BODY

IN THE

FREEZER the Case of David Szach

Acknowledgements

I am indebted to editorial comments and suggestions from Jan McInerney, Pat Sheahan, Anthony Bishop, Dr Harry Harding, Michael Madigan, and Dr Bob Moles.

Andrew Smart of Blackjacket Studios designed the cover.

I especially appreciate the support of my wife, Liz.

ISBN: 978-0-9944162-0-9

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission.

Printed in Adelaide by Griffin Press

Any enquiries to the author’s email: [email protected]

BODY

IN THE

FREEZER

the Case of David Szach

TOM MANN

Author’s note

Following the publication of the Edward Splatt case in Flawed Forensics, David Szach approached me to examine and write up his case. I met with David Szach a number of times to record his version of events and his efforts to clear his name for the murder of lawyer Derrance Stevenson. After examining the trial transcripts, the grounds for appeal, and the reports by forensic scientists investigating the evidence presented by the forensic pathologist, I unravel the crime to reveal its hidden nature and consequences.

CONTENTS

Introduction … 1

1: Body in the freezer … 3

2: Prime suspect … 7

3: Derrance Stevenson and the Adelaide scene … 21

4: Before the trial … 26

5: Trial evidence … 32

6: Dr Colin Manock’s evidence … 47

7: David Szach’s statement … 60

8: Shaky underpinning for the Crown … 73

9: Blood and fingerprints … 79

10: Possibilities and confusion … 85

11: Defence address … 100

12: Crown address … 108

13: Judge’s summing up … 115

14: The sentence … 129

15: A possible scenario of events … 132

16: The appeal … 137

17: Adelaide crime scene in the 1970s and 1980s … 141

18: Further inquiries … 147

19: A closer look at Dr Manock’s evidence … 150

20: Appeal to the Attorney-General … 166

21: Petition to the Governor … 177

22: Channel 7 investigates … 184

23: Manock’s evidence and the need for change … 195

24: From the Governor … 209

25: Why no progress … 214

26: A tortuous process … 221

27: Innocent people locked up in jail … 227

28: Miscarriage of justice … 244

29: A landmark case lights up Szach’s hope for justice … 247 Index … 249

Introduction

No one protests their innocence year after year, for more than thirty-five years, without good reason. David Szach, convicted for the murder of 44-year-old lawyer Derrance Stevenson in 1979, was given a life sentence. The Parole Board of South Australia could have offered an early release if Szach had been prepared to come to terms with his wrongdoing. Maintaining his innocence, Szach refused any suggestion that he could be released with the setting of a non-parole period. Throughout his fourteen years in prison from 1979 to 1993, Szach had not anticipated being released on parole. He sought and expected a judicial inquiry into the circumstances of his arrest and conviction. To his way of thinking, his release depended on the outcome of that inquiry. Szach’s persistence for an inquiry, and his denial of guilt along with an absence of remorse, excluded his suitability for release on parole. But the Government of South Australia amended its existing legislation to enable the Parole Board to apply for a non-parole period on behalf of the prisoner. Szach was not required to plead his case. What prompted the government to secure David Szach’s release under such extraordinary circumstances?

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No precedent had existed for such an action by the government. A life sentence meant at least twenty years. With no strong backing from the media, no overwhelming plea from the public for justice, and no overruling physical or mental condition which might have persuaded the State Governor to act mercifully, how could Szach’s release happen? Nothing could account for the release of a convicted murderer before his time was up, unless, of course, David Szach had become an embarrassment or liability. Talk to anyone who has knowledge of Szach’s case, and serious doubts emerge about his conviction. A lawyer who would not be named said, ‘They knew he was innocent. David Szach was an embarrassment and wouldn’t accept his fate.’ Justice Millhouse granted David Szach parole on 23 March 1993. Released in May 1993, he straightaway contacted his lawyers about obtaining a review of the pathology evidence that played a central part in his conviction. David Szach needed clearance and closure. Three years after his release another sentence loomed. Afflicted with motor neurone disease, causing degeneration of nerves and loss of muscle function throughout his body, Szach had to fight against time to have his conviction overturned. His prime concern was not compensation but exoneration for a crime he had not committed. He wanted his two teenage sons to be free from the stigma of their father having been given a life sentence for premeditated murder. And he sought improvement for South Australia’s legal system.

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Chapter 1

Body in the freezer

A man in his mid-twenties, of slim build and shoulder- length hair, called on the offices of the Legal Services Commission in Adelaide at about 8.15 am on Tuesday 5 June 1979. Anne Shea, a conscientious receptionist at the Commission, first became aware of the man when he knocked on the window. The Commission offices were not yet open for business, but Ms Shea opened the door anyway to receive him.

‘Can I help you?’ she said.

‘Is Justin in?’ the man asked.

‘Have you an appointment?’

‘No.’

Ms Shea, puzzled by this early morning request, asked, ‘Are you a client of Justin’s or is it about an application?’

‘Not yet, but I need help.’ 3

‘What type of matter is it?’

‘A crime.’

‘Have you seen a solicitor or is a solicitor willing to act for you?’

‘Only Derrance Stevenson, but when I left him last night he was in no condition to act for anyone. I have to see Justin because he is the only lawyer in Adelaide who will help me.’

‘You might ring later in the day and arrange an appointment,’ suggested Ms Shea.

The young man sought assurance that anything he had said was confidential. Ms Shea gave that assurance, and the man left, never to be seen or heard of again. Justin O’Halloran, the solicitor, on being told about the young man, could shed no light on his identity. Mrs Flaherty, the relieving secretary for Derrance Stevenson, arrived at Derrance’s office at 189 Greenhill Road, Parkside, at 9 am on Tuesday 5 June 1979, to resume her duties, not suspecting anything untoward, and assuming that Derrance had gone to court because his car was not in the driveway. A little later Mrs Flaherty received two calls from clients to inform her that Derrance had not appeared in court. She became concerned about his whereabouts and at 11.20 am she received a call from Coober Pedy.

A male voice asked, ‘Is Derrance there?’

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‘No, he’s left for court,’ Mrs Flaherty said, wondering who the person was.

‘Could you please leave a message on Mr Stevenson’s desk? Would you tell him I have arrived safely and I’m just about to go and do what he asked. If he wants to contact me, he can contact me. I am at Christianos’ but I will ring him at nine o’clock tonight,’ said the caller.

‘Who is it?’ asked Mrs Flaherty, who had been caught out before with callers not leaving a name.

‘You know me. It’s David Szach.’

‘You don’t know where he might be, do you, David, because I have had a couple of calls from clients and he hasn’t arrived in court?’

‘No.’

‘But I assumed he had gone to court, because his car was gone when I arrived for work,’ Mrs Flaherty said.

‘The car’s all right. Derrance lent me the car. It’s here with me in Coober Pedy.’

Following the phone call, Mrs Flaherty became increasingly worried, and at 11.45 am she phoned Derrance’s permanent secretary, Mrs Makowska, who suggested that Mrs Flaherty try to enter the living room, next door to Derrance’s office. Mrs Flaherty tried to open the door but it was locked. On resuming the call, Mrs Makowska remarked, ‘That’s strange. The door has never been locked before. There is a spare pair of keys in the strong room. You could try those.’

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With the spare keys, Mrs Flaherty entered the living room. The radio was on and the room was hot — heaters had been left on in the lounge, bedroom and bathroom. She noticed Derrance’s diary and inhaler. Derrance never went anywhere without those two items. Perplexed, she rang solicitor Peter Waye, a friend of Derrance’s, shortly after noon. Mr Waye became concerned and wanted to be kept informed. After another phone call at 3 pm to Mr Waye, the police were notified. The police arrived at the premises and began to search for clues that might lead to finding Derrance.

Mrs Flaherty received her second call from David Szach, at 3.45 pm:

‘Is Derrance back yet?’ he said.

‘No! We are worried because we don’t know where he is. He hasn’t appeared in court,’ said Mrs Flaherty.

‘Oh! Could you leave a message on his desk to say, “I’ve done what you asked me to do. I came to get a stone cut and I had to go 40 miles out”.’

‘Well, you know we are very worried. We don’t know where he is. Do you know where he could be?’

‘Derrance said that he was going to visit his mother the night before. You could try there. Try everyone in the Telex on his desk and ring the hospitals. Ring the police.’

‘I have rung the police.’

‘Please find him. He’s all I’ve got.’

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Chapter 2

Prime suspect

Three police officers had already arrived at Derrance’s premises by 3.30 pm and had begun searching, but it was not until about 5 pm that an officer tried to open the freezer. The lid would not budge and on closer inspection it had been tightly sealed with glue. With force the officers prised it open and gazed at a body in a partially undressed state with the head wrapped in two plastic bags. At about 5.45 pm, soon after the body was discovered, Gino Gambardella, a close friend of Derrance’s, arrived at the crime scene and spoke first with the permanent secretary, Mrs Makowska, and then made a short statement to Detective Sergeant McEachern. Constable Andrew Telfer, from the technical services branch at Central Police Headquarters, Adelaide, described what he saw when he entered Derrance Stevenson’s premises at 5.55 pm:

I entered the kitchen of the premises, where I saw a chest freezer located behind the door … The freezer was positioned partly away from the wall, and was largely covered with black fingerprint powder. 7

Inside the freezer I saw the body of a male person, which I now know to be that of Derrance Redford Stevenson, clothed in a pair of brown socks, a pair of white underpants, which were positioned below his buttocks, and a white shirt, which was unbuttoned at the front and positioned near the shoulders of the body.

The back of the body was against the back wall of the freezer, and the head in the bottom front right corner. The right arm was above the head, obscuring most of the face. The knees were together and drawn up towards the chest with the feet being at the top left front corner of the freezer … Blood was present on the face of the deceased, and the head was partly covered by a green plastic garbage liner and a towel.

Forensic pathologist Dr Colin Manock arrived at about 6 pm and was shown into the kitchen and waited while the freezer was dusted for fingerprints and photographs taken. Dr Manock observed the body in a head-down position with a basket of frozen food above the head and two plastic bags of frozen food over the buttocks and lower back. To fit into the freezer the body had been curled up into a foetal position. After having the body removed from the freezer, Dr Manock carried out a preliminary examination before it was transported to the mortuary, where he confirmed it was that of Derrance Stevenson. He had been shot in the back of the head with a single .22 calibre bullet. At about the same time as Dr Manock had arrived at Stevenson’s place, David Szach called at the police station in Coober Pedy to clear up certain charges relating to uncashed cheques. He had already called at the police station during the afternoon but Detective 8

Standing had been out at the time. Back in the office, Detective Standing said: ‘My name is Standing. I am the detective at Coober Pedy. I believe you want to speak to me about something. Is that right?’

‘I have come to speak to you about cheques and my missing friend Derrance,’ Szach replied.

After a few minutes of discussion to clear up the matter concerning the cheque offences, Szach asked, ‘Have you found my friend Derrance?’

‘I don’t know what you are talking about. Derrance who?’

‘Derrance Stevenson. We’re in love. What’s your attitude towards homosexuals?’ said Szach.

‘I haven’t got an attitude towards homosexuals. Why do you want to know?’

‘I have a homosexual relationship with Derrance and he’s missing, and he’s the only person in the world I have and I want you to find him,’ Szach said.

‘Where does Derrance live?’

‘189 Greenhill Road, Parkside. He’s Derrance Stevenson, the solicitor.’

‘How long have you known him?’

‘I met him three years ago. We fell for each other pretty quickly. He’s the only person in the world who gives me love and who cares about me.’

9

‘How do you know he’s missing?’

Szach replied, ‘I rang his office at nine o’clock this morning when I arrived in Coober Pedy and his secretary said he was out, and I rang again between half past three and four o’clock and his secretary — not his usual one, you know; this one is only a relief one — told me that he was missing. I told her to contact Gino and the police.’

‘Why did you want her to contact the police?’

‘Derrance and I are in love. He means the whole world to me and I want to find him. You can find him for me, can’t you?’

Detective Standing was about to reply when a trunk-line call came through from Police Headquarters, Adelaide. Superintendent Harvey spoke to Detective Standing concerning the movements of David Szach, the possibility of illegal possession of Derrance Stevenson’s red Datsun, and that Stevenson might have been murdered. After the call, Detective Standing paused for a few moments to take in the full import of what had been revealed and how he should proceed. Without communicating the possibility and serious implication of Stevenson’s likely murder he said, ‘Perhaps if you can tell me when you last saw Derrance and the names of some of his friends, I may be able to commence inquiries to find him.’

Szach replied, ‘Ring his mother. Ring Gino Gambardella. He’s a close friend. You must find him. He means so much to me. I love him.’

10

‘Why did you come to Coober Pedy then? Did you have an argument with him?’

‘No, nothing silly like that. Actually, he’s never said an unkind word to me. I got into some trouble with the police, and when Derrance found out, he gave me a proper thrashing, but he didn’t hurt me really. He just couldn’t bring himself to hurt me. I came here to do opal mining. Derrance had this psychic flash that I was on opal, so I came back.’

‘Are you opal mining in Coober Pedy?’

‘Yes, I’m into opals now. Over the past three months, I’ve learned all there is to know about opals — how to class them, how to tell good stones from bad, how to cut, and I’ve done some mining. Derrance is going to buy some cutting equipment for me and him, and I’m going to buy some small parcels of opal and I’m going to go into full- time cutting. Then we will sell the opal.’

Szach explained that he was working for Ross Christianos and also staying at his place while in Coober Pedy. Stevenson had introduced Szach to Christianos who trained him in the mining of opal.

‘How did you travel to Coober Pedy?’ Detective Standing asked.

‘Oh, Derrance lent me his car. Derrance and I decided that I should come back to Coober Pedy to see if I was on opal. He’s had these psychic flashes, you know. Derrance gave me his car to drive up here. I was going to come on the bus, but Derrance loves me and trusts me and gave me his car. He’s very good to me. My parents like him. My mother

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told me that I should stay with him as he’s a good man to have behind me.’

On casting a glance at the Datsun 260Z parked in front of the police station, Detective Standing said, ‘That’s not a very suitable type of vehicle to be driving on these roads. I’m surprised he let you drive a car like that up here.’

‘Oh no, I’m a good driver. I’m a much better driver than Derrance. My reflexes are so much faster. He trusts me, you know. He knows I’ll look after it.’

‘What was Derrance wearing when you last saw him?’

‘Slacks and a white shirt.’

‘Like the ones you’ve got on?’

‘Yes, like this one. This is his shirt. He always lets me wear his clothes.’

‘Is it usual for Derrance to let you wear his clothes to Coober Pedy?’

‘Oh no, I changed into these before I came up here, just before I left.’

‘I suppose you brought your own clothes in a suitcase then?’

‘No, I left all my clothes in Adelaide at Derrance’s place. All my good clothes are there and my work clothes are here.’

‘Did Derrance give you any money for the trip to Coober Pedy?’

12

‘Yes, he gave me a cash cheque that Ron Strickland had given him and I went to the bus depot and cancelled my ticket and got a refund on that.’

‘How much did you get on the ticket refund?’

‘About $30 and a few odd cents. Do you know if they found Derrance yet?’

‘I don’t know. When did you get the bus ticket to travel to Coober Pedy?’

Szach explained that he had booked to come by bus to Coober Pedy, leaving Adelaide city at 7 pm on 4 June, but at the last moment Derrance had decided at about 5.15 pm to let him drive the car.

Detective Standing said, ‘That is a bit odd, isn’t it? Within two hours of you catching your bus here, Derrance decides to let you drive his car up, especially a car like that Datsun.’

’Oh no, Derrance loves me. He trusts me.’

At that moment the interview was interrupted by another phone call from Police Headquarters in Adelaide. Superintendent Harvey spoke for a short time and then handed the phone to Chief Superintendent Thorsen who asked about the cheque offences. Detective Standing let Thorsen know that Szach was in the office and that the matter of the cheque offences had been cleared up by someone. Thorsen then turned his attention to the illegal use of the vehicle. Mr Peter Waye had said that Mr Stevenson would never lend his vehicle to anyone and especially on the rough roads to Coober Pedy. When Mr

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Stevenson drove to Coober Pedy he would hire a Land Rover. Mr Stevenson’s relief secretary had endorsed Peter Waye’s comments about not lending the car to anyone and that Mr Stevenson had used his car to drive to his court engagements. Thorsen advised Detective Standing to concentrate on questions relating to the illegal use of the car, and not to mention anything about a body found in Stevenson’s freezer. Detective Standing continued to question Szach about permission to drive the car and then advised him that the Datsun car was probably stolen.

Szach asked, ‘Who reported the car stolen?’

‘Mr Stevenson’s secretary did.’

‘Then you haven’t found him yet, have you? Wait until you do.’

‘Why?’

‘He’ll tell you he let me have his car. That secretary wouldn’t know; she’s only the relief secretary.’

‘Have you ever driven Derrance’s car before?’

‘No, I always take a taxi when I go out. Derrance thinks it’s safer in case I get drunk or something. Besides, he always liked to have his car in case he had to go out to see clients.’

‘That’s strange then that he should give you his car to drive to Coober Pedy, 900 kilometres from Adelaide, isn’t it?’

14

‘He loves me; he knows I am a good driver. He trusts me to look after his car.’

Szach then explained that Derrance would fly up to Coober Pedy in a week’s time to represent Szach in court for the cheques that had defaulted. Derrance would then drive the Datsun car back to Adelaide.

‘What time was it when you left Derrance’s place then?’ Detective Standing asked.

‘Oh, half past five.’

‘How did you know that?’

‘I looked at the clock in the car and it said half past five, but I couldn’t be sure that it was right because I don’t know if the clock is fast or slow.’

‘Where did you go when you left Derrance’s place?’

‘The bus station. I went and cancelled the ticket and got a refund. I’ve told you all this.’

‘It’s strange to me that Derrance didn’t give you any cash when you left. A $30 bus refund money wouldn’t get you very far considering you had to drive to Coober Pedy.’

‘Well, he didn’t have any spare. He gave me Ron Strickland’s cheque for $120. That would give me plenty of money.’

‘Suppose you couldn’t cash the cheque?’

‘That would be no problem. It’s a cash cheque. I changed it OK at Lucas’ when I got here.’ 15

‘What time were you at the bus station?’

‘About a quarter to six.’

‘Where did you go then?’

‘Went to my father’s place at No. 4 Glenside Street, Surrey Downs. I left there about quarter past seven and drove my brother and his girlfriend to the Fairview Park Shopping centre. Then I started for Coober Pedy.’

‘Where did you get petrol?’

‘Had a full tank when I left. Derrance must have filled it during the morning. I got about $4 worth at the Shell at Port Wakefield, then about $10 worth at Port Augusta and that included $2 for a plastic container for it. I got $10 at Kingoonya. It cost me $2 to get the place open, and then I got $10 worth of petrol. I only just made it to Coober Pedy. I got bogged twice. I got here about 9 o’clock. The first thing I did was to ring Derrance and tell him that I had arrived safely, but he wasn’t in.’

‘Were you surprised when he didn’t answer?’

‘No, he might have had to go out early to see a client.’

‘I notice a briefcase on the back seat of the car. Is that yours?’

‘No, it’s Derrance’s. He must have forgotten to take it out.’

Not accepting Szach’s explanation about driving the car, Detective Standing said, ‘You will now be arrested and

16

charged with illegal use of a motor vehicle without the consent of the owner. Do you understand this charge?’

‘Yes. When do I go to court?’

‘Tomorrow. Do you wish to read this record of our conversation?’

‘No. Derrance told me not to read police statements or to sign them.’

At about 12.40 pm on the following day, Wednesday 6 June 1979, Constable Telfer attended the Coober Pedy Police Station along with Detective Sergeants Robinson, Haddon and Cook from the Major Crime Squad who had travelled from Adelaide. Constable Telfer examined the red Datsun 260Z in the rear yard of the police station. He stated later in court:

The car was very dirty … I saw that on the interior trim of the driver’s door there were a number of dried mud stains. On top of the door trim and approximately halfway along the door I saw two small stains which appeared to be dried blood. I photographed the door and then conducted a screening test for the presence of blood on the stains with a test strip. I obtained a positive reaction. I then removed the stains with a damp cotton thread and placed the thread into a glass vial which I sealed and labelled.

On the right rear seat of the Datsun there was a brown attaché case which was locked, a pair of black-rimmed glasses, a full box of Winchester .22 cartridges and 18 loose cartridges. On the left rear seat there were a pair of brown-rimmed glasses and a Ruger brand magazine which contained six cartridges. In the glove box was located an

17

account dated 5 June 1979, and headed ‘Archies Auto & Marine Electrician’. The account was for $12.40, apparently for work performed on the Datsun.

On his return to Derrance’s premises on Friday 8 June, Constable Telfer took possession of an aerosol can of Tabac deodorant. He later examined the clothing of Szach which he had received from Detective Standing and found no evidence of blood on any of the clothing. Szach remained in custody at Coober Pedy until the afternoon of Wednesday 6 June 1979. Detectives Robinson and Haddon interviewed Szach about the much more pressing problem — the murder of Derrance Stevenson. After briefly discussing Szach’s relationship with Stevenson, the interview focused on the day of the murder, 4 June 1979. The police officers avoided using the word ‘murder’.

‘Do you know of the weapons that Derrance keeps back at his house?’ Detective Robinson asked.

‘He has a .22 rifle and a .308 rifle,’ Szach replied.

‘Have you ever used either of those weapons?’

‘Only when I went out shooting and that was ages ago.’

‘The body of Mr Derrance Stevenson was located yesterday by police officers. It was found in the deep freezer, in the kitchen at his home. A post-mortem examination has been conducted and it has been ascertained that death was due to a gunshot wound to the back of the head. Did you shoot Derrance Stevenson?’

‘I did not shoot Derrance Stevenson.’

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‘Mr Stevenson’s car has been examined by an officer from our Technical Services Section and blood has been located on the inside of the driver’s door. Do you know how this blood came to be there or whose blood it is?’

‘It could be a cut there,’ Szach said as he showed the palm of his hand where a cat had scratched him on the previous Sunday.

‘From enquiries made, it has been ascertained that Mr Stevenson would not lend his car to you to drive to Coober Pedy or have let you have possession of the opal ring which we located in your possession. Do you still maintain that he gave them to you?’

‘I still maintain that Derrance lent me the car, and that the opal ring was in the coat pocket.’

Also found in the coat pockets were pieces of cut opal, an uncut piece of opal, a calculator and asthma tablets. Detective Robinson then let Szach know that his fingerprints were found on the front and side of the freezer. Szach couldn’t account for them apart from the fact he sometimes cleaned the freezer down with a cloth. Szach denied changing the bed sheets or turning the mattress up the other way. He denied having in his possession a tube of superglue. He disagreed with the booking officer’s time of 7 pm for a refund of his money for the bus trip arranged by Derrance Stevenson. According to Szach, he had arrived at the Stateliner Bus Depot at 5.45 pm. He had left Derrance’s place at 5.30 pm and wasn’t there at 6.40 pm as claimed by a witness, Mr Short.

19

Towards the end of the questioning, Detective Robinson asked: ‘Were you present when Derrance received a phone call from Gino Gambardella last night?’

‘Yes.’

‘Do you remember what time it was?’

‘I don’t.’

Detective Robinson had known from speaking to Gambardella, or from reading a statement that had been taken from Gambardella before he left for Coober Pedy, that Gambardella had rung and spoken to Derrance that night at about 6 pm.

Finally, Detective Robinson said: ‘I am not satisfied that you are not involved in the death of Mr Derrance Stevenson at Adelaide on or about Monday 4 June 1979. It is my intention to arrest and charge you with the murder of Derrance Stevenson. Is there anything you want to say or any comment you might like to make in relation to this matter?’

‘I did not kill Derrance Stevenson.’

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Chapter 3

Derrance Stevenson and the Adelaide scene

Adelaide reeled with front page headlines of The Advertiser on Wednesday 6 June 1979: ‘Adelaide lawyer found murdered.’ The article did not divulge the bizarre finding of Derrance’s body in a freezer, but alluded to the lawyer’s lifestyle and legal practice:

Mr P.N. Waye said last night Mr Stevenson had been renowned for his meticulous and prodigious work and had had high ethical standards.

‘I was probably his closest friend,’ Mr Waye said. ‘I am terribly shocked. Derrance had worked in factories to put himself through his law course. I was his leader in many cases and I never had a better-prepared brief than from him.’

The president of the SA Law Society, Mr E. P. Mulligan, said last night he was deeply shocked.

Mr Stevenson had practised mainly at the criminal bar ‘with considerable success’.

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‘He had great ability and was very well thought of by his colleagues,’ Mr Mulligan said.

After more questioning Court reporter Liz Blieschke said, ‘Mr. Stevenson was known as a flamboyant man with an extensive criminal practice and he defended many people charged with growing and using marijuana.’

He had acted for many years for opal miners and had a large clientele at Coober Pedy.

It is understood he received opal as gifts from these clients.

He wore an earring in his left ear and the GUN-045 number plate on his red Datsun 260Z sports car reflected his interests in guns.

Mr Stevenson’s most recent case in the Supreme Court was to defend Danilo Celon, 34, unemployed, of Finnis, who was found guilty last month of murdering two men at Milang.

Derrance’s funeral at Centennial Park attracted a gathering of about forty people. Derrance had been free to engage in homosexual activities, thanks to Don Dunstan, former premier of South Australia. As premier for most of the 1970s, Dunstan had pioneered a new period of enlightenment and tolerance, with decriminalisation of homosexuality, the introduction of equal rights for women and the recognition of Aboriginal land rights. The murder of George Duncan, a law lecturer at the University of Adelaide, had triggered homosexual law reform. He drowned on 10 May 1972 after being thrown

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into the River Torrens, allegedly by three senior Vice Squad police officers. The banks of the River Torrens had been a popular meeting place for homosexuals. Duncan and an acquaintance, Roger James, were both thrown into the river. James suffered a broken ankle, and, after crawling to the road, was rescued by a passing driver, Bevan Spencer Von Einem — a name to haunt Adelaide in years to come. A subsequent police investigation labelled the incident a ‘high spirited frolic gone wrong’, and failed to find sufficient evidence to prosecute the officers. Thirteen years after the event, former Vice Squad officer Mick O’Shea told The Advertiser newspaper that the group of three involved were Vice Squad officers and that there was a cover-up to protect them. O’Shea said that it was a common practice for Vice Squad officers to throw homosexuals into the river and that certain members assaulted homosexuals. Two former police officers were charged with the manslaughter of Dr Duncan, but both were eventually cleared of the charges after refusing to testify. O’Shea had been outspoken many times about the practice of throwing homosexuals into the river and had often said to those involved, ‘One day, you will drown one.’ He told me much later, in July 2013, that the drowning of Dr Duncan was the ‘largest criminal conspiracy ever to have taken place in South Australia’. O’Shea said: ‘Politically the climate could not have been better for the entire “establishment” of South Australia to all have a vested interest in “covering-up” the Duncan case, a case involving the homosexual community.’ According to O’Shea, whose police career and health suffered as a result of exposing the Vice 23

Squad officers, the culture of targeting homosexuals continued throughout the 1970s of the Dunstan era. Could it have had a bearing on the trial of David Szach in 1979? During Dunstan’s period as premier, the Special Branch of the South Australian Police continued to amass information on parliamentarians, communists, church leaders and trade unionists; they held the so-called ‘pink files’ on gay community activists dating from the time before homosexuality was decriminalised. Dunstan had known of the existence of the branch since 1970, but Police Commissioner Harold Salisbury had assured him that its files did not systematically focus on left-wing political figures. Dunstan later found out the dossiers on citizens were ‘scandalously inaccurate, irrelevant to security purposes, and outrageously unfair to hundreds, perhaps thousands, of loyal and worthy citizens’. He felt he had been misled by Salisbury and sacked him. A Royal Commission, led by Justice Roma Mitchell, cleared the Dunstan Government of any wrongdoing because it had not known about the Special Branch’s activities. Charismatic Don Dunstan, a lover of the arts and a social reformer, propelled Adelaide from a conservative backwater of the 1960s into an exuberant and libertine era — the 1970s — with a flamboyance typified by his wearing of tight pink shorts to parliament on one occasion. Due to ill health, Dunstan resigned in February 1979, about four months prior to Stevenson’s murder. In an uncanny way, Don Dunstan’s friendship with a much younger man mirrored that of Derrance Stevenson with David Szach. Both younger men were drawn into a homosexual relationship by their protective, witty and charming partners. Stevenson and Dunstan held law 24

degrees and championed individual freedom. They cared for their partners, even setting up businesses for them. The younger men enjoyed the protection and friendship shown by their lovers and mentors. Both Dunstan and Stevenson owned and drove a Datsun 260Z. A darker side in both relationships, though, revealed a link to drugs and the underworld, through the dealings of Don Dunstan’s partner, and, in Derrance Stevenson’s case, the connections with criminals he had defended.

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Chapter 4

Before the trial

Adelaide city and most of its suburbs stretches out on a level corridor of land that opens up in the north to the Adelaide Plains and funnels southwards between the Adelaide Hills on the eastern side and the coast to the west. The River Torrens flows gently down from the Hills through the city parklands on its way to the sea. A beautiful and well-designed city, and with a slower pace than other capital cities on the Australian mainland, Adelaide attracts settlers and visitors to South Australia. The city’s reputation, though, grew in another sense with dark secrets, shrouded in mystery with the passage of time. The more publicised at the time of Derrance’s death included ‘the unknown man’ found dead at Somerton Beach in 1948; the disappearance of the three Beaumont children from Glenelg beach in 1966; the murder of a high school girl, Deborah Leach, at Taperoo Beach in 1971; the drowning of George Duncan, a law lecturer, in the River Torrens in1972; the disappearance of the two young Ratcliff girls from Adelaide Oval in 1973; and the murder of an elderly woman, Rosa Simper, in the suburb of Cheltenham in 1977.Would the murder of Derrance Stevenson be another mystery? 26

Brian Martin QC, as Crown Prosecutor in the trial, had grown up in the Adelaide Hills where his father ran an orchard and his education began at the Oakbank Area School. He studied law at Adelaide University while being a keen footballer. In 1974 he joined the Crown Law Office, and within a decade became Crown Prosecutor and a Queen’s Counsel. According to colleague Robyn Layton he possessed a natural dignity in the courtroom. His keen analytical mind probed the complexities of high-profile cases. Assisting the prosecution, Paul Rofe had also graduated from the Law School of the University of Adelaide. He worked as counsel assisting the coroner before joining the Crown Prosecutor’s office in 1977. Heading David Szach’s defence, Elliott Johnston QC had studied law at Adelaide University while following a passion for playing football and cricket. He became one of the best debaters on campus with a special interest in international politics. Concerned about the lives of working poor and the marginalised, Elliott Johnston joined the Communist Party of Australia in 1941. His name was put forward for the appointment of Queen’s Counsel in 1969, but was rejected on political grounds by the South Australian Government under Steele Hall as premier. A year later he was appointed Queen’s Counsel by the Dunstan Government. His law firm focused on cases dealing with human rights and indigenous issues. He would become a South Australian Supreme Court judge in 1983 and later head a Royal Commission into Aboriginal deaths in custody. Assisting Elliott Johnston was Kevin Borick, who developed a reputation as a highly regarded criminal law barrister in South Australia and who became president of the Australian Criminal Lawyers Association.

