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. before charging Condren? Was this because, without doing any If accepted, this meant that Condren could not have committed the investigation at all, they had already decided that Condren was guilty? murder because he had been arrested by the police for drunkenness at And why didn't Price and Millican come forward earlier? Because, (a) 5.47 pm on the Friday about 200 metres away from the scene of the crime. there was little publicity in Mount Isa about a black man murdering a At that time he was so intoxicated that he had to be assisted into the black woman; (b) because they believed the police case; and (c) because police van. Condren's legal team was then unsure how to proceed since they didn't realize that the time of the attack on Patricia Carlton was critical to Condren's guilt or innocence. under Queensland law only one appeal is permitted and that appeal had been rejected. The Kelvin Condren case is a landmark case in the history of Queensland crime. Uiis is because it is rare for someone to be Eventually, this new evidence was presented to the Queensland convicted of murder, to have an appeal dismissed, to spend a number Governor (Sir Walter Campbell) via the Kelvin Condren Defence of years languishing in jail, and then to have his sentence quashed, Committee but the Governor declined to act. Condren's Defence to be exonerated and to be awarded a substantial sum of money in Committee then lodged an Appeal to the High Court in November compensation. After his appeal was dismissed, Kelvin Condren could 1989. But the High Court held itself unable to receive new evidence on hardly have hoped for such a fortuitous volte-face. appeal. Nevertheless, the High Court justices found that the Price/ The turnaround in his fortunes was almost entirely due to the Millican evidence was 'relevant, cogent and plausible! The matter was intervention of the investigative television program Four Corners. adjourned pending action by the Queensland Attorney General. "On the Reporters employed by Four Corners had examined Andy Albury's 26th June 1990 the Court of Criminal Appeal set aside his conviction and jail confession and they believed that it matched the circumstances ordered a retrial".7 In July 1990 the charge of murder was withdrawn in the surrounding Patricia Carlton's death. Displaying an attention to detail Supreme Court of Queensland and Condren was freed. Discussion about that the original police investigation lacked, the reporters also verified compensation dragged on but subsequently he was awarded $400,000.s that Andy Albury had been in Mount Isa on the evening of Friday 30 Following Condren's release, he and three witnesses made complaints September 1983 when Patricia Carlton was bludgeoned to death. The Four to the Criminal Justice Commission. They made five separate allegations Corners reporters then proceeded to track down Price and Millican from about police misconduct: the Mount Isa pharmacy. They interviewed the pair and this led to the breakthrough in the case. 1. that police investigating the matter brought into existence a false document, namely a Record of Interview The original police investigators should have interviewed Price and Millican in October 1983 and, furthermore, at least one of the 2. that the police investigation was not conducted in a fair, adequate or investigators should have accepted the invitation to attend the Albury efficient manner trial for murder in Darwin in the following month. The fact that they 3. that statements taken by police were taken under duress and were didn't do either of these things suggests that they had closed their minds almost entirely false to anything which might contradict their belief that they had 'found their 4. that a statement by one witness was inaccurate and was only signed man! because of intimidation One wonders how the CJC report published in 1992 found that "no 5. that a member of the police force has been guilty of misconduct in one could be blamed for this miscarriage of justice'! Would the report relation to matters referred to above. have been different if Condren had been a white man or had previously 68 | Crucial Errors in Murder Investigations | Ted Duhs Chapter? | The Carlton and Marshall Murders: Condren and Fitzherbert| 69
held down a responsible job? Many people who have studied the history of were required to have at least one university degree, females at least two. Aboriginal affairs in this country might be tempted to answer 'yes' to this This group met on average twice a month. On Friday 27 February 1998 question. arrangements had been made for them to dine at Lisa's Restaurant at Milton. It was to be an appointment that Kathleen Marshall would not keep. The Kathleen Marshall murder and Fitzherfoert In the same two years between 1996 and 1998 Marshall's working life Fitzherbert, lil
