Andrew L. Urban.
It’s one thing for a man convicted of murder to protest the verdict. It’s quite another to painstakingly dissect the trial judge’s summing up, as Marco Rusterholz did, to point out where he thinks “mistakes and misdirections” prompted (‘steered’ as he puts it) the jury to a guilty verdict. He detailed his critique in a briefing for his counsel to appeal against the verdict. And the appeal judges agreed 3-0 that the circumstantial case did not prove guilt beyond reasonable doubt. So why did they dismiss the appeal?
It is not unusual for us to receive emails from relatives or friends on behalf of people in prison who believe they have been wrongfully convicted.
Marco & son Saxon, in 2012 before his arrest
One such email, from Marco Rusterholz’s old friends the Hoffmans, contained specific information that grabbed my attention: “There was no scientific evidence to convict him and the witnesses for the prosecution were all drug addicts. In one of the eyewitness reports it is stated the three males of average build were seen leaving the (crime) scene – Marco is and always has been a really large man and would have been unmistakeable,” wrote Gary & Georgia Hoffman. Rusterholz weighed 130 kg at the time of the murders.
Georgia & Gary Hoffman
Gary, a retired engineering pattern maker, met Marco at a Brisbane gym 32 years ago, each impressed by the other’s powerlifting. “We entered numerous competitions over a number of years until Marco – now married – moved to Toowoomba. We kept in touch, visiting each other occasionally. After a few years in Toowoomba Marco and his growing family relocated to Tasmania but we have always remained in contact with Marco via letter or phone. We feel we know Marco pretty well and do not believe him capable of murder. After hearing what his original lawyer said to him that the court case would be over in a few days and that Marco would be free to go, we were both stunned after the sentence was read out.”
Rusterholz was arrested on September 25, 2012, at a property in Glenorchy. The Hoffmans and Rusterholz remain in regular contact. “To keep his sanity”, says Gary Hoffman, Rusterholz, the former air conditioning technician, is keeping busy with woodworking tasks.
The Rusterholtz marriage, which produced eight children, eventually broke down.
THE CROWN’S CIRCUMSTANTIAL CASE
Rusterholz, 51 at the time, pleaded not guilty to the murders of Angela Hallam and Joshua Newman in Ravenswood, Tasmania, in 2012. It took the Supreme Court jury in Launceston about 10 hours over three days to convict Rusterholz of murdering Hallam, 31, and Mr Newman, 21. The Crown’s case, entirely circumstantial, was that Rusterholz stabbed the couple and cut their throats before setting their bodies on fire. The state argued Rusterholz killed Hallam over a drug debt and because he believed her death would please his new girlfriend. Newman was described as being in the wrong place at the wrong time and was killed because he went to Hallam’s aid.
Over the course of the seven-week trial, jurors heard from more than 70 witnesses. Witness Matthew Coventry told the court he and Hallam trafficked drugs for Rusterholz and they had stolen a large amount of drugs from him. Both Coventry and Mayer said Rusterholz had admitted the murders to them. (Those – arguably self-serving, unreliable – claims played the key role in the conviction; see below.)
The prosecutor was Mr Ransom from the Office of the Director of Public Prosecutions. Rusterholz was represented by Mr Hughes.
Rusterholz, as can be seen in his detailed dissection of the judge’s summary & directions below, has other criticisms of the judge, which ring alarm bells, notably the criticism that Pearce J did not pay attention to the evidence.
The following ‘trial analysis’ by Rusterholz was prepared for Fabiano Cangelosi, his legal representative at the appeal, and is reproduced in its entirety (complete with uncorrected spelling errors). Please note: Rusterholz is quoting the judge from the trial transcript, underlining for emphasis and adding his comments in bold. References to Salient Facts relate to a large document in which Rusterholz details all the evidence on which he relies in the relevant paragraphs.
R Pearce/Summary 28/4/15
MISTAKES/MISDIRECTIONS
Page 2 line 4-8 I will give you a memorandum which outlines the elements that you need to find proved before you can find the accused guilty of murder. And I will remind you of the essential factual elements of the crown case and the defence case.
NOTE: what was found proved?
Page 3 line Usually the transcript is accurate. Counsel have the opportunity to point out to me any inaccuracies in the transcript.
*Page 3 line 35-40 …the evidence is what you heard and saw in court. …it’s not only what was said by the witnesses that’s important, but your impresions of them as they give their evidence. And you are going to be asked to judge their honesty and their reliability.
NOTE: Surely Pearce can really only be referring to civilian witnesses such as Covo etc – because he couldn’t be suggesting that the forensic or fire investigation people would need to be judged by the jury regarding their testimony based on an ‘impression’ the jury gets about their honesty and reliability?!?!
Page 4 line 20 Juries have an obligation to bring their verdicts in accordance with the law as I direct the law to be.
Page 4 line 28 You must accept my version (law).
Page 4 line 40 ….you are the judges of the facts and not me. You are the sole judges of the facts.
Page 4 line 37-43 …if I happen to express a view on any question of fact, you can and you must, disregard those views unless they happen to coincide with your own assessment of the evidence. ….You are the sole judges of the facts. So it’s your duty to consider the evidence, where possible reach conclusions or make findings on the facts, that is what happened or what didn’t happen.
NOTE: Oh come on now – any ‘view‘ Pearce expresses will never be disregarded. What is the point of Pearce even uttering any ‘view’ if they “must” disregard it???? The ‘view’ is in fact a subliminal suggestion point – it is swaying a jury and affects the way they judge, decide, evaluate, adjudicate their ‘impressions’ of the perceived ‘facts’!!!!! Why make any comment whatsoever if it isn’t intended to ‘steer’ an impression?? Thus from the outset the judge allows himself a foothold in the door of whether or not the jury are the “sole judges of the facts” and not him!!!
Page 4 line 44 So it’s up to you to decide what facts you accept are established and what conclusions or inferences you draw from those facts.
NOTE: Does this in any way mean that the jury can invalidate fire investigator findings and forensic science findings which are CONCRETE facts? Because that is what they did!
Page 5 line 1-5 Now I do not propose to persuade you one way or the other as to the verdict that you should return in this trial, that’s not my task.
Page 5 line 10 …it is your duty to disregard what I say about the facts unless you agree.
*Page 5 line 15-17 …but it’s necessary … to consider all of the evidence … Your decision on the facts must be based solely on the evidence.
Page 5 line 29-35 Now what happened to Angela Hallam and Joshua Newman was appalling. You may consider that whoever is responsible for such atrocious murders should be punished.
NOTE: WHOA there Tex … it is only me on trial!!! Who else of the “whoever” are they going to consider??? The State’s case is that I am guilty. So it doesn’t leave any other option as to who is guilty!!!
*Page 6 line 2 …ensure that your verdict is delivered in accordance with the law and solely on the basis of the evidence that you’ve heard during the trial and not on any other matters.
NOTE: this they didn’t do!
Page 6 line 7 …as to whether guilt has been proven beyond reasonable doubt.
Page 6 line 20 …it’s your duty to base your verdicts solely on the evidence,…
Page 6 line 37 You must base your verdicts on the evidence that’s been given, not on the evidence you think perhaps might have been given.
