitzgerald.
Mr Wallace-Whitfield said the outcome was not what he and his client had expected.
“She’s been convicted in circumstances where there’s no body,” he said.
The prosecution alleged that Fitzgerald intentionally caused Russell’s death between August 9 and 10, 2015. Russell, who lived in Coral Reef Estates, was reported missing by family members and had not been seen or heard from since.
The prosecution relied on the seven-year presumption of death under the Evidence Act, which allows a person to be presumed dead if they have not been seen or heard from by people expected to have contact with them for seven years.
At the same time, prosecutors had to prove Russell died within a year and a day of the unlawful harm allegedly inflicted on him.
“To me, those two positions are incompatible,” Mr Wallace-Whitfield said. “How can you tell a jury on one hand that the prosecution has proved death within a year and a day, while at the same time relying on the seven-year presumption?”
The attorney said Fitzgerald was disappointed by the outcome and would likely seek legal advice after sentencing on whether to appeal.
“She feels she’s been unjustly convicted, and so do I,” he said.
Mr Wallace-Whitfield said the verdict was difficult to accept.
“It’s not the outcome we were looking for, but she handled it better than I did,” he said.
Justice Forbes requested a probation report on Fitzgerald from the Department of Rehabilitative and Welfare Services before passing sentence.
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