Two things were critical for Fitzherbert. The first was the time of maggots which infected the stab wounds in Marshall's body after it was the murder, and the second was the DNA evidence, especially of the found at around 2.30 pm on Sunday 1 March. handkerchief, toothbrush, sheets and socks that the investigating officer But at least six witnesses claimed to have seen Kathleen Marshall Detective Marsh took from Fitzherbert's Zillmere house on the evening of on the Friday: Gertrude Gwynne, the next door neighbour at 64 Main Wednesday 1 July 1998. Avenue; David Kelly, the Wilston pharmacist; Jessica Dawson, the With the Marshall murder, just like the Carlton murder for which seventeen-year-old newsagent shop assistant; Warren Smith from 69 Kelvin Condren was convicted, the exact timing of the attack was critical Main Avenue; and Greg Rowe from 2/85 Main Avenue. In addition, for the defence. And in the Fitzherbert case, it seems that even prominent Catherine Stevenson, who gave evidence by telephone, said that she had people writing about it have made errors. For instance, in Mary Garden's seen Marshall at about 10.15 am on that day. Courier Mail article (4 August 2007) Mary discusses events of "Thursday 27 February 1998' and 'Friday 28 February 19981 This is simply wrong. The She had been waiting to go to work at Toombul when Kathleen 27 February 1998 was a Friday and the 28 February was a Saturday. Marshall had parked behind her and went into the newsagency. Stevenson later made a note in her diary that she had seen Marshall on Friday 27 It appears that Wilson and Mclnnes also made this mistake in their February.11 Catherine Stevenson had been to school with Marshall and book Five Drops of Blood10 because there is a subheading (in bold type) on page 19, to wit, "Friday 28 February 1998" This matters, because some had known her for over thirty years. She lived on North Stradbroke Island other references mention 'on the Friday' or 'on the Thursday' with no date in 1998 but came to Brisbane several days a week to work at the David attached, while other references mention 'on the 27 February' or 'on the 28 Jones department store at Toombul. Her husband owned the butcher's February' with no day of the week attached. And this leads to confusion. shop at Wilston near David Kelly's pharmacy. Catherine Stevenson had caught the last water taxi from North Stradbroke Island to the mainland Confusion about time helped the police case but worked against on Thursday 26 February. Fitzherbert. Consider one example. Wilson and Mclnnes say on pages 19 and 30 that Virginia Houston and Graham Stephen taped a letter on On Friday morning she was parked opposite the Wilston shops when Kathleen Marshall's door "on the afternoon of the 28 February". That, she was surprised to see Kathleen Marshall park behind her and go into taken literally, means that the letter was taped to the door on the Saturday the newsagency. Stevenson put the time of this chance encounter at when Kathleen Marshall was surely dead. Both Houston and Stephen are about 10.15 am. She was sure of the time because she had to start work in no doubt that they taped the letter to Marshall's door at around 4.10 at 11 am and she usually gave herself half an hour to drive from Wilston pm on Friday 27 February. to Toombul. She knew that Marshall was the local veterinarian and lived Even one police statement contained errors relating to these dates. in the area. She had last seen Marshall about twelve months previously For instance, Keith and Dorothy Turnbull, who visited Graham Stephen in the Wilston pharmacy and on that occasion they had spoken together at his house at 81 Main Avenue between 4 pm and 6 pm on the Friday for about twenty minutes. At Fitzherbert's trial in July 1999 the following gave statements to the police. Keith's statement correctly records the date exchange took place between Catherine Stevenson and Prosecutor as Friday 27 February, but Dorothy's statement reads 'Friday 28 February! Rutledge. This error was not corrected by the officer who took the statements. Rutledge: "When you saw her (on Friday 27 February 1998) did you see her face?" [Stevenson:] I certainly did. The Kathleen Marshall murder; The time of death "Front on?" The police case in the Marshall murder was that she was killed "sometime [Stevenson:] Yes. She went into the newsagency and came out and then I just between 9 pm on Thursday 26 February and 3 am on Friday 27 February" drove off. J had a look at what she had on... and I thought 'Well she hasn't This time relied heavily on the evidence of the entomologist Russell Luke changed much since the school days. She's got a little bit greyer! So I really sort who calculated the 'most likely' time of death from the life cycle of the of took note of her. 72 | Crucial Errors in Murder Investigations | Ted Duhs Chapter? | The Carlton and Marshall Murders; Condren and Fitzherbert) 73