Page 7 line 13-15 If I reveal what I think about facts or any aspects of the facts or if you think I’ve given some indication of a personal view on any point, well as I said it’s your duty to put that aside unless you agree.
NOTE: This “unless you agree” part is a massive contradiction of directions to the jury that completely undermines what Pearce said previously …
- “You are the judges of the facts and not me.”
- “Now I do not propose to persuade you one way or the other.”
- “your decision on the facts must be based solely on the evidence.”
- “solely on the basis of the evidence that you’ve heard … during the trial and not on any other matters.”
Thus this makes it ok to plant ideas. It opens doors for the Judge to say anything to guaranty that the jury does not miss an idea or view of his. With their attention drawn whenever the Judge speaks they cannot miss it as in reality the jury will heed all that he says to them allowing the Judge to influence and steer the jury – thus is a terrible misdirection to the jury.
Page 7 line 32-43 On of the important functions that you can perform as a jury is to decide, if you can, which witnesses are truthful….You may be influenced by the way they behaved when they were in the witness box. How they conduct themselves.
Page 9 line 16 In every trial I direct the juries that they may be satisfied that witnesses are right about some things and wrong about others.
NOTE: This poses the question of …did Pearce listen to all the forensic evidence and fire investigation evidence? Because that excludes me from the crime scene and places Dave Morgan at the crime scene!!! It is clear to me that even Pearce must have missed the significance of the forensic evidence and the fire investigation evidence.
Page 11 line line 1 The burden or the onus is on the State to prove guilt beyond reasonable doubt. It’s the State that alleges guilt. It’s the State that has to prove it.
Page 11 line 25-28 you must conclude whether or not Mr Rusterholz’s guilt … has been … established beyond reasonable doubt.
NOTE: The jury ignored, as the Judge did, all the scientific evidence provided by the state.
RE: One person killing both victims
Page 11 line 42-44 … the evidence doesn’t seem to me to be capable of supporting … the conclusion that somebody killed one person and was not … guilty of killing the other …
NOTE: This misdirection of Pearce ignores Jarryd Anthony Slater’s testimony – see SALIENT FACTS #2. Likewise Coventry – forensics has blood and DNA from two contributers under his nails (see SALIENT FACTS #3) and Cory Griffiths could not establish if the blood was Coventry’s or the second contributer! The sample was so weak – though he could tell the blood was human he couldn’t tell who the second contributer was – let alone if the blood was Coventry’s contribution!
Page 12 line 6 In a criminal trial the State does not have to prove every fact beyond reasonable doubt.
NOTE: That’s the opposite of what he said Page 11 line 1-3
the onus is on the state to prove guilt beyond reasonable doubt. It’s the … State that has to prove it.
Page 12 line 23 The burden of proof beyond reasonable doubt.
Page 13 line 16 One disputed element, and that is whether Mr Rusterholz was the person responsible …
Page 14 line 38 …if you are satisfied beyond reasonable doubt that whoever did this …
Page 15 line 11 …whether the State has proved that Mr Rusterholz was the person responsible for the murders.
RE: Circumstantial evidence
Page 16 line 21 The State’s case relies, at least in part, on circumstantial evidence.
Page 16 line 33 Now the State’s case therefore depends on circumstantial evidence, at least in part.
NOTE: The solid science evidence coming from fire investigators and forensic services completely clear me and strongly point the finger at Morgan and Covo.
Page 16 line 44 In some cases circumstantial evidence can be much stronger than cases depending upon direct evidence.
NOTE: Circumstantial evidence is happenstance. It’s only “evidence” if it isn’t disproved by science, surveillance bugs or other circumstantial evidence!!!
Page 17 line 1 Consider certain basic facts and then draw conclusions from those.
RE: Rays of light
Page 17 line 8-19 …Just consider each piece of evidence that the crown relies upon as one of those ‘Rays of light’. Individually they may show little. But together the crown says they disclose the object clearly.
NOTE: “Rays of light” truth???? Is this what Pearce suggests that the crown has?! That’s a completely inappropriate direction. Pearce is supposed to be impartial!!!! But now he is referring to the Prosecution’s evidence as ‘Rays of light’. The opposite must be true of Counsel Hughes summary of evidence. So it follows logically that Covo’s, who admits he is a dishonest person, $1,500 a day drug habit testimony is a ‘ray of light'(See SALIENT Facts #8, 11, 12. Likewise Mayer’s 2 and a half ‘eight-balls’ of amphetamine per day habit – a ‘ray of light’ (see SALIENT Facts # 15). Elisa Knight – a ‘Ray of Light’???
RE: The only inference reasonably available/the only rational hypothesis
Page 17 line 32 In a case depending substantially on circumstantial evidence, a jury can’t be satisfied of guilt unless the inference of his guilt on those basic facts is the only inference reasonably available on the evidence. You cannot be satisfied beyond reasonable doubt unless you consider that Mr Rusterholz’s guilt is the only rational hypothesis which is open to you on the evidence.
NOTE: This case is absolutely loaded with very strong inference and rational hypothesis that Covo/Morgan were the murderers! That Morgan killed Joshua and that Covo killed Hallam.
Page 17 line 40-44 You may only convict Mr Rusterholz based on circumstantial evidence if you are satisfied that the only reasonable inference or conclusion arising from all those facts*, taken together, is that he is the person responsible for these crimes.
NOTE: Circumstantial evidence being referred to as a “fact” by Pearce – wow!!! If an allegation is a “Fact” then there are tenfold more facts against Morgan and Coventry NOT including the scientific facts! That’s a fact!
But not once does Pearce ever tell the jury that the science is wrong and that the drug affected testimony is superior. However by not directing the jury to the scientific findings, on any particular point of contention, he has put into the minds of jurors the mental avoidance of the scientific proof of a ‘fact’.
Page 19 line 27-36 That Mr Rusterholz had the means … the motive … the opportunity to commit the murders.
NOTE: Motive? Opportunity?? wow! Um Coventry and Morgan???? Means, Motive, Opportunity??? Ashley Bishop??? Any of the many criminal identities in Hobart that Angela moved away from????? See SALIENT FACT #20
Page 22 line 1-7 Amy Prior gave evidence that …Angela told her that Mr Rusterholz had grabbed her by the throat …
NOTE: Pearce just does not listen to any scientific evidence at all – clearly!!! See SALIENT FACT #7. Forensic science from the autopsy stated 110% clearly that there was NO throat grabbing, no strangulation, no bruising or blunt trauma whatsoever to Angela Hallam!!! He is completely misdirecting the jury! He either has no understanding of evidence, or he is corrupt, or he is incapable of acting as a judge! His direction here reveals total ignorance of the FSST evidence! Furthermore Felicia O’Rourke and Ben Fama were with Angela the very next day – they say that there was no problems as far as they were aware! Read their evidence notes.
Page 22 line 16-21 Felicity O’Rourke gave evidence … Mr Rusterholz … barged in … and slammed the door.
NOTE: Pearce DOES NOT LISTEN TO THE EVIDENCE at all!!!!! He is quoting responses during Ransom’s questioning – he is not taking ANY notice of the cross-examination by Hughes who gets a COMPLETELY DIFFERENT SERIES OF REPLIES. See SALIENT FACT # 23!!! There is NO door slamming or barging in whatsoever in the cross examination!! Pearce is absolutely focussed on misdirecting the jury. He missed ALL of the FACTS from the cross-examination! That’s a FACT!
