In his book, Murder by the Prosecution (Wilkinson Publishing) ANDREW L. URBAN reports on murder trials that relied exclusively on circumstantial evidence and how these resulted in convictions – since overturned or under appeal. Through exploring these cases he came to recognise a pattern, secret strategies. He now adds the case of Robert Xie to the three examples in his book.
Many people find it difficult to believe that our criminal justice system is capable of repeated and gross errors. But these examples of murder cases show how the prosecution (protected by professional immunity) sought and secured a conviction by applying the secret strategy, three identical ‘imperatives’ in each case – as outlined in Murder by the Prosecution.
This breakdown shows that scenarios (however implausible) invented by prosecutors – when un-checked by judges – can persuade juries and help secure convictions. It’s rare, but not as rare as we like to think. More than criticisms of judicial decisions alone, these convictions undermine the authority of the criminal justice system.
The trigger for such speculative scenarios is lack of direct 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 are 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 that fills in the missing gaps in the evidence. It means speculating what might have happened, how the accused might have committed the murder – and why. To succeed, this approach requires exceptional skills in story telling and jury psychology. But it is wrong and impermissible. Good judges disallow it.
HOW IT WORKS – THREE IMPERATIVES
Three imperatives to deliver a conviction when there is no direct evidence of murder against the accused:
Establish and/or embellish conflict between accused and victim and/or potential motive, however slight.
Speculate a scenario describing the murder in detail, even if implausible. ‘Sell’ the story to the jury.
Present any forensic and/or expert witness evidence angled to implicate the accused, playing on judge and jury ignorance about forensic and other technical or scientific matters.
Establish and/or embellish conflict between accused and victim and/or potential motive, however slight
Gordon Wood case (acquitted on appeal in 2012 four years after 2008 conviction, 17 years after Byrne’s 1995 death)
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 fool proof. 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’.
At the civil trial in March 2017 where Wood (following his successful 2012 appeal) was suing for malicious prosecution, his barrister Barry McClintock produced medical documents that referred to Byrne’s depression and a previous self harm episode. Her depression was an issue at trial, and Tedeschi agreed, saying “It was incumbent on the Crown to disprove suicide.”
McClintock’s last words to Tedeschi were blunt: “I put it to you that whatever purpose you had did not serve the purpose of justice.”
In the Chief Justice’s decision to acquit Wood, he also refers to another motive the prosecution tried to argue: “The … suggestion was that Mr Wood had told Ms Byrne about the shady business dealings of Mr Rivkin, and then determined that he had to get rid of Ms Byrne as part of the cover-up.”
The Chief Justice concluded, “the suggested evidence of a motive involving Mr Rivkin is so thin that it should never have been left with the jury.” He said it was “entirely speculative and internally inconsistent”. Although it meant killing the person he loved, it was said that Mr Wood chose to do this rather than lose his job. “To my mind there was nothing in the evidence which justified the prosecution’s speculation with respect to Mr Wood’s motive.”
There was no evidence that Ms Byrne actually knew any details of any illegitimate dealings or that she had any knowledge which could damage Mr Rivkin. The evidence could never sustain the proposition to say that Mr Wood felt it necessary to kill Ms Byrne to protect Mr Rivkin.”
FOOTNOTE: At Wood’s civil claim of malicious prosecution, Justice Elizabeth Fullerton demolished Mark Tedeschi QC’s prosecution of Gordon Wood for being “disingenuous” and “impermissibly straining for a conviction”. However, she dismissed the claim for malicious prosecution. Wood is appealing that decision.
Sue Neill-Fraser case (new appeal to be heard late 2020, 10 years after conviction)
The prosecutor (Tim Ellis SC) 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 expensive Four Winds yacht. He cited statements by strangers to the couple, the crew who helped 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 on the day of 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 – and took place the day before.
Henry Keogh case (acquitted on appeal 20 years after conviction)
The prosecutor (Paul Rofe QC) 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.
Robert Xie case (appeal heard in June 2020, decision reserved, nine years after arrest, three years after conviction, 11 years after murders)
Detectives on Strike Force Norburn, comprising Homicide Squad and some assistance from the Asian Crime Squad, are struggling to find a motive, according to news reports.
In December 2012, Xie is granted bail by local court magistrate John Andrews, who says the Crown case is not strong. Andrews had noted that the prosecution had described the murder of Xie’s brother-in-law, Min ”Norman” Lin and four members of his family, bludgeoned and strangled in their beds, as a crime of extreme violence and personal hatred but was unable to establish a clear motive for the crimes. ”It was effectively conceded by the prosecutor that there was no evidence of motive.