"So you saw her going into the newsagency and you saw her coming out of the pm. He drove to the newsagency to buy some milk and saw Marshall in newsagency?" the newsagency at about 4.35 pm. Warren Smith owned another house [Stevenson:] Yes. in Main Avenue at No. 49 and after leaving the newsagency with his milk "In both cases you looked directly at her?" he stopped at No. 49 to wheel the rubbish bins back into the yard of the [Stevenson:] Yes. house. Bins in Main Avenue were emptied on Fridays. He claimed to have seen Kathleen Marshall driving past in her Toyota station wagon at about "How was she dressed?" 4.45 pm. This was the last recorded sighting of Kathleen Marshall alive. At [Stevenson:] She had a white dress on, a waisted dress... with a fine blue the trial Judge MacKenzie said in his summing up: line... a very thin pin stripe sort of check...12 We have heard reference (from) Mr Smith who lived across the road that he Stevenson's description of the dress that Marshall was wearing that came home about 4.30 on Friday. He went to the newsagent, saw her across Friday morning matched the description of the dress that Marshall was what I take to be an island counter; then he stopped on the way home at wearing when her body was found two days later. Her evidence that she another house that he owned and she drove past. He said again that he heard had seen her former school friend at this time and place was compelling. the sound of her upstairs front door at about 6 pm on Friday and again at Moreover, her evidence fitted in with the evidence of other witnesses who 8 pm and you will recall his evidence that he said it had a distinctive sound claimed to have seen Kathleen Marshall on that Friday. because of the knocker.14 Gertrude Gwynne cared for and fed some of Marshall's cats and All of these witnesses knew Kathleen Marshall well and were familiar Marshall had told her that she would vaccinate one of those cats that with her car, which had a distinctive 'putt- putt-putt' sound. Importantly, weekend. Gwynne said that Marshall had come to her side verandah door all were independent of each other and none of them knew Andrew at about 10 am and complained that she was not feeling well and was Fitzherbert. going to get some medication from the pharmacy. From their sightings we can trace Kathleen Marshall's movements David Kelly gave evidence that he saw Kathleen Marshall twice that on that fateful day of Friday 27 February 1998. Her movements followed day, once in the morning about 10 am and secondly in the afternoon a pattern. In the morning around 10 am she went to her next door around 4 pm13. Jessica Dawson, the newsagent's shop assistant, said that neighbour's house, then drove to the Wilston shops. She went to the Marshall bought a newspaper shortly after 10 am and came into the shop pharmacy, then to the newsagency, then drove back up Main Avenue again to buy an ice cream sometime in the afternoon between 3 pm and to her house. In the afternoon about 2.15 pm she drove with a male 4 pm. passenger and her dogs up Main, turned right into Silvester Street, and Warren Smith lived in the house directly opposite Marshall's residence returned home without the male passenger half an hour later. in Main Avenue and he had known Marshall for about twenty-one years. If Jessica Dawson from the newsagency, and David Kelly, the He had also gone to the newsagency in the morning to buy The Courier pharmacist, are correct in their evidence, Marshall must have stopped Mail so that he could 'do the form! He said that he had followed Marshall later at the newsagency "between 3 pm and 4 pm" and at the pharmacy at out of the newsagency to her parked car. "She had a worried look on her "about 4 pm"15. At 4.10 pm Virginia Houston and Graham Stephen taped face because she was hemmed in by other cars," he said. He remembers the letter to her door and both were certain that Marshall's Toyota station following her car up Main Avenue at about 10.15 am. wagon was parked in her driveway when they did that. They noticed a re- Greg Rowe saw Marshall with a male passenger drive up Main and turn sprayed dark brown 1979 Ford station wagon parked in the street in front right into Silvester Street at about 2.15 pm that afternoon. About half an of the Marshall house at that time. Marshall must have then made another hour later, Rowe saw Marshall, without the passenger, returning to her trip after this because Warren Smith, who had arrived home from work at house. about 4.30 pm saw Marshall drive past his other house at 49 Main Avenue Warren Smith gave evidence that he had also seen Marshall on two at 4.45 pm. "While I was (putting the rubbish bins in) she drove round the occasions later that day. He had arrived home from work at about 4.30 corner up the hill to her place"16. 74 | Crucial Errors in Murder Investigations [Ted Duhs Chapter? | The Carlton and Marshall Murders: Condren and Rtzherbert) 75