The only reason could be that the Astor Grill where Joshua worked was owned by Robert Pearce’s brother! Pearce’s brother was Joshua’s boss!!! A vested interest – he should have excluded himself from the case!!! MIS-TRIAL – REASONABLE DOUBT – NOT GUILTY
Page 22 line 41-Page 23 line 5 14th August … detail a car … Rusterholz had been talking on the phone …after he hung up Mr Morgan started shouting … “I should have blood done it the other night, fucking slut.” But that she didn’t hear Mr Rusterholz’s reply because she was vacuuming a car …that’s only evidence of what Mr Morgan said, nothing about what Mr Rusterholz said.
NOTE: Dana Smith DID NOT SAY that Angela was planning on ripping Rusterholz off!!! FACT. Morgan was the one who was “angry”. FACT. Morgan was the one “shouting” & “yelling” – FACT! Justice Pearce seemed to miss these important FACTS and suggests a reply was forthcoming from myself that was unheard by Dana! She said we we just talking! Pearce steers the emphasis away from the FACTs – that it was Morgan who yelled “I should have done it the other night. fucking slut.”Page 958 line 8-25. See SALIENT FACT #22. Pearce should NOT have directed the jury by saying “But that she didn’t hear Mr Rusterholz’s reply because she was vacuuming a car …that’s only evidence of what Mr Morgan said, nothing about what Mr Rusterholz said.”
Pearce seemed to forget his own rules he stated earlier when he said …
Page 6 line 2 …ensure that your verdict is delivered in accordance with the law and solely on the basis of the evidence that you’ve heard during the trial and not on any other matters.
Page 6 line 37 You must base your verdicts on the evidence that’s been given, not on the evidence you think perhaps might have been given.
Pearce is strongly infering a view that there must have been some sort of nasty reply, to the jury, of which there is no evidence and moreover Pearce is over looking the FACT that Morgan is saying that he should have done something, to Angela (in the context) the other night – the slut! That Morgan is doing the yelling. That Morgan is going to be ripped off – not me!!!!
Page 20 line 40 HH The State contends that Mr Rusterholz had a motive to kill had a motive to murder Ms Hallam and indeed before the murders he expressed a desire to harm her. Now the State has no obligation to prove to you that Mr Rusterholz had a reason to kill Ms Hallam.
WHOA – MISDIRECTION – (Page 11 line 1-3 the onus is on the state to prove guilt beyond reasonable doubt. It’s the … State that has to prove it.). What a contradiction especially in the minds of the jury!! Which one is it? Does the State have to prove guilt beyond reasonable doubt (Page 11 line 1-3 summary ) OR does the State have no obligation to prove that Mr Rusterholz had a reason to kill … (Page 20 line 40 summary)?? YES!!!!
&
Page 23 line 20-30 The State also points to a series of messages sent between Mr Rusterholz and Mr Morgan at pages 2-6 in Ercole’s communication chart. …indicate a tension between the accused and Ms Hallam and indicate an intention to do her harm …the State’s case that they envince motivation on the part of Mr Rusterholz to do harm to Ms Hallam.
NOTE: Pearce is misdirecting the jury. The conversation is entirely about a fucking Hallam up … not killing her. See SALIENT FACT #11, #21, #22.
Pearce seemed to forget his own rules he stated earlier when he said …
Page 5 line 15-17 …but it’s necessary … to consider all of the evidence … Your decision on the facts must be based solely on the evidence. Page 6 line 2 …ensure that your verdict is delivered in accordance with the law and solely on the basis of the evidence that you’ve heard during the trial and not on any other matters.
Page 6 line 37 You must base your verdicts on the evidence that’s been given, not on the evidence you think perhaps might have been given.
Page 33 line The state suggests however that you can be satisfied, as I’ve already explained, that the murders must have been committed between 9:30 and sometime before 10:52. Now the State’s case is that Mr Coventry is shown as at the BP Newnham on the film at 9:40pm and that he left from there to go to Hobart.
Page 34 line 1-5 …And the other evidence suggests that he may have been there at an earlier time, an hour earlier.
NOTE: Well; after Hughes’ questions we can put to rest the notion of determining where someone was regardless of phone, text or even GPRS cell tower use. FACT See SALIENT FACT #18 & #26 There is not a single bit of evidence that can prove Coventry wasn’t in Launceston! With the GPRS messaging going on seemingly between Covo and Hallam at about 9:20- 9:30 plus eye witnesses seeing a gray Commodore, plus Covo’s bragging plus the unidentified blood under his nails etc there is abundant evidence he was there, he did kill Hallam and that should be cause for REASOPNABLE DOUBT!
Page 35 line 13-20 …about guilty conduct…if you think that there might be some other reason that Mr Morgan might have returned to Victoria, and we know very little about this, but if* it’s possible that there’s some other reason … it can’t really be used as evidence of guilt.
NOTE: FUCK ME DRUNK!!! Once again Pearce breaks his own rules (Page 6 line 37 You must base your verdicts on the evidence that’s been given, not on the evidence you think perhaps might have been given.) Pearce is actually directing the jury to downplay Morgan leaving for Victoria of which THERE IS NO EVIDENCE ABOUT WHATSOEVER from an innocence perspective!!! Pearce actually misdirects the jury by saying “IF” the jury thinks that there “MIGHT” be a reason, obviously an innocent reason, then “IT CAN’T REALLY BE USED AS EVIDENCE OF GUILT.” There is no evidence of why other than the obvious – that it’s Morgan’s DNA with victim’s blood on the fuel can and the front door handle and ONLY Morgan’s DNA on kitchen taps! Pearce is ‘steering’ the jury! Quite obviously.
Page 35 line 22 – Page 36 line1 The defense also made mention of the fact that DNA matching Mr Morgan was found on the taps in the kitchen …remind you about Dr. Griffiths evidence … He doesn’t say that that’s Mr Morgan’s DNA.* He says that it matches Mr Morgan’s DNA and that the chance of another person … one in one hundred billion. …It may be that there’s an innocent explanation for Mr Morgan’s DNA, if it was his DNA*, on the taps in the kitchen. The defence would ask you to infer that Mr Morgan was the source of that DNA directly.
NOTE: WOW Pearce is actually trying to play down a one in one hundred billion test result by saying RE: Griffiths “He doesn’t say that that’s Mr Morgan’s DNA.” . Fabiano; it might really be Mickey Mouse’s DNA but looks like Morgan’s!! A one in 100 billion match – who is Pearce suggesting the alternative person could be? This Justice Pearce is misdirecting the jury. He is steering them away from the seriousness of Morgan and infering seriousness for anything that might indicate an implication of inference to myself! He is working the evidence very selectively and subtlely – Can you and Cameron see this???? If Pearce is directing the jury to think that Griffiths one in a 100 billion result isn’t Morgan but only a match “if it was his DNA” then he is basically directing the jury that that result wasn’t really Morgan! Fact is that the test result means it cannot be anyone on planet earth other than Morgan …and the reality of that is that there is NO “if”! Given the reason why FSST staff tested the taps for in the first place – because a murderer will often clean up (See SALIENT FACT #5) and the fact that Morgan said at (SALIENT FACT #13) at 7:10pm and 59 seconds … “Yes, but seeing a new contact I’ve never met” “Maybe a bit late but will see you.”to Hallam after she tells A Bishop at 7:09pm that Morgan will be there with green at 9pm. Some time later at 7:47pm she sends Morgan a text stain she “paranoid by myself” and from that point on Morgan disappears off the phone/text record for 12 hours. At 9:30pm a yell from a woman is heard by a witness – “get out” and another witness sees a gray Commodore at the front of Hallam’s with 3 males! The rest we know!
