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Why is it that some people are convicted of murders that they did not commit, while others are not conyicted of murders that they did commit? Australian Police Services are generally well funded, so something more must be involved. Just what that is, is investigated in this book. To minimise the prospect of future errors, we need' both to scrutinise past cases where errors have been revealed, and to investigate police training procedures with a view to uncovering any errors of omission or commission, to see what scope there is for improvements. Each of us has good reason to take an interest in such matters, since any one of us could be a victim if we are in the wrong place at the wrong time. In fact all of us are victims to the extent that some guilty parties continue to walk free on our streets, and as taxpayers all of us fund the additional costs of dealing with crime, including the sizeable compensation payments that are made to those whose wrongful convictions are quashed. This-book deals with instructive cases which continue to agitate the public mind, and makes practical suggestions for improved procedures. J ISBN 978-0-9871509-2-9 9 780987 150929 First published by Bond University Press, 2012 © Copyright 2012, Ted Duhs.' Dedication Edited by Kathy Stewart All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means electronic, This book is dedicated to all those who fight photocopying, recording or otherwise, without the prior written permission of the crime and especially to those who fight to rectify publisher. miscarriages of justice. References are provided for information only and are accurate at time of printing. National Library of Australia Cataloguing-in-Publication entry: Author: Duhs, Ted. Title: Crucial errors in murder investigations / Ted Duhs. ISBN: 9780987150929 (pbk.) 9780987150936(ebook) Notes: Includes bibliographical references. Subjects: Criminal investigation Forensic sciences Crime scene searches Evidence, Criminal Criminal justice, Administration of Judicial error Dewey Number: 363.25 Bond University Press, an imprint of Bond University Limited University Drive, Robina, Queensland, 4229 www.bond.edu.au/bup Printed by Watson Ferguson & Company, Salisbury, Queensland, 4107 unapter i The Carlton and Marshall Murders: Condren and Fitzherbert >4 failure to analyse scientific evidence through the appropriate lens can lead to outcomes 'determined by intuitive perceptions of the weight of authority rather than by reasoning from evidence.' Jonathan Beach, Barrister7 The Patricia Carlton murder and Condren The similarities between the cases of Kelvin Ronald Condren and Andrew Richard Fitzherbert are striking. Both have served time for murder: Condren for the 1983 murder of 'his woman' Patricia Rose Carlton in Mount Isa; Fitzherbert for the 1998 murder of veterinary surgeon and Chairperson of the Cat Protection Society of Queensland, Kathleen Marshall. Both were then, and remain to this day, mild-mannered people, both maintained their innocence of the crime that they were charged with, yet each was convicted of a brutal murder, despite having alibis and witnesses who supported their evidence. Both claimed that they were victims of a corrupt system, both appealed to the Queensland Court of Criminal Appeal, and both had their appeals rejected. Neither of them 64 1 Crucial Errors in Murder Investigations | Ted Duhs Chapter 7 | The Carlton and Marshall Murders: Condren and Fitzherbert| 65 had a motive to commit the murder that they were charged with, and both missing on a hiking trip and was later found dead due to exposure and had their cases taken up by Defence Support Committees as well as by dehydration was front page news in the North West Star for days on end. Innocence Projects at one or more Queensland Universities. The committal was held in December 1983 and on the basis of There the similarities between them may end, at least for now, since Condren's alleged confession and signed statements by three Aboriginal Condren had his conviction quashed in 1991 after serving seven years in witnesses, including Louise Brown and Stephen McNamee, that they had jail while Fitzherbert is, to this day, still in jail after having served thirteen seen the assault by Condren on Carlton and two other witnesses who said years. But the outstanding similarity between these two cases is that in that Condren had admitted to them that he had 'damaged' Carlton, the both cases the investigating police got the time of death seriously wrong. case proceeded. In court, however, both Brown and McNamee claimed This error facilitated both convictions. Condren has now been proved that their statements were obtained under duress and were almost entirely innocent of the Carlton murder, while Fitzherbert is still unable to explain