Securing murder convictions without evidence

By Andrew L. Urban.

As Gordon Wood, acquitted in 2014 of murdering his girlfriend Caroline Byrne in 1995, awaits the decision (expected by end of 2017) on his recently concluded malicious prosecution case against the State of NSW, at least two other murder convictions deserve scrutiny.

Many people find it difficult to believe that our criminal justice system is capable of repeated and gross errors. But the example of just three cases show how the prosecution (protected by professional immunity) sought and secured a conviction by applying three ‘imperatives’ in each case.

This breakdown shows that scenarios (however implausible) invented by prosecutors – when un-censured by judges – can persuade juries and help secure (wrongful) convictions. It’s rare, but not as rare as we like to think. Such miscarriages of justice put innocent people in jail and ruin many lives, undermine confidence in the courts and waste large amounts of money. More than criticisms of judicial decisions alone, they undermine the authority of the criminal justice system.

The trigger for such speculative scenarios is lack of evidence, combined with failures at the investigation stage. When police are determined to bring a case against their suspect in a murder case and are unable to produce any direct evidence, there is a scramble for circumstantial evidence which can be manipulated to support a hypothesis. It’s called tunnel vision. Any clues or leads that do not fit the case constructed against the suspect is ignored. The brief to the Director Public Prosecutions is then massaged to fit the charge against the accused.

This is where the prosecutor takes over and has to decide whether to proceed to trial with ‘reasonable and probable cause’ that a conviction can be secured on the basis of the evidence. In some cases, as shown here, that decision can only be substantiated by a creative approach which fills in the missing gaps in the evidence. It means speculating what might have happened, how the accused might have committed the murder. To succeed, this approach requires exceptional skills in story telling and jury psychology.

Juries – and defence teams – beware.

How it works – three imperatives to deliver a conviction when there is no direct evidence of murder against the accused:

IMPERATIVE 1 Establish and/or embellish conflict between accused and victim and/or potential motive, however slight

IMPERATIVE 2 Invent a scenario describing the murder in detail, even if implausible

IMPERATIVE 3 Present any forensic and/or expert witness evidence as if it implicated the accused, playing on judge and jury ignorance about forensic and other technical or scientific matters

EXAMPLES

IMPERATIVE 1 Establish and/or embellish conflict between accused and victim and/or potential motive, however slight

Gordon Wood case

Caroline Byrne: suicide – not murder

The prosecutor (Mark Tedeschi) put it to the jury that Gordon Wood and his girlfriend Caroline Byrne, were in conflict and she was ready to break up. He sought to press this claim with statements from some who knew the couple, although the evidence was not entirely foolproof. He did not reveal to the jury that feeling unwell two days prior to her death, she had sent Gordon Wood a chirpy text message which she signed as ‘your sick chicky babe’.

Sue Neill-Fraser case

Bob Chappell: missing – not murder

The prosecutor (Tim Ellis) put it to the jury that Neill-Fraser and her partner of 18 years, Bob Chappell, were in conflict and ready to break up, just a few weeks after jointly buying the Four Winds yacht. He cited statements by strangers to the couple, the crew who helped them sail the Four Winds from its Queensland berth to its new home in Hobart. The notion of them being in conflict was disputed by witnesses who knew the couple over several years, including family.

He also cited evidence about what may have been a quayside quarrel between them shortly before Chappell’s disappearance, which turned out to be false. The quarrel was in fact a disagreement between Chappell and his sister, who was visiting Hobart. Despite being alerted to the error, Ellis did not correct this error for the jury.

(Neill-Fraser is hoping to be granted leave for a further appeal under new legislation introduced last year – 2016.)

Henry Keogh case

Anna-Jane Cheney: accident – not murder

The prosecutor (Paul Rofe) could not find any evidence of a conflict between them so he put it to the jury that Henry Keogh murdered his fiancé in the bath to collect the money from the insurances on her life.

Keogh, an insurance agent, admitted to signing five life insurance policies on behalf of Anna-Jane Cheney. Whereas the prosecution alleged the combined value of $1.15 million was motive for the murder, Keogh claimed that these were submitted to prevent insurance agencies he had established from lapsing, and that the amount eligible to claim was closer to $400,000. The prosecution conceded during the trial that Cheney was aware of at least two of these policies.

IMPERATIVE 2 Invent a scenario describing the murder in detail, even if implausible.

Gordon Wood case

The prosecutor (Mark Tedeschi) put it to the jury that Wood murdered his girlfriend, Caroline Byrne, by throwing her off the cliff at The Gap, using a ‘spear throw’, carrying her above his head as he took a run up to the cliff edge. There was some uncertainty as to whether she would have been conscious or not, but obviously the prosecution convinced the jury that it was plausible.

Sue Neill-Fraser case

The prosecutor (Tim Ellis) put it to the jury that Sue Neill-Fraser murdered Bob Chappell on board their new yacht by hitting him on the head from behind with a wrench. He did not present any evidence to support this scenario. As Chappell was missing and his body was never found, Ellis further speculated that she then must have winched his body up to the top deck, heaved him over the side into their dinghy, rowed it away and dumped his body somewhere in the Derwent. He did not present any evidence to support this physically implausible scenario.