Page 38 line 5-10 …apart from the disputed evidence of the cut to the back of his neck, which he says occurred when he was shaving.
NOTE: See SALIENT FACT #1 There was no cut to the back of the neck – it was a cut to the back of the head. Both Sally Mayer and Cheyenne McGuire say there were no new marks on me – Mayer paid close attention in case I had been cheating on her. Cheyenne said she always spoke to me when she saw me and that I was my normal self. Mayer also recalled an incident where I fell into bathtub and smacked the back of my head. Pearce underplayed this incident and didn’t provide all the evidence downplaying the matter just as Ransom had said Mayer had downplayed some testimony against me. (Page 21 line 13-19) Forsyth himself doesn’t make mention of anything of note.
Page 67 line 1-46
NOTE: Pearce strongly suggests that the Hyundai car being stolen was a lie – that it was a lie for the reason of the vehicle being used in the crime – and he makes no other inference, or option of inference, when he strongly infers to the jury that there was ONLY one option. The SALIENT FACTS are that neither the Hyundai nor the accused are seen at ANY crimescene whatsoever. See SALIENT FACTS #1, #2. So car was burnt out by unknown persons early hours of Sat. morning whilst I spent most of Friday till that evening in a Lonnie police cell. Multiple eye witness evidence was that the vehicle seen at victim’s was a Commodore!
Page 80 line 4-25 His Honour (HH) – What’s consistent with Debra McHoul’s evidence? Hughes – That taps are used – taps are tested by Forensic Science Services Tasmania (FSST) because in their experience they are used by persons who commit the crimes at the scene. That is the defence contention. That the DNA – it’s not just the fact of there being Mr Morgan’s DNA on the defence case, it’s the absence of DNA or a DNA result with respect to Hallam and Newman when they had been residing at the address….HH – That there was no evidence of either Ms Hallam or Mr Newman’s DNA on the taps…. HH – …I am not inclined to make a direction that Ms McHoul’s evidence was that they test taps because persons who commit crimes at the scene have a tendency to use taps.
NOTE: mistaken very bad direction and he has NOT paid attention to the evidence! – That is exactly what FSST Debra McHoul and FSST Louise McMahon both said in their evidence!!! See SALIENT FACT #5
Page 32 line 40-43 Sally Mayer said that he used to go around …”oh yeah just another one, yep” But she didn’t believe him.
Mayer didn’t believe Rusterholz either (Page 1007 line 12 -23) and that’s a FACT but Pearce only mentions Coventry here!!!!
Page 82 line 6-page 83 line 3 HH – I said between the 17th of August and when she made her police statement on the 25th of October Ms Mayer spoke again with Mr Rusterholz about the matter. …. Hughes – …they were in fact, on her evidence … so 14 days after the 15th, which would make it the 29th to the 30th … and that those admissions were continuing through that time. …it’s the state of her evidence after cross-examination … the significance of that flows to the next direction of the next contention of the defence case … because according to that evidence Ms Mayer is asserting that she’s having conversations with the accused … which is when surveillance devices have been installed within her address, and our contention of the unlikelihood of them not being discovered by police.
NOTE: Not a single conversation like this is reported by Tasmania Police who would be using the recordings as evidence if they had me telling Mayer what she claims I told her according to the police officer mentioned in SALIENT FACT #24 ‘Missing evidence#1’. This is very strong evidence that these conversations were a fabrication from a woman whose evidence was she used amphetamine hourly to the amount of 2 and a half ‘eight balls’ every day …which increased tenfold, on her evidence during that suveillance period! See SALIENT FACTS #15!
Page 20 line 4 HH What the State say about this. It says that you can exclude Mr Coventry because his movements are accounted for …
NOTE: Whoa no his movements are not accounted for (See SALIENT FACTS #18). The evidence was that the BP footage was NEVER verified for time stamp accuracy! Nor does it exclude Covo for being in the Gray Commodore seen at victim’s unit at 9:30 pm!!!!
Page 21 line 13-19 …ill feeling between Sally Mayer and Angela Hallam … the State suggested … that Sally Mayer … understated this …her evidence. …Mr Rusterholz wished to harm Ms Hallam to please Ms Mayer.
NOTE: WHOA how the hell can he make this direction??? There was NOT a single bit of evidence, from a credible witness, that I wished to A) harm Angela Hallam, B) wished to harm Angela to please Mayer!!!! This was a Ransom theory – not evidence at all.
The State (Ransom) suggesting that a witness understated something is speculation -NOT fact! Not a bit of evidence to say this! Mayer did not like Hallam but nowhere does Mayer say that she wanted Hallam DEAD or that I ever offer to do this, or that she ever asks me!!!!
Page 21 line 21 -39 …Coventry … and Ms Hallam … decided to take their cut …by helping themselves to other drugs … Now there is no evidence as far as I can see that Mr Rusterholz knew about this IF IT WERE TRUE. But IF he did … it may give rise to ill feeling. Mr Coventry … THE LAST TIME HE VISITED MS HALLAM’S HOUSE …
NOTE: “If it were true” & “if he did”????? Speculation!! There is no evidence that Mr Rusterholz knew because THERE IS NO EVIDENCE FROM ANYONE ELSE THAT IT EVEN HAPPENED! Sally Mayer would have known if most of the drugs were going missing! She sold them!! There is NOT one drug message between myself, Hallam or Covo over drugs, missing or not, whatsoever. Covo’s evidence was that he was a dishonest person. (Page 878 line 34 A dishonest person; aren’t you? Correct. …Yes.) SALIENT FACT #9 reveals that Covo had Hallam’s key and he got it from Hallam “the last time he visited Ms Hallam’s house” 10-14 days before murder – his own evidence brings him undone! Pearce makes no mention of the many times Covo was found out in his lies!!!
HH Page 23 line 7-15 Jessica Jarman … conversation with …Dave Morgan. He said to her … “It was drug related, she stole $50,000 out of a bumbag and had been caught doing it.”
NOTE: Why doesn’t Pearce point out that the context of this money and bum bag is the Covo story? There is NOT one bit of evidence that Ange stole anything from any bumbag of mine nor did I ever have such amounts of money!!! No phone texts over money between me and Angela. Plus Pearce doesn’t seem to be inclined at to how Morgan would know this the very next day! Nor does he make any link to Morgans DNA and Victim’s blood being on the Fuel can, the outside door handle and Morgan’s DNA being the only DNA on the taps in the kitchen!!!