There were now two versions of the time of Kathleen Marshall's death. phoned her house several times and left a message on the answering The police version was based on the evidence of the entomologist, Russell machine..."18 The fact that she did not attend the dinner, or telephone Luke, that the 'most likely' time of death was between 9 pm on Thursday anyone with an apology, leads to the conclusion that she met her death 26 February and 3 am onTriday 27 February. Luke took only temperature sometime after she was last seen by Warren Smith at 4.45 pm on the into account in making this calculation. Could he have estimated the Friday afternoon, and before 7 pm that Friday evening when she would temperature in Marshall's small locked surgery inaccurately? There must have been preparing to attend the dinner. be some doubt about his estimations because in the trial he extended his 'most likely' time of death to 3 pm on the Friday. Also, Luke did not take into account that the light in the surgery may Fitzherbert's movements on Friday 27 February 1998 have been on. If it was, and it was on when Marshall's body was found about 2.30 pm on Sunday 1 March, then the temperature in the surgery Could Andrew Fitzherbert have committed the murder on Friday evening or would have been higher than Luke estimated, and that would have pushed Friday night? Tim Bennett, Ruth's son, who lived in the Zillmere house with the 'most likely' time of death further into Friday evening. Furthermore, his mother and Andrew Fitzherbert, returned home from work on the Friday if the light was on the flies could have laid their eggs earlier, since as Luke at about 3.30 pm. Tim gave evidence that his mother and Andrew Fitzherbert said at the trial, "Flies don't normally oviposit in the dark."17 Prosecutor arrived home shortly after 4 pm and left to go to their meditation evening at about 6.45 pm.19 Rutledge questioned Luke on this point as follows: "In your estimate (of Kathleen Marshall's time of death) of 9 pm Thursday to Christopher John Doney, the technical support manager of internet 3 am Friday were you assuming that there was no light in the area where the services provider Power Up, with which company Andrew Fitzherbert had body was?" Yes, I was at that particular point. a computer account, gave evidence that Fitzherbert's computer account was connected to the internet from 5.15 pm to 5.16 pm that Friday "So if we assume that the light was on in the surgery and if we assume that the flies could have oviposited earlier...what sort of time frame are we now afternoon.20 This was consistent with Fitzherbert's habit of downloading looking at in terms of your estimate of the time of death?... Do you eventually his emails before eating his evening meal. Ruth Bennett, Fitzherbert's reach the conclusion that death could have occurred between 3 am and 3 pm partner, said that Fitzherbert usually attended the Palmistry booth at the on Friday 27 February 1998?" That is correct. South Bank markets on Friday afternoons. The second version of the time of death is derived from the evidence of However, on Friday 27 February 1998 Fitzherbert did not attend the the six witnesses and eleven sightings, since David Kelly, Jessica Dawson Palmistry booth because he and Ruth were due to go to Pat Francey's and Greg Rowe claimed to have seen Marshall twice that Friday, and place at Wakerley that night for meditation and a seance. Ruth Bennett Warren Smith claimed to have seen her three times, with an afternoon says that they had an early meal and left their Zillmere house just after sighting as late as 4.45 pm. Given that some witnesses said that the light 6.15 pm and arrived at Pat Francey's at about 7.15 pm. The five other was on in the surgery on the Friday night and that it was still on at 2.30 people at Pat Francey's that evening confirmed this and all agreed that pm on the Sunday afternoon when the body was discovered, the weight of Ruth Bennett and Fitzherbert left this meditation meeting about 9.30 pm. evidence strongly suggests that Marshall met her death on Friday evening Pat Francey said that she was sure of the date because there was talk of or Friday night, not on Thursday night as Luke had first estimated. Zilla the Siamese cat, which had gone missing on Thursday 26 February. The other important event for Kathleen Marshall on that Friday 27 The author telephoned Pat Francey in early 2009 and asked her if she February was the L'Epicure dinner at Lisa's Restaurant at Milton. This recalled anything