But by the time the case went to court, the prosecutor had worked up a couple of motives. One, that Robert Xie was jealous of his brother in law’s success. This was shown to be false, but it remained as ‘poison’ in the jury’s mind, no doubt. Another motive put to the jury was that Xie was sexually abusing the teenage daughter (his niece) … and by eliminating her entire family he was free to do so.
Speculate on a scenario describing the murder in detail, even if implausible.
Gordon Wood case
The prosecutor (Mark Tedeschi QC) 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 the prosecution convinced the jury that it was plausible.
Sue Neill-Fraser case
The prosecutor (Tim Ellis SC) put it to the jury that Sue Neill-Fraser murdered Bob Chappell on board their new yacht possibly by hitting him on the head from behind with a wrench. He did not present any evidence to support this speculation. Chappell was missing and his body was never found.
In his closing address to the jury, he said: “She’s walking backwards and forwards and delivers blow – a blow or blows, or maybe stabs him with a screwdriver, I don’t know, he doesn’t look round, and so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he knew and expected to be behind him.” Ellis further speculated that she 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 speculation.
Henry Keogh case
The prosecutor (Paul Rofe QC) 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.
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 Senior Director of Forensic Pathology, Dr Colin Manock.
Robert Xie case
The prosecutor (Mark Tedeschi QC) put it to the jury that sometime after 2 am (when he switched off his computer) Robert Xie got up from his bed 200 metres from the Lin home, without his wife being aware because he had sedated her, went over and bludgeoned the five members of the Lin family to death (One child was on a school trip overseas), then returned to his bed, again without his wife being aware of his movements. He provided no evidence linking Xie to the murder nor for him sedating his wife (other than a feeble attempt at entrapment by a paid informer facing serious charges in jail).
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.
Gordon Wood case:
The prosecutor (Mark Tedeschi QC) 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. (There was no evidence presented to the jury that showed Wood actually did that, only that Cross suggested perhaps he could have.)
In 2012 the Court of Criminal Appeal set aside Wood’s conviction and entered a verdict of acquittal. In his judgement the judge stated that even the most basic elements of the case had failed to be established. In his submissions the prosecutor suggested that the woman may have been thrown by a “shot put throw”. The judge said this proposition “was extraordinary and should never have been made”. The submission was entirely unsupported by any evidence and was “an invention of the prosecutor”. As the judge said, in this and other critical matters, the prosecutor argued for conclusions based on his own speculative propositions. The judge went so far as to ridicule the prosecution’s case: “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, Associate Professor Rod Cross. They had worked closely with each other, and, according to the Chief Judge at Common Law, they had presented evidence which was either inadmissible or unreliable.
Sue Neill-Fraser case
The prosecutor distributed a photo to the jury 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.) The confirming test carried out on the dinghy showed no blood. The image shown to the jury was therefore meaningless, but it planted a prejudicial 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 (emphasis added):
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?
Given that both the judge and defence counsel Gunson had got the wrong – and prejudicial – impression, it was highly likely that the jury did, too. Perhaps His Honour could have mentioned this exchange to the jury … or have Ellis do so.
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 direct 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 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. No-one has been held accountable. (The Solicitor General at the time was Chris Kourakis QC, who became Chief Justice of South Australia in 2012.)
Robert Xie case
The prosecutor (Mark Tedeschi QC) put it to the jury that DNA found on the Xie house garage floor was proof that Xie was the killer. The DNA took up enormous amounts of time and resources in the two trials that went to completion with a jury (3rd and 4th) – as well as over a week at the appeal – but the expert witnesses could not agree or be sure that the DNA (a sample measuring 6cm x 2mm) contained the DNA of the murdered family, nor could they exclude the DNA of one child, who was not at home at the time. The amount of effort put in by the prosecution created a sense of importance and probity around the DNA that overwhelmed the court, the jury and anyone exploring it. Yet it was totally irrelevant, as Graham Turnbull SC (Xie’s defence barrister at trial 3) argued only to have Justice Johnson admit it into evidence anyway. That one decision alone may have sealed Xie’s fate at trial, yet the evidence is silent on how the DNA got there and why it was connected to the crime. It wasn’t even reliably identified as blood…. The garage was a play room for children of the two families.
Emerging prosecutors please note: this article is a warning, not an instruction manual.