Should the Beowulfs ever have been tried for murder?

A grandmother died amid acrimony over money. There was the daughter-in-law, an accomplished portrait artist, deep in debt and with whom there was no love lost. Deeply loyal sons. Even as the murder investigation developed, there was an element of self-awareness, of the story unfolding. "The good thing is when I write a book, I'll make millions," Melissa Beowulf said. But the jury was not convinced by what they heard.

It took them only three-and-a-half hours to acquit all three accused of the most serious crime on the books. In a rare outing following the verdicts, one of Canberra's most experienced barristers addressed the media, calling his clients innocent. It was the first time Ken Archer had ever felt the need to speak publicly after a trial. Discretions higher up had not been exercised, he said. The case should never have been run.

A bystander to the two-month trial in the ACT Supreme Court earlier this year might be left with the impression the case against the family was at first ignited by rumour and built on suspicion.

There was nothing obviously violent about the scene where the 81-year-old lay dead at the foot of a staircase - bird netting wrapped around one foot and a thong with a blown-out plug nearby. And her death on October 12, 2015 was at first not treated as a murder. But the day after, her family's lawyer in Sydney called police to mention her considerable wealth (some $2.7 million), how she had recently restricted her daughter-in-law Mrs Beowulf's power of attorney, ensuring it only kicked in if Mrs Panin was incapable of managing her own affairs, and her plans to change her will.

The case file landed at the coroner's office where someone was unsure about the timeline the family had given police. When an officer called to clarify if they had left at 10am, Mrs Beowulf corrected the time to 2pm.

Days later, police opened a murder investigation.

What emerged was that this was not your average family.

Mrs Beowulf's husband and Mrs Panin's son, Thorhammer Beowulf, was no viking but a bonsai artist with Russian heritage who had changed his name. He appeared from what was heard in the trial to be financially controlling, possibly abusive. When he died of pancreatic cancer in 2015, shortly before his mother's death (his father long gone by this point), he left a document setting out what he wanted everyone to do when he died.

He had two partners - one wife, Mrs Beowulf, and one defacto, Dianne McGowan, with whom he had five sons. They lived together for decades in a mostly harmonious family unit.

In one generation, he and his family had burned through the enormous wealth his father had grown through first a small goods business in Sydney, and then property. Hunter's Hill harbourside mansion, wharf and yacht level of wealth.

Shortly before Mrs Panin's death the family sold the Woollahra home where she was living and she reluctantly moved to Canberra where she lived in the last family asset in a room she described as her coffin. Life became less harmonious.

The evidence suggested Mrs Beowulf became prone to paroxysms of verbal abuse toward the older woman while the boys tolerated her. Mrs Panin had her own eccentricities; she could be puerile (she was nicknamed the "toddler") and she could say cruel things. It was a family that from the outside did not make sense. Did that make it easier to think they had committed murder?

The Crown case at trial was that Mrs Beowulf, 61, and two of her sons Thorsten, 33, and Bjorn, 31, agreed to murder Mrs Panin.

It alleged there was a clash at home and Mrs Panin suffered a blow to the head but not one that was fatal. The trio were then said to have either left her to die or smothered her to death before arranging her body on the stairs. The scenario could also have played out on the back steps, in which Mrs Panin fell or was pushed down the stairs and again left to die, unable to breath properly where she lay.

No one saw or heard anything of the alleged murder so the case was built on circumstantial evidence.

There was evidence of a rug missing from the house when authorities arrived. When police later seized that rug it had been dry cleaned, but was still marked by Mrs Panin's blood. On the day she died Mrs Panin had made a call to her solicitor arranging to change her will. About the time of that call, the computers in the house stopped being used. Mrs Panin had no broken bones expected from a fall. Bjorn was seen scrubbing carpet, and he later searched for a blacklight online.

Mrs Panin's friends told police how she would fight with her son, Thorhammer, and his wife, Mrs Beowulf, about finances and that her family had been stealing her money for years.

The Crown leaned heavily on its financial motive theory. Mrs Beowulf, penniless and thousands of dollars in debt, was furious to discover Mrs Panin had changed her power of attorney, and that she planned to change her will.

But there were deficiencies in the evidence.

While prosecutors do not have to prove cause of death they were always going to face trouble when the forensic experts lined up to say they did not know how precisely she died. The experts also said her death was possibly from a fall.