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Also assisting the defence was Garry Palasis, a keen football supporter, who would practise in most areas of law over his career. Justice William Andrew Wells was the judge allocated for the trial. He attended Queen’s College in North Adelaide and was awarded a Rhodes scholarship in 1940. He worked in the Crown Law Office, becoming Crown Solicitor, and then a Queen’s Counsel in 1962. In 1969 he became Solicitor-General for South Australia. He would be awarded the Order of Australia in 1988 for service to law, legal scholarship and education. About five months before the trial, on 10 June 1979, Gino Gambardella, aged 33, had made another statement to Detective McEachern. The night before Derrance’s body was found in the freezer, Gambardella had driven a grey-coloured Ford station wagon to Derrance’s place at about 10.15 pm. ‘I only stopped about two seconds and knew he wouldn’t be home: no car, no Derrance situation,’ he said. He had not seen any cars parked in Derrance’s car park or on the street close to the house. Then, in a damning revelation, Gambardella said, ‘David told me that Derrance had said the best way to hide the evidence from forensic pathology was to freeze a body after the killing.’ David Szach later argued that he had never raised or discussed such matters with Gambardella on his own, but always in the company of Derrance. The subject might have been raised by Derrance. At the committal proceedings on 6 August 1979, Mr Martin for the Crown questioned Gambardella about David Szach:

‘Did the accused say anything about jealousy?’ Martin asked.

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‘Yes, he did ... about two or three times,’ Gambardella replied.

‘Would you relate as best as you can the conversation you had with the accused?’

‘About 12 months ago the accused said that he was a selfish person ... if Mr Stevenson didn’t do the right thing by him he’d shoot him ... about six months ago he was saying how bad Mr Stevenson was ... the whole relationship wasn’t going very well.’

‘Had you ever known Mr Stevenson to lend his car to the accused: that is, to go off on his own in it?’

‘No. No, he was very possessive about his car. He wouldn’t lend it to anyone.’

‘Have you ever seen a ring belonging to Mr Stevenson?’

‘Yes, I did ... it was a gold ring with a big opal stone on top of it.’

‘Have you ever known him to lend that to anybody?’

‘No.’

On cross-examination, Mr Borick asked, ‘Did Mr Stevenson ever say to you that he was afraid that Mr Szach would shoot him?’

‘He said that sometimes he felt that Szach would have killed him — David would have killed — yes,’ Gambardella said.

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‘When did he say that to you?’

‘About a year after he had met him.’

‘On any other occasions, did he say this?’

‘Yes, quite a few occasions — about four or five.’

‘Did it strike you as odd that Mr Stevenson continued to have a close relationship with this man who he thought was going to shoot him?’

‘No.’

‘Did you ever take other men to Mr Stevenson’s place in a similar way to what you took Mr Szach there?’

‘Yes.’

Between the hours of 6 and 7 pm on Monday 4 June 1979, Gambardella claimed he was at home with his wife celebrating her birthday. He phoned Derrance at 6 pm and they made arrangements to meet at Gambardella’s place about 7.30 pm. When Derrance had not shown up, Gambardella had driven round to Derrance’s place at about 10.15 pm. Gambardella was charged with being an accessory after the fact, but at the committal proceedings, following the evidence of Gambardella’s wife and housekeeper, the magistrate decided not to commit him for trial. Mr Borick complained that the Crown had led from Gambardella evidence that was prejudicial to Szach. Gambardella’s testimony given at the committal proceedings, though, was not used against Szach. He was not called by the prosecution to give evidence at Szach’s 30

trial — for reasons best known to them — or by the defence, because he might play into the hands of the prosecutor if Gambardella repeated his testimony. Szach complained later that he had nothing to hide and that Gambardella should have been called as a witness. Gambardella might have given evidence to implicate others or at least have demonstrated his animosity towards Szach. How had Gambardella been let off so easily? Even if Gambardella had not participated in the killing, there was evidence from the sighting of Gambardella’s vehicle in Derrance’s car park on the night of the murder by an observer, Mr Shields, that Gambardella could have been involved in the cleaning up after the murder and, therefore, an accessory after the fact of having failed to report a crime. While Gambardella celebrated his good fortune, the focus on Szach was that he was singularly responsible for the murder.

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Chapter 5

Trial evidence

David Szach was charged before Justice Wells and a jury at the Criminal Sessions, held in Adelaide in November 1979, with having murdered Derrance Stevenson, an Adelaide legal practitioner. The following witnesses gave testimony of a sequence of events from 2.30 pm on the day of the murder to Szach’s arrival in Coober Pedy:

FRANCES FLAHERTY, the relieving secretary, gave evidence that Derrance had returned from the Christies Beach Court on Monday afternoon at about 2.30 pm. From that time until she left at about 5 pm she had not heard any raised voices from the living area, which might have indicated underlying emotions that could have led to the suddenness of the murder. On the following day, after entering the living area, Mrs Flaherty noted the presence of Derrance’s diary and inhaler, which were two items he would not be without.

HELEN McDONOUGH worked as a legal secretary for a law firm and knew Derrance in a professional capacity. She said in court: ‘I was travelling along Glen Osmond 32

Road towards Greenhill Road at about 5.15 pm and I saw the vehicle approximately halfway between Young Street and Greenhill Road, travelling towards the hills.’ According to Ms McDonough, a male person, not Derrance, with light brown hair, was driving the red Datsun with number plate GUN 045.

HENRY SHORT, the first key witness, was employed by Sampson & Co. Accountants, 188 Greenhill Road — next to Derrance’s premises. Derrance had done legal work for Mr Short. On the day that Derrance was murdered, Mr Short had finished work at 6.30 pm and had left the office to be picked up by his father. He stood almost on the corner of Greenhill Road and Stamford Street and observed a person walking towards Stevenson’s front gate, presumably having come from the front door. ‘What did you see him do?’ asked the Crown Prosecutor.

He came out of Mr Stevenson’s front gate and then turned left, walking towards me, that is facing west, walking along the front of Mr Stevenson’s property and he turned along the front of Mr Stevenson’s fence. He got to the corner or the end of Mr Stevenson’s property and he turned along and proceeded up what is known as Chinner Avenue, which runs alongside Stevenson’s property.

The person I saw walked rather slowly, certainly not in a hurry, when I saw him.

When the person was walking along Chinner Avenue, and he was about to approach the rear gate or around about that area, I thought I heard a noise which indicated the back door of Mr Stevenson’s building being opened and I 33

decided just to look away and I don’t know whether anyone came out or not.

Short then said that the person he had seen coming out of the front gate was near the entrance to the rear of the building when a car started up and he had heard a car door opening. He caught sight of the tail lights of the car as it backed into Chinner Avenue and sped off, heading away from the city in a southeast direction. Short claimed he had a clear front-on view, at about a distance of about twelve metres, of the person coming out of Stevenson’s building: a young person, aged 16 to 19, about 1.75 metres tall, slim build and with blond shoulder-length hair. It was already dark but there was a light at the corner of Stevenson’s place and another light near where Short was standing. Short thought that the person wore jeans and a jumper. On being prompted to clarify ‘shoulder-length hair’, he described Szach’s hair as mid-collar length at the back. He had not seen David Szach before 4 June but was able to identify him two months later on 7 August, the day of the committal, from a set of 12 slides as Slide 7. The photograph of David in Slide 7 had been taken some months before. Surprisingly, no photos had been taken by the police when he was arrested. Short’s testimony was fundamental to the Crown’s case that Szach was the person who had been observed at 6.40 pm after he had murdered Derrance Stevenson and hidden his body in the freezer. All of these events occurred in an 80-minute time span from 5:20 pm, the time at which a reliable witness, Miss Trust, had spoken on the phone to Derrance. Pathologist Colin Manock backed up the Crown’s case by saying that Derrance’s death had occurred on 4 June 1979 between 4.45 pm and

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9.45 pm and that it could not have been more than an hour before the body was placed in the freezer.

RAYMOND LENNOX, a traffic officer, and the second key witness for the Crown, supervised the arrival and departures of coaches and the issuing of tickets at the Stateliner bus station in Franklin Street, Adelaide CBD. The Crown’s case was that David Szach arrived at the bus station in Derrance’s Datsun 260Z sports car between 6.50 and 7 pm to claim a refund on his bus ticket to Coober Pedy which had a scheduled departure at 7.15 pm. Lennox had been busily dispatching the 7.30 pm Port Lincoln service while co-worker, Ray Dutton, attended to the 7.15 pm Coober Pedy service. According to Lennox, a man of about twenty, with shoulder-length hair swept up at the back, approached him and said, ‘Something has cropped up and I won’t be requiring this ticket any longer.’ Lennox could be certain about his arrival time because he had overheard co- worker, Ray Dutton, say to a passenger who wanted to get on the same bus to ‘stand by’. Lennox knew that the bus was close to departure and so he let Dutton know of the cancellation. He said that the refund for Szach’s ticket would have been completed by 7.10 pm. Lennox said that Szach had bought his ticket at about 5 pm on the day before.

JARDISLAW SZACH, a storeman and David Szach’s father, was at home when David called in to the family home. He testified that his son arrived at about 7 pm; he knew the time because Channel 7’s News was closing with the weather report. Twice before he had seen David drive the red Datsun on his own. That night David had worn a check sports jacket, a light open-necked shirt, grey-coloured trousers and boots. According to 35

Jardislaw, his son smoked a cigarette while they talked for about ten minutes, then made a phone call in the passageway before going to the garage to meet up with Raymond, his brother, and Julie Harris, Raymond’s girlfriend.

JULIE HARRIS, a 15-year-old student, testified that she and Raymond had watched Bewitched on Channel Ten and were midway through watching the Brady Bunch when David walked in to see them at about 7.15 pm. They had all left the family home at about 7.40 pm with David giving them a lift to a nearby shopping centre. Julie said that she had seen David drive the Datsun once before during the Christmas holidays. The Crown accepted Szach’s statement that he had visited his father’s home for about half an hour from 7.15 pm onwards, but not from about 7 pm as David Szach’s father had claimed; otherwise, Szach could not have driven the Datsun from the bus station, at the time stated by Lennox, to arrive at his father’s home by 7 pm in Surrey Downs — at least a 20-minute journey.

RODNEY SHIELDS, an employee of Sampson and Company, returned to his office for extra work at 8.40 pm. His office faced on to Derrance’s car parking area. Five minutes later he observed out of his office window the arrival of a Ford XT model station wagon, which he later identified as similar to a vehicle used by Gino Gambardella. The station wagon had double tail lights and parked next to a vehicle which resembled Derrance’s Datsun. Mr Shields described his interest in cars as a long-time hobby and he had a dealer’s guide book which assisted him in the identification of vehicles. Shields had made no specific observations on the Datsun, so Mr Borick pressed Shields to confirm the 36

presence of Derrance’s car. Shields replied: ‘I did believe that because if it had not been his I would have noticed it.’ The implication of Shields’ observations was that David Szach had returned to the scene of the crime to assist in the cleaning up process. Shields resumed work until 11 o’clock when he left by the front door and observed that the two vehicles he had spotted earlier from his office window were still there. He believed the smaller car to be the Datsun 260Z sports car, which he had seen frequently at Derrance’s premises; however, as on the previous occasion, he had made no specific observations of the car. He did notice that the light was on in Derrance’s house. Shields later identified the grey Ford station wagon as the one Gambardella drove. It had been in the car park of Derrance’s home from 8.45 pm to 11 pm, but Gambardella stated that, when he called around at 10.15 pm to see if Derrance Stevenson was at home, he had not sighted any cars. ‘No car, no Derrance,’ he had said. Who were the people at Derrance’s place and what were they doing? Were they solely involved in a cleaning up process? Or was Derrance murdered in this time period? If there were cars there, why did Gambardella lie? Two cars meant two drivers, but a man observed by Shields left the house by taxi.

KEITH SWALLING, a taxi driver, testified that he called at the Stevenson house at 11.07 pm to pick up a young man with blond hair and pale sallow complexion, wearing glasses with brown plastic frames, and carrying an attaché case and a green garbage bag. It appeared that the man could not have cared less if he were observed by the taxi driver. Swalling said that he let the young man off at the east end of Rundle Mall in the city at 11.12 pm. The man 37

walked unhurriedly across the street, but was quickly called back by the taxi driver who had noticed the attaché case and garbage bag lying on the back seat. The young man walked back and, as the taxi driver handed over the items, the man pointed to the garbage bag and said, ‘This is the most important part.’ According to the taxi driver, the young man was well-dressed and probably wearing a suit. The prosecution used the evidence given by Swalling as a vital part of their case. David Szach was the man picked up. The prosecutor Brian Martin in his final address invited the jury to question how the glasses worn by the young man in the taxi came to be in the deceased’s car at Coober Pedy. Later, a garbage collector confirmed that he had picked up a green garbage bag which was then dispatched by truck to the city dump. Despite searching the dump, it was never sighted again.

ARTHUR MADER, a motor mechanic, worked on the 4 pm to midnight shift at Possum Kipling’s Shell roadhouse situated on the main road passing through Port Wakefield. At the end of his shift he read pumps, filled up oil bottles and cleaned the place. On the night of 4 June 1979, his shift replacement, Robin Calley, was 10 minutes late; he had never been late before, according to Mader. Mader said that while he served one customer another pulled up in a Datsun red sports car. Martin, the prosecutor, asked: ‘Could you give the ladies and gentlemen a description of that driver as best as you can remember?’

Mader replied: ‘Six feet, somewhere in that area, about 20 years old, had fawn-coloured pants, not jeans, casual sort of pants, brown sort of ... dark brown check coat, light 38

type of ... brown type blond hair, bit of a wave in it; just a little longer than mine.’

‘Longer than yours is now?’

‘Yes, just sort of casual person, and proper type of joker.’

When asked by the prosecutor to identify that person Mader pointed to the accused in court.

On cross-examination, the defence lawyer queried the time of sighting the red Datsun: ‘Is it possible that he did drop into your garage on the night you saw the red Datsun between say half past eight and half past ten?’

‘No, sir.’

Realising the substantial discrepancy in the time of arrival at the roadhouse — about two hours between Szach’s time and Mader’s time — defence lawyer Kevin Borick tried to discredit Mader. He stated that Mader had been sacked from his previous two positions. Mader explained that he had finished his apprenticeship in one job and had left the other job because he was doing jobs like mowing lawns, which were not part of being a motor mechanic.

ROBIN CALLEY, a storekeeper, recalled that he filled up the Datsun, as the driver headed in the direction of the toilets and canteen. The petrol had cost about $14.

‘Did you notice anything about his hand when he passed the money to you?’ Martin queried.

39

‘Yes. He had an opal ring on one of his fingers. I think it was that one — I remember seeing the opal ring hitting the light — fourth finger of the right hand. He left about as quick as he came in.’

‘How would you describe that person?’

‘About six feet, blond-brown hair, fairly slim build, very nicely dressed. He had a sports jacket and light-coloured trousers, brown-striped sports jacket.’

‘After the accused left the service station, did you make a comment to Mr Mader about the ring?’

‘Yes, lucky rich kid or something.’

On cross-examination, Borick questioned Calley about the possibility of having seen the red Datsun earlier in the evening: ‘Ever been to the service station between eight and eleven in the evening?’ Calley replied that he had not.

‘Did you serve a person driving a red Datsun with approximately $4.50 worth of petrol that evening?’

‘No, it was the only red Datsun I have ever served,’ Calley stated, referring to the Datsun he had sighted at just after midnight, at about 12.15 am.

LAUREL MAY FOX and her husband had run the Kingoonya Roadhouse at the northern end of Lake Gardiner for three years. Laurel Fox said she was awoken on Tuesday morning by a bell at about 5 am. Her husband had gone to Ceduna and so she went out to attend to the driver of a red Datsun car. She described the

40

driver as tall, slim and with light brown shoulder-length hair, well-groomed, wearing a fawn coat, white shirt and fawn or grey trousers. The driver had paid about $10 for the petrol and had said that the car had trouble and that he was in a hurry to get to Coober Pedy for repair. The car was very noisy and took off fairly fast. She said: ‘I didn’t have a look at the clock, but there were two buses in the square and they were discussing the road and that’s how I knew what time it was.’

JOHN GOODFELLOW, a truck driver, had been asked to take a load for Bull’s Transport Services to Darwin. On the return trip, accompanied by co-driver Alec Rogers, Goodfellow drove the Mack road train most of the way from Coober Pedy, leaving at about 11 pm for their next stop at Kingoonya. A Stateliner bus passed them and arrived about five minutes before them at Kingoonya. John Goodfellow did not remember any vehicle travelling in a northerly direction approaching or coming into Kingoonya while parked in front of the hotel. According to Goodfellow, the Stateliner bus was still there when they left at about 4.40 am. Fresh heavy rains had adversely affected about 40 per cent of the road between Coober Pedy and Kingoonya. Sections of the road could not handle the excess water which had not drained away; other sections with better drainage were reasonable. Goodfellow estimated that you could drive the road train at a maximum of 110 kilometres per hour without driving recklessly on the good stretches and only 30 to 60 kilometres per hour over the poorer parts.

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ALEC ROGERS, Goodfellow’s co-driver, said in marked contrast, ‘We heard this car coming. I looked up the road and I could see the glow of the lights ... and it would have been at least eight kilometres out.’

‘How did you see him enter Kingoonya?’ asked Martin.

‘Like a bat out of hell. He came in at very high speed, skidded to a halt out the front of Fox’s Roadhouse, didn’t get out. I assume he just read the signs on the side of the doors, then took off again like nobody’s business, down to the other end of the town — there is another pump down there. It is a general store, Woodys’ store, skidded to a halt there, got out, went over to that door, then came back, got into the car and then broadsided around, wheeled back up to Fox’s and pulled up there, got out and I assume he rang the night bell. Then Mrs Fox came out. I noticed this because it is not very often you see Mrs Fox. I thought at the time, Grant must be away playing up. Anyway, the next thing he got filled up and he took off and boy was he going!’

‘What make of car was it?’

‘A Datsun 260Z, red colour.’

KEVIN HARRISON, a transport driver on his way to Adelaide from Darwin, came across a red Datsun bogged in the mud, about 180 kilometres from Coober Pedy at about 7.30 am. He nosed his freight bus into the bog, attached a rope from the Datsun to the bull bar of the bus and backed out. A number of witnesses gave testimony of their encounter with Szach after he arrived in Coober Pedy. These included:

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EUGENE PEK, an opal cutter, who had resided in Coober Pedy for four years. Mr Rofe for the Crown questioned him:

‘You have told us you are an opal cutter. Do you also deal in opals?’

‘Yes, I have a shop at Coober Pedy. I buy opals. I cut opals and sell them in my shop.’

Concerning David Szach when he entered the shop, Mr Pek said, ‘I was busy with some customers. He was talking to some tourists in my shop.’

‘Did you hear what he was saying?’

‘Yes, he was showing them a stone and told them the stone or material like this is worth $1000 per ounce ... he showed me the stone and he actually told me to cut the stone, telling me that it came from Mr Derrance Stevenson.’

... ‘And what did you do with the stone?’

‘I cleaned up the surface. I polished up the surface. It was a very beautiful stone so I didn’t consider at that time to do any more with it, and I asked him to return the stone to Mr Stevenson and talk to people involved in this business and get ideas whatever could be done with the stone ... I believe I told him it could be worth anything from say two or three thousand dollars and it was unique.’

... ‘While the accused was in your gift shop did you see a ring?’

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‘Yes, he showed me a ring with a beautiful stone in it ... it was a well-made ring with a beautiful high cabochon opal in it — it is a highly domed stone; very high.’

‘Did he ask you to do anything in relation to the ring?’

‘I think he asked me to value the ring, but I told him I’m not the right person, but my valuation was around twelve to fifteen hundred dollars, or even more.’

JOHN HUTCHISON, a labourer at Coober Pedy, met David nearly every day and testified that they met on Tuesday 5 June at about 9 am. David drove out from the Golden Fleece and mentioned that he had opal worth $3000; his boyfriend had given him the Datsun. They met again in the afternoon after David had made a phone call from the miner’s store. David said his boyfriend was missing and would offer $5000 reward to anyone who found him.

DANNY BOLIC, a bull-dozer operator at Coober Pedy, described what David Szach did when working with him:

David Szach check behind the dozer, check when we hit the opal ... he stop me and we start to dig, you know. And he grease the machine, bulldozer and pump the diesel in the bulldozer. He live in the caravan with me and sometimes he stay at Ross Christianos’ place.

The following witnesses provided key testimony for the Crown’s case:

JOYCE MAKOWSKA, Derrance’s secretary for seven years, testified that about $11 in cash was missing from 44

the cash box in the strong room. She also remarked that Derrance on occasion wore an opal ring which was kept in the strong room. He was very proud of this ring and would not lend it to anyone. She had never seen the accused wear any of Mr Stevenson’s clothing. She had not known if Szach had at any time driven Stevenson’s Datsun car. With regard to the inhaler and the diary left on a table, she had never known Derrance to go without these. She said that Derrance owned a black briefcase with a strap over it and clipped down. Derrance wore glasses for reading and had more than one pair — both black and brown-rimmed; he used to lose his glasses from time to time. According to Ms Makowska, Derrance was a very passionate and energetic person who read a lot about antiques and gems, and from time to time went rabbiting. He acted for many people involved in drugs. Shortly before his death he had conducted a case for Mr Gambardella. She only saw David Szach when he passed through the office on his way out. David’s hair, she described, was medium-length, not shoulder-length. Ms Makowska described the phone system which linked receivers in Derrance’s office, the secretary’s office and the living room. With a button on the base pushed up, the calls went through to the secretary’s office; otherwise, the calls went through to Derrance’s office and the living area. A number of witnesses testified that from 5.30 pm onwards they had tried to call Derrance on the night he was murdered, but the calls were unanswered. A client, Mr Jackson, had called on Mr Stevenson’s premises between 5 and 5.30 pm, but there was no answer from a knock on the door. Another client, Vera Trust, testified that she spoke for about 10 minutes on the phone to Derrance about her case from about 5.15 45

pm. After that conversation no other calls had been answered, apart from a call that Gambardella claimed he made at about 6 pm.

DR COLIN MANOCK, forensic pathologist, presented his findings which played a central part in the Crown’s case for reconstructing what had happened on the night of the murder. Based on Dr Manock’s findings and the evidence of two key witnesses, Mr Short and Mr Lennox, the Crown prosecutor described a sequence of events to fully implicate David Szach as the person who shot Stevenson dead and within an hour concealed his body in the chest freezer. According to the Crown, with no evidence of motive, or of Szach suffering from a mental illness, the case was exclusively circumstantial; however, the objective evidence, and Szach’s denial to have been the person identified by Mr Short, at Stevenson’s premises, would be compelling and leave no alternative inference other than that Szach had fired the fatal shot.

Two other witnesses were:

PAULINE FORRESTALL, a hairdresser for seventeen years, described David’s haircut — a birthday present from his mother — four days prior to the murder. She said, ‘I washed his hair, then cut it and blow-dried it ... I cut it to collar length, hair shorter in the front and to the tips of his ears, as far as I can remember.’

ANNE SHEA, receptionist at the Legal Services Commission, testified of the unknown man who had called at the Commission offices the day following Derrance’s murder.

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Chapter 6

Dr Colin Manock’s evidence

Dr Colin Manock’s testimony, and the evidence given by the key witnesses Mr Short and Mr Lennox, provided a lynchpin for the Crown to reconstruct what had happened the night of the murder. Dr Manock had come from England to take up the position of Director of Forensic Pathology at the Institute of Medical and Veterinary Science (IMVS) in 1968. He had graduated in 1962 in Medicine and Surgery from Leeds Medical School in the UK and had been a lecturer in the Department of Forensic Medicine, Leeds University. He claimed to have performed over 1000 autopsies. Dr Jim Bonnin, Director of the IMVS in Adelaide, had appointed Dr Colin Manock. Because of a dearth of qualified applicants in forensic pathology, Dr Bonnin took a risk in appointing Dr Manock who had no formal qualifications as a forensic pathologist. The IMVS encouraged Dr Manock to upgrade his qualifications to at least receive formal training in histology, an essential requirement for forensic pathology. He ignored the advice but still managed to retain the most senior position in forensic pathology for 47

South Australia despite efforts by Dr Bonnin to bring in a more qualified person above him. Dr Manock had seen Derrance in court many times and recognised the body straightaway. He commenced the post-mortem examination about two hours after the body was found in the freezer. It was very difficult to remove the clothing ‘with the frozen limbs in a fixed position’. The entry of the gunshot wound was low down at the back of the head, about four millimetres in diameter. The skin, subcutaneous fats and full thickness of the abdominal wall were frozen. The eyes were surrounded by swelling owing to bleeding into the tissues. Blood had gathered in the nostrils and the mouth. The body temperature was taken by means of a needle probe inserted into the liver. A constant read-out was observed as the probe was inserted and the maximum temperature recorded was +7.2 ºC. Of major interest for the Crown prosecution was the length of time that had elapsed after the murder before the body was placed in the freezer. In his autopsy report, Dr Manock said that the deceased had post-mortem lividity — pooling of the blood in the lowest parts of the body which showed up as a purplish discolouration, known as hypostasis, on the back, areas of the calf of the left leg and both forearms. Despite the length of time since death, the discolouration could still be whitened by pressure on the area. Rigor mortis was present and generalised. Curious to the extent of clotting Martin asked, ‘You mentioned earlier some small clotting of the blood I think in the sino-passages. Did you look for signs of the clotting of the blood overall?’

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Manock: Yes, I did, and in the major vessels of the body the blood had remained fluid and I think most importantly the hypostasis, the discolouration of the skin, could be blanched by pressure which meant that the blood in this position had remained fluid.

Martin: What do you mean by being blanched?

Manock: By pressing the area it goes white; if the blood is clotted, the surface blood vessels, and you press it, it remains discoloured no matter how hard you press.

Martin: Would you explain to the ladies and gentlemen how clotting of the blood comes about after death.

Manock: The chemicals within the blood react together if there is any tissue breakdown product present. The speed at which this reaction occurs depends on temperature and if the temperature is reduced by 10 degrees Centigrade then the rate at which the reaction takes place is halved, so the cooler the blood the more slowly it will clot.

Martin: If the body had not been cooled but just left lying in a room at an average temperature, when would you have expected clotting to start?

Manock: The hypostasis [purplish discolouration of the skin] begins to become fixed about four hours after death if the body is at room temperature, and is fully fixed after about eight hours. The blood within the major vessels will show signs of clotting at about four hours, but depending on the cause of death there may be variations to the speed at which clotting will continue. If death is by trauma I would expect large clots to fill the major vessels at about eight hours.

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His Honour: When you say ‘death by trauma’?

Manock: By injury.

Martin: The deceased having been shot, the body then placed in the freezer, do your observations enable you to give an estimate as to how long after the deceased was shot his body was placed in the freezer?

Manock: The fluidity of the blood suggests that the interval between death and being placed in the freezer was a short one, and, although there is not very much experimental evidence on this aspect, my own opinion is that it would be about one hour at the most.

Dr Manock believed that the blood was fluid because the cooling of the body in the freezer slowed down the rate of clotting. In his own experience with frozen bodies, which he stated later under cross-examination, blood remained fluid if the body was cooled rapidly. In this way, he justified the body being placed in the freezer within an hour of death. Equally important for the Crown prosecution was the time of death.

Martin: As best you can in the circumstances, have you done some calculations as to how long the body would have been in the freezer to cool it to the extent to which you observed?

Manock: Yes, I have.

Martin: Could you explain briefly ... how the body will cool after death?

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Manock: When a person dies, his normal body temperature is about 37 °C. There are minor variations in illness or after exercise, but I think 37 is a reasonable figure to take. Heat is no longer being produced after death, not in sufficient quantity to maintain the body temperature, and heat is lost from the body to the surroundings. The rate at which it is lost depends on the difference in temperature between the body and its surroundings, so the temperature will fall more rapidly when the body is in a cold environment than it would if it is in a temperate environment.

Features which influence the rate of cooling are the amount of clothing or whether the body is lying straight out in an anatomical position, or whether the body is curled up; whether there is any air movement, and whether or not there is any direct conduction of heat away from the body by good conductors of heat. Also, the person’s build will influence the rate at which heat is lost. A fat round person has generally got relatively less surface area per unit mass than a thin tall person.

Martin: Would you relate the way you calculated your estimate of how long the body had been in the freezer? Did you take into account all these various factors we have mentioned?

Manock: Yes. As for the position in which the body was lying, I considered that the curled up position would increase the length of time for cooling by 40 per cent, and in that 40 per cent I was also adding the minimal effect of clothing that was on the body — the socks, the shirt, the underpants. I then simply multiplied the 28 hours by 140 per cent and multiplied this by the actual fall in [body core] temperature of 30 ° over the [initial] temperature differential of 57 °C and took 85 per cent of that, and the 51

answer I then calculated from these figures was 24.27 hours.

Dr Manock had previously stated in his autopsy report: ‘A body will cool 85 per cent of the temperature differential within 28 hours. However, where the effective surface area is reduced, the time is lengthened and in the above circumstances it is my opinion that the lengthening of cooling time would be about 40 per cent.’ The calculated figure of 24.27 hours for the body being in the freezer extended back from the time the temperature was observed by a needle probe in the liver: that is, 8 pm on Tuesday 5 June.

Martin: That estimate, you also have made some allowance either side?

Manock: As I said, this could not be a precise calculation: it is merely an estimate, and a leeway of 20 per cent would be a quite reasonable thing to allow and this would give a variation of two hours either side of what I consider is to be the most likely time. So, this would give you a time interval of between 5.45 pm and 9.45 pm [on the Monday night].

Martin: In the texts that you have read, have there been experiments and a basic principle applied for an average size body lying in an anatomical position?

Manock: Yes, some of those experiments were actually carried out in my old department at Leeds University.

Martin: What is the general principle applied for a body of average size, weight, which I think in this case is virtually the same as Mr Stevenson’s?

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Manock: Formulae have been arrived at which take account of the positioning in which the body is lying and the amount of clothing and, generally speaking, the body will lose heat at a rate which will allow it to reach — sorry, will allow the temperature fall by 85 per cent of the temperature differential between itself and its surroundings, within 28 hours.

The formula which Dr Manock used was based on the work of Professor Tom Marshall, carried out in Leeds and published from 1962 to 1974. A little later Martin asked: ‘In this case did you attempt to ascertain the running temperature of this particular freezer?’

Manock: Yes. Both on the evening of the 5th and again the following morning, on the 6th. I had the freezer switched back on again, and at the main socket, without altering the setting on the freezer itself, and despite spending some hour and a half there, the temperature was still falling on that evening. The following morning I went back and the thermostat was switching the meter on and off, and the temperature at which the thermostat switched on was minus 19.9 °Celsius and, when it was switched off, was minus 20.9. Martin: By the way, did you notice anything about the setting of the freezer itself when you went back? Manock: There were two indicator lights on that freezer and the one which came on indicated Super Chill, I think, was the setting it was called. Martin: Did that alter the actual running temperature, or just the rate at which the temperature would fall to the running temperature? Manock: I’m not certain how the mechanism works. 53

On cross-examination, Mr Borick questioned the formula: ‘Your starting point with your mathematical equation is the acceptance of the fact that a body will cool 85 per cent of the temperature differential within 28 hours, is that correct?’

Manock: Yes.