Page 23 line 20 -29 …those text messages evince motivation on the part of Mr Rusterholz to do harm to Ms Hallam…
NOTE: See SALIENT FACT #22 [Ed: Rusterholz goes into great detail to explain the full context of his criticism of Pearce J. This is a summary he provided: “If the time is taken to carefully read, without bias, it is apparent to even ‘Blind Freddy’ that there is NO plot to kill anyone at all. If that indeed was a plot then it really makes Morgan’s DNA and victim’s DNA being on the fuel can and outside door handle look even more obvious then it does! The words ‘Fucking her up’ is probably better explained by the words ‘Screwing her up’ or ‘Messing up her shit’ or ‘Fucking her over’ …etc – It was a plan for a business sting – nothing further. Pearce erred BIG TIME when suggesting, on the basis of his assumption, to an impressionable jury that this was a plan to physically harm Angela. There is a lot of laughter and joking about in the exchange and I cannot see how Pearce validates his suggestion of tension (Page 22 line 22-23).
Regardless, the eye witness testimony, the forensic findings hold greater weight in proving I had nothing to do with Hallam’s death.]
Page 24 line 1 – 25 …it tends to demonstrate that he had access to knives of that type. …Mr Rusterholz had the means … to inflict wounds if he had a knife like that …
NOTE: “he had access to knives of that type” ???? Pearce does NOT PAY ATTENTION TO THE EVIDENCE – ONCE AGAIN!! See SALIENT FACT #25
The evidence was that RE: type … implement(s) used on victim’s was sharp – FACT. That was the only CONCRETE evidence of TYPE!!! It is not a given absolute that the implement was single edged (Page 331 Line 25) – FACT. The evidence DOES NOT say that the implement was a hunting knife (Page 314 line 18) – FACT. It could have been an abattoir knife (Page 314 Line 26) – FACT. It could have been a serrated knife (Page 287 line 4, page 288 line 1) – FACT. It MAY have been heavy, thus it MAY NOT have been heavy (Page 314 line 18) – FACT.
Now ANY person residing in Australia – MORE SPECIFICALLY … ANY “violent people” or ANY “criminal identities” that Angela Hallam was “closely connected to” “whether they be in this state or in other states” would own a sharp knife!!! (Page 1668 line 18-44, Page 1669 line 1-10) That’s a FACT! Anyone can buy such an item from practically ANY store in the country! FACT. Pearce made a very very biased direction to the jury!!!
Page 25 line 38-42 Some indication of the time arises if you are satisfied that it was Mr Coventry at the service station … time shown on the DVD recording taken at the service station.
NOTE: SALIENT FACT # 18 The evidence was that the time was never verified at all! It is a wrongful direction to suggest a reference to the time shown on the recording as it was NEVER PROVED! It means nothing!
Page 32 line 15-16 (Re: Mr Coventry) The state asserts that you can be satisfied that he could not have committed these crimes.
NOTE: I wonder why Pearce, as the judge who heard All the evidence, why he didn’t refer to the truck loads of evidence, damning evidence against Coventry. How Ransom has the gall to direct to the jury, which Pearce is repeating with NO thought to the evidence, that Coventry could not have committed the crimes. See SALIENT FACTS #3, #9, #11, #12, #16, #18, #19
####
THE APPEAL – WRONGFULLY DISMISSED
Turning to the appeal and the reasons for its dismissal: it is perhaps naïve and dangerous to inject common sense into legal matters, but it is irresistible in this case. On the one hand, the three appeal court judges recognised that the circumstantial evidence against Marco Rusterholz does not prove his guilt beyond reasonable doubt. On the other hand, they found that the admissions Rusterholz was accused of making were sufficient to leave the convictions as “safe”, despite the fact that the alleged admissions were made to – and alleged in court by – persons of the lowest imaginable credibility. This is a contradiction that the judges failed to filter through either their common sense meter, or through the logic spectrum. The appeal court judges did note his honour’s crucial words to the jury, which remain troubling in view of their decision to dismiss the appeal: “If you are satisfied that there’s a scenario not consistent with his guilt, which is reasonably open to you, then the appropriate verdict is not guilty.” Well, yes; the jury acting rationally should have entertained reasonable doubt about the guilt of the accused, to quote the High Court in its decision to quash the Pell conviction.
Once again, a circumstantial case (eg Sue Neill-Fraser, Henry Keogh, Robert Xie, Kathleen Folbigg, Robert Farquharson) is decided on the flimsiest grounds, thanks to juries not acting rationally and judges failing to recognise the tell-tale signs that a conviction would be unsafe.
Fabiano Cangelosi
“What was unique about this case,” comments his lawyer at the appeal, Fabiano Cangelosi, “was that at trial the defence were not just saying that the defendant had not committed the crimes, but were presenting evidence that a person named Matthew Coventry actually had — and moreover, Coventry was called as a Crown witness.” (See Rusterholtz’s analysis above.) That must be taken into consideration by the jury …and the judge ought to have addressed that issue.
Justice Helen Wood
In her reasons, Wood J even set out that scenario:
Mr Coventry, who admitted to having been convicted of being an accessory after the fact to murder in June 2002, allegedly made admissions to having murdered Ms Hallam and Mr Newman. As to Mr Morgan, a match for his DNA was detected on a fuel container found in the appellant’s locked shed at 4 Daphne Court on 17 August 2012 by police, which container was found to have what was apparently human blood on it that yielded DNA which matched Mr Newman’s DNA. A match for Mr Morgan’s DNA was also found on taps in Ms Hallam’s unit on which was found no other DNA apart from other minor and mixed profiles from which no reliable DNA conclusions could be drawn.
Curiously, notwithstanding the above, the appeal was dismissed because two of the appeal judges discarded the argument that the alleged admissions by Rusterholz were credible, despite the notion that “There is no question that there are circumstances relating to each of the relevant witnesses that had the potential to affect the reliability of their respective testimony. As a result, the evidence of each witness was the subject of a significant set of warnings by the trial judge as to the use that the jury could make of the evidence, the need to exercise caution before accepting the evidence, and in determining the weight to be given to it.” As we say above, the jury acting rationally should have entertained reasonable doubt about the guilt of the accused. We might add, so should the appeal judges.
That self-contradictory reasoning of the appeal court resulted in a 45 year prison sentence, perpetuating ‘reasonable doubt’ over the conviction, confusing the public and failing to serve the interests of justice.
The reasons for the appeal court’s 2017 dismissal was written by Wood J – the same judge who wrote the reasons for dismissing the 2021 Sue Neill-Fraser appeal, which was severely criticized by Flinders University legal academic Bob Moles. Justice Estcourt also wrote a powerful dissenting opinion to Wood J’s reasons.
Just as Sue Neill-Fraser was able to make a further appeal under new legislation at the time, Rusterholz intends to lodge a further appeal and his legal team is investigating the matter, seeking new evidence on which to proceed. (It would have been better had the new legislation adopted proposals put to the Government that would allow for further appeals on not just fresh and compelling new evidence, but on broader grounds, such as ‘miscarriage of justice.’
FOOTNOTE:
The interests of justice (not to mention Marco Rusterholz) would be well served by a national network of a Criminal Cases Review Commission with investigative powers, which could assess the case and if it approved, refer it back to the appeal court. It would be the simplest and most affordable path to a full review of doubtful or unsafe convictions.