When it came to the motive was there an attempt by investigators to validate it? The defence said no one seemed to investigate with any scepticism what Mrs Panin had told her friends about her home life and money, while the family's explanations of Mrs Panin's dementia were dismissed as self-serving and the fact the family had used the money to pay for an upmarket retirement unit in Deakin seemed to be ignored.

Yes, the power of attorney had been restricted, but Mrs Beowulf still held it. The planned change to the will was only to add Dr McGowan and her son as direct beneficiaries. The millions of dollars spread between seven rather than five, hardly a significant loss.

Other parts of the Crown case were batted away; the experts could not say how old the blood on the rug was. It had been cleaned because one of the boys threw up on it after discovering Mrs Panin dead.

For many months during the investigation, police had the Beowulfs home and car, and all three mobile phones, bugged. Hours of the recordings were played to the jury in which the family spoke of throwing the dead woman's ashes in the bin.

They discussed the low conviction rates for murder. They said it was a miracle she hadn't bumped herself off earlier. They expound a theory that they were framed by Dr McGowan. That she could be held to account once it was all "revealed to be bullshit", they said.

They never came close to admitting murder, despite the family's guileless conversations with each other. Even comments that might appear suspicious on their own lose that quality when the conversations are considered in whole, the defence argued.

Then the defence tendered an email during the trial, sent by Mrs Beowulf to her lawyer in the hours after she was alleged to have killed her mother-in-law, speaking about the woman as if she were still alive. Either she was lying as the Crown said, or this family had the temerity to mastermind a murder insurance policy over coffee and croissants after killing the grandmother.

There was no direct evidence of murder. There was no evidence of an agreement to murder or any admission to murder despite months of recordings. The experts said they did not know how she died, and that it was possibly from a fall. The defence had effectively dismantled the motive.

Should they ever have been tried? Was there ever a reasonable prospect of a jury convicting the Beowulfs?

That question, of a reasonable prospect, is a real one that prosecutors must answer positively when deciding whether to press on with a charge.

In an interview last week, the territory's director Shane Drumgold described a two-step approach to that decision, under what he called the guiding light of the prosecution policy. The first step is to ask whether the case has reasonable prospects of conviction. The second is whether the prosecution is in the public interest. The idea is to be consistent and predictable in the application of that policy, he said. "But there's a line in the sand that's important to maintain and that is I'm not a tribunal of fact," Mr Drumgold said. That role falls to the judge or jury.

Mr Drumgold said he sometimes turned to numbers as a litmus test of how the office was performing. "Often trials don't go as one would expect," he said, "so one would expect to have a percentage rate of matters that are found not guilty."

He believes, looking across Australian jurisdictions to compare, that the territory has the balance right. In 2016, there were 124 matters committed for trial in the ACT Supreme Court and not guilty verdicts in 15 of those, while prosecutors discontinued two. In 2017, there were 114 trials, 18 verdicts of not guilty and two discontinued. In 2018, 109 trials returned 16 verdicts of not guilty and four matters were discontinued.

"It's very easy to get to the end ... to say that 16 verdicts of not guilty are representative of matters we shouldn't have taken through," he said. "If one had a 100 per cent conviction rate one would think that maybe we're dismissing too many matters."

But what about mistakes? What of accusations that the justice system has not worked well in this case? "So they were acquitted, and so it seems that the justice system did work," Mr Drumgold said of the Beowulfs. "That's the justice system's role and it seemed that the justice system did its role. We don't see a not guilty verdict as a failure, we see the fact that we take charges through, a percentage are found guilty and a percentage are found not guilty, we see that as the justice system working."

After the close of the prosecution case, the defence tried to have the case thrown out and have the judge return a verdict of acquittal. Chief Justice Helen Murrell denied the application. She said while the Crown's line of reasoning could be characterised as unsafe, that was not to say it was unavailable. The questions were a matter for the jury.

"In submissions on the no case application, the defence highlighted the many deficiencies in the prosecution case. But that does not mean that the case should be withheld from the jury. As the High Court [recently] emphasised ... the jury is the constitutional tribunal for the determination of questions of fact."

How the jury came to its conclusions is a mystery and likely always will be to the general public. But there are clues.

Just moments before it returned its verdicts it asked two telling questions.

If an element of the crime was not proved beyond a reasonable doubt, did they have to return a verdict of not guilty? Yes, came the judge's answer.

And if the jury considered one of the accused was guilty and that the others helped would they still have to find all three not guilty? Yes again, because the Crown had made the decision to run a joint commission case of murder (as opposed to pinning it on one member and charging the others as accessories).

That meant it was all or nothing.