Borick: … you told me that the actual curled up position of the body in the freezer was one of the most significant factors in adding that 40 per cent on to the time?

Manock: Yes.

Borick: And another factor was the lack of air movement within this freezer?

Manock: Yes.

Borick: What other factors did you take into account in fixing that percentage of 40 per cent?

Manock: I don’t think we can specify individual factors and ascribe a portion of the amount that I chose. I had to consider the whole thing as an entity and I claim this as nothing more than an estimate. If I was claiming it as dogmatic scientific fact, I think we could go into it in the way you are trying to at the moment.

Borick: I appreciate you can’t put a quantitative assessment on each of the matters, but what were the factors that influenced you in arriving at that figure of 40 per cent?

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Manock: The position, the fact that there was no appreciable air circulation and the fact that some parts of the body would freeze before others, that there would be ice formation in the limbs before the body. I think these were the main factors.

Earlier, Mr Borick had put to Dr Manock that his selection of 40 per cent elongation of the time determined by him from the formula was ‘a good educated guess’. Dr Manock had agreed, and, defending the factors he took into account, had told the jury: ‘It is not a formula which allows you to add variable after variable. You have to work out in your own mind what the significance of each feature is and then put the number which you feel is the most suitable, and perhaps to some extent that is not purely a mathematical and scientific way of doing it, but it is the only method that we have at our disposal.’ A little later in Dr Manock’s evidence, Borick asked:

Accepting that your addition of 40 per cent at the time is accurate, that would mean that in the present instance Mr Stevenson’s body would have lost 85 per cent of the temperature differential within about 40 hours … then how can you relate what we know to be the heat loss over a period of 40 hours to some lesser period unless you know from experimentation what it would be at say 10 or 20 or 30 hours?

Manock: I would say, when the formula was arrived at, most of the figures were known. That does not mean I have to know them myself to apply the formula.

Borick: But the formula cannot apply to a period of 20 hours in this situation, can it, because we just don’t know what the percentage heat loss would be at that time?

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Manock: I don’t follow you at all there.

Borick: Isn’t it inherent in your calculation that the temperature loss is going to be proportionate to the number of hours?

Manock: Roughly, yes.

Borick: Which means that if 85 per cent is lost in 40 hours roughly 42 per cent is lost in 20 hours?

Manock: If your arithmetic is right, yes.

Borick: And roughly again 20 per cent is going to be lost in approximately 10 hours?

Manock: Yes.

Borick: But is there anything in the experimentation to show that is what in fact happens after 10 hours, 20 hours or 30 hours?

Manock: It shows a cooling at a rate which describes a curve. The slope of that curve changes gradually and for all intents and purposes one can consider it as a straight line over a protracted period.

Borick: Have you actually seen the curves themselves?

Manock: Yes.

Borick: Do they show a straight line?

Manock: No, they don’t. They show a curve.

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Borick: Doesn’t that then establish that it is not just possible to work from 85 per cent in 40 hours back to an apportioned loss after 20 hours?

Manock: No.

Mr Borick then put to Dr Manock a statement from Gradwohl’s legal medicine (1968) by Francis Camps. The author (who was in fact Professor Marshall) was talking about the formula and stated:

The way by which the formula can be used to construct the cooling curve of any corpse found dead has been described by Marshall (1966) but a warning was given lest the accuracy obtained under experimental conditions be thought to extend to practical situations where the investigator has to contend with errors which will affect the results of any temperature formula no matter how accurate it is.

Dr Manock agreed. Mr Borick said the author went on to say that ‘changes in cooling conditions can seriously affect the cooling rate and invalidate any calculations’. Dr Manock also agreed with that, but said that he did not agree that there were sufficient differences in the cooling conditions here as compared with those of the experiment to invalidate any calculation. Dr Manock said he thought that the author was referring to a situation where the body was outside at night and not found until the middle of the next day. There would be wide fluctuations in the environmental temperature, but in the confined space of a freezer that was as near as possible to a stable situation, more so than one normally encounters in the field.

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Mr Borick then put to him a statement from Gradwohl:

It is not surprising that no formula has produced consistently good results in practice. Considering their limited value, and the time taken in obtaining an accurate series of readings during which the investigation is held up, many pathologists still rely on a rule of thumb method based on the temperature fall per hour.

Dr Manock agreed that no formula had produced consistently good results in practice. This, he said, was because human bodies varied enormously in their size and shape and the way in which they might be clothed. It was one of those situations, he said, where he considered the variations in the surroundings were minimal and the deceased’s body was ‘Mr Average’ and would be the ideal subject to apply the formula to and therefore he was justified in using the formula. Dr Manock also agreed that he considered the deceased’s body to be average, and the rate of cooling in the first three hours would have been different to that in the next three hours, and the one after that. His view was that the rate of change was so slight over a protracted period that it was reasonable to consider it to be a straight line. He said his ‘rule of thumb method’ was widely accepted and avoided the use of calculus. When it was suggested by Mr Borick that there really was nothing in the literature on the experimentation to support his view that the rate of cooling was roughly proportionate, Dr Manock said that there was support. When asked where it was in the literature, Dr Manock did not answer the question, but replied, ‘Simply by looking at the graph you can see that.’ However, Dr

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Manock had previously told Mr Borick that the graphs did not show a straight line, but a curve.

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Chapter 7

David Szach’s statement

David Szach delivered an unsworn statement in court in which he said, ‘I did not kill Stevenson and I did not take any part in putting his body in the freezer.’ How did Szach’s evidence match up with the witness testimony? In his statement, Szach said that he was born on 25 May 1960 and brought up by his mother and father at their home in Surrey Downs, Adelaide, and attended the local primary school, and later the secondary school. He left high school early in his fourth year to commence an apprenticeship in the plumbing trade. Not long after starting his apprenticeship in 1976, he happened to be window browsing on Rundle Street, in the centre of Adelaide, when he was approached by Gino Gambardella, a chiropractor. Gambardella chatted to Szach for a while before inviting him to a nearby snack bar where they had coffee. Following a further chat, they walked down to a photographer’s shop where Gambardella picked up some photographs and then suggested that Szach meet an interesting friend of his who lived in a ‘funny white house’ on Greenhill Road. Szach agreed to go with him.

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When they arrived at the house, Gambardella introduced Szach to Derrance Stevenson who straightaway asked him to call him Derrance. Another young lad, Joe, joined them and they all sat in the lounge room while Derrance talked about the construction of the ‘funny house’. Derrance’s knowledge of a wide range of subjects impressed Szach. Somehow the conversation turned to sex and that is when all four ended up in the bedroom. Gino and Joe were together, and later, Szach said in his statement: ‘Derrance made love to me that night. I found that I enjoyed it. I was at the home for altogether three or four hours and then Gino took me back to the shopping centre and I went home.’ Szach’s first sexual encounter happened just prior to his 16th birthday. After that encounter Szach met Derrance every weekend, either on Saturday or Sunday. Later, Szach stayed overnight on the weekend and occasionally during the week. Towards the end of 1976 he went to live with Derrance. Szach lost interest in pursuing his apprenticeship in plumbing, owing partly to an injury to his leg and partly to his new friendship with Derrance. Instead, Derrance assisted Szach in finding a job as a carpet cleaner. In his statement, Szach described his relationship with Derrance:

I found out that Gino Gambardella was a very old friend of Derrance’s. They had known each other for a number of years before I met Derrance. Gino used to bring me, particularly young men, around to Derrance’s. Derrance told me that he did not have sex with any of these men but I did not like the idea of Gino bringing them around anyway. This was particularly because Gino used to pick them up on one day and bring them around the same day 61

in exactly the same way as he had done with me. I knew that Derrance had other friends from time to time, firstly, because sometimes when I came home I found him in the bedroom with another man and sometimes he would tell me about it. There was never an argument between us about this, but I did not like Gino deliberately bringing men around. He also had the habit, which I did not like, of afterwards talking to Derrance when I was there and making comparisons between me and the persons whom he had brought around. On these occasions Derrance used to stand up for me. I got to know Gino fairly well, because we were both friends of Derrance’s, and he used to come to the house quite often and I know that Derrance went to Gino’s house and I myself went to Gino’s house on a few occasions with Derrance. He also used to tell Derrance that I was using Derrance to my own advantage which I also did not like and which I don’t think was true. Derrance used to stand up for me on this also and sometimes he would make up stories and tell them to Gino to put me in a good light. I also met other friends of Derrance’s, but none of these other friends saw as much of Derrance as what Gino did.

Further in his statement, Szach recounted how, in November 1977, Derrance leased the red Datsun which Szach had taken to Coober Pedy on 4 June 1979. Derrance had never had a car prior to the Datsun. Sometimes Derrance would hire a car and they would go away for the weekend. Derrance gave Szach a gold ring for Christmas, inscribed with the initials D S — both having the same initials. On Szach’s 18th birthday they went to a restaurant for dinner where Derrance presented Szach with a gold chain. In August 1978, after a row which Szach blamed on himself, Szach lived with a family friend. After patching

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up their differences, Szach returned to Derrance’s place where they continued living together until January 1979 when Szach went to Coober Pedy. Derrance had often talked about opal and how he would like to go into the opal business — mining opals at Coober Pedy, and processing them for sale. Derrance arranged for Szach to work alongside Ross Christianos, an opal miner, so that Szach could learn the trade. He had an ulterior motive for Szach going up to Coober Pedy — to keep an eye on Ross Christianos. Derrance had already given Christianos a piece of opal set in a ring to sell. Christianos had sold it overseas and had accepted a cheque for $20 000 which had bounced. Christianos promised to repay Derrance, but this never happened, despite Derrance’s repeated requests. Szach would let Derrance know if Christianos struck opal. In this way, Derrance could then put pressure on Christianos to repay the debt. The arrangement was that Szach would get 2.5 per cent of any opal that was found. Szach walked behind the bulldozer looking out for signs of opal; he also picked up supplies for the crew who worked with Christianos. Szach kept in touch with Derrance by phoning about three times a week. Derrance visited Coober Pedy on a legal assignment and stayed with Szach in early 1979. On the day that Derrance left, a police officer in Coober Pedy arrested Szach in connection with cheques totalling $800 which Szach had drawn on a business account and which had not been met. Szach was allowed to ring Derrance, who explained to the police officer that because of meeting tax requirements he had not been able to find the money for the cheques. In the meantime Derrance would contact Szach’s mother to repay the debt and later Derrance would reimburse her. 63

Four months later, a few days before his birthday on 20 May, Szach returned to Adelaide and stayed with Derrance. On one occasion, Derrance had brought home some food from a dinner party for Szach. On Thursday, 31 May 1979, three days prior to Derrance’s murder, Derrance appeared for Gino Gambardella in court. Szach visited his mother and told her that he was not sleeping very well. His mother advised Szach to see a doctor and treated him to a haircut for his birthday. The following day Derrance told Szach that he was appearing again for Gino Gambardella. Szach met Derrance after court and they bought some take- away food. On Saturday afternoon Szach accompanied Derrance and Gino to an art gallery near Derrance’s house. Later, they went to Gino’s chiropractic office where Gino treated Szach and Derrance for muscular complaints. Szach drove the Datsun during the afternoon. Later in the evening they all went to La Belle Restaurant and stayed there until about 2 am. Shortly after this they arrived back at Derrance’s place. In his statement, Szach described what happened next:

Derrance was talking on the phone for some time. After he put the phone down, he sat down in the living room and he began to cry and between sobbing he was saying, ‘I want to get out. I want to get out.’

I comforted him and said, ‘It will be all right.’ I did not know what he was referring to. And I did not ask. If he wanted me to know something he would always tell me. The only other thing that happened on the Saturday that I can remember that I think was of importance was that he had been talking about my going back to Coober Pedy and

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Derrance had said, ‘I have a psychic flash that Ross Christianos is on opal.’

The following morning, Sunday 3 June, they went to the Stateliner bus station where Derrance bought a ticket for Szach to go to Coober Pedy. They watched a musical Poor Little Rich Girl with one of Derrance’s friends, Ron Strickland. The movie was aired by Channel Ten and ran from 2.10 pm until 3.45 pm. Then they watched an American science fiction film Soylent Green before eating pancakes made by Strickland. According to Strickland in his testimony, Derrance and Szach left at about 7 pm to go to a fish and chip shop in North Adelaide before returning home. Szach detailed what happened on the following day, Monday 4 June 1979 — the day Derrance was murdered:

On the Monday, I slept in and got up late. Derrance came home at about 2.30 pm and we spent most of the afternoon together. He was going from the office to the living room and back again at various times during the afternoon ... he wanted me to check up whether Ross Christianos was on opal and to let Derrance know if he was. He told me that miners don’t like to let it out that they were on opal and you have to be there to know. He told me to take all the receipts which I had by this time to the police station and show them that the accounts had been paid and to drop the charge.

He also showed me an uncut piece of opal. He said that a friend had given it to him ... He said to me that, as he had not yet given me a birthday present, he was giving me half value of this piece of opal. He told me to take it to the Purple Shop in Coober Pedy and get it cut. He told me that he thought it would be quite valuable and he said that,

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after it had been cut, he would look into selling it and we would each put our half share into buying some opal cutting equipment in preparation for the business. He said that he was going to take some action against Ross Christianos if he did not get his money for the opal that had been sold overseas.

Somewhere at about 5 pm Derrance asked me if I would go and buy some bread and I think some milk — certainly bread. This was just a routine purchase and I forgot about it when I was being questioned by the police. I drove the Datsun to the Dulwich Shopping Centre and there made the purchases and then I drove back to the home. I was reminded of this when I heard Miss McDonough give her evidence in the lower court. I do not know how long this took me but it would not be more than 15 to 20 minutes. The traffic was heavy at the time.

I put the car back in the car park and let myself in by the back door, leaving the keys in the door. I had used Derrance’s key ring with the car keys on it. Derrance had more than one set of keys. When I went inside we were chatting again and then the phone rang. I picked the phone up and immediately handed the receiver to Derrance who was standing just close to me. I did not speak on the phone as I knew the call would be for Derrance and then I heard Derrance speaking. I actually don’t know to whom he was speaking but from the way he was speaking I thought at the time that he was speaking to Gino Gambardella. Having heard him speak to Gino on the telephone plenty of times before, I am certain in my own mind that he was speaking to Gino. In the conversation, he made reference to a white anniversary dress. This reference puzzled me because there had never been any women’s clothing in the house; and he never dressed like that; he also made a reference to coming over to see the 66

person to whom he was speaking and the time of 7.30 pm was mentioned. He also said on the phone that he wanted to go to his mother’s to take the laundry.

I then went back into the living room where Derrance was still talking on the phone. The conversation finished shortly after that and Derrance put the phone down. Shortly afterwards Derrance went to the back door, got the key ring and he said to me, ‘Take the Datsun and drive to Coober Pedy.’

I was surprised at this and I said to him, ‘Why?’

He said, ‘Don’t ask any questions. Just go to Coober Pedy.’

... He conveyed to me that he wanted me to go straightaway and he also told me to go to the Stateliner Bus Service and cancel the bus ticket and get a refund on it.

I got my attaché case which had in it the photocopies of the receipts which I wanted to show to the police and I put on the jacket and after hugging and kissing Derrance I left. That is the last time I saw him.

Because I forgot about going to the shop, my recollection of times may have been a bit out. I am sure that I left Derrance’s by either 6 pm or a few minutes after at the very latest and I am sure that I was not at the Stateliner bus service at later than 6.15 pm. I parked the car at the bus depot and went to the counter and told the man that I would not be needing the ticket and cashed it and got $30.50. In addition I had a bit of loose change of my own but it would not have amounted to more than $1.00. Mr Lennox is wrong about the time because from there I drove to my father’s home and arrived there just before 7 67

pm. My father and Julie Harris have told you about what happened there and I agree with what they said. I drove away from the house and dropped my brother and his girlfriend off at the shopping centre. I then drove to Derrance’s home.

At the time I left Derrance’s it was my intention to drive to Coober Pedy that night. The reason I told my father that I was going with a friend and going the following morning was because I knew he would worry if he thought that I was going on my own and at night over the roads to Coober Pedy.

The reason why I rang Derrance from my father’s home and why I went back to Derrance’s home when there was no answer was that I was extremely curious and worried. I was curious because Derrance had had such a sudden change of mind when he told me to drive straight to Coober Pedy and because he would not answer my questions, and I was concerned because of the phone call on Sunday morning and Derrance saying, ‘I want to get out’ and the whole situation.

When I arrived at the home I put the car in the car park, and let myself in. The living room light was on but that was usually so when nobody was at home. Derrance was not there and I did not notice anything that was upset or out of the ordinary. I did not go into the office. I walked through the living part of the premises. During the afternoon we had had some afternoon tea — a cup of tea and some cakes — and the dishes were still in the living room. I collected them up and also the ashtray which was dirty from our smoking during the afternoon. I took these things into the kitchen and washed them and put the dishes in the drying rack along with a few dishes which

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were already in there. I returned the ashtray to the table where it is shown in Photo 5.

I can’t particularly remember the packet of cigarettes or the cigarette lighter being on the table, but I recognise the cigarette lighter as one which was given to Derrance by a client. I was not very long in the house and then I left and drove off. Looking at the photographs which are in evidence of the interior of the house it seems to me to be as I left it. I am sure that when I left there were not any butts in the ashtray which is standing on the table in Photo 5. During the trial I have noticed something about Photo 13. As you can see there are three pillows shown there. Derrance and I always had two pillows on each side of the bed. In Photo 4 there is a garment lying over the steel chair. I am almost certain that it is the waistcoat from Derrance’s court suit but I don’t have any recollection of whether it was there during the afternoon and I don’t have any recollection whether it was there when I returned in the evening.

As far as the car park was concerned, I put the Datsun into it when I arrived. There was no other vehicle there then and no other vehicle when I left. I don’t know exact times but I would have arrived at Greenhill Road shortly after 8.00 pm and left at or before 8.30 pm. After I left the house I set out for Coober Pedy.

Before telling you about the journey, I must refer to Mr Short and to Mr Swalling. Whoever Mr Short saw leaving the premises at about 6.40 pm it was not me. I was not in or at the premises at 6.40 pm and at that time I would have been on the road between the Stateliner depot and my father’s home. Furthermore, I was not dressed in jeans and a jumper at any time on that day or any other day while I was in Adelaide from Coober Pedy. When I went to 69

Coober Pedy in January I took all my work clothes including three pairs of jeans with me to the opal field ... Apart from the underclothes and socks they were the only clothes which I brought down with me and all the rest remained at Coober Pedy. As a result, the fact of the matter is that I had no jeans at all while I was in Adelaide and I could not have been wearing jeans at 6.40 pm on Monday night ... I was wearing the grey trousers and Derrance’s jacket and I don’t know who it could have been leaving the house when Mr Short saw him. I can only say that Derrance acted for a lot of young people and that he used to see clients frequently at home out of ordinary office hours. Also I was not the person who was picked up by the cab driver at 11.07 pm. The only glasses I have ever worn are sunglasses. I was not wearing a suit and I was not wearing a tie and at that time I was on the road to Coober Pedy.

As far as the trip to Coober Pedy was concerned there were only two particular incidences which I will tell you about in a minute. The car was almost full with petrol when I left Adelaide. I got fuel at Port Wakefield, Port Augusta, Kingoonya, and at Coober Pedy when I arrived. I do not know how the mistake arises but I was not at Port Wakefield at 12.15 pm and I did not buy $14.00 worth of petrol or any amount like that. The petrol was approximately $4.80 and in addition I went to the cafeteria and bought a packet of cigarettes and chewing gum. I can’t say exactly the time that I was at Port Wakefield but it was a great deal earlier than 12.15 pm. There were two female assistants working in the cafeteria when I made the purchase.

I then drove on and the first incident occurred between Port Augusta and Kingoonya. I do not know exactly where. The engine suddenly started to play up and lost power. 70

I checked for overheating, but there was no problem there, so I stopped and sat for a minute and then tried to start up. It started OK but, as soon as I let the key come back, the starter motor and the engine both cut out. I started to fiddle about with the controls. I found that if I held the key over in the start position the starter motor and the engine kept going. I also found that if I then put the car in forward gear the car moved and the starter motor cut out. I travelled slowly for a while and everything seemed to be all right so then I went back to a higher speed. From then on I had to drive with my left hand only on the steering wheel and keep the right hand on the key in the start position.

The second incident was when I got bogged. Apart from those two incidents, the only other times when I stopped on the journey, except to get petrol, were when I stopped to clean the headlights and also once just before Kingoonya I stopped to put petrol into the car from the yellow container.

When I arrived at Kingoonya I went to Mrs Fox’s — it was locked up so I drove on to the other place and then back to Mrs Fox’s but I did not drive in the way that Mr Rogers described either when I was coming into Kingoonya or when I was in Kingoonya. At no time on this journey did I drive in a dangerous or reckless manner and I am sure that I did not do the trip in about nine and a half hours as I understand the prosecution to say. A lot of it was a terrible journey. It was dark and new to me. It took me a good deal longer than that. I was careful with Derrance’s car, and as far as I could see there was no damage on the car at all once you got rid of the mud.

At Kingoonya Mrs Fox came out after I pushed the button and my buying of the petrol was exactly as she told you. I 71

was now down to the last of my money and I counted it out as she filled slowly. I paid her $2 to open the pump and $10.50 for petrol. That took everything that I had. I made up the last of the money by just counting up all the two cents, five cents etc. that I had in my pockets and from then on I drove on to Coober Pedy. I got trapped in a bog — I don’t know whereabouts it was. By this time I was extremely exhausted and my right hand was very sore from holding the key in the start position against the spring. So for a while I just sat in the car and dozed or half dozed off and I think that I had two cigarettes. Then I took off Derrance’s jacket and shirt, left them in the car, got out the jack, jacked up one side and put some wood under it that I had collected from the side of the road. And I just got the other side jacked up when Mr Harrison came along and he has already told you what happened. To my recollection it was just about dawn when he came along.

I then drove on to Coober Pedy and I arrived there after 9.00 am. I went to Judy Papadopoulos’ Golden Fleece Station where, as I explained above, I was known. I had the car filled with petrol there and put it on the account of Ross Christianos as I did not have any money. I signed the voucher. The amount was something over $13.00. The accounts of the garage will show that I signed for this petrol. I mention in connection with this that I did not take a single cent from Derrance’s home other than the cheque which he gave me and the few coins that I had in my own pocket. In particular, I did not take any money from out of the petty cash tin or from the strong room or the office or anywhere else. If I had taken the money in the cash box which was spoken about I would not have been out of money when I bought the petrol at Kingoonya.

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Chapter 8

Shaky underpinning for the Crown

With no witnesses to the shooting or motive, David Szach’s case was circumstantial. Based on the circumstances, the onus was on the Crown to prove his guilt beyond reasonable doubt. If there were a reasonable hypothesis consistent with Szach being innocent then the jury should acquit him. Mr Martin for the Crown reasoned that David Szach committed the crime in a narrow window of opportunity from 5.30 to 6.40 pm. With no obvious motive, Szach was the prime suspect because he was the only person with Derrance during this period. He was familiar with the rifles held in the home. A number of calls were not answered and Mr Short had observed someone assumed to be Szach coming away from the house at 6.40 pm. Dr Manock’s estimation of time of death, and of the maximum amount of time of one hour that the body would have been out of the freezer, all supported this reasoning. The Crown accepted that Szach could not have arrived back at Derrance’s place before 7.40 pm: that is, one hour after he supposedly left at 6.40 pm. If Szach had committed the crime in the 5.30 to 6.40 pm

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period he would have had to put the body in the freezer during this time. If the murder happened later in the evening, and Dr Manock allowed for that possibility with his upper limit of the body being placed in the freezer of 9.45 pm, it would most likely have occurred at a time when other unknown persons were present from 8.45 pm onwards. If Szach were implicated in that later time span from 8.45 to 11 pm it would have been best for him in his defence to say what part he had played in the company of other participants. In any case it raised another question: Why would other people involve themselves in the clean-up process if they had not participated in the killing of Derrance? The Crown, therefore, sought to link David Szach to the crime; first, through the evidence of Dr Manock showing that the most likely time of death occurred after 4.45 pm and before 6.40 pm when Szach was alone with Derrance. This allowed sufficient time, an hour if necessary, for Derrance’s body to be placed in the freezer. Secondly, Szach was identified by Mr Short as the man coming out of Derrance’s place at 6.40 pm. These two factors appeared to provide a secure underpinning for the prosecutor in presenting his case to the jury. The events that ensued from 6.40 pm, their timing and testimonies of witnesses, confirmed the Crown’s case. If the two fundamental testimonies, Short’s and Manock’s, were flawed, the events that followed must be viewed in a different light. But more importantly, the jury’s decision-making process would have been compromised. First, on examining Mr Short’s evidence: Mr Short testified that the man was slim and young, possibly 16 to 19, and had shoulder-length blond hair; he thought he wore a jumper and jeans. The ‘jumper and jeans’ might 74

not have been accurate, but it certainly gave an impression that the man was casually dressed. Szach, on the other hand, had said in his statement that he left all his jeans in Coober Pedy, was smartly dressed and wearing a jacket, as witnessed by others who saw him later. Of course, Szach could have changed his clothes. Szach’s defence lawyer discussed what was meant by shoulder-length hair in court because Szach had been taken by his mother to the hairdresser for a haircut on 31 May, four days prior to Mr Short’s sighting. After the haircut, Szach’s hair tapered to the back of his collar. It could hardly be described as shoulder-length hair, even with a variation in what that term might mean. When asked in court what Mr Short meant by shoulder-length hair, he said, ‘Coming down the side and … at present to the rear … that means down the side of the face … back of the collar.’ In the first month of the winter season, it was already dark at 6.40 pm and Mr Short would have had to rely on a street light nearby to make his observations. He was about12 metres from the man — the closest distance — before he turned and walked along Chinner Avenue towards the back of Derrance’s house. Mr Short said he had never seen Szach before, even though he worked as an accountant in a building opposite the frontage of No. 189 Greenhill Road, the home and office of Derrance Stevenson. Szach, on the other hand, told me that he had met Mr Short in January 1979 when he carried out a cleaning service for his firm. He had asked if he could speak with Mr Short about cleaning the carpets in Gina’s restaurant in Gouger Street, Adelaide. The carpets had become damaged by a water overflow from a well located within the confines of the restaurant’s basement. On completion of the work, Mr Short handed over a cheque as payment when they met in his office. 75

Szach’s claim that he had carried out a cleaning service was not given as evidence in court. Mr Short no doubt shared a curiosity with his colleague, Mr Shields, about the comings and goings of people at Derrance’s place. They both worked for Sampson & Co Accountants, and defence lawyer Kevin Borick had asked Mr Shields in court, ‘The interest you had in Mr Stevenson’s premises arose out of some belief you had about the sort of clients he had?’

Shields: He had many and varied visitors from time to time. Some were clients and some were friends, and knowing Mr Stevenson I was idly curious when I saw vehicles pulling up after hours.

Borick: Curious to what extent? What were you interested to see? What did you think? What was your curiosity?

Shields: Curious to the extent if it was my visitors to our premises or Mr Stevenson’s premises.

Apart from Szach’s claim that he had met Mr Short in regard to the cleaning of carpets, even a casual sighting of Szach on a previous occasion, over a three-year period, might have prompted Mr Short to respond that he looked familiar when asked about the man he had seen at 6.40 pm, and not to say that he hadn’t seen him before. At the committal hearing Mr Short had been asked, ‘Can you see that person in court today?’ He replied, after looking at the accused for ten seconds, ‘The person in the box could be the person, but the hair is different.’

On re-examination of Mr Short, Mr Martin asked, ‘What did you mean when you said in the Magistrates Court he could be the person?’ 76

Short: I meant that was the person.

Martin: Why did you use the expression ‘could be’?

Short: At that time I was being cautious.

The more serious problem, however, for Mr Short’s testimony, had nothing to do with clothing, or even the length of hair of the man sighted. Mr Short’s memory had apparently not failed him when he identified David Szach from twelve slides of young men about Szach’s age. The identification took place on 7 August 1979, more than two months after the initial sighting. The evidence was not discredited by the defence lawyer and not disallowed by the judge. Szach’s photo wasn’t taken when he was arrested. One of Szach was taken later with a Polaroid camera while he was in the Adelaide Gaol. The police chose, however, to use for the identification a photo of Szach that had been taken six months prior to the murder. A number of studies have since shown that eyewitness identification has been responsible for serious miscarriages of justice. The United States Innocence Project, which uses DNA evidence to overturn wrongful convictions, estimates that eyewitness identification has played a role in more than 75 per cent of its cases.

Michael Kirby, a Justice of the High Court of Australia, also highlighted the problem with eyewitness identification:

Human memory is extremely fallible, particularly with the passage of time. People see what they want or expect to see. Unless procedures for identification are carried out 77

with impeccable fairness there is a significant risk of wrongful identification. (Child and Co Lecture, London, 1991)

While Mr Short’s testimony may have lacked credibility at the time of the trial, Dr Manock’s statement, about the time of death and the length of time the body could have been out of the freezer, was not seriously challenged until fifteen years later with the report of forensic pathologist Dr Byron Collins on the relevance of Dr Manock’s evidence at trial. The acceptance of the two testimonies denied Szach’s defence an appropriate response to raise the likelihood of a later time for the murder.

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Chapter 9

Blood and fingerprints

Mr Martin called Andrew Scott to give evidence about the blood spots located on the Datsun. Dr Scott had been awarded a PhD in 1975 for three years of research on blood. He was employed as a forensic biologist at the Forensic Biology Laboratory in Adelaide. His duties as officer-in-charge of a laboratory included the development and application of methods for the identification and grouping of blood, semen, saliva and other bodily products. Dr Scott obtained a positive reaction for blood from two towels and a facecloth in the bathroom of Derrance’s premises on Wednesday 6 June 1979. He also identified a number of small spots of blood on the top sheet and a large crust of dried blood at the foot of the sheet, as well as two areas of crusted dried blood on the bottom sheet. Samples of spots of blood were found on the bottom sheet near the pillows. A smear of blood was identified on the bottom of one of the three pillows. There was no staining of blood on the upper side of the mattress but a large area of staining was observed on the underside. Attempts had been made to wash the stain off with a sponge. Positive reactions for blood were identified from 79

samples taken from two buckets, a Jif bottle, sponge, and from under the hot tap. All of the samples were consistent with being Mr Stevenson’s blood, none from the accused. The blood was limited to the bedroom and the appliances in the bathroom. Dr Scott left the witness box to point to the underside staining of the mattress and said:

Looking at the area, there is a very strong outline of blood visible here as a darkish line. There is then a thinner brown halo running out from that of about three-quarters of its circumference.

Martin: This defined area you referred to doctor. What was that?

Scott: The dark line, the defined area, is a crystalline material which looks like crusted blood.

Martin: If blood had just poured onto the mattress, would you have expected the stain to look like that?

Scott: No, if blood had been poured on it, I would have expected a homogenous stain, an evenly coloured stain.

Martin: The dark outline suggests to you that here was something inside the dark outline that prevented the stain from spreading evenly?

Scott: That is one explanation, yes.

Martin: Is it consistent with say either the back of the head, the front of the head or side of the head pressing down against that mattress?

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Scott: Yes.

Martin: And perhaps blood coming from the head. Is there anything from the stain that suggests that the blood clotted while the head was on the mattress, assuming the head was on the mattress?