about Fitzherbert's demeanor when he arrived at the was a very important social engagement for Kathleen Marshall. She had meditation meeting. She replied that Fitzherbert was his usual calm and arranged it herself and she would not have missed it. If she had been alive cheerful self. "Andrew was just being Andrew", Pat Francey said. and uninjured at about 7 pm that Friday it seems highly likely that she After the meeting finished, Ruth Bennett and Fitzherbert went to see would have changed out of her day clothes and driven to the dinner. Her Bennett's daughter, Cathy Beck, and stayed there until about midnight, absence from the dinner caused a stir and "One of the long-term members arriving home about 1 am the next morning. Cathy's husband, Richard, 76 1 Crucial Errors in Murder Investigations | Ted Duhs Chapter 7 | The Carlton and Marshall Murders: Condren and Fitzherbert j 77 confirmed that Ruth and Andrew arrived at their house at Tingalpa at to be convicted solely on DNA evidence it is no surprise that the Andrew about 10 pm that Friday evening and stayed until after midnight. Again, Fitzherbert Support Group wants the conviction reconsidered in what is they v/ere sure of the date because Ruth had told them that Zilla had gone regarded by them as a benchmark case. missing the day before. Therefore, if Kathleen Marshall met her death If we can believe these witnesses, and there is no apparent reason why between 4.45 pm and about 7 pm on Friday 27 February 1998, and if Pat we should not, then it seems that the errors in both the Condren and Francey and the Beck's are to be believed, Andrew Fitzherbert would seem Fitzherbert cases involved mistaken assumptions by the police about the to have had no opportunity to commit the murder. tune of the two murders. By claiming that Patricia Carlton had been killed The critical evidence about timing on the Friday afternoon comes about 4.15 pm on Friday 30 September 1983 the police could put Condren from Tim Bennett's testimony. Ruth Bennett had thought that she and in the frame. Fitzherbert had left the Zillmere house on Friday 27 February at about 6.15 pm. Tim Bennett said that his mother and Fitzherbert left at 6.45 pm. Acceptance of a similar claim that Marshall was killed on the Thursday He said that he was certain of this time because he recalls the two of them night rather than the Friday night made it easier to prosecute the case leaving the house after he made three telephone calls. Telstra records against Fitzherbert. Condren had a perfect alibi for any time after 5.47 show that these three telephone calls were made from the telephone of the pm on Friday 30 September 1983 since he was in police custody, and Zillmere house, the first at 6.41 pm to Tim's boss Simon, the next at 6.42 Fitzherbert had substantial support from friends and acquaintances for pm to Tim's girlfriend Liz, and the last at 6.47 pm to Tim's friend Melissa. his movements on Friday 27 February 1998 which would have precluded Each was a local call and the charge for each was $0.25.21 Tim Bennett's him from killing Marshall if, in fact, she did meet her death on that day. testimony in court on this point is listed below; These crucial interpretations by the police were critical in convicting both Prosecutor Rutledge: "Is there something particularly significant about this men: one of whom has had his conviction quashed, while the other is the telephone call that you were on, on the Friday evening?" I had made three subject of an Innocence Project. at that stage. I've rung up my DJ boss to see whether I was needed the next Hie second thing that was common to both the Condren and evening and I'd rung a friend and also my girlfriend. Fitzherbert cases was that both men were publicly identified in the local "... Can you state beyond a shadow of a doubt you are certain about what you media as the principal suspect and likely murderer at a time when there are telling us?" I am pretty certain about what I am telling you, yes.22 was no evidence against them: Condren.in Mount isa's^A/ort/? West Star Re-examination by Defence Counsel Hunter: "Can you tell us about the newspaper on the Monday following Carlton's death, and Fitzherbert telephone call that you made on the Friday evening at about the time of... in aJinnt_pag^_^M^^Alfl/^article on Thursday 2 July 1998 before his your mother's departure and the accused's departure? That is on the 27'' DNA had been profiled. In both cases at the times in question there was February?"Yeah, they're all on here. I'd rung my boss at my DJ company and no evidence agairislTeither. Justice has now been done in the Condren my girlfriend and a friend. case with his release. Fitzherbert is still fighting for his innocence to be "What time were those calls made?" On here at 6.41, 6.42 and 6.47.23 