false. Another development was equally worrying. Mount Isa police had how his DNA profile came to be found in the surgery where Kathleen been made aware that a white man, Andy Albury, on trial for murder in Marshall was killed. Darwin, had made statements admitting to killing an Aboriginal woman in Mount Isa and displayed some knowledge of the facts of the Carlton Condren, a twenty-two-year-old Aborigine, jobless and without murder. Albury had told police that "he had killed a gin in Mount Isa in money, was charged with the murder of his girlfriend, Patricia Carlton in a September"2 car park behind the Mount Isa hotel and outside a pharmacy on Saturday 1 October 1983. The attack had occurred on the previous day, according Notwithstanding these apparent anomalies introduced by Brown, to police, at about 4.15 pm. Patricia lay unconscious in the car park that McNamee and Albury, Condren was sent to trial.3 Mount Isa police had night, was discovered by a routine police patrol at 5.40 am in the morning been invited to attend Albury's trial in November in Darwin but declined and died later that Saturday evening. to attend. Condren's trial was held in August 1984 with Albury present as a witness but he refused to repeat under oath his alleged previous Forensic evidence indicated that she had been killed in the car park confession to the Carlton murder. Condren was subsequently convicted where she had been found and the body had not been moved. She had of Patricia Carlton's murder on the basis of his signed confession. He was been brutally beaten about the head with a large metal pipe and a large jailed for life. He always maintained that he was assaulted and verballed stone had been inserted in her vagina. and forced to sign a false confession.4 Condren, who had been drinking at the Mount Isa hotel on the An appeal against Condren's conviction was heard by the full court of Friday afternoon with other friends, including Patricia, was arrested for the Queensland Court of Criminal Appeal in 1987. The full court rejected drunkenness on Friday evening at 5.47 pm and held in custody overnight. the appeal, firstly, on the grounds that the so-called 'new evidence' He was released on Saturday morning and was again drinking with friends (invblving witnesses) presented at the appeal was not 'fresh evidence,' in a dry creek bed around midday when police arrived at about 12.30 pm as, it was argued, it should have been produced at the trial. The second and took him to the station. He took part in a written Record of Interview ground for the appeal was expert evidence by a linguistic anthropologist on Saturday afternoon by Police Officer Barton in the presence of a Justice (Dr Eades) that the speech patterns in Condren's record of interview were of the Peace. As a result of admissions that he is alleged to have made at inconsistent with Condren's speech patterns. This supported Condren's that interview he was charged with grievous bodily harm, and then after allegation that he had been verballed by police at the interview. Tire court, Patricia Carlton's death, with murder. however, found that Dr Eades opinion "usurped tire role of the jury, and as The murder of a black woman by a black man in a remote western such was inadmissible"5 The appeal therefore was lost. At this stage "the Queensland town such as Mount Isa attracted little publicity. The local Queensland justice system appeared to have turned its back on Kelvin paper, the North West Star, on Monday 3 October merely noted that a Condren." 6 man (Condren) appeared in the Magistrates' Court this morning charged In March 1988, however, following a Four Corners program about with murder. No details were given then or in subsequent editions. It was the matter, a Mount Isa pharmacist (Mr Price) and his employee (Ms thought not to be newsworthy. In contrast, a white man who had gone Millican), who had not been interviewed by the police for either the 66 1 Crucial Errors in Murder Investigations | Ted Duhs Chapter? | The Carlton and Marshall Murders; Condren and Fitzherbertj 67 committal or the trial, came forward and gave evidence that the murder The Criminal Justice Commission subsequently produced a long could not have been committed before 5.45 pm on the Friday night. Their report which made certain recommendations but found no one should be evidence was that the pharmacy adjoined the car park and both Price and charged with misconduct in the matter. That is, they found that no one Millican say that they had (separately) walked across the car park between could be blamed for this miscarriage of justice.9 5.15 pm and 5.45 pm. on that Friday evening. And their evidence was that Why didn't the police interview the pharmacist and his assistant there was no 'body' in the car park between those times.

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