Scott: Yes, the nature of the stain would suggest that did happen. For example, the very crusted, very thick outline would suggest, for example, if we had some large object pressed against it, the blood has clotted around the edge of the object. That would cause the crusted line. That could also explain some of the halo which is visible around that stain because if blood clots like that, the fluid portion, the serum, tends to ooze out of the clot and then diffuses outward and forms a halo such as that.

Dr Scott described the two spots of blood taken from the trim of the inside of the driver’s door of the Datsun as small and about two and four millimetres in diameter. On cross-examination by Mr Johnston, Dr Scott was asked if the spots on the trim of the door had been made by the escape of free blood. He replied, ‘I think it is very unlikely. The amount of blood that I received was very small and it is unlikely that that is due to whole blood.’ The drops of blood were identified as being of Stevenson’s blood grouping and were less than two weeks old. Dr Scott had not examined the clothing taken from Szach at the time he was arrested for the presence of blood. Mr Johnston commented: ‘It certainly doesn’t resemble, as far as these photographs are concerned, a smear of something, one surface coming in contact with another, one having some blood.’ 81

‘It is possible,’ Dr Scott said, ‘it could be formed by a smear because on a non-absorbent surface such as this, if it is wet the material will tend to pull back together; the same surface tension phenomenon will tend to pull it back together into droplet sizes and will then dry out as a round blob, as a drop.’ Forensic pathologist Dr Collins later reported that Dr Scott’s comments, concerning smear formation and changing shape due to surface tension, were untenable. Defence counsel took objection to evidence of the traces of blood proposed by the Crown — he said it would have no probative weight and should be rejected. Justice Wells, however, in his summing up, allowed the evidence to be admitted and for the jury to decide on its importance. Mr Martin used the ‘traces of blood’ to add to his list of circumstantial pieces of evidence in his final address when he said:

It was the sort of blood that you might get from the accused having cleaned up and the blood would be diluted a bit by the water and there is a little bit left on his hands, just damp enough at 6.40, when he goes out and gets into the car, to leave a trace behind ... it is the sort of blood that might come from the accused having done a little bit of a clean-up.

Senior Constable Kenneth Kruse had more than fourteen years of service with the classification and identification of fingerprints in the Police Department. He had given evidence on numerous occasions in criminal courts. Mr Rofe, for the Crown, questioned Constable Kruse about the fingerprints on the rifle and the freezer:

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Kruse said: I compared the fingerprints on the rifle with the sets of fingerprints bearing the names David Joe Szach and Derrance Stevenson and I found that the fingerprints on the rifle were in my opinion identical with the right ring finger, the right index and right thumb print on the form bearing the name David Joe Szach.

Rofe: In relation to the rifle were you able to detect any signs of wiping of that particular rifle?

Kruse: No, it had no appearance of having been wiped.

With regard to the freezer, Constable Kruse had identified three fingerprints on the top right hand corner of the left side of the freezer, and one fingerprint on the right top front corner, as belonging to David Szach. The freezer had not been wiped down; some material, though, might have come in contact without rubbing the surface of the freezer. ‘Is that consistent for example with a trousered leg or something coming up against the freezer?’ Mr Rofe asked. ‘Yes, I couldn’t say what sort of material but that material coming into contact with it,’ replied Kruse. On cross-examination, Mr Johnston asked, ‘If there is movement whilst the finger is in contact with the surface, I take it that that is the thing which would tend more than anything else to blur the print?’

Constable Kruse: It can cause one of two things: it can firstly cause the impression to be smudged and if there is only perhaps some slight movement you can have some distortion in the ridge detail.

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Mr Johnston: Are these prints that you referred to on the freezer — and I am not concerned about the police officers’ prints — distorted or straightforward prints?

Constable Kruse: No, the four impressions, which are in my opinion those of the accused, are what I would almost say textbook copy latent fingerprints. They are quite good quality.

In referring to Szach’s fingerprints, Mr Martin said in his final address:

These prints are over the top of everything else ... You have got these stains said Detective Kruse, stains first, these marks, you have got the pattern of the clothing — trousers — whatever it may be — and you have got the fingerprints of the accused on top of this. They are the last items to be put on there, the fingerprints.

In his final address to the jury, Mr Johnston said that the fingerprints had no probative value since Szach had been living with Derrance for three weeks prior to his murder. ‘All sorts of reasons’ could have given rise to the fingerprints on the freezer.

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Chapter 10

Possibilities and confusion

Derrance’s murder could have been committed by someone later in the evening, but the two findings of Short and Manock presented by the Crown impressed on the jury that David Szach was the only one who could have committed the murder in the time span of 5.20 to 6.40 pm. Szach’s defence counsel laboured under the evidence given by Dr Manock and Mr Short to refute this accusation. The police evidence was that it would take ten minutes to drive from the car park of Stevenson’s premises directly onto Greenhill Road and to the Stateliner bus depot in Franklin Street. In addition to the driving time, David Szach was to have changed his clothes from wearing jeans and a jumper to presenting himself at Mr Lennox’s counter at the Stateliner depot as well- groomed, with collar-length hair and wearing a shirt, trousers and a sports jacket. Lennox had not noted any strange behaviour about Szach’s approach and request for the cancellation of the bus ticket. One problem with Mr Short’s evidence, though, was that he had seen the tail-lights of the car as it backed into Chinner Avenue and headed away from Mr Short in a 85

roughly south-east direction: that is, away from the city. If the driver had intended to drive to the bus station, he would have driven directly onto Greenhill Road which linked up with a road leading to the city through the parklands. The Crown had produced a map prepared by the police depicting the route of the vehicle having been driven immediately onto Greenhill Road and towards the Stateliner bus station in Franklin Street. But this evidence was in contradiction to Mr Short’s evidence that the vehicle had been driven in the opposite direction. The defence did not question this so the Crown’s account of the evidence might have misled the jury. If the intention of the driver was not to drive in the most direct route to the bus station, then it becomes even more difficult to satisfy the timing of events, as reconstructed by the Crown. And the other possibility, of course, was that the driver of the vehicle was not David Szach and he had no intention of going to the bus station. According to Szach’s statement at trial, he left Derrance’s at about 6 pm. He drove the Datsun to the Stateliner bus station and arrived at about 6.15. He cancelled his bus ticket to Coober Pedy that had been organised by Derrance and went out to his parents’ place in the suburb of Surrey Hills. According to Szach’s father, Szach arrived at about 7 pm, just prior to the close of the Channel 7 News. Mr Lennox, however, had said that 7 pm was the time that Szach claimed his refund. When asked by Mr Borick, for the defence, whether he could have made the refund before half past six when a similar bus left for Port Lincoln, Mr Lennox was adamant and said, ‘No, that is not correct at all.’ Mr Lennox was responsible for the dispatching of the 6.30 pm Port Lincoln service, and Szach claimed that his ticket cancellation occurred about that time, which would 86

have been consistent with the evidence of Szach’s father that Szach had arrived at the family home just before 7 pm. With being busy at that time, could Mr Lennox have mistaken the bus service with which he associated Szach’s presence? The next problem for the Crown was to have Szach arrive as soon as possible at his parents’ place. Szach would have had to travel 21 kilometres from the bus station. With a maximum speed limit of 60 kilometres per hour, and, even with favourable traffic lights and conditions, this journey would have taken at least twenty minutes; it was timed by Detective Haddon at 29 minutes. David Szach’s father, Jardislaw Szach, was sure that his son had arrived at about 7 pm; he knew the time because Channel 7’s News was closing with the weather report. And Julie Harris had testified that she and Raymond were midway through watching the Brady Bunch when David walked in to see them, at about 7.15 pm. In his final address Mr Johnston said:

And I say the ace in the hole is Julie Harris. There is absolutely no doubt about her identification. She knows the man; no Short problem with her. She knows him. She had travelled in his car that night. She can tell you what programmes were playing. She absolutely fits in with the father’s evidence about arriving just before 7.00 pm … If that is right, you have got to push Lennox back to before twenty to seven, in which case, when this young man is walking down the road and is observed by Short, the accused is getting a refund from Lennox.

Realising the difficulties in the times, the Crown prosecutor said that, instead of the Channel 7 News, it 87

could have been the ABC News which started at 7 pm and finished at 7.30 pm. The accused would have arrived at his parents’ place at about 7.15 pm. The reconstructed piece of evidence undoubtedly helped the jury in deciding David Szach’s fate. At some time between 8 and 8.30 pm Szach returned to Derrance’s premises and he claimed that he spent about 15 to 20 minutes there tidying up. With no sign of Derrance or indication of his whereabouts, he left for Coober Pedy. At 8.45 pm Mr Shields observed two vehicles arriving, and although it was dark he could make out a Falcon car that Gino Gambardella had used. The other car he assumed was Mr Stevenson’s Datsun but he did not make a positive identification. Mr Shields observed the two cars again at about 11 pm. What followed was the bizarre affair with the taxi driver picking up a man from Derrance’s premises at 11.07 pm. David Szach was the young man, according to Mr Martin in his final address; impersonating Derrance he tried to lay a false trail for the police, and to say ‘I am on the track to Coober Pedy and there is a man coming out of Mr Stevenson’s premises. It can’t be me.’ The other possibility, of course, was that the impersonation was part of an elaborate set-up to incriminate Szach. Why would a young man who has been involved in the execution-style murder of Derrance or the cleaning-up process expose himself to a taxi driver? He made sure he sat in the front passenger seat. He forgot to take the green garbage bag and attaché case on leaving the taxi. Was that part of the deception, too? A calculated risk, but, if the man were called back, the taxi driver had another opportunity to observe him. The taxi driver would have been able to distinguish between a young man of about 19 and someone over 40, like Derrance. And he did. The ‘sallow complexion’ didn’t 88

fit, but everything else pointed to Szach as the one who impersonated Derrance. But could the young man have lived in the city area close to where he had been dropped off by the taxi driver? It would be a simple matter to dispose of the garbage bag and attaché case, and walk to his place of lodging. According to Bob O’Brien in his book Young blood, Neil Muir, aged 25, blond-haired and of sallow complexion, ‘slept on the floor of a doss house in Carrington Street’, a few streets away from the Rundle Mall/Pulteney Street intersection, the dropping off point. Twelve weeks after Derrance’s murder, his mutilated body was found. Could Neil Muir have been the mystery impersonator? Another possibility for the identity of the impersonator opened up with Alan Barnes, 17, a young man of similar age and appearance to Szach. He had met Derrance on at least one occasion, according to David Szach. His body, also mutilated, was found about two weeks after Derrance’s murder. Was there a link with either Muir or Barnes with Derrance? Was it a coincidence that their murders came so soon after Derrance’s? However, according to the Crown’s case, David Szach was the man seen by the taxi driver. He had been in the company of the taxi driver until 11.12 pm. Somehow — the Crown didn’t explain — Szach retrieved Derrance’s Datsun, changed his clothes, and drove to Port Wakefield at breakneck speed to arrive at the Shell petrol station at about 12.15 am, as stated by Mr Calley, one of the two service attendants present. Elliot Johnston for Szach’s defence highlighted some of the problems with this scenario:

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Unless you postulate another man altogether, he has to get back to Greenhill Road to get the Datsun … so really from a practical point of view it is half past eleven before he starts and it is everybody’s case that he is in Coober Pedy at round about nine o’clock, nine and a half hours. To cover the first leg from the city centre to Port Wakefield, a distance of 99 kilometres, in 45 minutes is unrealistic given that the driver has to drive through the city itself and all the built-up areas of the northern suburbs at a speed limit of 60 kilometres per hour and then continue the rest of the distance at either a limited speed or on the open road at a speed limit of 100 kilometres per hour. The Crown’s case is that he drives ‘like a hot-rod man, flat out’, achieving an average speed of about 130 kilometres per hour.

It would have taken about 15 minutes of driving time to reach Cavan, an outer northern suburb 12 kilometres from the city, given a speed limit of 60 kilometres per hour and traffic conditions at that time of night. Assuming that David Szach retrieved the Datsun as soon as he left the taxi, he would have travelled a further 87 kilometres to Port Wakefield at an average speed of about 116 kilometres per hour. If he had returned to Derrance’s house to retrieve the car, adding, say, another 15 minutes to his time, then the speed at which he would have had to travel to Port Wakefield from Cavan would have been about 170 kilometres an hour. Szach, in his statement at trial, claimed he left Derrance’s house at about 8.30 pm and drove to Coober Pedy, stopping at the Shell petrol station at Port Wakefield ‘a great deal earlier than 12.15 pm’. One and a half hours seemed a reasonable time to cover the distance from the city, given the relatively slow pace of driving through the suburbs and the speed limit restrictions. 90

The taxi driver had come forward with his statement about a week after the murder. The police then called into the Port Wakefield service station to interview Mr Calley and Mr Mader. Calley had been 10 minutes late when he took over from Mader at 12.10 am on that night. Mader was serving one customer in a Holden when another pulled up in a red 260Z Datsun. Calley had said, ‘He was moving fairly quickly; he had to pull up at all the stops to stop at the first pump; on the way through nearly missed it. He said, “Fill it up.” ‘After paying for thirteen to fourteen dollars’ worth of petrol, he left about as quick as he came in.’ Calley had accurately described Szach’s appearance — ‘about six feet, blondy-browny hair, fairly slim build, very nicely dressed’ and wearing ‘a sports jacket and light-coloured trousers, browny stripy sports jacket’. Mader had only seen the driver of the Datsun from the rear. For the event to have occurred over a week before, it is remarkable that Calley was able to recall the details so precisely. He saw the opal ring on Szach’s fourth finger, knew how he spoke — ‘a nicely spoken young fellow’ — and recognised him in court. Enough for Mr Borick, the defence lawyer, to remark, ‘Correct me if I am wrong, but it appears that you have got a good memory of this man’s hair in particular.’ Calley did not remember, however, the unusual registration plate of GUN 045. Szach had claimed in his statement that he only spent $4.50 on petrol, but the police had not produced a cash docket to support that transaction. Szach had also said that he had entered the cafeteria and bought cigarettes. He noticed a woman cleaning the floor. It was found out later that the cleaning woman finished her shift at 10 pm, but neither she nor the woman who served him at the counter was called to give evidence. 91

A two-hour time difference between Szach’s estimate of the time he arrived and the time stated by two witnesses, Calley and Mader, posed a serious problem for the defence lawyers. Could both Calley and Mader have been mistaken about the time? Was Calley’s evidence credible given his apparent excellent ability to recall the details of serving a customer? Had the police in any way influenced Calley’s evidence? The matter could have been resolved with the cash dockets for purchase of the petrol, or goods at the cafeteria. On his way to Coober Pedy, David Szach stopped at Port Augusta for more petrol, but again, no cash dockets were presented as evidence. John Goodfellow, with co-driver, Alec Rogers, had set off from Coober Pedy at about 11 pm. Both said that they arrived in Kingoonya about 4.30 am the following morning. No records, however, were obtained from a timebook. The Stateliner bus from Darwin, according to Goodfellow, had passed them about 50 kilometres out of Kingoonya and was in Kingoonya five minutes before them. They had pulled up at the Kingoonya Hotel and Goodfellow topped up the radiator with a hose from the hotel. Goodfellow, when asked if he had any recollection of any vehicle travelling in the direction of Coober Pedy while he was there that night, said, ‘No, no recollection of any vehicle ... for that time of the night you’d pass the occasional truck or maybe a very occasional car ... that’s how I remember it that night.’ In contrast, his co-driver, Alec Rogers, gave detailed evidence of a red Datsun coming into Kingoonya ‘like a bat out of hell’. Rogers described the vehicle as ‘a Datsun 260Z — sports sedan type ... a reddy sort of colour’. Like Calley

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at Port Wakefield, Rogers showed remarkable recall, whereas his co-driver remembered nothing of the event. No record of the cash transaction for petrol at Mrs Fox’s roadhouse was produced. While both Rogers and Goodfellow were called to give evidence, the Stateliner bus driver, Geoff Palmer, was not called. The bus was due to have arrived at Kingoonya, according to its schedule, at 3.15 am and depart at 3.45 am. The Greyhound bus timetable stated that the Alice Springs to Adelaide service was classified as Royal Mail Express. If the bus had been running late, a shorter stay at Kingoonya could have made up time. But Szach’s defence counsel apparently made no effort to obtain the actual arrival time for that particular run. If the bus had arrived before 4 am, then the estimate of the arrival time of the bus by Goodfellow of five to ten minutes before the arrival of the truck at 4.30 am was in error. The bus was still there, according to Goodfellow, when the truck left at 4.40 am. If Szach had arrived at the scheduled time of the bus departure, that is 3.45 am, he would have had to drive at an average speed of 158 kilometres per hour from Port Wakefield to Kingoonya, a distance of 539 kilometres in three and a half hours at night-time. The Crown’s case was that Szach drove fast and could have made the distance in about four hours, to arrive in Kingoonya at about 4.30 pm. Szach would have left the Port Wakefield roadhouse at about 12.20 am, stopped briefly at the Port Augusta roadhouse and reached Kingoonya at 4.30 am, travelling at a speed of about 129 kilometres per hour: that is, still well over the 110 kilometres per hour speed limit. An added problem for the Port Augusta to Kingoonya segment was engine trouble in the Datsun in which Szach lost the connection to the ballast resistor. Mr Johnston, a mechanic at Coober Pedy, gave evidence to show that he 93

couldn’t have travelled far without the engine blowing up. In addition, Szach said he was exhausted from holding onto the key in the starter position against the spring for more than 320 kilometres. An estimate of Szach’s arrival time at Port Wakefield of about 10 pm would allow six and a half hours of travel to Kingoonya, at a speed of approximately 83 kilometres per hour, arriving at 4.30 am based on Goodfellow and Rogers’ estimate of their arrival time. And if the bus had arrived on time at Kingoonya and the estimates of Goodfellow and Rogers were out by an hour, then Szach would have travelled at a speed of approximately 98 kilometres per hour. The whole journey of 873 kilometres from Adelaide to Coober Pedy, according to the Crown, took about nine and a half hours, travelling at an average speed of 92 kilometres per hour. When taking into account that Szach drove at night-time, over ruts, potholes and 65 cattle grids, had engine trouble, became bogged and had to be pulled out by truck driver Mr Harrison, and stopped at three petrol stations, the nine and a half hour trip seemed a gross underestimation. In his address, defence lawyer Elliot Johnston compared the inexperienced driving of Szach on those sorts of roads with a trip made by experienced Mr Rogers:

He took 8.5 hours driving a Ford Fairlane, which I take to be rather a larger vehicle, more powerful. He knew the road like the back of his hand and he did the rough track in the light … he left home at 4 am and by the time he gets to the end of the bitumen strip out of Port Augusta it is going to be light. He goes over the whole of the bad road by daylight and there is no suggestion of him getting bogged … If that is right, do you think that a non-professional driver could do it in nine and a half hours, driving this car 94

at night over the bad parts of the road, getting bogged, having mechanical trouble, and driving for in excess of — well at least a couple of hundred miles with one hand — in nine and a half hours ... If he couldn’t then, or if it is extremely unlikely … it appears to be likely that by some means or another Mr Mader and Mr Calley are mistaken.

Elliott Johnston referred in his address to Szach’s time at Coober Pedy:

There has been a lot of evidence from these witnesses at Coober Pedy and a lot of conversations and so on. Let me just say this. The accused wore the ring at various times, and, on occasions when he wasn’t wearing it, he showed it to a number of people, quite a few. He pranced around the town in the car. He had this piece of uncut opal and he showed that about. It was a valuable piece of opal; he showed it about before it was polished, and he showed it about after it was polished, and he took that little girl Raelene that he met up there, took her for a ride out to the 14 mile and gave her the treatment with the car I expect, and the opal and the ring. Well, he was acting up a bit. He says he was. Whether he said it or whether he didn’t ... you see, what has that got to do with whether he is guilty or not? What is the Crown going to say? What really are they going to say about this? Are they going to say, ‘Well, look, this was a terrific act, very talented act by a man who knew the roof was going to fall in soon?’ That Derrance’s disappearance would be noted, hue and cry would be raised, they might take a bit of time to find a body, as in fact they did, but eventually they would, and they would be wanting to know where his companion had gone and where his car had gone and bang, within no time, the spotlight is on Coober Pedy and the car and David Joe Szach. So in order to make himself as though he

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had nothing to worry about, he is showing these things around Coober Pedy and mentioning Derrance’s name in connection with them.

Well, I suppose that would be the argument. I have racked my brains. I can’t think of any other that the Crown might use, and if you find that argument compelling you will take note of it. But you may just bear this in mind, that he is a 19-year-old and on the Crown case, alone and unaided, he can put that body, dead weight body, into a freezer from the bedroom without inflicting any damage on the body, no marks on the body to suggest it banged into doorways or bits of furniture or this or that. The Crown suggests he may have had some assistance — I won’t say that. He can drive from Adelaide to Coober Pedy in 9.5 hours. At the same time he can invent a charade ... as an advance sort of way of making it appear he was acting very innocently in Coober Pedy and that is calling for a fair bit of achievement and sophistication on the part of a 19-year- old, isn’t it? I would suggest to you that the more natural explanation of what was going on was that he was hamming it up a bit — at least that’s a very natural explanation which needs serious consideration.

But, but ladies and gentlemen, what about this? The Crown says, ‘Oh well, look, this was an act to make it appear that he wasn’t worried; he was talking about Derrance and talking about his friendship with Derrance and so on, knowing that he was dead,’ but that begs the final question. I mean, if he has killed Derrance, why does he traipse along with all these things that belong to Derrance? Why would he want to create a situation where he has got to put an act on to take some suspicion away from the fact that he has got these bits of property?

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Why not just leave them there? In my submission if this man is on the run and has got no money — we know that — then he would be looking for some. And the one thing that emerges from every skerrick of evidence from Coober Pedy is that he made no effort to turn any of those assets into money, not one effort, and in respect of the two valuable items he said one of them wasn’t his to turn into money, and the other one was only half his. So not only did he not try and turn them into money but what he said about that really rendered it impossible for him to try.

... When he goes to live with Derrance he is 16, he is out of work for a number of months and then gets a job with Aqua Jet, works with Aqua Jet for a while, that folds up, and then starts his business on his own with Derrance’s assistance and that gets into trouble, and then it is suggested he go up to Coober Pedy and he goes to Coober Pedy and doesn’t earn anything. So, look, he is not a big partner, is he? There is no real suggestion any of that is not right. He is just jogging along living in circumstances which in the last century would have been said to be above his station in life — living in this funny house, surrounded with furniture and a man with some money and tastes of all sorts, and he has virtually got very little. He says he used to wear Derrance’s clothes; no suggestion from anybody that a lot of clothes were found on the premises which would suggest each of them had a wardrobe of their own, very little clothing as a matter of fact, as you heard the detective tell you, and he says that all his working gear was up at Coober Pedy and his good clothes that consisted of two pairs of pants and two shirts and a pair of boots were down at Derrance’s, and said this one he had on wasn’t one of Derrance’s best coats and that Derrance said he could wear it. Well, do you find that very hard to accept?

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If Derrance did suddenly change his mind, following a phone call from Gino Gambardella, then might it not have happened that Derrance forgot about his various items being in the car and forgot about his various items being in his pocket? Really, I come down to this, ladies and gentlemen, if they weren’t in Derrance’s pocket, and this accused is, in fact, the person who has killed Derrance or is even connected with it, what would be the point of going around and collecting a pocket calculator and this ring and these little bits of what don’t look to be very valuable pieces of cut opal that he says he gave to Derrance, and the uncut opal — what does he collect them for? Just to make things look bad for himself? ... Either they were in his pocket, in the pocket of the jacket and he didn’t know when he left, or he collects them up, and having deliberately collected them deliberately puts on a charade all around Coober Pedy to make it look as though it is all innocent. I say it would have been a lot easier if he hadn’t collected them up in the first place, and he makes no effort to dispose of any of them.

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TIMELINE OF EVENTS ACCORDING TO THE CROWN AND SZACH

EVENT (4-5 JUNE 1979) TIME COMMENTS ON TIME CROWN CROWN’S CASE SZACH Szach observed leaving 6.40pm ID unreliable Approx. Stevenson’s house Monday (see Chapter 8) 6.00pm Refund for Szach’s ticket 7.00pm Possible confusion with Approx. buses and departure times 6.15pm Arrival of Szach at family 7.15pm Hardly credible: travel Just home distance to family home before timed at 29 min by police 7.00pm Left family home for 7.40pm Credible 7.40pm shopping centre Time of Szach’s return to 8-8.45pm Credible Approx. Stevenson’s house 8pm Sighting of two cars at From Sighting of Stevenson’s Not Stevenson’s house by a 8.45pm to Datsun not confirmed applicable witness; the small car 11.07pm possibly the Datsun Szach picked up by taxi at 11.07pm Possible impersonation of Not Stevenson’s house Szach applicable Szach left the taxi at 11.12 pm Possible impersonation of Not Rundle Street Szach applicable Szach picked up the 11.30pm? No evidence as to how Approx. Datsun car to drive to and when the car is picked 8.30pm Coober Pedy up Szach’s arrival at Port Approx. Hardly credible to pick up Approx. Wakefield petrol station 12.15am the Datsun and travel 99 10pm Tuesday kilometres within an hour Arrival time of Szach at Approx. If Szach left Port Wakefield 3.30am? Kingoonya 4.30am at 12.20am to travel 539 kilometres his average speed of approx. 129 km/h is hardly credible given night time driving conditions Arrival at Coober Pedy Approx. Taking account of poor Approx. 9.00am road and weather 9.00am conditions, and a forced (approx. stop, to travel from twelve Adelaide to Coober Pedy and a half in nine and a half hours at hours an average speed of travel is 92km/h is hardly credible credible) Derrance Stevenson’s 5.00pm body is found in freezer

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Chapter 11

Defence address

Elliott Johnston for the defence in his final address reminded the jury that what the Crown charged David Szach with was murder: not an accessory before the fact or after the fact or somebody who knew something about it and had not told the police, but murder:

And it follows, ladies and gentlemen, that before this accused can be convicted you must be satisfied beyond reasonable doubt, either that he pulled the trigger that discharged the gun that sent that bullet into the head of the deceased, or that he was present and assisting when that was done.

Mr Johnston described his overall impression of the case:

This case is a mystery — as if somebody deliberately thought out a plot to try and confuse everybody. I am not criticising the detectives or the lawyers or anybody else who had anything to do with the case. There is no complaint about the Crown case in that respect. Yet they met with a wall of silence. Where is the man who was at the Legal Services Commission on 5 June and who seemed to know something was wrong with Stevenson before his

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body was found? Where is this Mr Gambardella who was called at the preliminary hearing and is still about?

... Let me say to you straightaway that the Crown does not have to prove any motive. However, there is an old saying amongst people who concern themselves with crime, ‘show me the motive and I will show you the criminal’. But when you get a case like this, which depends completely on circumstantial evidence, it is certainly more comforting if you can see the motive, isn’t it?

I will read what Mr Martin said about this in his opening to you:

‘In a nutshell it is the Crown’s case that for reasons that can be postulated or reconstructed, whether they be financial, emotional or a combination of reasons known only to this accused, that is, in the evening of Monday 4th June, using one of Mr Stevenson’s rifles, the accused shot Mr Stevenson in the back of the head.’

There is a complete absence in the Crown case of any motivation. ‘For reasons that can be postulated?’ What reasons? Postulated by whom? ‘Or reconstructed?’ Out of what material? What evidence have they brought forward to reconstruct the motive? ‘Whether financial or emotional or a combination of reasons known only to the accused?’ You can hardly have anything wider than that, ladies and gentlemen, and no evidence to support that could be so. In short, the Crown is asking you to reconstruct, which is the most dangerous of all things, or say, ‘Oh, well, it was a combination of reasons that was in his head and nobody knows anything about them.’

... Aren’t these, ladies and gentlemen, all mysteries? Aren’t they things where the Crown case … don’t give you 101

an answer to, and the whole thing is in an air of unreality: a middle 40s man, a man the accused says was very well- liked, as indeed he was, a successful barrister, all sorts of interests in all sorts of things quite wide of the law, but including the law, sets up with a boy not yet 16 and they live for most of the time together for a period of three years. During that time the lad is unemployed at times and he is in some failing carpet cleaning business for more of the time, and then at the age of about 18 trying to run his own carpet cleaning business with predictable results, you could think, and then up at Coober Pedy getting no money except digs and a few odd dollars from Mr Christianos and, as Mr Martin said in his opening, being supported by the deceased.

… Ladies and gentlemen, what is going on? On the Crown case somebody has been murdered and put in a freezer between 5.30 and 6.40 — that is as they present their case. You might think that this place would be deserted, that the people would be getting away from it as quickly as they could. But it’s extraordinary. There are at least two vehicles there at eleven o’clock, and there are very strong grounds in commonsense, wouldn’t you think, for a third person, the one who goes away in the cab.

... You’re being asked to draw inferences, ladies and gentlemen, about the fact that the accused has got calculators in his pocket and a ring … and a piece of opal, the ring and the opal, which he’s showing to all hands in Coober Pedy, and associating them with Mr Stevenson, and getting himself along to the police station, and driving the Datsun there. You’re being asked to draw inferences adverse to the accused from those matters and not only generally adverse to the accused that he knows something about this or that he hasn’t told you about or that he did something in it or he helped clean up and he did this or 102

that, but that he pulled the trigger. When you sit there and know, and we all know, that there are people walking around who can tell us about this and won’t.

... They say you will hear about Mr Gambardella. There may be developments in the case which will point to the involvement of Mr Gambardella and there certainly, certainly are. And when you put these people and potential people together, even if you don’t believe a word of what the accused says, how do you get to the point of being satisfied beyond reasonable doubt that the accused is the killer, and not one of those people I mentioned, accessory before the fact or accessory after the fact?

Mr Johnston referred to the phone call that Gambardella had said he had made to Derrance on the night of the murder as ‘powerful circumstantial evidence’ to support Szach, who had said he was certain that Derrance was speaking with Gambardella when he heard the conversation. David Szach had said: ‘Shortly after that telephone call ceased, after Derrance had put the phone down, he said to me, “Take the Datsun and drive to Coober Pedy.” Mr Johnston said, ‘It looks as though there was a telephone call and that call precipitated something rather drastic … What was that call?’ Mr Johnston then attacked the points in the case that the Crown had raised against the accused on his way to Coober Pedy. He stressed that the Crown prosecutor had constructed a series of events, supported by witnesses, to convince the jury that Szach had killed Derrance Stevenson. Each of these events on close examination, though, gave cause for reasonable doubt: the basic assertion and premise that Szach killed Derrance on 4 103

June 1979 between 5.20 and 6.40 pm; that he was sighted by Mr Short coming out of Derrance’s premises; the timing of Szach’s refund for the bus ticket and of his arrival at his father’s place; the implication that David returned to Derrance’s place, and with two or more persons cleaned up; that Szach was the person picked up by the taxi driver; that Szach could have driven to Port Wakefield from Adelaide in three-quarters of an hour; and continued to drive at an excessive speed at night-time to arrive at Kingoonya at about 4.30 am. Mr Johnston then highlighted the ‘gaping holes in the jigsaw puzzle of David Szach’:

The biggest one of them is motive. Look, it is exactly when you rely on circumstantial evidence that you need motive most, because people do not behave without motive. Their motive might be extremely hard to find out and sometimes you needn’t bother about finding out because the facts speak so plainly, but here they don’t, and motive will just be the cement which bound this thing up perhaps, but is singularly lacking.