Henry Keogh case

The prosecutor (Paul Rofe) put it to the jury that Keogh murdered Anna-Jane Cheney by lifting her left leg while she was in the bath, causing her to drown. Obviously the prosecution convinced the jury that it was plausible.

Indeed, Maciej Henneberg, Professor of Anatomy at the University of Adelaide, has stated that it would be impossible to drown someone by holding their legs over their head, as the power of the extensor muscles in a woman’s leg would always be greater than the power which a man could exert through a fingertip grip of the woman’s calf as proposed by forensic pathologist Dr Colin Manock.

IMPERATIVE 3 Present any forensic and/or expert witness evidence as if it implicated the accused, playing on judge and jury ignorance about forensic and other technical or scientific matters. The court’s ignorance (of many things, not just forensic evidence) is your friend …

Gordon Wood case:

The prosecutor (Mark Tedeschi) relied for his speculative suggestion about the method of the murder on the work of expert witness Associate Professor Rod Cross, who had performed experiments to satisfy the prosecution that a strong man could indeed throw a 56 kilo woman (held above him, propelling her by her crotch) far enough so that she land as far out from the cliff as Byrne’s body had been found.

In 2012 the Court of Criminal Appeal set aside Wood’s conviction and entered a verdict of acquittal. The Chief Justice made it clear in his judgement that even the most basic elements of the case had failed to be established. “I am not persuaded that Wood was at The Gap at the relevant time.” He concluded that the verdict of the jury could not be supported having regard to the evidence.

The main witnesses for the prosecution were the investigator, Detective Inspector Jacob, and the expert witness, Assoc. Professor Rod Cross. They had worked closely with each other, and, according to the Chief Justice, they had presented evidence which was either inadmissible or unreliable.

Sue Neill-Fraser case

The prosecutor projected a large slide onto a screen in the courtroom which showed the Four Winds dinghy photographed with the extensive blue stain of luminol, a preliminary test for blood and many other substances. (The luminol test on the family car in the Lindy Chamberlain trial turned out to reveal sound deadener not blood.) There was no confirming test ever carried out on the dinghy. The projected slide was therefore meaningless, except it planted an image in the minds of the jury.

On October 13, 2010 during submissions prior to summing up, in the absence of the jury, counsel and the judge conferred.

The transcript:

MR ELLIS SC: The next point is, it was attributed to me that I said it was Mr Chappell’s blood in the dinghy. Now I don’t believe I did.

MR GUNSON SC: Yes, you did.

MR ELLIS SC: Okay – I don’t know why I’d say it

HIS HONOUR: – Well –
-

MR ELLIS SC: – because I’ve never believed it.

HIS HONOUR: In opening.

MR GUNSON SC: Yeah.

MR ELLIS SC: Oh in opening –

MR GUNSON SC: Yes, in opening.

MR ELLIS SC: Oh okay, I abandon that, if I said it in opening.

HIS HONOUR: All right. Well I’ll do nothing about that point. What’s the next point?

Henry Keogh case

Two days after Anna-Jane’s death, South Australia’s chief forensic pathologist Dr Colin Manock performed an autopsy which didn’t raise any concerns. But after hearing about the suspicions over insurance policies, he examined the body again. His re-examination lead him to form a “grip theory” — which he says explained faint bruises on the outside of her left leg. He said there was a key thumb bruise on the outside of the left leg and suggested her legs had been lifted over her head in the bathtub which ended in her being drowned.

This was the evidence on which the prosecution built a hypothesis to put to the jury. There was no actual evidence against Keogh. The scenario of how the murder was physically committed was accepted as credible. The method of drowning proposed by Manock was not possible when the physical location of the bath against the wall was considered, requiring an attacker to be positioned where a wall was located. Manock did not visit the scene until three months after the drowning theory was proposed.

In 2009 Manock recanted his evidence, and acknowledged that evidence he gave at trial to the effect, at least by implication, that his microscopic examination supported the conclusion that the medial side mark was a bruise, was wrong.

The error proved catastrophic for Keogh; the bruise Manock identified as the grip marks could not have been inflicted at the time of death, as haemosiderin was later found in the relevant tissue sample. As the appeals court heard, “haemosiderin is a by-product of the healing process consequent on a person suffering, inter alia, a bruise or some type of tissue lesion. However, haemosiderin will be detectable no earlier than 24 hours after the bruise or lesion to which it relates is suffered.”

In his 2004 report on the case, Emeritus Professor, Institute of Medical & Veterinary Science, University of Adelaide, Barrie Vernon Roberts concluded: “My preference as an hypothesis for the sequence of events leading to Ms Cheney’s death is that she lost consciousness after having sustained an initial fall in blood pressure due to blockage of a small artery in her heart or during a faint. While falling backwards from an erect position she struck her head on the bath before sliding under the water and drowning while unconscious.” The appeal judges agreed.

Contrary to the legal rules, the Vernon Roberts exculpatory report to the Crown was not disclosed to Keogh’s legal team for a decade – until his final appeal began in 2014 and he was still in prison. (The Solicitor General at the time was Chris Kourakis QC, who became Chief Justice of South Australia in 2012.)