recognized. Fitzherbert, who has always protested that the DNA evidence Tim Bennett's testimony seems definitive. He says that Fitzherbert and against him was flawed, is essentially supported by Wilson and Mclnnes his mother left the Zillmere house at about 6.45 pm. And we know from in so far as they point to inconsistencies in the bureaucratic record Pat Francey's evidence that both Ruth Bennett and Fitzherbert arrived keeping of the relevant blood samples from the crime scene by the John at Wakerley for the meditation session and seance at about 7.30 pm. A Tonge Centre. driving time of about forty-five minutes from Zillmere to Wakerley on a Forensic scientist Kenneth Cox claimed in his Statutory Declaration at Friday evening seems appropriate. Therefore, if Tim Bennett's evidence is the trial, that of the personal items belonging to Fitzherbert that Detective accepted, and if Kathleen Marshall was murdered between 4.45 pm and Marsh had sent to the John Tonge Centre for analysis at 9.30 am on about 7 pm, Andrew Fitzherbert could not have lolled her. Thursday 2 July 1998 (after The Courier Mail article was published) only Given these two versions of the time of death and the fact that the handkerchief gave a 'nine loci' profile identical to the death scene. Yet Fitzherbert is the first person in Australia and only the third in the world in Five Drops of Blood, Wilson and Mclnnes write24: 78 | Crucial Errors in Murder Investigations | Ted Duhs Chapter? | The Carlton and Marshall Murders; Condren and Fitzherbertl 79 •r
"The DNA findings around Fitzherbert's handkerchief were unsupported Glenda Whitmore, to pick them up for her? Rhoda Hall assisted Kathleen by a journal record or any computer records, and the sole record in the Marshall with the Society's cats daily. At Fitzherbert's committal she was spreadsheets was impossibly dated. Either it was not genuine or there were asked how often she went to Marshall's house to help feed and care for the serious mistakes in the report'.' cats. The following exchange took place between Defence Counsel Hunter The Andrew Fitzherbert Support Group is seeking to have the DNA and Rhoda Hall.25 evidence against him retested but has met resistance from Queensland's Hunter: "Now you started to visit Kathleen Marshall daily, on or about 17"' Attorney General because retesting was open to Fitzherbert at his Appeal March last year. Is that correct?" in May 2000 and he failed to utilise it then. Fitzherbert conducted his own That's right. Yes. appeal and did not realize that he had this option. "You were helping her with... ?" However, in 2011, a representative from the Griffith University Innocence Project visited Fitzherbert in prison and informed him that The kittens. approval for a re-test of the blood samples that identified him as being at "Yes?" the crime scene was unlikely to be granted, because those samples had Yes. been analysed using the Profiler Plus method, and Profiler Plus is regarded Yet Rhoda Hall claimed that she did not go to Marshall's house by the experts as rigorous and definitive. Re-tests of blood and semen samples is most likely to be confined to those DNA techniques which between mid-morning Thursday 26 February and the afternoon of Sunday were in operation before Profiler Plus was introduced early in 1998. 1 March. These two statements are not consistent with each other. The police did not question the witnesses who saw two cars parked outside Marshall's house late on Friday afternoon. Four witnesses saw a Did any QCPS members call at Marshall's house on re-sprayed dark brown 1979 Ford Falcon station wagon parked in front Friday 27 February? of the Marshall house at about 4.10 pm on the Friday afternoon when Virginia Houston and Graham Stephen taped the letter to Marshall's When Kathleen Marshall's body was discovered the police investigation door. Later, two witnesses saw a small blue car parked outside Marshall's immediately focused on the members of the Queensland Cat Protection house at about 6 pm. At that time the 1979 Ford Falcon station wagon Society. Could someone from the society have killed her, stabbing her was no longer there. Both cars were thought to belong to members of the fifty-two times, as the autopsy revealed? The police were single minded Queensland Cat Protection Society. Yet at the trial those two members about this, and they did not appear to consider any other possibilities. If of the society claimed to have had no communication with Kathleen Marshall did meet her death on the Friday night between 4.45 pm and Marshall from Tuesday 24 February until they (with others) discovered about 7 pm the police should have investigated the whereabouts of certain Marshall's body at about 2.30 pm on Sunday 1 March. witnesses in this two-hour window. The police took statements from these