I spoke to you about the relationship between these two … The accused told Detective Robinson, you will remember, that he went straight back to Greenhill Road and commenced living with Stevenson again straightaway; they spent most of their time together, but one night Stevenson had to go to a dinner party and he went off to Jules Bar and came back right on time, at 11.30.

‘There was a dinner party arranged before I came down. Stevenson went to the dinner party but he brought me home some of the dinner,’ he says. ‘I don’t know whose dinner party it was; he didn’t tell me but I know who one

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of the guests was.’ A lawyer around town and he names him.

What sort of relationship does that say to you? Really, I don’t know what the Crown are going to say but perhaps they are going to say he was being sent to Coventry, being sent to Coober Pedy to get him out of the road. There is no evidence about that. Told Mr Christianos he was coming back. Told the hairdresser he was coming back. But on the very Sunday they go and get the ticket from the Stateliner where do they go? To Strickland’s place. Strickland is called by the Crown and what does he say? While there in the afternoon Stevenson has a sleep and he sleeps with his head on the accused’s lap. What does that say to you in ordinary human relationships?

… The first real hole is the lack of evidence — a tremendous hole ... Look, the freezer is not here now but … look at its height. The deceased is about the same size as the accused, something after the same sort of build of man. It’s absolutely — you know what I mean when I say a ‘dead weight’ — sorry to use that expression; you know what I mean. Do you think that one man alone can get that from a bedroom off the bed into that refrigerator and no damage to the body, no marks … Look, maybe he has to get from the bed onto the floor, maybe, yes, pull along the floor to the vicinity of the freezer. Try it yourselves, lifting that weight. There is a jury; try it yourselves lifting that weight, the height of that freezer and to be able to get it over the top … if you think that it couldn’t be done or unlikely that it couldn’t be done by this young man, then you have to postulate somebody else, and immediately you postulate somebody else, you are into unknown and unchartered waters; you don’t know where you are.

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Mr Johnston accepted Dr Manock’s finding that the body must have been put in the freezer within an hour of death and that the body could have been put in the freezer any time from 5.45 pm to 9.45 pm. ‘There are good reasons in science, having regard to his credentials, in accepting the point of view that he expresses on the basis of science,’ he said. Mr Johnston was adamant, though, that the people who were at Derrance’s premises from about 8.45 pm until shortly after 11 pm almost certainly had something to do with the crime. Mr Johnston then pointed out that the case was one of timing and that one of the most significant mismatches in timing concerned the testimony of Mr Lennox, who was adamant that Szach would have been at the Stateliner bus depot around 7 pm to claim a refund, the same time at which he was, according to Szach senior, at his family home:

So, Mr Lennox just can’t live with either Mr Szach or Julie Harris. Well, you might say Mr Szach is the father; he is not independent and of course he isn’t, but remember this: that he was spoken to by the police — Mr Robinson said that when he was questioning young Szach on the Wednesday and he said that the father had been spoken to and how would the father possibly know, even if he was minded to assist his son and he appeared, I suggest to you, a very straightforward person in the box, but even if he was minded to, how would he know that it suited his case better if his son was there late. I don’t think there is any real suggestion that can be made against Mr Szach’s independence. Like everybody else, his memory could be wrong. But I would say he should be accepted as a person who was doing his best to tell you the situation, but he is supported so well by Julie Harris, just a young girl who is friendly with his brother ... That girl didn’t come here to 106

tell a heap of whoppers for the Szachs. She has good reasons for remembering times. So, Lennox can’t live with the evidence from the Szach household. You have to push Lennox’s time back in order to enable the accused to get to the Szach household by seven, very close to there ... then you have to push the time back for Mr Lennox to something like 22, 23 minutes to seven, in which case Lennox disproves Short or Short disproves Lennox. I mean, we have three pieces of evidence there which just won’t fit together.

In his final words, Mr Johnston said:

This screams out as being some sort of a gang operation, a group operation … and once it is a group operation, then you have got no means of knowing what part the accused played, even if you are satisfied beyond reasonable doubt that he played any, but the Crown put him up for murder as the man who pulled the trigger or assisted when the trigger was pulled, and it is my contention that whatever you think about the accused, you can’t find that proved against him, but in my submission, you ought not to be convinced beyond reasonable doubt that he is involved but even if you are, then you can’t find the involvement to that extent because this thing calls out for group participation.

There were just too many mysteries, too many other men involved in the case to permit a safe conclusion that the prisoner was implicated, and that he was the principal suspect.

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Chapter 12

Crown address

The Crown’s case was that the two men were living together, when, in apparently unknown circumstances, David Szach, who was alone in the house with Derrance, deliberately shot him in the head with a rifle. The murder took place between 5.20 and 6.40 pm on Monday 4 June 1979. All the surrounding circumstances taken together confirmed that view, including what was found in the house and Szach’s subsequent conduct. Mr Martin, in his address for the Crown, said that Mr Johnston had taken a rather fragmented approach to the evidence and the various pieces of significance. ‘It does not help you much to talk about this matter as a detective story or mystery,’ Mr Martin said. With respect to circumstantial evidence, he said:

I ask you to bear in mind throughout not to take one little piece of the evidence and say, ‘What does that mean?’ on its own. That would be like taking one piece of the jigsaw of the map of Australia which shows a certain section of coastline and saying, ‘What does that mean?’ On its own, it means nothing but when it is put with other pieces around the coastline, quite suddenly it means, ‘That is a 108

piece of a particular coastline.’ That is exactly what juries have done for many, many years now with circumstantial evidence. Take a piece standing on its own and it might mean one thing or another; it might not be very important; but put together with the rest of the evidence it could become very, very important.

A classic example in this case is the missing petty cash. On its own it does not prove that the accused was the murderer, but when you put it together with the simple arithmetic that the accused, on his own story, did not (on the Crown case) have enough money to buy the petrol to get to Coober Pedy, where else did he get the money other than the petty cash and possibly, for all we know, from the diary? Hence the petty cash becomes significant.

Apart from the missing petty cash allegation, Mr Martin brought up a number of other pieces of circumstantial evidence — the more the better it seemed — to bolster the Crown’s case. Derrance would not have let Szach drive the car. Szach would not have worn Derrance’s clothes. Why would Derrance lend his coat with valuable opals in the pocket? Szach had given no explanation for the unanswered calls after 5.45 pm on the night of the murder. Szach had knowledge of the weapon used in the killing. Szach had left the radio and lights on like Derrance would have on leaving the premises. Why was Szach in such a hurry to get to Coober Pedy? How do you explain the presence of a car which resembled the Datsun at Derrance’s premises from 8.45 to 11 pm? How do you explain blood spots belonging to Derrance on the trim of the driver’s door of the Datsun? What about Szach’s ‘fresh’ fingerprints on the freezer? All added circumstantial weight to the case.

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Mr Martin tried to explain why David Szach made use of a taxi in leaving Derrance’s premises just after 11 pm:

Now why use a taxi? Why take the dangerous step of risking identification to use a taxi? The car is out there for transport ... The accused had a need. He needed concealment to gain time and what better way to put the police off the track than to lay a false trail. As the Crown suggests, the accused has tried to say, ‘I am on the track to Coober Pedy and there is a man while I am up here; there is a man coming out of Mr Stevenson’s premises. It can’t be me’. What better way to try and put the police off? It might not work but somebody got into the taxi and someone with a reason, but for what reason? Who better, who needed the time, who was prepared to take the risk? And the glasses, well an attempt — how do you disguise yourself if you are taking that risk? An attempt, the glasses succeeded in one way. Mr Swalling couldn’t make a definite identification.

... Another coincidence, whoever it was ... had an attaché case like him and had glasses very similar to those found in the Datsun.

Mr Martin said of the two pairs of glasses found in the Datsun car at Coober Pedy that one pair was Mr Stevenson’s driving glasses, reasonably left in the car. But the other pair would be needed by Mr Stevenson for his work on the Monday afternoon as stated by Mrs Flaherty. Mr Martin asked, ‘How then did they get from the house to the Datsun if it wasn’t via the accused on his face into the taxi and into the Datsun?’ In trying to convince the jury of the importance of the combined objective and scientific evidence, Mr Martin said:

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Ladies and gentlemen, from the time the accused returned to that house, on the Crown case and on his own version to you, Mr Stevenson was not answering the phone and there were phone calls. The accused, ladies and gentlemen, has said not one word, not one to you about the fact that the phone rang — we know at least twice, while he was there and Mr Stevenson didn’t answer. Why hasn’t he told you about that? Why hasn’t he said something to him?

... Now, my learned friend suggested to you that Dr Manock was saying, ‘Well, look, the body would have been out of the freezer for about an hour or a bit less, before putting it in.’ What Dr Manock was telling you, was, at the very most, it was an hour, it could have been any time from a few minutes, right up to the hour.

That’s an interpretation that you may think of Dr Manock’s evidence. He told you that if it’s cooled immediately, the body is cooled immediately, then you still get this lack of clotting but at the most, he said, it would have been an hour. So, it’s 5.20 onwards it could have been put in the freezer. Ladies and gentlemen, if it was Mr Szach that Mr Short saw, the accused is in grave difficulty ... is there anything else that suggests to you that the accused was there? Let us put it in a neutral way, while the accused was present. Ladies and gentlemen, the Crown says to you, the cancellation of that ticket, the use by the accused of Mr Stevenson’s car and his clothes, in conjunction with the scientific evidence and the objective evidence, is material upon which you can find that Mr Stevenson would not have lent the car, would not have agreed to the cancellation and there is only one reason why it all happened and that was because the accused had shot him. 111

Mr Martin tried to discredit the memory of Mr Szach senior when he told the police that his son had arrived at the family home at about 7 pm, close to the end of the Channel 7 News. If he was right, then Mr Short and Mr Lennox were wrong in their evidence. Mr Martin said:

Here the defence pin their hopes on Mr Szach, and how convenient to say, ‘Look, all these other people are wrong. The accused could be wrong, but not Mr Szach’ ... It’s a classic example of taking a piece of evidence and using it, but ignoring all the rest and saying, ‘Allow a bit of leeway for other people, but not this man because this man helps us’.

... Mr Szach (senior) says, ‘We chatted for about 20 minutes’ and he attempts these two phone calls. Mr Johnston says Miss Harris is our ace because she says it was about 7.15, so that fits in with the chat for 20 minutes.

Ladies and gentlemen, Miss Harris isn’t quite the ace she seems because, and I think I should quote this evidence, Mr Szach says, ‘We were chatting for about 20 minutes’ and part of that is these two phone calls. Miss Harris says that as they were leaving the house ‘the accused said he had to make a phone call’. She and Raymond walked out and stood by the car and David walked into the house, having said ‘I have to make a phone call.’ How long was he in the house? ‘A couple of minutes’. So Mr Szach, you might find, has put this second phone call in the time span in which they were talking, whereas in reality that second phone call came as he was leaving and this throws this 20 minute chat right out completely and utterly. Mr Szach is going completely from memory. No one is criticising him

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for that. What I am suggesting to you is that the defence ace of Miss Harris is far from it. If we were playing Rickety Kate, I would say she was the Queen of Spades.

Towards the end of his address, Mr Martin said:

Those all are matters that you throw into the general scene and the overall picture ... One’s natural reaction in a case like this is to say, ‘Look some of these things aren’t logical.’ They are not in the normal sense, but you are not dealing with a case of sheer logic; you are dealing with a case of emotions, a flare-up for some reason and you would know that people do and say illogical things under stress and in the heat of the moment. The whole tenor of the defence case to you in our submission is one of innuendo, throwing in these other people and speculating, using convenient pieces of evidence, using convenient times, but in the Crown submission the defence case simply fails to come to grips with the central things that put the accused in the house and links him directly to the crime from the circumstances.

And in closing Mr Martin argued that the main events — ‘a number of pieces of the jigsaw’ — when put together made a complete picture:

It is incredible in our submission to suggest that this man was involved in some way and has not told you, if he is not the man, who pulled the trigger. But his explanations in certain areas are patently false. The time of death, those features from the house, cancellation, the fact that he had the car, Short, Shields, Swalling, Port Wakefield, and that little comment of Sergeant Robinson, ‘it would be pretty hard to fix the time of death seeing he was in the freezer’. These things are harder for the Crown because in

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combination with each other and in combination with other pieces of evidence it is the Crown case that the total picture points conclusively in one direction and one direction only. The Crown is content to leave this matter in your hands with your combined common sense in administration of justice.

Mr Martin impressed on the jury that ‘the objective and scientific evidence’ meant that Derrance Stevenson was dead by 6.40, and the accused was there.

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Chapter 13

Judge’s summing up

Justice Wells, in his summing up to the jury, said:

Now, ladies and gentlemen, you have heard reference to mysteries and difficulties in this case, and, of course, if the case is so much of a mystery, and so much of a difficulty, that the circumstances resist all your efforts to solve it, then a mystery it must remain.

... [Y]ou must for the determination of your final verdict, look at the united force of all the circumstances put together. If, upon a consideration of all those circumstances, you have a reasonable doubt, if you think it is reasonably possible that the accused is innocent, if there is a reasonable explanation or theory consistent with innocence that arises from all those circumstances that all mean the same thing — there is reasonable doubt. The accused would then be not guilty ... But if the state of proof has been reached when the doubt under discussion, the possibility under discussion, the explanation or theory — as it is sometimes called — under discussion, has been overwhelmed by the strength of the Crown case tending to prove guilt, and, has, in all circumstances of which you

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are satisfied, been made to appear less than reasonable, then the guilt of the accused would have been proved beyond reasonable doubt.

Justice Wells again cautioned the jury members when he drew attention to the ‘rays of light’ and ‘fibres in a rope’ analogies for circumstantial cases: ‘We have a dark room, and a whole lot of people come along, each with a feeble ray of light and when you have enough of them you can illuminate the room.’ Each of the pieces of evidence which the Crown had tendered, according to the Judge, was analogous to a ray of light and if there were sufficient rays of light to dispel the darkness in the case then the accused was guilty. In a similar way circumstantial evidence was like a rope in which each fact was a fibre of that rope. Justice Wells added the caveat: ‘People are much more complex than just rays of light from a torch. The same notion is carried of the accumulation, I suppose, but that is something that can be easily understood without recourse to fibres and rays of light.’ Anticipating concerns that the jury might have with Gino Gambardella not being called to give evidence, Justice Wells said:

Now I tell you, ladies and gentlemen, that what part if any Gambardella played in this case is to be determined by the evidence in this court, and it is well I think that in this particular case I should come out into the open about Gambardella.

You may have read reports of proceedings in the Magistrates Court. You know, of course, that they were preliminary proceedings. Accordingly, they could never have been other than incomplete and inconclusive, and, 116

like anything else that you may have heard or read about this case outside the evidence presented to you, they have to be put aside.

... So far as the defence is concerned, of course, they are not obliged to call anyone. Their legal position is perfectly clear; the Crown must prove the charge. If they wish to call a witness, then it is open for them to do so, but there is no obligation on them to do anything, so their position is quite clear, and if any of you have been thinking, ‘Well, why didn’t the defence call him?’, the short answer is they don’t have to call anyone, and it is entirely for them to say, and there is no question of drawing any inference adverse to the defence.

So far as the Crown is concerned, well, the Crown has this obligation and duty, that when they call a person into the witness box, they must be prepared to vouch, in effect, that he is a person prepared to assist. Now, I hasten to add that that not by one whit takes away from your duty and responsibility to assess the witness, but what it means in a negative way is this: that the Crown will not put anyone in the box if they have reason to think he will not act in the box in the interest of the administration of justice, and so the reason why this witness or that witness is not present is wholly a matter of speculation as far as we are concerned — that is, you and me — and so one is brought back once again to the task which, according to your oath, you must do, and that is to give a true verdict according to the evidence, and that means the evidence in this court; and this case is not to be resolved, through speculation, into the case of the battle of the uncalled witnesses — nothing of the sort. What we are here to determine is a verdict according to the evidence called.

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Justice Wells, however, didn’t leave Gambardella to one side and suggested to the jury that the alleged phone call between Stevenson and Szach on the night of the murder could have been between Gambardella and Szach. Justice Wells again relied on the absence of Gambardella to ask the jury if perhaps Szach’s delayed time (on the Crown’s case) of having returned to Stevenson’s premises, after leaving his parents’ home, could be explained by Szach calling into Gambardella’s place. ‘It wouldn’t require very much of a deviation to take in Gambardella’s premises on your way back to 189 Greenhill Road,’ he said. The suggestion of collusion was reinforced by the observation of Mr Shields of Gambardella’s vehicle parked in Stevenson’s rear side car park at 8.45 pm and a smaller vehicle thought to be Stevenson’s Datsun, but not actually identified. Justice Wells went on to raise numerous leading questions which questioned the truth of David Szach’s account and always ending each question with a rider, such as, ‘of course, that is entirely for you to say’:

It was obvious that the deceased Stevenson was shot from the rear. The shot was not, you may say, exactly in the middle of the target, but you may care to conclude that it certainly wasn’t shot from outside and if it was aimed — and I say, if it was aimed — can you doubt that some sort of aim was necessary? Who was in a position to get a good aim when clear opportunity arose? That is something to consider.

... Then there is the operation of the loading of the rifle. How could that have been affected? You may think — it is for you to say — that it would have been a risky thing for whoever it was to have taken the rifle out of the house to 118

load it, because immediately there would be the rack without a rifle, and unless the opportunity was chosen pretty well, it would be immediately obvious that the rifle was missing. Therefore was it loaded in the house? There is no positive evidence about this, ladies and gentlemen, but counsel pointed to the live round under the chest of drawers that you have heard about. You have been told by the ballistics expert that the loading of this rifle by a single round was a very fiddly business, as he described it. Is that something that could have been done in the house, if it was done in the house, without arousing suspicion? In what circumstances could it have been done without arousing suspicion, bearing in mind, of course — I think Mr Johnston mentioned this — that the magazine was found in the car? Therefore, it is theoretically possible that the magazine was at some stage in the rifle and conceivably, I suppose, could have been used in some way to assist in the loading, but, at all events, this is a point for you to consider.

... There was the returning of the rifle to the rack. Why was that done? There was the spraying of the deodorant into the rifle. Would that have been done to mask the smell, perhaps, of a recently fired weapon? That is entirely for you, but it is a fair conclusion.

... Then there is the bed, and you may remember a remark by the accused when he said that he hadn’t made the bed on that Monday, that ordinarily it was not made unless there were clean sheets put on, and it is for you to say, looking at the bed as it appears in that photograph whether that answers the description of how the bed would ordinarily look if it were made, apparently roughly, before clean sheets were put on.

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... Then one has, from many quarters, the fact that the light in the evening was on and what was discovered was the radio was playing, and you were told that it was the deceased Stevenson’s practice, when he left for the evening to go out somewhere, to leave the light on and radio playing ... Now it is for you entirely to say. You may regard those as purely fortuitous facts, having no connection with the case other than that they just happened. But do they, in their cumulative force — it is up to you to say — do they or do they not show a species of familiarity with what might be expected? Do they not fit in with the general picture of something done in such a way as to avoid suspicion from the first people who came in and surveyed the scene? Well, ladies and gentlemen, that is entirely for you to say.

... There were the fingerprints on the freezer ... the position of these fingerprints you may find significant, and you may find it ... consistent with the proposition that they could have been put there by someone moving the freezer out and someone moving the freezer back. That you may think is a possibility. It is for you to say whether it is an actuality, or whether it fits in that way into the picture as a whole.

... We now know there was one pillow missing. I suppose one could ask here, was that pillow in the garbage bag? Well, that is for you to say.

... If there was an outsider, but it was done in the house, why would an outsider worry about waiting around and cleaning up? ... If, however, it is someone in the household, and it is not premeditated, it is unpremeditated, and if the murder took place within the house, what then, what becomes necessary to do? Well, it is for you to say what sort of approach might be made; but 120

one such approach, you may think, it is entirely for you to say, is to delay discovery of the crime for long enough for the person to remove himself far enough away to avoid the shadow of suspicion.

... Not only was the body placed in the freezer, which would naturally have some effect upon its condition, and it might be thought to confuse the time of death and in that connection you will bear in mind what the accused said to the policeman about such an act.

... Why was it important to delay discovery? And as you know, the results of what were done were fairly effective. They deceived Mrs Flaherty in her first visit. They deceived the detectives for a while until Sgt McEachern made this determined effort to open the freezer. Why was all this done?

... In the cab was also a brown attaché case with this young man whoever he was ... This man came from 189, whoever he was. Who was there, on 4 June? Who was resident in 189, who would ordinarily wear a suit and shirt, and wear glasses, and carry an attaché case? Who was there? In other words, was this a clumsy form of impersonation designed to create the impression — perhaps as an act of desperation — that the deceased was still alive?

... Ladies and gentlemen, it is for you to say, first, whether the coat that he wore was the coat that the deceased was originally wearing that day; it is for you to say what it contained when it was eventually searched, but amongst the things that it did contain you may find were the asthma tablets, and the ring and that links up with the car as things in the accused’s possession. You are entitled to ask, how did it come about they came there? 121

... Do you think it was likely that he would have let this car go out of his possession when there was no particular deadline placed on his arrival there — no particular deadline on his return? Why would he need the car? Why would not the bus have done? ... Why would the asthma tablets and the ring and the glasses have been allowed to go?

... According to the accused, at least he was with Stevenson between about half past five or so, perhaps a little earlier, and six or a few minutes afterwards. And the sorts of questions that may occur to you as being necessary to answer are these: If these phone calls were made at the times that you heard, why were they not answered? If a call was received from the person the accused said he believed was Gambardella why was that answered, but not the others?

Justice Wells continued to describe apparent coincidences with the evidence given by Mr Short, Mr Shields, and Mr Swalling, the taxi driver, and Mr Mader and Mr Calley at Port Wakefield. He continued to impress upon the jury the cumulative force of circumstances adverse to the accused, but always careful to add the rider ‘it is for you to consider’ or ‘for you to say’. Justice Wells brought to the attention of the jury the testimony of Mr Lennox, who stated that Szach had arrived at the bus station at about 5 pm on Sunday 3 June to purchase his bus ticket, whereas Mr Strickland, Derrance’s friend, had said that Derrance and Szach dropped in between three and four o’clock and stayed until 7 pm. ‘Plainly the two cannot stand,’ said Justice Wells. On cross-examination, however, Strickland stated 122

that he was less certain about the time of arrival of Derrance and Szach; it could have been later than 4.30 pm. Had Strickland forgotten about the watching of a movie Poor Little Rich Girl which ran until 3.45 pm? Could Lennox have made an error? If Lennox had made an error, then his ability to recall times could have been in question when Szach returned to cancel his ticket the following day. Szach’s defence did not follow up on this discrepancy. One of the key stumbling blocks for the Crown had been the evidence of David Szach’s father and Julie Harris who supported each other about the time of Szach’s arrival at the family home. The central thrust of Elliott Johnston’s argument had been that Szach had arrived at the family home at 7 pm the night of the murder. That meant all other times were dislocated; it couldn’t have been David Szach as the person spotted by Mr Short coming away from Derrance’s premises at 6.40 pm. If this were true, Justice Wells admitted that the Crown case would fall apart. Being a crucial part of the case, and to offer a possible resolution for the Crown, Justice Wells first recounted the testimony given by David Szach’s father:

Q: On that Monday 4 June, did your son come to your place alone or in company?

A: Alone.

Q: Did you observe that he was in Mr Stevenson’s red Datsun?

A: Yes, in the car.

Q: Can you recall what time he arrived? 123

A: I was sitting in the lounge room watching the news on Channel 7; it was just before 7 o’clock, could be five to seven, could be ten to seven.

Q: Was your other son Raymond home?

A: Yes, he was in the garage watching television.

Q: At the time David arrived home, was Raymond’s girlfriend Julie Harris in the house?

A: No, she came early. She went through the house and she asked, ‘Where was Raymond?’ and I said, ‘He’s in the garage watching television?’

Q: How long was your son at your home overall that night?

A: He left house, be close to half past seven.

David’s father explained that after some ten minutes his son made the first of two calls. David had said he wanted to ring Derrance. In between the calls David went out the back to the garage to where his brother Raymond and girlfriend, Julie, were watching TV. Justice Wells then continued to recount Julie’s testimony:

Q: What time was it the accused came into the back room?

A: About a quarter past seven.

Q: Did he remain in that room talking with you and Raymond for a while?

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A: Yes.

Q: What were you talking about?

A: He said he found a rather large opal and he said if the opal cutter cuts it right, it will be worth a lot of money.

Q: Did he say where he found the opal?

A: I can’t remember.

Q: Go on with the conversation.

A: Raymond asked him if Derrance had brought him here and he said no, that Derrance had some business so he was allowed to use the car.

Q: At some time did Raymond ask David for a lift?

A: Yes, he asked him if he would give us a lift up to the shop.

Q: Was there a mention of a phone call?

A: Yes, he said he had to make a phone call first.

Q: Did he say who he wanted to ring?

A: No.

Q: Would you tell the ladies and gentlemen where you and Raymond went and what the accused did?

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A: Me and Raymond walked out and stood by the car and David walked into the house.

Q: How long was he in the house before he came out to the car?

A: A couple of minutes.

Q: Did he mention anything about the phone call when came out to the car?

A: No.

Q: What time did you finally leave?

A: About twenty to eight.

Q: By the way, when you finally walked out of that back room can you tell us what was on the television set?

A: M*A*S*H*

To cast doubt on the evidence provided by David’s father, that he arrived at the family home at 7 pm, Justice Wells stated:

Now, ladies and gentlemen, probably the first and most important question is this: you will bear in mind that Mr Johnston has told you that, in effect, he relies upon Julie Harris very considerably for the evidence comprising this Szach household. The first question is, have you any doubt on the basis of Julie Harris’ evidence, that the accused delayed the departure from the house for about two minutes as she described, while he made a phone call, and if it was the second phone call, that would have meant it

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would have been preceded by a few minutes talk with his father, the first call, after some ten minutes talk with his father. And you have, as a background, the father’s evidence which may seem to you to come in various ways.

The first was that he was there, apparently, for about half an hour from 7.00 to 7.30 pm. Then later in his evidence he said 7.00 to 7.30 pm, 7.45 pm. Then he told you as to what he had originally told the police when they came to see him, I think the next day. Well, it is entirely for you to say, ladies and gentlemen.

On the basis of that evidence, on the one hand, you are entitled to regard it is reasonably possible that his young man arrived at seven o’clock and that he left around about quarter to eight and if that is so, well then, as I say, it throws the rest of the times into dislocation; but, having regard to what Julie Harris said about that phone call, and to what you may regard as any fair inference to be derived from that, does that or does it not suggest to you that the arrival time could well have been 7.15 pm or thereabouts? And if that is so, does that or does it not fit with Lennox’s evidence? Well, that is entirely for you to say.

You can see the importance of that evidence.

By casting doubt on the evidence of David Szach’s father and the inference drawn from what Julie said about the phone call, Justice Wells had tried to accommodate the twenty-five minutes or so of travel from the bus station to the Szach family home. His statement to the jury removed a key stumbling block ... removed a cause for reasonable doubt. In removing that obstacle, it seemed that Justice Wells had overstepped his own directions to the jury on cause for reasonable doubt: ‘If there is

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reasonable doubt, a reasonable possibility of innocence, if there is a reasonable explanation consistent with innocence, then the verdict is not guilty.’ Justice Wells closed his summing up by saying:

You must consider the united force of all the circumstances put together ... What you have to ask yourselves given the evidence in the Szach household: Is the rest of the Crown case so strong, having regard to the matters I have brought out and in Mr Szach’s and Julie Harris’ evidence — is the rest of the case so strong that it removes every reasonable doubt from your mind? If this is so, then the result follows: you must convict.

The jury deliberated for about four hours before returning with their verdict.

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Chapter 14

The sentence

After a trial lasting twenty-two days, Justice Wells, in his final words on 14 December 1979, said:

David Joe Szach, you have been found guilty by verdict of a jury which is unanimous, of the crime of murder. Under the Acts of Parliament that control this State, there is only one sentence that I can impose, and that is that you should be imprisoned for life.

Ladies and gentlemen of this jury, I can’t remember a case in which I have been concerned which has made more demands on a jury ... It is a case which required from you the exercise of a high degree of responsibility and if it is any assistance to your state of mind at the moment, I think it is proper to say that the evidence was all there, and I agree with the verdict.

Immediately following the jury being dismissed, Szach felt numb. The sentence was meaningless to him. He felt that the verdict had been returned so quickly, in just under four hours, after such a relatively long trial. He had not anticipated that the jury would have accepted what he 129

called speculation by the prosecution. His defence had stated a lack of motive and an involvement by other persons, but that had carried no weight in the verdict, according to Szach. He felt isolated and betrayed by a jury of nine women and three men who gave a unanimous verdict. How could the jury see through all the mysteries and complexities of a five-week trial and, after only four hours of deliberation, return with a unanimous verdict of Szach’s guilt, proven beyond reasonable doubt? Devastated, David Szach’s father knew his evidence had been ignored. To have associated David’s arrival with the closing of Channel 7’s News had confirmed the timing in his mind, even if there had been some doubt expressed about the time of Szach’s departure. The evidence of Lennox had overruled. David Szach’s mother believed in her son’s innocence and that he would not be convicted, but his defence had become overconfident. In the numbers of ‘fibres’ or ‘rays of light’, or ‘jigsaw pieces’, did the judge and jury lose sight of the main thrust: to establish a case beyond reasonable doubt? If the lynchpin of the case — Dr Manock’s evidence and Mr Short’s sighting — and the major events, as presented by Elliott Johnston to the jury, gave cause for reasonable doubt, then other lesser aspects of the case should not have added weight to reverse that outcome. Was prejudice against homosexuals a factor in the jury’s verdict? Did the jury members succumb to the overwhelming number of pieces of evidence or innuendos, presented by Mr Martin in his final address and by Justice Wells in his summing up? The danger in a circumstantial case was that the more pieces of evidence against the accused, no matter the strength or validity of each piece, the greater 130

the likelihood of the accused having committed the crime. How could this have happened when the Crown’s reconstruction of the case stated events that had a high probability of either not taking place or having taken place at completely different times? Regardless of reasonable doubts raised by Mr Johnston, the jury decided David Szach was guilty. A jury’s verdict was final. The decision-making process of the jury was not open for review. How they overcame reasonable doubts presented by Elliott Johnston will not be known. In an astonishing revelation, over thirty years later in Elliott Johnston’s biography Red silk, Penelope Debelle wrote:

Szach pleaded not guilty and it was a case few lawyers wanted to touch. Stevenson’s trial would attract media attention and there was a natural repugnance among lawyers to defend someone accused of murdering one of their own. Elliott took the case. He did so without considering Szach’s possible guilt, even though he was a personal friend of the victim. ‘Really, you must take the case and defend the person as best you can,’ he said. Elliott Johnston’s private belief was that he had committed the murder and that the motive was Stevenson telling Szach their affair was over (Debelle, P. Red silk: the life of Elliott Johnston, Wakefield Press, 2011).

David Szach denied that their love for each other had ended. David’s life sentence started in December 1979. He appealed to the South Australian Court of Criminal Appeal in 1980.