Marco Rusterholz conveniently fails to address the fact that a strong scent of bleach was reported in the laundry of his residence by investigating officers and that his own wife admitted to burning the clothes he wore on the night of the murders that were covered in blood. She was aware of his actions and this information would be available somewhere within police records.
Perhaps Mr. Rusterholz would like to discuss this?
Mr Rusterholz is unable to discuss this as he is in prison. We have attempted to find references to your comment re ‘strong scent of bleach’ etc without success. His friends the Hoffman’s have no knowledge of it, and say “his wife phoned us and spoke to Gary when he was first arrested. She asked Gary (Hoffman) if he thought Marco could do something like that because she didn’t think he could, nothing was said about clothes or anything.”
Perhaps you could provide transcript and/or other references to corroborate your claims.
Marco Rusterholz has spoken by phone to the Hoffmans, saying: “That is not true about the clothes and Rebecca’s supposed actions. As for the smell of bleach a police woman did go to the house but said it smelled like a normal laundry.”
Rusterholz is a liar and a double murderer.
The police prosecutor provided information regarding the scent of bleach and that was testified to in court by detectives on the scene.
The burnt clothes, and the disposal of the couch was also provided by the police prosecutor, as was the information regarding the key being provided to Rusterholz that night by Mr.Morgan after Mr. Morgan had attended Miss Hallam’s unit.
Mr .Morgan noted that there were 2 people in the residence and reported that information back to Rusterholz when handing over the front door key of Miss Hallams unit the evening of the murders.
Mr.Morgan had previously resided in the premises.
Mr.Morgan’s DNA being on the taps or anywhere else within the residence is of zero consequence and is actually to be expected.
It would behoove the third party relaying this conversation to remind Rusterholz of the facts presented as evidence in court that Rusterholz made no attempt to refute or give testimony about including but not limited to-
The pony tail Rusterholz hacked from Miss Hallam’s head and presented to Imlach .
Rusterholz presenting that same ponytail to Sally as her “birthday present” to which Sally of the multiple last names/aliases replied
“I wanted her fkn head,not her hair”.
For the record,the injuries to Miss Hallam were described as a partial decapitation.
The same pony tail Rusterholz burnt at the Rebels clubhouse later that night/early morning after asking Mr.Imlach for assistance, as testified to by Mr.Imlach.
Remind Rusterholz about the violent threats he had made to Joshua Newman the week prior.
Mr Newman had informed others about these threats,referring to Rusterholz by his first and last name.
Remind Rusterholz about the confession he had made to Mr.Coventry and Sally of the multiple last names/aliases while sobbing in the bathroom of her unit on Brooker avenue after imbibing drugs as testified to in court by both witnesses.
Remind Mr Rusterholz that every associate of his that appeared in court went on to testify against him based on his own words,his own actions,his own character,his own confessions,his own actions on the evening of the murders and the weeks after including presenting evidence of the hair he had hacked from Miss Hallams head after slaughtering her and attempting to decapitate her.
The cruelty and abuse to his own children were also testified to.
Every associate of Rusterholz testified against him.
The only one who attempted to speak in his favour was visibly suffering from long term drug abuse and had been charged with attempting to smuggle cigarettes into a prison visit by concealing them in her vagina.
Hardly a noble character,more like a long term customer.
Remind Rusterholz about his eBay purchases of various large hunting knives in the weeks prior to the murder.
Remind Rusterholz about the texts sent and received between himself and Mr.Morgan in the days prior to the murders regarding Miss Hallam and presented in evidence
“Lets f*ck that b*tch up”
“Time to unleash hell,glorious hell”
Rusterholz murdered Angela because she would no longer sleep with him,she was creating problems with his new girlfriend and he was subsequently angry,embarrassed and humiliated that she had robbed him of drugs/money and bragged about it to others in their circle and mocked him for being so inept as not to do anything about it.
Rusterholz had also discovered Miss Hallam was a police informant of long standing.
Plenty of motive for a man importing and distributing drugs country wide to erase the potential threat when he discovers Miss Hallam was also a known “dog”.
Mr Newman was known to Rusterholz through his new association with Miss Hallam.
Mr.Newman and Rusterholz crossed paths again due to involvement with the boxing/fitness community in Hobart.
Rusterholz threatened Mr.Newman during one of these encounters because of Mr.Newman’s relationship with Miss Hallam.
Rusterholz had also attempted to set up a match with Mr Newman in the weeks prior to the murders and made violent threats towards Mr.Newman.
As stated earlier,Mr. Newman had informed others about these threats prior to his murder and mentioned Rusterholz by first and last name.
Mr.Newman’s association with Miss Hallam was a terrible mistake.
None of those who testified in court knew Mr Newman.
He had no association with the drug trafficking that was taking place and was unaware of Miss Hallam being a police informant.
He had unwittingly made an enemy of Rusterholz by engaging with Miss Hallam and he paid for her misdeeds with his life.
Remind Rusterholz that when constructing a new narrative, he can also explain exactly how Mr Newman’s blood was found on the red fuel container, on his premises,in a locked shed that only Rusterholz held a key too.
Rusterholz decided to take retribution for being robbed,mocked and rejected by Miss Hallam.
The threat of Miss Hallam informing the police about his drug operation was the final straw.
Rusterholz displaying the Nazi flag within his home,his affiliation with the Aryan and antisemitic movements are public knowledge.
These also speak to his character.
I see the prison photo of Rusterholz and his little heart shaped hand gesture has been removed as it was breaking the rules of his incarceration.
I’m sure these communications happening under the pretence of a third party aren’t above board either.
Does his “ friend “ not know how to use the reply option here?
Perhaps his internet usage is limited.
You say “I’m sure these communications happening under the pretence of a third party aren’t above board either.” There is no pretence; the Hoffmans contacted this blog and provided information, including the name of his legal representative, who has provided some assistance with reporting this case. Please don’t smear the messenger.
Great work Andrew, seems to me to be a very similiar style of Injustice in the Court, as Sue Neill-Fraser had to suffer from.
All I can say is, it ain’t over, ’till it’s over. We all work together and Never Give Up, Justice will prevail. National Criminal Case Review Commission Mr Prime Minister please. Australia brags internationally ” we are the best country “, but Australia, ashamedly, is lagging behind worlds best practice and other Commonwealth countries in delivering Justice to the people.
Owen.
“Circumstantial evidence
[2-500] Introduction
Where the Crown case rests substantially on circumstantial evidence a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at [46], [50]; Barca v The Queen (1975) 133 CLR 82 at 104. For an inference to be reasonable it must rest upon something more than mere conjecture: The Queen v Baden-Clay at [47] quoting Peacock v The King (1911) 13 CLR 619 at 661; Gwilliam v R [2019] NSWCCA 5 at [101], [104]. It is not incumbent on the defence either to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: The Queen v Baden-Clay at [62] citing Barca v The Queen at 105. It is sufficient that an accused’s hypothesis consistent with innocence can be derived reasonably from the evidence in the Crown case. No standard of proof applies: Wiggins v R [2020] NSWCCA 256 at [65].