witnesses but, because they believed that Marshall was murdered on the Thursday night, they did not pursue any inconsistencies in those The man in the car with Marshall and her dogs statements. Several questions should have been asked. For instance, did any QCPS members call at Kathleen Marshall's house Greg Rowe, who lived in the middle unit on the ground floor of a block of on the Friday? They had every reason to do so since they were preparing flats on, the comer of Main Avenue and Silvester Street, saw Marshall with a for a 'talkfest' on Sunday 1 March and a directors' meeting had been male passenger driving away from her house at about 2.15 pm on Friday 27 scheduled after the Talkfest'. Sandra Wilson gave evidence that she had Febmary. The dogs were in the back of the car.26 waited at the Theosophical Society until the early hours of Friday morning Rut ledge: "So when she drove away from her house around 2.15, if you accept for Marshall to send faxes about the Talkfest' to her. If the faxes were so that you told the police that there was a male passenger in the front, does important to Sandra Wilson did she make an attempt to get them from that sound right?" Kathleen Marshall later that day? If not, did she ask anyone else, such as Yeah, that's the cousin or what he was to her I don't know what he was. 80 1 Crucial Errors in Murder Investigations | Ted Duhs Chapter 7 | The Carlton and Marshall Murders; Condren and Fiizherbert| 81
"And there were two dogs in the back?" not have had keys to the house or the car. Was Ian Galton 'the man in the Yeah. y car on Friday ? Did he come back on Saturday and drive the car away and "Is that right?" clean it? If he did, what was he so concerned about that he took such a risk of being seen? And why was Ian Galton not required at the committal Yeah. or the trial? He knew Marshall, he had lived with Marshall, and after he "Now the person in the passenger seat you'd never met before; is that right?" left Marshall s house sometime in 1997, he continued to visit her When ; I'd only seen him leading her dogs around the street. Greg Rowe referred to 'her cousin' it seems that he meant Ian Galton. SoH "Now did you see her drive bach towards her house later that afternoon at w ay did the police not call Galton to give evidence at the committal or thd' around 2.45?" trial? ^ Just before I went to pick the grandson up from school which is 5 to 3, yeah, it would have been, yeah. "And at that time when she was driving back in the direction of her house she Condren and Fitzherbert: A summary had no passengers in the car and there were only two dogs in the back; is that In the Condren case, the evidence of the witnesses Price and Millican right?" was enough for tire court to reverse the jury's verdict at the trial and set Yeah. Condren on the path to freedom. In the Fitzherbert case, the evidence of "And that was the last time that you ever saw or heard from Kathleen Catherine Stevenson, Warren Smith and others, along with the evidence Marshall?" of Tim Bennett, Pat Francey's circle and the Beck's, played an exactly Yeah. similar role for Fitzherbert as the evidence of Price and Millican did for Condren. So, why wasn't the outcome for Fitzherbert the same as the Friends of Kathleen Marshall say that her dogs only tolerated two male outcome for Condren? Why hasn't Fitzherbert also been set free? The minders. One was Ian Galton who lived with Marshall in her house for a answer is simple. Fitzherbert's DNA was found at the murder scene and time in 1997. The other was an odd jobs man called Gramm who did some he cant explain how it got there. work for Marshall. Gramm was asked if he was with Marshall in her car on Friday afternoon. He denied being in the car with her at that time. The importance of 'the man in the car' is that on the following day (Saturday 28 February) two witnesses claim to have seen a man and a woman driving Marshall's car back to her house. This sighting of a man and a woman in Marshall's car was at about 2.45 pm on the Saturday afternoon when Marshall was almost certainly dead. When forensic police examined the car on the following Tuesday, they found that it had been thoroughly cleaned. Why would someone take the car and clean it after Marshall was dead? Was the man with Marshall in the car on Friday the murderer and he wanted to remove any trace that he had been in the car? If not, why would anyone drive her car on the Saturday and risk being seen? Furthermore, whoever drove the car away on the Saturday either had to have keys to the car or keys to the house where the car keys could be found. Ian Galton would likely have had those keys or known where to find them. Certainly after Marshall's death he had the keys because he was the executor of Marshall's will. Gramm, being only an odd jobs man, would