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Chapter 15

A possible scenario of events

The suspicions and innuendos raised by both Mr Martin and Justice Wells need to be considered in the light of, first, the nature of the relationship on that night between Stevenson and Szach. The evidence, from the previous day, Sunday afternoon, at Ron Strickland’s place where Derrance slept on David Szach’s lap for half an hour, suggests an intimate relationship, unlikely to change over the next day. When asked by Elliott Johnston if there had been any show of animosity or tension on that day between them, Ron Strickland said he had not noticed any and that they were ‘very good friends’. The relationship had lasted almost three years and was one of sharing and loving. Should it not be surprising then that Szach wore some of Derrance’s clothes, drove his car and possessed items belonging to Derrance? Secondly, given Derrance’s potentially dangerous connections with criminals, should it not be surprising that Derrance ran into trouble and wanted to ‘get out’ and at the same time ensure that Szach, whom he cared about, was out of harm’s way following the Gambardella phone call?

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And, thirdly, who, apart from Szach, would know the intimate details of Derrance’s home and habits? Certainly Gambardella, who had visited Derrance’s premises on numerous occasions and slept in Derrance’s bed. These crucial factors were pivotal for countering many of the suspicions raised by the Crown prosecutor and Judge, and suggest a likely scenario: The young man, who called on the Legal Services Commission, at about 8:15 am on Tuesday 5 June 1979, knew all about the ‘crime’ which had been committed. He said, ‘Derrance was in no condition when I left him last night.’ ‘No condition’ might have meant Derrance had been murdered. Perhaps the young man was present when the murder was committed but wanted a way out. He was worried about confidentiality, and Anne Shea, the secretary, gave him that assurance, but he kept quiet about the true nature of the crime for fear of incriminating himself. The young man, however, had sealed his fate and was never seen again. Derrance was deeply troubled by his association with criminals who had pushed his moral tolerance to the limit. His criminal associates, to avoid exposure, felt they had no choice but to silence Derrance. Derrance felt compelled to face his accusers that night. After the phone call with Gambardella, Derrance became concerned for Szach’s safety and wanted him on his way to Coober Pedy before Gambardella’s associate arrived to pick him up. Because it was winter, Derrance gave his coat to Szach. And because of the urgency of the situation, Derrance was in no frame of mind to retrieve items such as his reading glasses from his coat pocket or from the Datsun. Derrance impressed upon Szach to go to Coober Pedy straightaway. Szach respected Derrance’s

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decision and complied; he went to the bus station to cancel his bus ticket. Derrance left his premises at 6.40 pm in the company of a casually dressed young man —not Szach — who had called to take Derrance to a rendezvous and face his accusers. Under direction, Gambardella, or whoever, and two or more accomplices, returned with Derrance to his premises at 8.45 pm and soon after fulfilled a plan to kill him. A pillow, later identified by Szach as missing, was held against the back of Derrance’s head. He was pinned down on the bed by two accomplices while a third fired the fatal shot. The killers turned over the mattress and remade the bed in a casual way, as Szach might have done. To further implicate Szach, they cleaned up the bedroom and placed the body in the freezer; Tabac deodorant was sprayed on the gun and the gun replaced; money was taken from the cash box. They left the light and radio on, according to Derrance’s habit — known to Gambardella and Szach. Heaters were left on to dry out the dampness in the rooms. After the execution-style murder, Gambardella, or whoever, hatched a plot to have one of the accomplices dress up as Derrance, wearing glasses with brown frames, a suit, white shirt and tie, and carrying an attaché case. The man gave enough opportunity for the taxi driver to observe him by sitting in the front seat and later when he was called back to retrieve the garbage bag and the attaché case left on the back seat. The gamble worked and the taxi driver gained a further impression of the young man with shoulder-length blond hair. Later, the evidence of the taxi driver in court left no doubt to the Crown prosecutor and the jury that the man who impersonated Derrance Stevenson was David Szach. The man, however, had impersonated David Szach 134

impersonating Derrance. The garbage bag contained the pillow used in the killing along with some of Derrance’s bloodstained clothes. The man was right when he pointed to the garbage bag and said, ‘This is the most important part.’ Gambardella had let the police know the following day that Szach had talked about hiding a body in a freezer to confound the time of death. In a statement to the police on 10 June Gambardella seized a further opportunity to implicate Szach in Derrance’s murder. The plan worked. The police became convinced that the taxi driver had given a lift to Szach, the killer, who had enlisted the help of others in the cleaning up process. The police scarcely gave consideration to other possible suspects or to a gangster operation or to the reason why others would cooperate with Szach if he had been the killer. A heinous crime in the establishment required a conviction and David Szach was their man. At the committal proceedings Gambardella was charged with being an accessory after the fact but let off by the magistrate. Gambardella was not the man coming out of Derrance’s premises at 6.40 pm. He had no part in the killing, according to the Crown, just the cleaning up, and that was easily set aside by the magistrate. Soon after, Gambardella fled the country. He had gambled and won but knew that his winning streak as a sexual predator had come to an end. He was in danger from not only the police but also from his criminal associates. For the police and the Crown, everything had to fit in with the killing having taken place in the 5.30 to 6.40 pm time span and that Szach returned to the premises to help in cleaning up, and was subsequently taken to the city centre by the taxi driver. Because of mistaken or fabricated evidence, the timing of events — Dr Manock’s time of death, the time the body could have been out of 135

the freezer, the timing of Szach’s refund at the bus station, the arrival time at Szach’s family home, the pick- up time by the taxi driver, Szach’s arrival time at Port Wakefield and at Kingoonya — all fitted together to form a case against Szach, as reconstructed by the police and detailed by the Crown prosecutor to the jury. The jury swallowed the baits, along with a large number of circumstantial extras thrown in for good measure — all presented by the Crown and given further credibility by the judge in his pointed remarks. Elliott Johnston’s portrayal of mystery and reasonable doubt fell by the wayside. The ‘united force of circumstantial evidence’ misled the jury. The numbers of fibres and rays of light proved too many; the jigsaw pieces fitted together. David Szach had no chance.

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Chapter 16

The appeal

David Szach appealed against his conviction on seven grounds: First, the judge was in error in admitting evidence of the finding of blood on the car door. Szach’s defence counsel had objected to the evidence as it had no probative value. The Court of Criminal Appeal, comprising Chief Justice King, Justice Legoe and Justice Mohr, ruled that it was up to the jury to regard the evidence of blood as significant or insignificant, depending on how they viewed the rest of the case. The second ground of appeal was that the judge was in error in allowing the Crown to re-examine the witness Mr Short on his identification of David Szach. Mr Short had said on his first appearance in the witness box, when he looked at Szach in court, ‘The person in the box there could be the person but the hair is different.’ On re- examination, Mr Short had said he was being cautious when he said ‘could’. The appeal court judges allowed the re-examination. No appeal was made concerning the inappropriate procedures for Mr Short to identify Szach. The third ground of appeal questioned the judge’s ruling on Anne Shea’s evidence that an unknown man 137

had called at the Legal Services Commission the day following the murder and, referring to Derrance, had said, ‘when I left him last night he was in no condition to act for anyone.’ The appeal judges supported the trial judge in that this statement was a form of hearsay and could not be used in evidence. The fourth ground of appeal was that the trial judge refused to admit in evidence the statements and record of interview made to the police by Gino Gambardella. In particular, the statements referred to Gambardella driving by Derrance’s place on the night of 4 June at about 10 pm and not noticing Derrance’s red Datsun. He had said ‘no car, no Derrance situation.’ But Gambardella had been shown by the evidence of Mr Shields that his car had been in Derrance’s car park at the time he passed by at 10 pm. The statement by Gambardella should have been admitted, according to the defence, as ‘a false denial’, indicating a guilty conscience on the part of Gambardella. The appeal judges ruled that it was ‘entirely equivocal as to Gambardella’s involvement in the crime’. The false denial added nothing to his actually being there on the premises. The statement was ‘rightly excluded’. Also, in a written statement, Gambardella had made the following observation:

Recently when Derrance was defending a man called Celon in a murder case, David told me that Derrance had said the best way to hide the evidence from forensic pathology was to freeze the body after the killing.

Any knowledge by Gambardella at the time of the crime of the effects of freezing a body should have been relevant and could have implicated him in the crime. But the statement made six days after the crime, according to 138

the appeal judges, was rightly rejected. Gambardella might not have been in possession of that knowledge before the crime was committed. One of Szach’s complaints was that Gambardella, the chiropractor who had introduced him to Derrance, had never been called to give evidence at the trial. Szach never knew why. He had nothing to hide. Szach had said, ‘Gambardella hated me because of the relationship between Derrance and myself.’ At least that hatred might have become apparent in a court appearance. More important, though, was to question Gambardella about his possible involvement in the crime. What was the extent of his relationship with Derrance? Why did he make a false statement about there being no car at Derrance’s place when he called around on the night of the murder? Why did he implicate Szach with the ‘freezer’ remarks? What links did he have with the homosexual community? The fifth ground of appeal was that the trial judge erred in ruling that there was a case to answer. With a case of circumstantial evidence, could the jury be expected to reach a conclusion beyond reasonable doubt, based on unexplained evidence produced by the prosecution? The appeal judges ruled that the ‘evidence was ample for this purpose’. The sixth ground of appeal concerned undue prominence given to the glasses worn by the person picked up by the taxi driver, Mr Swalling. Brian Martin, the Crown prosecutor, had invited the jury to consider how the glasses worn by the young man left in the taxi came to be in the deceased’s car at Coober Pedy. But a pair of glasses, with brown plastic rims, identified in court by Mr Swalling was similar, not identical. The appeal judges believed, however, that the failure to

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correct counsel’s error in the present case did not result in a miscarriage of justice. For the seventh and final ground of appeal, the defence had argued that the judge allowed evidence from the interviews of Detectives Standing and Robinson of Szach when they had not informed him of an investigation into a probable murder in which Szach was a suspect. But the judges did not believe that the conduct of the police warranted an exclusion of the interviews. All three judges of the appeal court agreed to dismiss the appeal on 21 April 1980. David Szach then sought leave to appeal to the High Court but leave was refused. While in prison, David found it difficult to focus. With each passing day, he remained hopeful that new evidence would come to light. He had no intention of applying for a non-parole period.

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Chapter 17

Adelaide crime scene in the 1970s and 1980s

Following Derrance Stevenson’s murder, the darker side of Adelaide surfaced once again. According to the South Australian police, ‘The Family’, a gang of up to nine homosexual men, was responsible for the abduction and rape of up to 200 boys and the murder of five people during a ten-year reign of terror between 1973 and 1983. Could Derrance or Gambardella have been connected in any way with the ring? Gambardella was a supplier of young men for Derrance. Could he have done the same for other men? The first person killed was Alan Barnes, aged 17, who had met Derrance Stevenson on at least one occasion, according to David Szach. Barnes disappeared on 17 June 1979 — two weeks after Derrance’s murder — while hitchhiking in Adelaide. His mutilated body was found a week later, dumped in the South Para Reservoir about fifty kilometres northeast of Adelaide. He had died of severe internal wounds caused by a blunt object thrust into his anus. Noctec, a chloral hydrate, was found in his blood, suggesting he had been drugged.

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And twelve weeks following Derrance’s death, the body of Neil Frederick Muir, aged 25, was found in a plastic bag in Adelaide’s Port River. The body had been skilfully severed into forty-three pieces. The head was tied to the torso with rope passed through the mouth and out through the neck. A post-mortem examination revealed that Muir had died of massive blood loss from an anal injury, likely caused by the insertion of a large blunt object; a sedative, choral hydrate (Noctec), was found in his blood. A prominent Adelaide doctor was initially charged with the murder but found not guilty at trial. Could either Alan Barnes or Neil Muir have been the person who appeared at the Legal Services Commission the day after Derrance had died, or the man observed by Mr Short coming out of Derrance’s premises at 6.40 pm, or the man picked up by the taxi driver just after 11 pm? Three other murders — those of Mark Langley, Peter Stogneff, and Richard Kelvin — have also been linked to ‘The Family’. Peter Stogneff, aged 14, was murdered in 1981. A local farmer at Middle Beach, fifty kilometres north of Adelaide found the skeletal remains of Peter’s body which had been cut into three pieces in a similar fashion to Neil Muir’s. Little more could be determined as the remains had been accidentally burnt by the farmer while clearing his property of scrub. Mark Langley, aged 18, was murdered in 1982. His mutilated body was found in scrub in the Adelaide foothills nine days after his disappearance. Among the mutilations was a wound that appeared to have been cut with a surgical instrument that went from his navel to the pubic region and part of his small bowel was missing. The hair around the area had been shaved as it would have been in an operation in a hospital. The post-mortem 142

revealed that Mark had died from a massive loss of blood from gross injuries to his anus, similar to Alan Barnes. Mandrax was found in Langley’s blood. Richard Kelvin, aged 15, was the son of a well-known Adelaide television newsreader. The Crown said that Bevan Spencer Von Einem, the man who had been present at George Duncan’s drowning in the River Torrens in 1972, had abducted Kelvin from near his North Adelaide home at around 6 pm on 5 June 1983. He had held him alive in a drugged state for five weeks before murdering him and dumping his body at One Tree Hill, twenty-five kilometres north of Adelaide on 10 or 11 July. A post-mortem examination revealed that he had died of massive blood loss from an anal injury, likely caused by the insertion of a large blunt object. Analysis of Kelvin’s blood revealed traces of four hypnotic drugs, including Mandrax and Noctec. Crucial to this case were fibres on Kelvin’s clothes similar to those found inside Von Einem’s home. Sentenced to a thirty-six-year non-parole period for the murder of Richard Kelvin, Bevan Spencer Von Einem was the only one, though, brought to justice; he had never divulged the identity of others in the group. Police had evidence that Von Einem was with Alan Barnes after he was abducted. Von Einem was also one of the last people seen with Neil Muir before his abduction. In 1989, Von Einem was charged with murdering Barnes and Langley, but the charges were later withdrawn due to evidence being inadmissible. On 28 August 1989 The Advertiser reported ‘Von Einem breaks silence’. ‘People in high places were connected with the five killings,’ Von Einem said. ‘A number of homosexuals were protecting each other.’

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Von Einem rejected reports he was being paid $1000 a week to remain quiet by members of the so-called ‘Family’. He mentioned the names of a number of people in the homosexual community who he thought could assist police with their inquiries, although he said he knew nothing of the group called the ‘The Family’. He also gave the professions, the clubs and homes they frequented and the intimate nicknames they used with each other. Was Derrance Stevenson or Gino Gambardella linked in any way to the group of homosexuals? It might explain the necessity to silence Derrance if he threatened exposure. It wasn’t until Derrance’s death, though, that police became aware of Gambardella’s practice of picking up and sexually assaulting young males. Gambardella was a known associate of Bevan Von Einem. In the late 1980s the police re-examined his activities as part of investigations into ‘The Family’ murders. Gambardella often took hitchhikers to his chiropractic clinic in Prospect, a northern suburb of Adelaide, where he showed them home-made pornographic movies before sexually assaulting them. One man told police that Gambardella had picked him up in North Adelaide and had driven him to Derrance’s premises, but found he was not home. Gambardella then drove to his clinic and sexually assaulted him. The police also investigated his practice of advertising for ‘apprentices’ to work at his chiropractic business. During the job interviews he propositioned them. Despite several formal complaints from young men, Gambardella was never charged before fleeing Australia to Italy with his two children. There was no evidence, however, that Gambardella was involved in any of ‘The Family’ murders. 144

Mrs Gambardella approached investigative journalist for The Advertiser, Dick Wordley, for personal help in regard to the abduction of her children. According to Mrs Gambardella, one of her husband’s clients was the Italian consul in South Australia, who procured false Italian passports for their two South Australian born children to travel with her husband to southern Italy. Dick Wordley was able to introduce Mrs Gambardella to another South Australian, Stewart Clarke, whose two children had been abducted to West Germany. On his way to Bonn in Germany, Clarke went to southern Italy, located the Gambardella children, but, through Gambardella’s connections in Calabria, was put on the plane at gunpoint for Zurich. Mrs Gambardella confirmed later to the police that her ex-husband Gino had procured young boys for a homosexual group on a weekly basis. She believed the killers were protected by ‘strong interests’ in South Australia and members of the legal profession were involved when she lived in Adelaide before 1980 and when Barnes and Muir were murdered. In a confidential memo in regard to Derrance Stevenson’s possible connection with ‘The Family’ Dick Wordley wrote:

If Derrance Stevenson (to whom I spoke by coincidence on the afternoon — outside Court —of the day of his death) was not connected directly to ‘The Family’ (and he could have been), he knew the identity of those who were or are. And with the supply of the drugs they use in their rituals. And, from remarks he made (evidence of this now) only hours before his murder (shot coldly through the back of the head, not as one may think in keeping with some homosexual argument involving jealously, but more in

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keeping with the Mafia-linked style of silencing an informer) that he may have been on the verge of blowing the whistle.

The owner of a massage parlour in Adelaide also approached Wordley and said that Derrance Stevenson, his lawyer, had feared for his life shortly before he was murdered. Derrance had asked the owner for a number of boys for use, but the owner refused. The owner also said that Derrance was dealing in drugs. Another source revealed to Wordley that Derrance and others engaged in homosexual activities on Friday nights at Stevenson’s place. Szach claimed that he was never allowed to be present and was sent out with money on those nights. Wordley wrote in his memo:

Were Friday nights at Stevenson’s home used for weird homosexual activities? With several prominent Adelaideans present? Was Stevenson, if not actively involved, aware of what, who The Family were, and their evil? Was Stevenson from his own remarks in tears about to blow the whistle? From statements provided the answer seems in all cases to be ‘yes’.

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Chapter 18

Further inquiries

While in prison David Szach persisted to attract legal and media interest but to no avail. In 1991, however, the Legal Services Commission obtained an opinion from Michael David QC, following the disclosure about the time of Szach’s purchase of petrol in Kingoonya — 3.30 am as Szach claimed, supported by the scheduled arrival time of the Stateliner bus from Darwin. If the bus driver had verified that arrival time, it would have been impossible for Szach to have purchased petrol at the time stated by the petrol attendants at the Port Wakefield service station. The maximum speed of the Datsun 260Z would not allow Szach to travel the distance of 539 kilometres from Port Wakefield to Kingoonya in just over three hours. Michael David QC inquired into the case to determine if the Commission should fund a further appeal. In his report dated 29 May 1991, Mr David overlooked the inadequacy of the more likely time of Szach’s purchase of petrol in Kingoonya and thought instead that Szach had the benefit of skilful representation.

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Concerning David Szach’s complaint that Gambardella was not called to give evidence, Michael David stated:

On my reading of the materials, counsel’s [defence counsel] decision not to call Gambardella was a wise one. Mr Gambardella was at the very least a suspect for the crime of accessory after the fact in allegedly cleaning up the premises afterwards when Szach returned from his parents’ house. On his various statements to the Police he says things that could have caused Mr Szach great harm. At one stage he says in his statement to the Police that Mr Szach had told Gambardella that he had knowledge from Stevenson that placing a body in the freezer was an effective way of murdering someone. The evidence that Gambardella could give, namely that there was a telephone call at around about 6 o’clock and therefore Stevenson was still alive, would run counter to the evidence that there were many calls between 5.45 pm and 6.00 pm that were unanswered, but if Stevenson just happened to answer that call from Mr Gambardella, it would not do the Crown case a great deal of harm because, of course, on the Crown case Mr Szach did not leave the premises until 6.40 pm. On the Crown case there was still a lot of time for Stevenson to be killed from the termination of the phone call with Gambardella to the time Mr Szach is seen leaving the premises. On the material before me the prejudicial evidence that could be extracted from Gambardella by way of cross-examination would far outweigh any benefit in calling him. I am of the opinion that Counsel’s decision was a sound one.

Overall, Michael David concluded that Mr Szach had obtained a fair trial, was well-represented and there was no basis for taking the matter any further. Mr David

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raised two areas, though, which might justify further consideration — the evidence called by the defence of Anne Shea, a receptionist at the Legal Services Commission, who spoke to a person at 8.05 am on 5th June and had asked him if he had seen a solicitor with regard to the matter of a crime. He replied, ‘only Derrance Stevenson but when I left him last night he was in no condition to act for anyone.’ Michael David wrote in his findings:

Bearing in mind that the Police did not find Stevenson’s body until the afternoon of the 5th June, what this person said to Mrs Shea was of course quite startling. It would be an enormous coincidence if he happened to be talking nonsense or just making up what he said exactly at the same time as Stevenson’s body was obviously in his own freezer. If that man could be found, obviously he would be a very important witness. There could be a lot of conjecture as to what he meant by the words he used to Mrs Shea, but if it means that he saw Stevenson’s body then that may affect the case considerably.

The second point that Mr David raised was that fresh evidence, if forthcoming, concerning Dr Manock’s opinion as to the time of death could be significant. Dr Byron Collins, however, had not yet completed his report on Manock’s autopsy and his evidence concerning the freezer. The outcome of Michael David’s report gave little comfort to Szach.

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Chapter 19

A closer look at Dr Manock’s evidence

In March 1992, David Szach was still pursuing his case with vigour and earnestness. He instructed his solicitors A.D. Dudek & Co. to apply for Legal Services Commission funding to assess Dr Collins’ analysis of Dr Manock’s forensic evidence and to lodge an appeal to the Full Court of the Supreme Court for quashing the conviction made in 1979. David Szach wrote a letter from where he was detained at Cadell Training Centre, dated 2 October 1992, to Mr Kym Mayes, Minister of Emergency Services, to request that new evidence be referred to the Full Court of the Supreme Court as a new appeal. The new evidence concerned: the observation made by Mr Short at 6.40 pm of an unidentified vehicle travelling in the opposite direction to the Stateliner bus depot; Szach’s arrival time at Kingoonya at about one hour earlier than given by the Crown’s evidence; and the significance of Mr Lennox’s testimony for the Crown about David’s time at the bus station to the detriment of Mr Szach Senior’s evidence about David’s arrival at the family home.

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Throughout his fourteen years in prison from December 1979 to April 1993, Szach had not anticipated being released on parole. His refusal to accept guilt, along with any remorse or contrition, and his persistence to have an inquiry held, would exclude his suitability for a parole release. Why then did the Parole Board release Szach without even a formal interview for the lodgement of an application for a non-parole period? Szach had been sentenced prior to non-parole periods being set. An amendment to the legislation allowed the chairperson of the Parole Board to lodge an application for the setting of a non-parole period. However, there was no formal evaluation process to assess Szach’s state of mental health and liability to the public. Szach was not required to plead a case for his release. But there was also no procedure by which Szach could be released. Up until then, the Parole Board could only consider an application by a prisoner. But Szach was not willing to submit an application. The matter was resolved by the passing of a special Act of Parliament which allowed the Chair of the Parole Board to submit an application on behalf of a prisoner. The most immediate consequence of Szach’s release in 1993 would be withdrawal of funding by the Legal Services Commission to assess the report by Dr Byron Collins on the validity of the pathology evidence given by the Crown’s principal witness, Dr Manock. Szach’s release also removed any urgency to deal with the possibility of having an innocent man languish behind bars. Szach did not want to be released in this way without an inquiry. Three months prior to Szach’s release in January 1993, he received a letter from James Hartnett, Director of Legal Services Commission, who wrote:

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Accordingly, I do not propose to debate or discuss this issue with you any further. Your correspondence over a number of years has been voluminous and has resulted in the Commission incurring considerable expense and spending considerable time on following up various matters raised by you from time to time. I do not propose to prolong the debate or discussion any further.

Although the Commission planned to withdraw its financial support, Szach remained persistent and began, with the help of his counsel, Mr Andrew Dudek, to put forward a case for an inquiry to the Director of Public Prosecutions, Paul Rofe QC, who had been the assistant prosecutor at the 1979 trial of Szach. In March 1993, the Commission reversed its decision to withdraw funding to allow a supplementary opinion from Michael David QC to consider the implications of Dr Byron Collins’ analysis of Dr Manock’s evidence about body cooling and estimation of time of death. Later in the same month, on 22 March, chairperson of the Parole Board, Francis Nelson QC, made an application on behalf of Szach before Justice Millhouse. Paul Rofe QC explained Szach’s absence of attendance at the Supreme Court:

He has intimated that he does not want to be here, that it has got nothing to do with him. This is consonant with an attitude expressed over a long period of time that he didn’t do it and has refused, and still refuses to apply for a non-parole period. He was convicted on 19 December 1979 of murder, and life imprisonment was imposed by Justice Wells on that date. Up until very recently the only way a non-parole period could be fixed in respect of such a sentence was on the application of the prisoner. The government saw fit to amend the legislation in the 152

criminal law Sentencing Act 1988 and the new section 32(3) reads: ‘Where a prisoner is serving a sentence of life the prisoner or the chairman of the parole board — Mrs Nelson QC — the chairman of the parole board has made such an application, which I think is before your Honour.

His Honour, Justice Millhouse, ruled that Szach should appear before the court, even if he did not contribute. On 26 March, Szach appeared before Justice Millhouse and made no comment with regard to Paul Rofe’s submission. A non-parole period was set which resulted in Szach’s release late in April. Szach refused to sign the necessary papers which would have required him to attend drug and alcohol counselling. The conviction, he said, had no connection to drug or alcohol dependency. Following his release, Szach wrote to Paul Rofe about the necessity of a further inquiry. Rofe replied in May 1993:

I advise that my attitude and consequent advice to the Attorney-general remain unchanged, namely that there is nothing in the material to warrant a section 369 reference. The issues at trial were your whereabouts and actions at the time Mr Stevenson was killed. You yourself stated at trial that you had returned to the house at a time after the murder. Your movements after that time were not crucial to the jury verdict. In the absence of new evidence as to the critical time period (4.45–8.45 pm) there is no reason to doubt the correctness of the jury verdict which was closely examined by the appellate court.

Meanwhile, Dr Byron Collins, the consultant forensic pathologist, continued his time-consuming review of Dr Manock’s evidence. With Szach’s release secured, he had 153

greater opportunity to liaise with Szach and his counsel, Andrew Dudek. He finally submitted his 93-page report on Dr Manock’s evidence to Mr Dudek in August 1994. Dr Collins had graduated from Monash University in Melbourne and was awarded his fellowship in the Royal College of Pathologists of Australasia in 1979. He trained at the Geelong Hospital and was assistant pathologist in its Department of Pathology from 1972 to 1985. He had lectured in pathology and forensic pathology at Monash and Melbourne Universities and had co-authored a number of papers with world-renowned forensic pathologist Professor Vernon Plueckhahn. He had then worked as a Crown pathologist before setting up his own private practice as a forensic pathologist in 1985. As an independent forensic pathologist his services were highly sought after as an expert witness in a number of high- profile cases in South Australia, as well as in other States. Dr Collins had not been involved in the case at the time of the trial. The defence had sought the assistance and opinion of Dr Ross James, a forensic pathologist who was a colleague of Dr Manock at the Forensic Science Centre in Adelaide.

— Timing of placement of body in the freezer

Dr Manock had said at the trial:

The fluidity of the blood suggests that the interval between death and being placed in the freezer was a short one and although there is not very much experimental evidence on this aspect, my own opinion is that it would be about one hour at the most.

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This was an important piece of evidence for the prosecution, since it meant that David Szach could have committed the murder and placed the body in the freezer during the time span of 80 minutes from 5.20 to 6.40 pm on the Monday night. It tied in with Mr Short’s identification of Szach coming away from Derrance Stevenson’s premises at 6.40 pm and of Mr Lennox’s time of about 7 pm when Szach called at the bus depot to cancel his ticket to Coober Pedy. It also linked into the Crown’s case that Szach was singularly responsible for the murder of Stevenson. From published literature, Dr Collins said that fluidity was ‘likely related to the manner of death’. In many deaths, from a wide variety of causes, the blood was found to be fluid at autopsy. There was, he said, ‘no valid scientific basis’ for Dr Manock’s opinion as to the time either being ‘short’ or ‘about one hour’. The fibrinolytic system, involving an enzyme called fibrinolysin, dissolved fibrin blood clots, acting in reverse to the coagulation system. The amount of this fibrinolysin was related more to the rapidity of death than to its nature. In sudden deaths the blood was more likely to be completely fluid. Dr Manock had also stated that ‘the blood had remained fluid’ — a misleading statement, as pointed out by Dr Collins:

What he means is that his observation is that the blood was fluid when he saw it at autopsy — but what he tells the jury is his interpretation of that, and it is wrong ... he has described previously how the outer areas of the body and the full thickness of the abdominal wall were frozen. The blood in these areas would have been frozen too ... Are any of Dr Manock’s observations on the blood having 155

‘remained fluid’ meaningful anyway, given that the tissues and blood have been frozen and thawed?

Dr Manock had also said, ‘By pressing the area it goes white; if the blood is clotted, the surface blood vessels, and you press it, it remains discoloured no matter how hard you press.’ The implication of Dr Manock’s statement was that the fixing of the discolouration or hypostasis was due to clotting. This was an outdated belief, according to Dr Collins, who cited Gradwohl (Gradwohl’s legal medicine 1968):

It was once thought that well-developed hypostasis became fixed in the skin when the blood clotted in the capillaries and venules, and that moving the body would not then affect its distribution. This kind of blood clotting does not in fact occur in those who die from causes, both natural and unnatural, commonly investigated by the forensic pathologist. In these kinds of deaths the blood soon loses its fibrinogen and any clots formed within the first hour or so after death redissolve, leaving most of the blood permanently fluid. This fluidity is due to the action of fibrinolysins thought to be secreted into the blood stream during the process of dying in those who retain the ability to react to the death stimulus ... The blood is always found fluid in the venules and capillaries and this is the blood responsible for hypostasis.

Gradwohl went on to explain the fixing of hypostasis (also called post-mortem lividity):

Once the blood has ceased to circulate, it tends to pool in the large venous reservoirs of the trunk, the venae-cavae, and their major tributaries. Gradually, by the action of

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gravity, the blood then drains into the veins and venules of the dependent parts, producing a discoloration in those areas of skin not subjected to pressure. This first appears about 20 to 30 minutes after death as dull-red patches which deepen, increase in intensity, and coalesce to form, within six to 10 hours, an extensive area of reddish-purple colour which often contains small bluish-black haemorrhages caused by rupture of engorged venules. After four or five days the ever-increasing haemolysis in the vessels produces sufficient pigment to stain the hypostatic areas, and this is permanent.

The distribution of the hypostasis is due to gravity and is determined by the posture of the body after death. If, as is frequently the case, the body has been on the back, the hypostasis is found on the back. It is most purple over the lumbar spine and assumes a redder colour as it fades out in the flanks. However, it spares those parts on which the body actually rests — the backs of the shoulders, the buttocks, and the calves; here the pressure on the skin is sufficient to prevent the subcutaneous veins from filling with blood and these areas are quite white. If the body has been lying face downwards, the hypostasis is found on the front of the body, possibly only on one side of the face if the head was turned, and pale pressure areas will be found, perhaps on the cheek, breast, abdomen, knees, and side of foot.

Although lividity provided investigators with a general understanding of the time since death, the estimates were influenced by temperature, body mass, conditions at the crime scene and other factors.

Dr Collins wrote in his report:

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It is clear that Dr Manock’s views on the fixation of hypostasis and clotting and ‘blanching’ are not only different but contrary to those generally expressed in well- regarded and available text books of the time. It is also clear that Dr Manock has not kept up to date with the literature — this is unacceptable for an expert witness.