It is the duty of the trial judge to put to the jury with adequate assistance any matters which the jury, upon the evidence, could find for the accused: The Queen v Baden-Clay at [62]. This includes directing attention to alternative hypotheses not the subject of evidence but available and consistent with the accepted evidence: Wiggins at [87]. The trial judge can invite defence counsel to state any reasonable hypothesis consistent with innocence that may be put to the jury in the summing up: The Queen v Baden-Clay at [60].
Where an accused with peculiar knowledge of the facts is silent, “hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused”: The Queen v Baden-Clay at [50] quoting Weissensteiner v The Queen (1993) 178 CLR 217 at 227–228, which was cited with approval in RPS v The Queen (2000) 199 CLR 620 at 633.
A direction in relation to a circumstantial Crown case is an amplification of the proposition that the Crown must prove its case beyond reasonable doubt where the evidence relied upon by the Crown may give rise to another reasonable explanation for the facts other than that the accused is guilty of the offence charged: see generally Shepherd v The Queen (1990) 170 CLR 573; R v Keenan (2009) 236 CLR 397 at [126]. The usual circumstantial case is often referred to as a “strands in a cable case”. …”
https://www.judcom.nsw.gov.au/publications/benchbks/criminal/circumstantial_evidence.html
In many cases over the years Peacock v R was a ready assistant in my briefcase and provided a just result for many defendants when applied by judges and magistrates conducting hearings fairly to the accused and applying the established criminal law with propriety, not their own often twisted versions.
Australia desperately needs a NOT PROVEN VERDICT– A court MUST be prepared to admit– we don’t bloody know–The Policeymens Prosecutor is a Lying Screenplay Reader– and his GITJUDGEMATE backs him to the hilt–Reads that exact same screen play to the jury of specially selected retards–
police have concealed DNA evidence- blue cloth–scared the shit out of a witness–Vass– who described the events in an almost beyond reasonable doubt manner– Our Poor victim of the GIT– Sue-was not even on the boat– quick quick-cvntstible- hide the blue cloth–that cloth would prove the Vass story very very likely the truth– the GIT almost had a melt down- get her out of here and don’t allow her back–Could I ask a question–are there any decent people in the “system”–Mendelssohn Miller is such a rare example of a policeman who refused to lie under oath to suit the rest of the corruption riddled NSW Police gang–such a rare man- a book was written . Amazing he wasn’t murdered . Why did the bad bastards go after Lindy Chamberlain in the a disgusting manner- then take 30 years to ADMIT their stinking halfwitted behaviour- never ever appologised for destroying Michael’s life– that type of 2nd rate human wouldn’t know how to appologise for their mongrel behaviour– babies blood under the dash–dingo expert from the country where the policeymens shoot innocent train commuters in the face 6 times and then claim he didn’t have a ticket to ride- sums the type up– horrible little people-
Hi Geraldine,
We don’t know if you will get this because it has been a while since it was first posted.
Thank you for your interest in this.
The reason we are contacting you is that we are wondering if you would perhaps know of someone we could get in contact with that may be able to help Marco?
We have sent emails to a couple of people but they have not even acknowledged our emails.
Thanks you again for your interest.
Regards,
Gary & Georgia Hoffman
I think that Tasmanian Judges and Prosecutors are proud of their record of “Wrongful Prosecutions”.
This is a tough one … whose evidence to trust and whose evidence to doubt?
How to weigh up those two considerations on those justice scales?
Maybe, maybe Marco Rusterholz was there at the murder scene, but was not alone. Maybe he was with the man whose DNA was on the fuel-can which was later found locked in Rusterholsz’s shed. That fuel-can also had on it what was apparently blood – from which was obtained DNA matching one of the murder victims, Joshua Newman.
I don’t know. Does the question confronting a jury (i.e., ‘beyond reasonable doubt?’) equate with ‘the accused must have done it’?
Justice Pearce, in summing up at the trial, made the following statement:
“If you are satisfied beyond reasonable doubt that Mr Rusterholz must have been guilty then that in a way excludes the chance that anybody else was guilty.”
[http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASCCA/2017/27.html?context=1;query=rusterholz;mask_path=]
Of course, the trial judge was referring to those others who may have been parties to the crime. Did one or more of them do it (but not Rusterholz), did Rusterholz do it alone or did Rusterholz and (one or more of) ‘the others’ commit/or were party to the two murders?
What choice did the jury have? What if they thought that Rusterholz and one or more of the others committed the crimes … yet he was being tried for the single-handed murder of those two people: Angela Hallam and Joshua Newman?
[Check this out: https://www.finishing.com/225/86.shtml … see particularly Rusterholz’s response for April 24 2011]
I think the answer is not that complex. If there is even one reasonable hypothesis consistent with innocence then the jury MUST acquit . And, in such cases, the trial judge is required to inform the jury of that firm rule of the criminal law. The requirement is simply, is there such a hypothesis within the evidence adduced.
I agree
I agree with you Don:
I agree with your “If there is even one reasonable hypothesis consistent with innocence then the jury MUST acquit.”
and I agree with your “The requirement is simply, is there such a hypothesis within the evidence adduced.”
Don, I’m thinking that in a circumstantial case, it is for the jury to decide what is a reasonable hypothesis and what is not.
Where it becomes tricky, is whether to accept an hypothesis that is both consistent with innocence and (I suggest) consistent with the evidence.
I presume that such a ‘consistent with innocence’ hypothesis must be proposed in court by the defence and then (consistent with the evidence) the jury must examine that hypothesis on the basis of the evidence given at the trial.
In this case, for example, did the jury have to decide whether to accept the evidence of Mr Coventry or to reject it?
If they were to reject Mr Coventry’s evidence, then they could accept as a reasonable hypothesis, that others (possibly including Coventry and Morgan themselves) were involved in the crime.
If they were to accept Mr Coventry’s evidence, then they were entitled apparently (‘it was open to the jury’) to conclude ‘beyond reasonable doubt’ that Rusterholz was guilty.
It seems that the word ‘reasonable’ itself got a pretty good run at the appeal … http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASCCA/2017/27.html?context=1;query=rusterholz;mask_path=
I’d like to comment on Geraldine Allan’s (January 23, 2023 at 1:27 pm ) post, which concluded with the reference to circumstantial cases here and there relying on ‘a strands in a cable’ argument.
Such an argument uses a metaphor in which a cable is able to bear the weight of a prosecution’s ‘onus of proof’ … despite the acknowledgement that none of the strands in that cable (the individual pieces of evidence) are in themselves sufficiently strong to hold that burden of proof.
Yet collectively, in law – and in the absence of direct evidence – they are seen as legally capable of establishing guilt.
Geraldine is correct to point out that that in circumstantial cases, an accused can be judged in this way.
I would add that if every strand in the cable is individually incapable of carrying the weight of the prosecution’s burden of proof, then we should be dubious as to its collective strength … i.e. dubious as to its collective merit.
I’d also like to comment on Whalensky’s (January 24, 2023 at 10:55 pm ) “Australia desperately needs a NOT PROVEN VERDICT– A court MUST be prepared to admit– we don’t bloody know…”
Without hesitation, I agree with that comment. Why? I’m not sure of what reasons I could give. I guess I would attempt to expand on the idea that jury members might sometimes be of the view that an accused might be guilty, yet equally, might be innocent. In which case the verdicts ‘guilty’ and/or ‘not guilty’ are not adequate to report the jurors’ actual views.