In addition, Dr Manock had observed that the deceased had hypostasis (post-mortem lividity) along the back. Dr Collins pointed out that Dr Manock did not explain how he could have seen this when he first viewed the body in the freezer. He did say that the deceased was wearing a shirt, which was unbuttoned at the front. However, this alone did not explain how Dr Manock could have seen the back of the deceased given the frozen condition in which his body was found. Dr Manock had also stated that the presence of the post-mortem lividity along the back of the deceased, and around his hands and ankles, was consistent with the position of the deceased in the freezer. This observation was not correct, as pointed out by Dr Collins. The deceased’s body was bent round with his back uppermost and his arms and feet downwards. While the observations about lividity could have been correct for the observation regarding the hands and feet, it could not have been correct for the back, as the back was uppermost. If there had been lividity along the back of the deceased, then this would have indicated that his body had been moved some time after death, and where his body had been on its back in the immediate post-mortem period. Dr Collins wrote in his report:

Reliance on fluidity of the blood in the major vessels and the blanching of post-mortem lividity are totally unacceptable. The timing of the onset of this latter post- 158

mortem feature is so variable as to be totally unreliable in its use for any scientific purpose. The fluidity of post- mortem blood is related to the activation of the fibrinolytic system and not, as described by Dr Manock, to the effects of cooling induced by the freezer.

According to Dr Collins, Dr Manock had no accurate way of determining the time interval between the actual shooting incident and subsequent placement of the body in the freezer.

— Time of death

The estimate of time of death, provided by Dr Manock, was the lynchpin for the Crown’s case. It showed, along with other factors — the timing of placement of the body in the freezer, the unanswered telephone calls, the sighting of Szach by Mr Short and Mr Lennox — that Szach was the person who murdered Stevenson. If there were serious doubts in this estimation, then the jury’s decision would have been compromised. According to Dr Manock, the police had turned off the freezer at 5.45 pm on Monday 4 June, before its temperature and the temperature of the body were taken so that the actual temperature of the freezer and of the body could never be known. It also meant that it was impossible to measure the rate of fall of the body temperature while the body was in the freezer by the taking of at least two temperatures at a known time apart. Dr Manock first took the body temperature by inserting a needle into the liver at 8 pm, after the body had been removed from the freezer and taken to the mortuary. After a thorough investigation, which included ten years of detailed scientific experiments, Dr Collins

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concluded in his report that Dr Manock’s formula, derived by Marshall, for determining the time of death was not applicable to Derrance Stevenson. Dr Collins stated that the formula had not stood the test of time and would not be relied upon by any practising pathologist at the present time as the definitive method. They had used rectal temperature to record the body temperature in their experiments, but Dr Manock had used liver temperature. The validity of applying cooling rates by the fall in liver temperature after death has never been confirmed. According to Dr Collins, ‘the environment within the freezer would have varied considerably between the initial placement of the body and its discovery’. A marked change in the environmental circumstances would invalidate any conclusions drawn. There was also doubt about the running temperature at the time the deceased was placed in the freezer, whether it was functioning at the normal mode of about -20 ºC or, if the super-chill mode were in operation, at about -28 ºC. Police photographs indicated that the freezer might have been running in the super-chill mode. And Dr Manock himself thought the super-chill indicator might have been on when he examined the freezer the following day. If this information had been available at the trial, a recalculation, according to Dr Manock’s formula, would have introduced an alternative time of death of about 7.30 pm onwards. In reality, that meant the time of death most likely occurred from 8.45 pm onwards when two vehicles had been sighted by Mr Shields in Stevenson’s rear car park. Dr Manock had switched on the freezer on the Monday evening after discovery of the body and returned the next day to find that the freezer had stabilised at about -20 ºC, but, of the two indicator lights on the freezer, the super-chill light had come on, he thought. 160

Even if the running temperature was -20 ºC, there was no way of knowing if this was the temperature when the body was placed into the freezer and what the temperature was when the body was removed. Dr Manock had stated:

As for the position in which the body was lying, I considered that the curled up position would increase the length of time for cooling by 40 per cent, and in that 40 per cent, I was also adding the minimal effect of clothing that was on the body — the socks, the sheet, the underpants. I then simply multiplied these 28 hours by 140 per cent and multiplied this by the actual fall in temperature of 30 degrees over the temperature differential of 57 °C and took 85 per cent of that, and the answer I then calculated from these figures was 24.27 hours ... it is merely an estimate and a leeway of 20 per cent would be quite a reasonable thing to allow and this would give a variation of two hours either side of what I consider is to be the most likely time. So, this would give you a time interval of between quarter to six and quarter to ten.

But, according to Dr Collins, Dr Manock had no scientific evidence upon which to base his hypothesis that the cooling time would be lengthened by 40 per cent due to the apparent foetal position of the deceased in the freezer. Dr Manock simply ‘picked’ the 40 per cent, as he stated at the trial. To use a ‘rule of thumb’ approach was, according to Dr Collins, ‘one of the most blatant applications of pseudo-science imaginable. It is a misapplication of science. He has taken a formula which originally had some scientific basis, and corrupted it and then presented it to the court as though it had validity.’

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Dr Collins reported that Dr Manock certainly did not go on to tell the court that the ‘85 per cent cooling in 28 hours’ applied only to the specific set of experimental conditions described in Gradwohl’s and in Marshall’s papers: namely, naked body, size factor 210, lying supine, in still air, environmental temperature range of about 5–24 °C and constant, and measuring rectal temperature.’ Mr Martin had questioned Dr Manock at the trial to state the general principle that applied for a body of average size, weight, similar to Mr Stevenson’s. Dr Collins pointed out that ‘instead of expounding this principle of the Cooling Formula [derived by Marshall] Dr Manock launched immediately into giving the specific examples of the application of the principle: namely “... the temperature [will] fall by 85 per cent of the temperature differential ... within 28 hours”. He never mentions the principle.’ At the trial Dr Manock said: ‘I think the rate at which heat was removed by the mechanism of the freezer would remain constant throughout.’ Dr Collins said, however, that the rate is not constant but varied according to the temperature differential (as modified by the temperature gradients), and therefore time. Dr Manock’s use of Marshall’s formula was not applicable for this situation. Experiments carried out later under similar conditions by Dr Collins and others indicated that the time of death could have been considerably later in the evening, towards midnight. Moreover, experiments have shown that the resultant liver temperature at a given time varied from individual to individual even under identical conditions of mode/time of death and subsequent storage in the freezer. Overall, Dr Collins said that there were too many variables to accept Dr Manock’s time frame.

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Dr Collins sought a further opinion in July 1994 from Professor of Forensic Pathology Bernard Knight at the University of Wales, UK. He had been a pathologist since 1955 and a full-time forensic pathologist since 1959. One of his major research interests had been the estimation of the time of death based upon post mortem temperatures and he had been working with other scientists to publish their research findings in a book: The estimation of the time since death in the early post- mortem period. Professor Knight had been involved in the controversial Van Beelen case concerning the time of death where a girl Deborah Leach was found dead on an Adelaide beach in 1973. Dr Manock, again the pathologist, had pronounced the time of death based on stomach contents which Professor Knight had disputed. After reading the transcripts of Dr Manock’s evidence in the David Szach case he wrote:

All I can say is that in my opinion his reliance upon very speculative and tenuous calculations is ill-founded and that the degree of accuracy he offers cannot be substantiated.

Dr Manock had used some rather old ideas upon body cooling, ‘which have been discarded in recent years’. Professor Knight said:

The business of an 85 per cent drop of the temperature differential in 28 hours is totally without foundation and seems to be a garbled version of some of the work published by Fiddes and Patten many years ago ... the problem with all research and published papers upon estimation of time of death and temperature is that each

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publication is different and none of them appear to stand the test of time when applied to practical situations.

He pointed out that the most reliable method in 1994 was probably the nomogram by Henssge of Germany, who was one of the co-authors of the book with Professor Knight. However, he added that ‘even given the best circumstances, Henssge claims no more than a 2.8 hour margin each side of the 95 per cent probable time of death ... These are in ‘normal conditions’ where the environment is known, such as a room or outside locus with moderately stable ambient temperature.’

Professor Knight said:

I am sure that Henssge would not dare to get within very many hours of a time of death where the body had been put into a freezer in a particular posture ... I also cannot agree with the arbitrary assumption of Dr Manock that a body in a foetal position (which is very variable in itself) would slow the cooling rate of the liver by 40 per cent. This to me appears to be a figure snatched from the air without any scientific validation.

No estimation of the time of death within a wide margin of possibly plus or minus four to six hours could be hoped for in such a case. The safest thing for a forensic pathologist to do would be to say that in such circumstances estimating the time of death in such a body would be so fraught with uncertainty as to be not worth the attempt.

The failure to acquaint the jury with the doubts surrounding Dr Manock’s qualifications, his lack of knowledge of histology, his failure to keep up with the literature, his failure to adhere to basic principles, his 164

acknowledged errors and his lack of credibility, was in itself sufficient to establish a risk of a miscarriage of justice. There was at least a reasonable likelihood a jury would have viewed Dr Manock’s ‘experience’ in a different light if they had been provided with the correct and complete information. Based on the discrediting of Dr Manock’s evidence by two eminent scientists and a lack of credibility in Mr Short’s testimony, there was clearly a basis upon which Szach could lodge an appeal.

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Chapter 20

Appeal to the Attorney-General

Mr Dudek wrote a letter to the Attorney General’s Department on 5 September 1994 and stated:

Mr Szach has been our client since 1985. As you are aware, Mr Szach has at all times steadfastly maintained his innocence.

We are familiar with all aspects of our client’s case. We have read the transcripts, and have reviewed the files conducted by all of his former legal representatives.

A crucial part of our client’s case related to the time of death was not challenged, and, quite properly, the jury acted on his evidence on this basis.

It has been our opinion that a corollary of the case against our client is that, unless a scientifically reliable and reasonably accurate time of death can be obtained, it is just not possible to escape the realms of speculation. Necessarily, it further follows that it could not in such circumstances be possible to deliver a finding of guilt beyond a reasonable doubt.

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It is now our contention that all the evidence provided by Dr Manock as to the time of death has been demonstrated to be fundamentally flawed.

Obviously our instructions are to undertake whatever steps are necessary to have the conviction set aside or quashed, on the grounds of the information contained in Dr Collins’ report.

Mr Dudek proposed a meeting to discuss the implications of Dr Collins’ report. Attorney-general Trevor Griffin received advice from the Solicitor-General John Doyle, and stated in his letter of 22 December 1994, that he had not accepted the evidence of Dr Manock to be crucial to the Crown case:

I should make it clear at the outset that it does not lie within my power to quash or otherwise deal with the conviction recorded against your client. Should your client wish to achieve that result it will be necessary for him, ultimately, either to make application to the Court of Criminal Appeal to receive fresh evidence or he will have to petition Her Excellency under ‘section’ 369 of the Criminal Law Consolidation Act.

… It seems to me if Dr Manock was wrong and Dr Collins is right, a Court is likely to conclude that the conviction should stand.

… The point is that from the Crown point of view it was sufficient to establish, by reference to other events, a time of death which was not contradicted by the scientific evidence. It does not seem to have been of any great concern to the Crown case that death might have

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occurred, on the scientific evidence, earlier than the time the Crown suggested or later than the Crown suggested. The Crown relied upon evidence other than scientific evidence to point to Mr Szach as the murderer and to point to the time at which or by which the murder took place.

If that is so, then evidence from Dr Collins that death might have occurred later on the day in question than the time allowed for by Dr Manock would not alter the thrust of the Crown case. Nor would evidence that, on a scientific basis, no time of death could be suggested. The most the Crown seems to have got from Dr Manock’s evidence was that from a scientific point of view death could have occurred at the time the Crown suggested. But from a scientific point of view death could have occurred at other times as well.

That is why I do not think that it advances things to say that Dr Manock was more precise than he should have been. It would have been different if the Crown had relied upon Dr Manock to exclude other possible times of death.

… The case against Mr Szach was a circumstantial case. It depended upon many items of evidence. The evidence of Dr Manock was one such item, and does not appear to have been given particular prominence at the trial. The judge’s summing up does not appear to have treated it as crucial or critical evidence. Dr Manock’s evidence about the time of death was not indispensable to the Crown case.

… Apart from this there is nothing to suggest to me that either prosecution or defence presented their cases on a false premise as to the possible time of death, and that this affects the reliability of the verdict. 168

… For those reasons, and on the basis of the advice given to me by the Solicitor-General, my tentative conclusion is that even if Dr Manock’s evidence was unreliable, the role which it played at the trial was not such that the placing of the evidence before the jury deprived Mr Szach of a chance which was fairly open to him of being acquitted. I put it this way although strictly, if a Petition were presented to Her Excellency, the issue for me would be whether there was a sufficient possibility that that was the case to warrant referring the Petition to the Court.

Contrary to Trevor Griffin’s statement, Dr Manock’s evidence did play a significant part in matching the murder time with David Szach’s presence at Stevenson’s premises. If the spurious findings of Dr Manock had been known at the court of appeal, then the correct approach would have been to ask if the proviso could have been applied. The proviso allowed the court of appeal to overlook an error which had occurred at trial and which could not possibly have resulted in their being a ‘substantial miscarriage of justice’. In this case, however, the Crown prosecutor used Dr Manock’s evidence along with two key witnesses to substantiate Szach’s guilt. The jury would have based their decision on this primary evidence. The proviso did not mean that the court of appeal judges should have substituted their own opinion for that of the jury as to whether or not the accused was guilty. But attorney-general Trevor Griffin had done that, acting in lieu of a court of appeal and overlooking the correct application of the proviso. David Szach felt let down and angry with the way attorney-general Trevor Griffin had misconstrued the significance of Dr Manock’s evidence in his conviction. He replied to Trevor Griffin’s letter to Andrew Dudek 169

:

The thrust of the Crown’s case throughout its closing address was that the ‘objective and scientific’ evidence had left in no doubt the killing and the placement of Mr Stevenson’s body into the freezer had occurred sometime between 5.25 and 6.40 pm. The Crown relied exclusively on Dr Manock’s evidence that the period of time between the killing and the placement of the body into the freezer had been no more than one hour (and possibly very shortly after death, thus fitting quite comfortably with the time span contended by the Crown).

Dr Collins has reported that this area of Dr Manock’s evidence has no basis of scientific validity. But, it had in fact been an integral part of the Crown case … the Director of Public Prosecutions had gone so far as to write to me in May 1992, to inform me that my movements after 8.45 pm were not crucial to the jury verdict

… From my point of view, the inherent inadequacies of Dr Manock’s evidence, led to my wrongful conviction. I say this because I did not kill Mr Stevenson. The whole conduct of the trial, both from the focus of the Crown and my defence had been on the premise that the evidence of Dr Manock had provided a proper foundation on which a jury could safely deliberate its verdict.

David Szach voiced a strong point. If the Crown, defence and the jury, had focused on the earlier time, as the one in which he could or could not have killed Derrance, then the efforts made by the defence and the decision made by the jury were compromised by Dr Manock’s testimony of the time of death and the body being out of the freezer for no longer than an hour. The possibility of the murder

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taking place from 8.45 pm onwards was not debated as an alternative since the Crown had ruled out that possibility. Mr Short’s selection of David Szach from a series of slides two months after his sighting should not have been accepted as proper evidence because of improper police procedures with regard to eye-witness identification evidence. And in regard to the number of unanswered calls during this earlier time, a number of reasons could explain this, such as Derrance being preoccupied with more pressing matters or the calls were not switched through from his office. If David Szach were the killer, a narrow window of opportunity existed then for a later time when he called back soon after 8 pm. A client of Derrance Stevenson, Mr Tymons, had called round to Derrance’s place at 8 pm and again at 8.30 pm, and did not see any car in the car park; he was unable to contact Derrance. David Szach could have called round at 8.15 pm and committed the crime, and then left before 8.30 pm to enlist the help of Gambardella, or whoever, and others to clean up. But how could they assemble so quickly at 8.45 pm at Derrance’s place? And why would they help Szach in any case where the likely motive, according to Elliott Johnston in his biography Red silk, was one of spurned love. There was no evidence that Szach was linked to underworld identities or involved in organised crime. The other possibility, which also seemed remote, was that Szach collaborated with Gambardella, or whoever, and others to commit the crime after they had arrived at Derrance’s place at 8.45 pm. If it were a crime of passion because of the end of an affair it seems absurd to suggest that Gambardella and others would meet with Szach at 8.45 pm to cover up the murder. The Crown’s case was that Szach returned to the scene of the crime, presumably 171

to help in the cleaning up, and left just after 11 pm in the taxi. In the photos of Derrance’s place following the crime, Szach noticed one pillow missing on the bed where Derrance and Szach slept. There had always been four pillows on the bed, according to Szach. Was the fourth pillow, if it had been there, placed in the garbage bag and taken by the unknown person in the taxi at 11.07 pm? From the blood stains on the mattress it is reasonable to assume that Derrance could have been held down by one or two men while another person fired the fatal shot through the pillow. Mr Shields, working late in the building opposite, had not reported any sound that might have come from a gun being fired. If the garbage bag had been recovered with a pillow inside, the David Szach story might have had a different outcome. It would be hard to imagine one person holding down Derrance with a pillow over his head and holding the gun to fire the shot. Elliott Johnston, the defence senior counsel, had said in court that ‘there were just too many mysteries, too many other men involved in the case to permit a safe conclusion that the prisoner was implicated, and that he was the principal suspect.’ Attorney-general Trevor Griffin replied to David Szach’s letter and repeated what he had written to Andrew Dudek. He stated:

I propose to take no action on the basis of the material submitted informally by your solicitor and by you.

It remains open to you to petition for the exercise of the prerogative of mercy, and if any such petition is presented by you I will consider the matter afresh. As you will appreciate it is unlikely that I will refer the petition to the 172

Supreme Court if it based on the report by Dr Collins, but I stress that I will consider the matter afresh.

Meanwhile, on 21 October 2001, a number of high profile South Australian cases involving Dr Manock’s forensic evidence captured national attention with Australia’s Four corners program. Interviewer Sally Neighbour questioned a number of expert witnesses about the administration of justice in South Australia for the previous three decades. She focused on Dr Manock’s practice as South Australia’s Chief Forensic Pathologist for most of that time from 1968 to 1995. He had carried out more than 9000 autopsies and had given evidence in many major cases. In her opening remarks, Sally Neighbour homed in on the brutal deaths of three babies in which no one was charged.

Sally Neighbour: In 1993, a nine-month-old boy was admitted to Adelaide Children’s Hospital. He was dead on arrival with horrific injuries from child abuse.

Dr Terry Donald, Director, Child Protection Services, South Australia: Well, from the rib fractures alone, you have to conclude that he’s been severely abused at least on one occasion.

If you add to that the post-mortem evidence of severe fracture of the spinal column, plus the multitude of bruises that he had, he was clearly being frequently abused and, no doubt, there’s some link between that and his death.

Sally Neighbour: Against all the evidence, the pathologist who did the post-mortem found the baby had died of bronchopneumonia and that his fractured spine was a

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result of attempts to revive him. It was a major mistake.

Dr Terry Donald: It just amazed me. That’s the kind of opinion I’d expect from a relatively untrained, inexperienced, junior medical officer, not a person practising as a senior forensic pathologist. It just doesn’t add up. It doesn’t make any sense at all, that.

Sally Neighbour: A coroner would find the same mistake was made by the same pathologist not once but three times in three separate cases — all of them severely battered babies whose deaths were wrongly put down to pneumonia. The result was that no one faced charges over the babies’ deaths.

Dr Tony Thomas, Associate Professor in Anatomical Pathology, Flinders University: I think that’s tragic, to be quite honest.

Sally Neighbour: The case of the babies led to revelations of a litany of major pathological errors in a string of cases.

Chris Patterson, former Detective Major Crimes, SA: People will make mistakes — even your most thorough experts. But when there is a series of incidents, I think it must raise very great disquiet amongst the community and certainly amongst the hierarchy of the police force and obviously our legal circles.

Sally Neighbour: Now questions are being asked by top lawyers, doctors and investigators about the administration of justice in South Australia for the past thirty years.

Kevin Borick, President, Australian Criminal Lawyers Association: Well, I think there have clearly been cases 174

where people who should’ve been convicted of crimes have not been brought to justice. And, on the other side, there’ll be people in jail who should not have been there ... I think you have to lay the blame directly with the legal profession and with the judiciary. It was our responsibility to make sure something like this didn’t happen — and I include myself in the same criticism. It did happen. And now we have to put it right.

Dr Bob Moles, Associate Professor Law, Adelaide University, added, ‘It could lead to the reopening of a number of other cases.’

Sally Neigbour: Many, many cases?

Dr Bob Moles: Many, many cases indeed.

Sally Neighbour pointed out that by the mid-1970s, a new Forensic Science Centre was being built in Adelaide, and the IMVS wanted a new director of forensic pathology. They advertised the job, and Dr Manock sued for wrongful dismissal. A bitter legal battle ensued. Dr Bonnin gave evidence: ‘There are people who would claim that Dr Manock is not competent to do some of the work.’ After six years in the courts, Dr Manock won, and kept his job. Dr Manock's lack of qualifications was a growing concern as the head of the IMVS Dr Bonnin would testify in court:

I tried to encourage Dr Manock - to study - and obtain his membership of the Royal College of Pathologists of Australia, because we had a man who had no specialist qualifications in a specialist's job, and without that this would have been a severe embarrassment. 175

Dr Manock was admitted to the College of Pathologists in 1971. It gave him the qualification he had lacked, at least on paper. He was exempted from the normal five years of training and two written exams. After a number of expert witnesses had commented on the unsafe convictions of a number of high profile cases because of Dr Manock’s forensic evidence, Sally Neighbour concluded:

Dr Manock would not be interviewed and would not discuss the details of any case. So the bewildering questions about how he worked and how he reached his conclusions remain unanswered. What is clear is that there’s much more in question than one man’s competence. The much bigger question is how an entire system has let so many doubts go unresolved in so many cases for so many years.

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Chapter 21

Petition to the Governor

David Szach sent a petition to the Governor, Marjorie Jackson-Nelson, in March 2006. He emphasised the relevance of Dr Manock’s evidence to the trial, saying the claims made by Dr Manock to objectivity and scientific accuracy were incorrect and misleading and they had a profound bearing on the outcome of the trial. Szach wrote:

In a letter dated 25 May 2005, the attorney-general, Michael Atkinson MP wrote to the Petitioner. Mr Atkinson pointed out that the unreliability of Dr Manock’s evidence had previously been considered by the former attorney- general Trevor Griffin, and the Solicitor-General at the time John Doyle QC. The opinion in February 1995 was to the effect that doubts about the reliability of Dr Manock’s evidence as to the time of death in this case did not cast any significant doubts about the reliability of the Petitioner’s conviction. The view was expressed that if the petition procedure were to be invoked, it would be unlikely that the petition would be referred. Mr Atkinson said that his view in May 2005 would not lead him to form a different view from that of the former attorney-general. 177

The attorney-general said that proof of guilt was based on evidence other than the scientific evidence given by Dr Manock as to the time of death.

David Szach emphasized, though, in his detailed report of the case to the Governor that, according to Dr Byron Collins’ report, the claims by Dr Manock as to objectivity and scientific accuracy were misleading and incorrect. Dr Manock’s evidence had been pivotal in targeting David as the killer. Mr Martin, for the Crown, had said: ‘the objective and scientific evidence means that he was dead by 6.40, and the accused was there.’ If the jury had accepted that as being correct, then it would have been determinative of the case. Dr Manock had no accurate way of knowing the time interval between the actual shooting incident and subsequent placement of the body in the freezer. Professor Bernard Knight had backed up the findings in Dr Collins’ report and said, ‘his reliance upon very speculative and tenuous calculations is ill founded and that the degree of accuracy he offers cannot be substantiated.’ Szach, aided by his counsel, made the following points in respect to the evidence given by Dr Manock:

 If Dr Manock’s evidence had not been probative of the facts in issue in the case, then it would have been inadmissible. Given that it was admitted in evidence at the trial, it must have least have been probative, especially relating to the issue of time of death.

 It is clear that the attorney-general cannot suggest that the jury would not have properly considered Dr Manock’s evidence, as they would have had a legal obligation to consider it. It is also clear that the attorney-general cannot 178

speculate as to the evidential weight that the jury would have attached to Dr Manock’s evidence — as the State’s then most senior pathologist.

 It is clear that the applicable legal principles state that if expert evidence admitted at trial is subsequently proved to be incorrect or unreliable, then the verdict is unsafe. This is so, even if there is other circumstantial evidence which might raise suspicion of guilt against the accused.

 An accused is entitled to a trial by jury and not trial by speculation of an appellate court. It is clear that an appellate court cannot speculate about what verdict the jury might have reached if the case had been put to them on a different basis. It is also clear that it is inappropriate for a prosecutor to claim that evidence admitted at trial and which is subsequently proved to be in error did not affect the minds of the jury when considering the verdict.

 If the jury had been told that the evidence of Dr Manock relating to the time of death was not reliable then it may well have affected their consideration of the value of the other circumstantial evidence which also pointed to that time of death.

 The prosecution either knew or should have known that Dr Manock’s opinions did not conform to the requirements of opinions of expert witnesses. The prosecution had a duty to make that information known to the defence. It is clear that the Petitioner’s legal representatives at the time were unable to properly cross-examine Dr Manock in relation to issues concerning his credibility and professional standing and expertise, as factors relevant to that assessment were unknown to them at that time. The Petitioner was therefore denied any opportunity of establishing factors

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which would have ensured his acquittal or which would have given him a fair chance of acquittal.

 It is correct to say that there was other circumstantial evidence from which certain inferences may have been drawn relating to the time of death. However, as outlined above, the jury was told by Mr Martin that Dr Manock’s evidence as to the time of death was objective and scientific. He told the jury that it meant that the death occurred during the time that the Petitioner was at the premises.

David Szach had made a strong case that the jury’s decision had been greatly influenced by Dr Manock’s faulty evidence and that the Crown prosecutor had taken full advantage of that evidence to pin David to the crime. Disheartened after waiting three months for a reply, David Szach withdrew his petition. He received a reply, however, about two weeks later from Government House:

Dear Mr Szach,

I wrote to you on Friday 16th June 2006 acknowledging receipt of your letter, in which you withdrew your petition to Her Excellency the Governor for the exercise of the prerogative of mercy. I forwarded to the Premier a copy of your notice of withdrawal on the same day, as indicated in my correspondence.

Regardless of this, today I have received advice from the attorney-general about your petition. The advice is to the effect that:

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‘There is no reason to apprehend that there has been a miscarriage of justice in Mr Szach’s case.’

‘There is no arguable ground that warrants referral to the Full Court pursuant to S369 of the Criminal Law Consolidation Act 1935’

Her Excellency would accept this advice had you not already withdrawn your petition, and has asked me to convey it to you.

Yours sincerely,

Ms Maria Harrison

ACTING OFFICIAL SECRETARY

Dr Harry Harding, a forensic scientist, researcher and consultant, had set up the Forensic Biology Laboratory for South Australia in 1975. He had given expert evidence for the prosecution and defence in many cases, including Frits Van Beelen, Bevan von Einem, Lindy Chamberlain and Edward Splatt. After the rejection of Szach’s petition, Dr Harding examined Dr Manock’s conduct in the case. Dr Harding’s comprehensive report on Dr Manock’s findings and presentation of evidence questioned eighty- two particular aspects. In regard to the time between death and the body being placed in the freezer, Dr Harding stated:

 There was no valid scientific basis for Dr Manock’s opinion as to the time either being short or about one hour.

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 Dr Manock’s interpretation of his observation that the blood was fluid when he saw it at autopsy was wrong. It was based on his own views that were not only different but contrary to those expressed in well-regarded and available text books of the time.

 It is unlikely that any of Dr Manock’s observations on the blood having ‘remained fluid’ are meaningful, given that the tissues and blood had been frozen and thawed.

 The method he chose was to adopt a specific example of the cooling formula of Marshall without investigating and developing an understanding of the underlying theory and principle.

And in regard to Dr Manock’s reasons for choosing the method of estimating the time from the body being placed into the freezer to its subsequent examination, Dr Harding stated:

 Dr Manock’s reasons for choosing the method of time estimation were not valid.

 The cooling formula of Marshall was not applicable.

 The temperature of the freezer goes well beyond that of the conditions examined and confirmed experimentally.

 The body temperature at the time of death, and at the time the body was placed in the freezer, was unknown.

 The freezer temperature at the time is unknown.

 There was an unknown and possibly substantial variation in the temperature of the freezer. 182

 Dr Manock’s extension by 40 per cent of the ‘formula’ he adopted was not valid.

There appears to be no definable let alone scientific basis for the 40 per cent. It is unclear how Dr Manock generated it. It is not calculated. Dr Manock said that he ‘picked’ it.

On the basis of the reports by Dr Collins, Professor Knight and Dr Harding, there was a very strong argument to the effect that Dr Manock had misled the court. David Szach re-submitted his petition in March 2007 and this time he included a 200-page report in support of his petition, outlining what were believed to be the errors in the calculations of Dr Manock with regard to the timing of death in this case. But it was rejected on the same grounds as before.

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Chapter 22

Channel 7 investigates On 12 March 2007, Graham Archer of Channel 7’s Today tonight (Adelaide) interviewed David Szach about the possible connection between the ‘body in the freezer case’ and ‘The Family’ murders’. Presenter Leigh McCluskey introduced the program:

It’s one of Adelaide’s most intriguing murders, unforgettably known as ‘the body in the freezer case’ in which prominent criminal lawyer Derrance Stevenson was shot and his body hidden in his own deep-freeze.

The man convicted for life was nineteen-year-old David Szach who for the past twenty-eight years has professed his innocence and now Today tonight has put him to the test on a polygraph. And the results are fascinating.

But was this case really a missed chance to expose the murderous work of Adelaide’s notorious Family killers? Was the conviction based on flawed evidence? And if they got the ‘wrong’ man, did the real culprit go on to kill again?

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Graham Archer asked, ‘Was there friction in your relationship?’

Szach: Definitely not.

Archer: At the time, the execution-style murder threatened to lift the lid on the dark side of Adelaide’s gay community — but always had the air of cover-up about it. Were there people with a reason to kill Derrance Stevenson?

Szach: Not that I could say definitively.

Archer: One of the shadows which hangs over the case is that of Gino Gambardella, a drug dealer and notorious procurer of young boys for Stevenson and others, who resented Szach’s presence in Stevenson’s life; though it didn’t halt his activities. Effectively the traffic of young people continued.

Archer turned to the polygraph expert: Over twenty-eight years Szach steadfastly maintained his innocence, and though seriously ill with motor neurone disease, agreed to undergo a polygraph test. Did his condition affect the results of the test?

Gavin Wilson, the polygraph expert: No, as a matter of fact it didn’t; it didn’t affect the results of the test at all.

Archer: How accurate is the test?

Wilson: This type of test is what we call a ‘single issue zone of comparison test’ which has an accuracy rate of about 96 per cent according to independent studies conducted by the Department of Defence in the United States.

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Archer: So what was the result? So did David Szach pass or fail the lie detector test?

Wilson: He passed today, Graham.

Archer: So according to the test he’s innocent?

Wilson: According to the polygraph test — yes.