At work, in my school library, when I’m confronted with two students each claiming they are first in line to get their books checked out at the desk, I resort to tossing an actual coin. This, they are almost always happy to accept as a means of ‘arbitration’.
It’s not a truth finding exercise, just a means of disposing of the problem at the checkout counter.
Of course, we can’t toss a coin in court, can we..? And I mean, even if we could, wouldn’t we have to worry about whether there were any loaded coins used in the court, wouldn’t we?
I’d like to briefly join this discussion, especially motivated by the legally accepted notion that ‘strands in a cable’ are a valid route to conviction. As formal logic student Ben Dean pointed out in the context of the Sue Neill-Fraser case, this is logically fallacious. See https://wrongfulconvictionsreport.org/2020/09/06/sue-neill-fraser-case-contradicts-formal-logic-analysis-shows-part-3/
I also agree with Garry’s support for Ted Whalensky’s proposal for NOT PROVEN VERDICT.
These are just two aspects of the current justice landscape that need significant reforms.
I requote an excerpt from my 23/01/23 post.
“… It is the duty of the trial judge to put to the jury with adequate assistance any matters which the jury, upon the evidence, could find for the accused: The Queen v Baden-Clay at [62]. This includes directing attention to alternative hypotheses not the subject of evidence but available and consistent with the accepted evidence: Wiggins at [87]. …”
My emphasis is on “it is the duty of the tril judge ….”
Geraldine: according to Rusterholz, Justice Pearce told the jury:
I don’t know what else was said by Pearce J in his summing up … as I have only those above excerpts published on WCR and ostensibly written by Rusterholz. I don’t have a trial transcript and I don’t know what else may have been said by the judge or may have been raised by counsel in examining witnesses or in closing addresses, etc.
NOT Proven and Not Provable–There have been countless alleged offences and possibly genuine offences where the prosecution “system” decides
not to proceed–and cases where they shouldn’t have–horror of horrors–even with their best screenplay writer and even with with a judge famous for guiding the screenplay lilly– a guilty verdict may be unlikely–a not guilty verdict unbearable- the easiest example- some types of sexual offence accusations-one person’s word against another- absolutely no evidence of any kind-to find a guilty verdict might be risky–we are not saying you the accuser are lying ( a very serious offence) we are saying that you will just have to accept–Not Proven and Not Provable–We can do no more-sorry.
Holy cow–i completely forgot about torture induced confessions-( Ray Bailey)
Can I add to my other comments on this thread, the following:?
Is the presumption of innocence somewhat threatened/reduced if in order to bring in a verdict of ‘not guilty’ (in circumstantial cases)…
and in the face of evidence which on the face of it is (in the circumstances as given in evidence) seemingly sufficient for a verdict of ‘guilty beyond reasonable doubt’…
is it not unfair that for a jury to bring in a ‘not guilty’ verdict, a reasonable hypothesis consistent with innocence must be available.
Is it thus incumbent on the accused to produce such a ‘reasonable hypothesis’ and if so, is not the accused being required to prove his/her own innocence?
In such a case, where is the ‘presumption of innocence’?
From the Austlii database:
The appeal judgement http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASCCA/2017/27.html?context=1;query=Rusterholz%20;mask_path=au/cases/tas/TASCCA
Are Pearce and Wood the same two Judges who overruled Judge Estcourt 2-1 in Sue Neill Fraser’s 2021 appeal decision?
Indeed they are.
Yes-Yes-that’s what we need to Tart up the Australian Justice System– more pompous GITS–Making stupid judgements about the stupid judgements of their GIT mates ? And then more GITS to review their GITWORK ! A massive talk fest of GITS– IF you live next door to one–MOVE ! An interesting example of Gitwork–(DEAD friends)-the TWO Voyager Royal Commissions–multitudinous Gits at each other twice–brushing aside actual witnesses who saw exactly the actions on the Voyager bridge–quite simple- not what one might think-that whole episode had a simple cause– nothing like that which the Gits strove for in their puerile little power struggle–Git against Git- destroying the innocent in their path– When the truth and justice delivery was simple and obvious–poor SNF.Sue in the hands of a Git ! We don’t need more of those types– to examine each others vomit ! GET RID OF THE GITS ! When did a Git ever deliver Justice– not when there was some halfwit interfering way of “doing someone over”–the power and the glory . The Appeals Gits often seem even more Gitfool than the original Git ? I would never be convinced that 10 builders labourers would do no worse ? My guess would be that most of the time they would get it right–Sue would have never been found guilty without the interference of the Git– who would ever listen to the dingoe bight expert from Londinium instead of the very knowledgeable local ?– the builders labourers would have asked for an independent Analyses of the non blood under the dashboard– dump the Gits !
My readings of case transcripts relating to Tasmanian cases do not necessarily convince me that decisions handed against an accused, are properly adjudged as legitimate bona fide decisions by Pearce J.
Almost all of Tasmania’s Public Trustee initiated actions win the judge’s decision, an observation by this writer over an extended period of years.
In fact, Judge-only (meaning no jury) decisions in civil cases held in Tasmania’s Supreme Court, case decisions handed down (if State government-related) the decision will favour the State of Tasmania.
The most prescient (having or revealing keen insight and good judgment) Justice serving Tasmania’s Supreme Court, happens to be Justice Michael Brett.
Hi Andrew
Its interesting that it was Three Judges that dismissed the Appeal.
I have been very concerned with Jury trials, considering Juries have no training in Law and can be swayed by a single judge.
It is beginning to look as though Three Judges instead of Jury Trials is not the solution.
Many thanks again for the Wrongful Convictions Report.
Take care
Rodger Warren
Pearce J: Did he ever develop his criminal law from the same source as that maestro of criminal law jury trials: Blow C J . Dna of other identified person’s…shades of Dna of Vass’ on the yatch.. Clear hypothesis consistent with innocence. And the appeal majority finding..just a complete mis-statment of the law.
These so-called “Justices” continue to disgrace themselves. They continue to erode whatever scrap of confidence is left in the community of the judicial system in Tasmania. Surely, the High Court must get it right this time though it’s recent record doesn’t convey much hope for that.
When an arrest is made it must be assumed the police have their man and with a strong case. Defence believed he would clear his client. Is that naive?
Is there an explanation for the following.
Forensic scientists told the court DNA that matched Mr Newman was found on a fuel can at Rusterholz’s home. (How was this arrived at?)
“IT CAN’T REALLY BE USED AS EVIDENCE OF GUILT.” There is no evidence of why other than the obvious – that it’s Morgan’s DNA with victim’s blood on the fuel can and the front door handle and ONLY Morgan’s DNA on kitchen taps! Pearce is ‘steering’ the jury! Quite obviously.
Was Rusterholz dealing in drugs?
Was he framed? That is, deliberately?
And the appeal judges agreed 3-0 that the circumstantial case did not prove guilt beyond reasonable doubt. So why did they dismiss the appeal?
Did they believe he was guilty? How could they? Surely they were influenced?
It would certainly appear Rusterholz is innocent.
How could the police get it so wrong.
I would like to read the statements and cross examination of the fire And other professionals