Graham Archer, facing Szach: Now you passed that polygraph test.

Szach: I had no reason to doubt it.

Archer then asked Szach about the young man who burst into the Adelaide Legal Services office desperate for a lawyer, saying Stevenson acted for him — but when he’d seen him last night ‘he was in no condition to act for anyone’.

Archer: For someone to say that before anyone even knew he was dead — was significant ... Was that person ever traced at all?

Szach: Never.

Archer: But a significant possibility remains about who it was?

Szach: Alan Barnes ... Alan was murdered late June 1979. Derrance Stevenson was murdered early June 1979.

Archer: It’s a chilling fact. Only twelve days separate the two events. And there’s a closer connection.

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Szach: I believe Alan Barnes was a person introduced to Derrance Stevenson by Gino Gambardella. That became known during the course of the Von Einem committal hearing.

Archer: It’s a disturbing coincidence which we’ll return to later. But first we need to go back to the day prior to the murder. After that distressing phone call, Stevenson booked Szach a seat on a Stateliner bus to Coober Pedy saying he wanted him to check his opal interests. Do you think that was a direct result of him saying, ‘I want to get out?’

Szach: I would say it had to be, because I was not expected back in Coober Pedy for at least before the 15th June.

Archer: What about the witness who claimed to have seen you leave the house at 6.40 pm?

Szach: Absolutely not. I did not have shoulder-length blond hair.

Archer, to his TV audience: In retrospect, the description much better fitted Alan Barnes. But with only Szach in their sights, time of death was now critical to the Crown’s case. It had to fit between 5.00 and 6.40 when they claimed Szach was at the scene.

Dr Byron Collins: There is no formula that can accurately be used to assess the time of death of a deceased individual.

Archer: Despite an answer being almost scientifically impossible, particularly given the body was found almost frozen solid a day later, the State’s Chief Forensic Pathologist, Dr Colin Manock, using guess-work to fill in 187

the blanks, came up with a result which perfectly fitted the prosecution case ... What value do you place on the results?

Dr Collins: None. Absolutely none ... In my opinion it was totally inappropriate and it would not have been used if I’d been asked to carry out that procedure. What I would have done — and I imagine a number of other pathologists around Australia — would be to tell whoever asked that it could not be done.

Archer: Even more critical was Dr Manock’s finding that the time between death and placement in the freezer must have been less than one hour. It meant Szach alone had time to commit the crime. Again, his reasoning was highly suspect.

Dr Collins: Again, totally useless in my view, providing even an indication as to how long a body has been dead.

Archer: Manock’s evidence has since been seriously discredited. Even described by world expert Professor Bernard Knight as being ‘totally without foundation’.

So, Szach — just nineteen — executed his sole benefactor with a clean shot to the back of the head, cleaned up, dumped him in a freezer, glued the lid shut — all in forty minutes. And then calmly drove off to cancel his bus ticket and then on to visit his parents ... But there was always another possibility. Someone else’s car was seen at the house on the night of the murder. That of Gino Gambardella. So Gambardella definitely had a dislike of you?

Szach: Definitely.

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Archer: Sufficient to set you up in a murder?

Szach: Perhaps sufficient to cause difficulty for me.

Archer, referring to Gambardella: But what about his appearance at the house after 8.30 that night and the possible Alan Barnes connection?

Szach: It’s just very coincidental that Derrance Stevenson had been so brutally murdered in the first week of June and Alan Barnes more so brutally murdered in the last week of June. And the similarity of his physical description to the person apparently seen leaving at about 6.40 pm.

Archer: What if Dr Manock’s worthless guesswork on time of death did mislead the jury? And what if it wasn’t David Szach leaving the house at 6.40 pm?

Szach: I wasn’t wearing jeans and a jumper. I didn’t even have that property in Adelaide.

Archer: And what if Alan Barnes stumbled on Gambardella and the murdered Stevenson later that night? And what if it was a terrified Barnes who turned up at Legal Services the next morning desperate for legal advice?

Szach: Absolutely.

Archer: And what if his death shortly after was to silence him? And what if the police’s focus on Szach left the killer free to continue killing other young men?

During the early 1990s serious questions surfaced about Dr Manock’s work in this case and a number of others including the Baby Death cases. Following this, without warning, after fourteen years, Szach was suddenly told he 189

was free to go. Are you saying it was an easier option for the government to let you go rather than to investigate the case?

Szach: Definitely. And that fact stands given the circumstances of that release.

Archer, concluding: Over time, more and more people have become concerned that a series of injustices or at least miscarriages in the process have occurred.

Dennis Hood MLC, a politician from the Family First party, commenting: There needs to be a look into all these cases again and probably it’s time to have a full inquiry into this issue.

On the following day, Tuesday 13 March 2007, Dennis Hood raised the matter again in parliament asking the Minister of Police several questions about the investigation of the Derrance Stevenson murder:

1. In what circumstances will the police reopen murder investigations? 2. Given that several pathologists have called into question Dr Manock’s evidence during this trial, will the minister instruct police to reopen this case in the light of that new evidence and analysis which has now become available? 3. Does the minister accept that Dr Manock’s handling of the case has called his professionalism into question? 4. Will the minister commit to investigating and trialling the use of polygraphs as an investigative tool to be used by the South Australian police force?

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The Minister of Police, P. Holloway replied:

In relation to the latter question, it is my understanding that polygraphs are not registered in this country and are not being used for investigations. However, it is really a matter for the Attorney-General, as indeed is the general thrust of the honourable member’s questions. As far as I am aware, in this case the person was found guilty by trial and was committed and, as I understand it, he has served his sentence. So, in terms of the police reopening the case, I do not think that comes into question at all; rather, it is a matter for the Attorney-General to determine whether he believes that there are any grounds on which to have the conviction reconsidered. … Mr Szach did not present the Attorney-General with any new evidence that would lead him to form a different view from the former attorney-general (Hon Trevor Griffin) and the former solicitor-general and now Chief Justice Doyle. Nevertheless, as I mentioned earlier, I will refer the question to the Attorney-General and ask him to prepare a response to the matters raised by the honourable member.

Two and a half months later Liz Porter of The Sunday Age (Melbourne) wrote: David Szach was 19 when convicted for his lover’s murder in 1979. He has always maintained his innocence. When forensic pathologist Dr Byron Collins heard the Crown case against ‘body in the freezer’ killer David Szach, he sensed something badly wrong. From the psychological point of view, he recalled, it just did not ring true. And when he

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analysed the forensic evidence in the case, he found it fatally flawed.

... Dr Collins said the murder and the freezing might have been hours apart. The time of death, he concluded, could have been considerably later in the evening, towards midnight — a time when, even according to the Crown case, Szach was long gone. Szach was released from jail in 1993, after special legislation was passed to parole him. He had refused to sign parole papers, arguing that his signature implied admission of guilt.

... He has continued to campaign to have his case reopened, petitioning the Department of Public Prosecutions, the Legal Services Commission, the Attorney-General, and the Governor-General.

Szach’s case has been taken up by Adelaide academic lawyer and justice campaigner Dr Robert Moles, who hopes to use the forensic evidence to reopen an appeal.

‘I am at a complete loss to explain why it is that the Attorney-General and the Solicitor-General of South Australia take the view that this case should not be referred back to the courts,’ said Dr Moles.

Source: Porter, L. 2007 ‘Lover asks science to clear his name’, The Sunday Age 27 May.

On 25 April 2008 Joanna Vaughan of Adelaide Now reported ‘Death House: End of the road’:

Adelaide’s most recognised murder house and the home of the infamous body-in-the-freezer case was demolished yesterday, almost 30 years after it dominated headlines.

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...The Parkside house has been one of the city’s most recognised murder sites because of its distinctive architecture and the bizarre circumstances of the killing. Until last month, the infamous property was owned by lawyer and former friend of Mr Stevenson, Diane Myers. She sold it to the Transcendental Meditation Movement for $1 million.

... One neighbour, who did not want to be named, said he was sad to see the property go. ‘That house holds a lot of secrets, that’s for sure,’ he said. ‘At the time, we as neighbours didn’t hear anything about it really and we were kept in the dark a lot. I think it has a lot of historical significance to Adelaide and it is an amazing design. It is a shame it is being knocked down.’

From a house of secrets to Adelaide’s secrets: the murders of five young men — Barnes, Muir, Langley, Stogneff and Kelvin. With no further convictions for ‘The Family’ murders, the cold case re-opened in March 2008 with a $1 000 000 reward to anyone who could provide information leading to a conviction. Police were convinced that up to twelve people, several of them high-profile Australians, were involved in the kidnappings of the five young men who were murdered; apart from Von Einem, three other core members, they believed, were directly involved. The remaining known associates were involved to a lesser degree, being either indirectly involved or had knowledge of the murders but continued to interact with the group. The Sunday Mail (5 December 2010) reported on the three main suspects:

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 Eastern suburbs businessman. Visited von Einem after his 1984 conviction. Interviewed in late 1983 and denied involvement in the Kelvin murder. Has also denied knowledge of the other murders, despite an informant telling police he saw him with von Einem and an unconscious Alan Barnes on the night Barnes was abducted in June 1979. Refused to answer questions when approached as part of the cold case review.

 Former Adelaide doctor who is well-known in gay circles. Former lover of a well-known Adelaide lawyer. The pair used to pick up, drug and abuse young men. Known to have supplied drugs to Von Einem and suspect 1 which were used to incapacitate hitch-hikers. Lives in Sydney and refused to answer questions as part of the cold case review.

 Former male prostitute who is a close friend of Von Einem and suspect 1. Police have considerable information that implicates him in picking up, drugging and sexually abusing hitch-hikers. Believed to have been with Von Einem and suspect 1 when Kelvin was abducted, but has denied this. Now a bus driver in Brisbane, he fled Adelaide shortly after the cold case review was launched.

Despite allegations and claims, the cold case review was completed in November 2010 with the failure to expose new evidence. No charges were laid against any of the three key suspects.

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Chapter 23

Manock’s evidence and the need for change

Hagar Cohen of ABC Radio National Background briefing, in a program entitled ‘Beyond reasonable doubt’ on 18 July 2010, questioned Dr Manock for the first time about the three baby deaths. As described in the Four corners program in 2001, one of the babies had a severe fracture of the spine, skull fractures, multiple bruises and fifteen rib fractures. Dr Manock, who performed the autopsy, found that the baby had died as a result of bronchopneumonia and that his fractured spine was a result of attempts to revive the child, rather than one of injury inflicted on the child. The misdiagnosis happened not once but twice more with similar cases — the cause being in each case, according to Dr Manock, bronchopneumonia. But all had serious non-accidental injuries. Medical experts were highly critical of Dr Manock’s assessments. The Coroner’s inquest into the three baby deaths in 1994 and 1995 found that some explanations provided by Dr Manock were ‘spurious’ and that ‘he had seen things which could not have been seen’. Shortly after, the findings were published and were made public. Dr Manock had resigned some weeks previously. No one 195

faced charges over the babies’ deaths. At the conclusion of his examination of the case of one of the babies, Coroner Wayne Chivell said, ‘the post-mortem examination achieved the opposite of what should have been its purpose — it closed off lines of investigation rather than opening them up.’

Hagar Cohen: Dr Colin Manock speaks out about this controversy. While he says he never had the opportunity at the inquest to comment on the alternative diagnoses, he acknowledges his misdiagnosis.

Colin Manock: I could never say it was murder. Yes, I made a misdiagnosis with the pneumonia; in fact I told the director of the Forensic Science Centre that I was having difficulty finding a cause of death, and I in fact went through the slides from previous cases, and somehow one of the previous slides got mixed in with the slides from the case, and that’s how the mistake happened.

Hagar Cohen: Do you regret?

Colin Manock: Of course I do. No one likes to make mistakes, but then I’m not God either. Everyone makes a mistake here and there.

Hagar Cohen: So, human error?

Colin Manock: Yes.

Hagar Cohen: It shouldn’t have happened?

Colin Manock: It shouldn’t have happened, no.

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Dr Manock had during his career carried out more than 9000 autopsies and had given evidence in many major crime cases in South Australia. In other murder cases besides Szach’s, Dr Manock had presented highly questionable evidence for the prosecution which had influenced the jury in their decision to give a guilty verdict. Subsequent appeals in these cases proved fruitless. If the pathology was flawed, then the verdict could be entirely unjust. Dr Manock had played a key role as pathologist in the conviction of Frits Van Beelen, a carpenter, for the murder of schoolgirl Deborah Leach whose body was found at Taperoo Beach, Adelaide, on 15 July 1971. Dr Manock arrived at the scene soon after Deborah’s body was found. The timing of death was a crucial factor as Deborah had last been seen alive by a witness at 4 pm the day before and Van Beelen had an alibi after 4.30 pm. Instead of taking a body temperature, Dr Manock relied on the rate of emptying of stomach contents to show that Deborah was dead by 4.30 pm and no later. This evidence, combined with other circumstantial evidence, later shown to be unreliable, was enough to convict Van Beelen. Dr Derrick Pounder, who had spent some time training at the Institute of Medical and Veterinary Science and who was to become Professor of Forensic Pathology at Dundee University, Scotland, later conducted some scientific research into stomach emptying. In two scientific papers publishing his results, he stated that the method used by Dr Manock could only narrow the time of death to a ‘range of some hours’ and not to ‘within half an hour’, a conclusion which he stated as being ‘scientifically unsound’. Van Beelen was imprisoned for seventeen years. After his release, he still maintained his innocence. 197

In a similar case, in August 2007, the Ontario Court of Appeal acquitted Stephen Truscott of the murder of Lynne Harper aged 12. His conviction had been based upon the use of stomach contents as an indicator of a time of death. The court accepted that this evidence was inherently unreliable and awarded Mr Truscott $6.5m in compensation. And in October 2013, the Privy Council in a New Zealand case overturned the convictions of Mark Lundy for the murder of his wife and daughter on similar grounds. Only after Van Beelen’s conviction did his lawyers learn that another man seen on the beach that day — a local psychiatric patient — had told police that he had killed Deborah Leach. His confession had been dismissed, partly because he said he had raped the girl before drowning her, whereas Dr Manock said she had been raped after she was drowned. Just two years after David Szach’s conviction, Dr Manock gave key evidence in the trial of Mrs Emily Perry in 1981. She was charged with attempting to murder her third husband, Ken, by poisoning him with arsenic. Mrs Perry’s conviction was overturned by the High Court. In the course of his judgment, Justice Murphy stated: ‘the evidence in the case revealed an appalling departure from acceptable standards of forensic science,’ adding, ‘the evidence [of malicious poisoning] was not fit to be taken into consideration.’ He said the prosecutor should use experts who are substantially and not just nominally experts in their field. Dr Manock had not even examined Ken for symptoms, but had based his conclusion on a doctor’s report which had no connection with poisoning. In another case, John Highfold, aged 30, an Aboriginal man was found dead in his cell at the Adelaide Gaol on 4 198

January 1983. Dr Manock found that Highfold had died from natural causes. A subsequent Royal Commission into Aboriginal Deaths in Custody found that Dr Manock ‘relied perhaps too far on assumptions that had not been satisfactorily proven’ and that Dr Manock’s opinion as to the cause of death was incorrect. And in a high-profile case involving Dr Manock giving crucial evidence, Derek Bromley, an Aboriginal man, was convicted for the murder of Stephen Dacoza in 1984. It was said that Bromley had been in a fight with Dacoza, and had subsequently thrown his body into the River Torrens. Thirty years later, Bromley was still in jail. Brian Martin was the prosecutor in Bromley’s case. Prior to the trials of Bromley and Szach, Jim Bonnin, Director of IMVS, had questioned Dr Manock’s competence and expertise in his evidence during Dr Manock’s civil case (CH Manock v State of South Australia and the Institute of Medical and Veterinary Science, South Australian Supreme Court, 2355 of 1978). Dr Bonnin had pointed out that Dr Manock did not have any expert qualifications; he did not have qualifications or training in histopathology; and he was unable to certify cause of death because of this lack in histopathology. Brian Martin, acting on behalf of the State in the major prosecutions of Szach in 1979 and Bromley in 1985, must have known, or deemed to know, about the deficiencies in Dr Manock’s qualifications, experience or credibility. Dr Manock gave crucial evidence as to the time and circumstances of Dacoza’s death. He described in some detail the injuries to the body and how he thought they had been caused; variously described as ‘a kick’ ‘a punch’ ‘a blow from a fist’ ‘contact with a rough surface’ 199

— descriptions which supported the statement from Gary Carter who claimed to have seen the assault by Derek Bromley and John Karpany. Bromley and Karpany claimed that they had left Carter in the company of Dacoza at the river; both, however, were convicted of the murder of Dacoza on the strength of Carter’s and Dr Manock’s evidence. Gary Carter was mentally disturbed at the time of the trial and diagnosed as a schizophrenic, but no psychiatrist was called to give evidence about the effects of schizophrenia on behaviour and how that behaviour might influence his evidence. He went to the Hillcrest Mental Hospital the following day after the incident and remained there for three months, The reliability of the evidence given by Carter and the weight placed upon it by the jury would have been much less if there were some doubt concerning a virtually unchallenged post mortem finding and opinion by Dr Manock that ‘there can be no doubt that death resulted from drowning’ and that the injuries and bruising suffered by Stephen Dacoza ‘were consistent with having been caused shortly before death had occurred, say, within an hour or two’. Professor Plueckhahn, an eminent Australian forensic pathologist and an authority on drowning, said in regard to the Bromley case: ‘It is my firm opinion that there is no scientific basis in the post mortem findings for an unequivocal diagnosis of death from drowning.’ And deputy director of the Victorian Institute of Forensic Science said that the conclusions of Dr Manock were impossible to make, especially as the body had been in the River Torrens for five to six days. In many respects, the cases of Bromley and Szach have highlighted the importance of assessing Dr Manock’s role in a series of possible miscarriage of 200

justice cases. The reason becomes clearer when we examine the roles of Brian Martin QC who wore one hat as prosecutor in the cases of Szach and Bromley, and went on to wear another hat as Justice Martin of the Supreme Court of South Australia and Chief Justice of the Northern Territory. After his retirement as Chief Justice he was trial judge in the case of Lloyd Rayney, a barrister who was alleged to have murdered his wife in Perth. Justice Martin also conducted the Board of Inquiry into the conviction of David Eastman for the assassination of Colin Winchester, assistant police commissioner in the Australian Capital Territory in January 1989. Both cases are relevant to a re- examination of David Szach’s case. The Rayney case depended upon the timing of certain events: the time at which Mrs Rayney finished her boot- scooting class on the evening of her death and the time at which one of the Rayney daughters was due to arrive home from a school concert. It was clear that Mrs Rayney had been assaulted or killed in the vicinity of the family home at a time when Mr Rayney was around. It was also clear that there was circumstantial evidence to link him to the vicinity in which Mrs Rayney’s body was found — a dinner place-card with his name on it. Justice Martin said, however, that he was not satisfied that the times could be accommodated to suit the scenario put forward by the Crown. It was not impossible, but not sufficiently certain to meet the demanding test of the rule which applies in circumstantial cases — the facts must be consistent with the guilt of the accused, and not consistent with any other innocent explanation. He also said that it lacked credibility to suggest that Mr Rayney had done all that was alleged of him and then turned up to work the following morning, cool calm and collected as if nothing had happened. 201

If Mr Martin QC, as prosecutor in the case of David Szach, had applied the same rigorous standards as Justice Martin in the case of Lloyd Rayner, Szach’s case would never have been brought to court. The timing of events in Szach’s case, as reconstructed by the prosecution, had moved beyond the inconvenient into the realm of the impossible. Clearly Szach would like to have had his case re-examined according to the principles put forward by Justice Martin rather than those by Mr Martin QC. A further revelation, applicable to the cases of both Szach and Bromley, occurred in Justice Martin’s work on the Eastman case. In Eastman, Justice Martin accepted that there were serious defects in the forensic ballistics evidence linking Mr Eastman with the scene of the crime. It subsequently transpired that the forensic expert had not completed the correct procedures in his assessment of the case. Justice Martin said that the forensic expert in Eastman’s case regularly failed to comply with established forensic procedures and frequently failed to have his work peer reviewed. There was overwhelming evidence that he lacked independence and was biased in favour of the prosecution. If the jury had known of that it would have been devastating to his credibility. If the court had known about the disciplinary charges against him and other issues thrown up by the audit of his case files, the entire complexion of the forensic case would have changed dramatically. Justice Martin said that instead of the defence struggling to find a weakness in the case it would have been the prosecution struggling to defend the integrity and reliability of the forensic expert’s evidence. Justice Martin said of the expert:

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His evidence was crucial to the prosecution case. Despite the trial judge telling the jury that this investigation ‘must surely number as one of the most skilled, sophisticated and determined forensic investigations in the history of criminal investigations in Australia’ the Inquiry proved that was not the case. It pointed to the danger of taking contentious forensic evidence at face value without properly investigating the records and the basis upon which his opinions were expressed.

Justice Martin said that David Eastman, who at the time of Martin’s judgment had served almost nineteen years in prison for Winchester’s murder, had suffered a substantial miscarriage of justice. He had not received a fair trial according to law and was denied a fair chance of acquittal. The issue of guilt, he said was determined on the basis of ‘deeply flawed forensic evidence in circumstances where the applicant was denied procedural fairness in respect of a fundamental feature of the trial process concerned with disclosure by the prosecution of all relevant material’. If Mr Martin, wearing his second hat as judge, were to reassess the Szach and Bromley cases, he would have to conclude that Mr Martin QC, as prosecutor, had not ensured full disclosure of the serious questions which had been raised concerning Dr Manock’s qualifications and abilities. This judgment would apply even if Mr Martin QC had never heard of those allegations; he would have been ‘deemed’ to know about them. The allegation had been made by Dr Bonnin, a state official employed by IMVS, a state institution, in a legal action where the defending party was ‘the State of South Australia’. Thereafter, in any case where ‘the State’ prosecutes a person for a serious crime, the duty of disclosure requires

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that it reveals information it has which is relevant to the prosecution being undertaken. It was just this issue which Justice Martin was assessing in the case of David Eastman. In many different circumstances, people had raised concerns about the qualifications, expertise and findings of the forensic expert. Justice Martin asked the prosecutors during the Inquiry if such concerns ought to have been conveyed to the defence. They acknowledged that without question they should have been. Justice Martin agreed. The only difference was their interpretation of the significance of the non-disclosures. In a similar way, if the information concerning the findings relating to the qualifications and expertise of Dr Manock were not made available to David Szach’s legal team at the time of his trial, it might well have been sufficient to ensure the overturning of Szach’s conviction. In another case in 1992, when a man’s body was found in a flat in suburban Adelaide, Dr Manock said he had fallen and possibly suffered a brain haemorrhage, but failed until later to find a bullet hole lodged in his brain. At the time he concluded that there was nothing suspicious about the death. A subsequent autopsy showed otherwise, but it was too late. The murder scene had been cleaned up. And in a well-publicised case, Adelaide bank executive and insurance agent Henry Keogh was found guilty in August 1995 of murdering his fiancée Anna Cheney by drowning her in the bath a month before they were due to marry. The motive was said to be money. The defence case was that Anna must have drowned accidentally, having had four glasses of wine earlier that night. The possibility of a faint or a fall causing unconsciousness then drowning was dismissed because 204

Dr Manock said there was no medical evidence to support it. Instead, he found bruises on her legs, which he said were consistent with a grip to hold Anna Cheney’s body down in the bath which led to his diagnosis of forcible drowning. The jury was shown photos of the ‘grip mark’ which showed faint marks on the outside of the left leg, said to have been caused by fingers and one barely visible mark on the inside, said to have been caused by a thumb. Dr Manock told the jury that, in order to assess the bruises, he had taken tissue sections and examined them histologically using a microscope, and each showed bruising. Dr James, a colleague of Dr Manock who had been asked by the prosecution to check the work of Dr Manock and who was also advising Henry Keogh’s defence counsel, stressed in his evidence the significance of a thumb mark in a grip pattern and said that all of the tissue sections showed bruising. The jury was convinced of Henry Keogh’s guilt and he was given a life sentence. Since the trial, Dr Manock has given evidence before the Medical Board and Medical Professional Conduct Tribunal in which he has acknowledged that on a number of key issues at Keogh’s trial his evidence was incorrect; one of which was that he knew that the tissue section from the so-called ‘thumb’ mark did not show bruising. Dr James has admitted at a Medical Board hearing that he also knew that that section did not show bruising but did not tell the jury because he did not think it was ‘particularly relevant’. Overall Dr Manock’s doubtful qualifications, his lack of knowledge of histology, his unscientific conclusions, his acknowledged errors and his lack of credibility, have led to a number of miscarriages of justice. Four of these cases — Frits Van Beelen, David Szach, Derek Bromley

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and Henry Keogh — resulted in a total of more than eighty years of imprisonment. It’s hard, though, to believe that Dr Manock’s findings in these cases were due solely to incompetence and negligence. Was Dr Manock influenced by an over- zealous police department requiring a conviction? How far-reaching were the problems? A Royal Commission is necessary to determine the part played by Dr Manock in the presentation of evidence in high-profile crime cases and how that evidence might have led to miscarriages of justice. The many cases of possible miscarriages of justice in South Australia concerned Dr Bob Moles, author and academic lawyer. He first raised the idea of establishing a Criminal Cases Review Commission as it exists in England. Dr Moles and colleague, Ms Sangha, have argued through the media, public forums, and publication of books and international journals that convicted people need a proper and fair legal process to assess whether their convictions amount to miscarriages of justice. It was from their book, Forensic investigations and miscarriages of justice: the rhetoric meets the reality, published in 2010, that independent member of the Legislative Assembly of South Australia, Ann Bressington, backed Dr Moles and Ms Sangha on this issue and said:

The numbers would indicate that we have innocent people doing time for other people’s crime, and, as a result of that, the real criminals are still out on the street, doing what they do. There are families, there are children, that are affected by people being in prison who have been wrongfully convicted, and it is just the right thing to do to make sure that justice is served, and that those people have a process by which they can appeal the conviction 206

and introduce new evidence ... it shouldn’t be a political decision at all. It shouldn’t be a political decision whether somebody is entitled to a legal review of their case. The Governor reviews it and hands it to the attorney-general. What if the attorney-general doesn’t like the person that we’re talking about? You know, it is human behaviour and it should be completely separate to the political process. It should be part of the legal process (Background briefing, ABC Radio National, 18 July 2010).

In November 2010, Ann Bressington introduced a Bill into the Parliament of South Australia to establish a Criminal Cases Review Commission. The Bill was referred to the Legislative Review Committee in June 2011 for inquiry and report and consideration of alternative approaches to rectifying and identified issues with the petition process, such as those being experienced by David Szach. David Szach’s defence lawyer, Elliott Johnson QC, died on 25 August 2011 aged ninety-three. Retired high court judge Michael Kirby delivered the memorial lecture at the Town Hall, Adelaide, on 28 August 2012 for the Flinders University School of Law. He concluded in his address:

The courts have declared the law. But we can reform and improve the law. That is the lesson of Elliott Johnston’s life. It is a lesson that endures beyond his death. It is one that should be taught in law schools, written in our books, practised in our courts and upheld in our legal decisions. When the law has lost its concern for the unpopular and for minorities, it has lost a central objective that clearly motivated Elliott Johnston in his life. As it motivates me. As it should motivate us all.

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Elliott Johnston would have supported Ann Bressington in her attempt to establish an independent review process. Retired High Court Judge Michael Kirby had first raised the alarm many years earlier when still a judge in NSW. In the 2000 Eastman v The Queen case, he railed in a dissenting judgement against the High Court’s historical refusal to hear fresh evidence:

The rule [prohibiting the High Court from receiving fresh evidence] means that where new evidence turns up after a trial and hearing before the Court of Criminal Appeal are concluded, whatever the reason and however justifiable the delay, the High Court … can do nothing. Justice in such cases is truly blind. The only relief available is from the Executive Government or the media — not from the Australian judiciary (Kirby, HJ Michael, “Black and White Lessons for the Australian Judiciary” (2002) 23 (2) Adelaide Law Review 195-213).

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Chapter 24

From the Governor

Szach submitted a petition to Kevin Scarce, Governor of South Australia, on 4 January 2011. He detailed the flaws in the evidence presented by Dr Manock at the trial. In particular he disputed the statement made by the former attorney-general, Trevor Griffin, that proof of guilt was based on evidence other than the scientific evidence given by Dr Manock as to the time of death:

It is clear that the Attorney-General cannot suggest that the jury would not have properly considered Dr Manock’s evidence ... the Attorney-General cannot speculate as to the evidential weight that the jury would have attached to Dr Manock’s evidence ... the applicable legal principles state that if expert evidence admitted at trial is subsequently proved to be incorrect or unreliable, then the verdict is unsafe. This is so, even if there is other circumstantial evidence which might raise suspicion of guilt against the accused ... If the jury had been told that the evidence of Dr Manock relating to the time of death was not reliable then it may well have affected their consideration of the value of the other circumstantial evidence said to have confirmed that same period. 209

This is borne out by the Findings of the Inquiry conducted by Justice Martin. He stated quite clearly in his report that he thought that David Eastman might well be guilty of the crime for which he was convicted. However, he said, the non-disclosures and forensic failings in the case were such that Mr Eastman had been denied a fair trial. That meant that Mr Eastman was entitled to have his conviction set aside – even if there was strong evidence of guilt.

On 16 November 2011, David Szach received a letter from the official secretary to the Governor:

Dear Mr Szach

His Excellency the Governor has asked me to write to you in relation to your petition for the exercise of the prerogative of mercy in your favour. In that petition, you have particularly requested that the Attorney-General refer your matter to the Full Court of the Supreme Court pursuant to section 369 of the Criminal Law Consolidation Act 1935.

The Attorney-General has provided the Governor with his advice on the matters raised in your petition. The Attorney-General has noted that you have not provided any new evidential material, nor outlined the impact of any claimed error in the evidence of Dr Manock in the context of the issues in dispute at the trial.

As a result, the Attorney-General has advised that there is no evidence of a miscarriage of justice in this case to give rise to the exceptional remedy of the prerogative of mercy.

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His Excellency has accepted the Attorney-General’s advice, and accordingly declines to exercise the prerogative of mercy in this case.

Separately, the Attorney-General has also advised that he does not see fit to refer your case, or any point arising in your case, to the Full Court pursuant to section 369 of the Criminal Law Consolidation Act 1935.

Yours sincerely

Mr Ritchie Hollands OFFICIAL SECRETARY TO THE GOVERNOR

Szach felt betrayed by the system. There seemed no way to re-open his case. He wrote to the attorney-general, John Rau, expressing disappointment about not considering the merits of his petition. On 24 November 2012, barrister Kevin Borick QC, forensic scientist Dr Harry Harding and solicitor Philip Scales AM, made a submission to the Legislative Review Committee in support of the establishment of a properly constituted Criminal Cases Review Commission in South Australia. In their submission they urged the Committee to also give proper consideration to amending the Criminal Law Consolidation Act (CLCA) as a possible alternative way of addressing problems that had been identified with the petition procedure in South Australia. That alternative approach, they said, reflected the view expressed in 2007 by the then chief justice of Australia, Justice Gleeson, when refusing an application in the High Court by Henry Keogh to have his appeal re-opened following the revelation that the evidence provided by Dr Manock and by Dr James at his trial had been 211

misleading. Chief justice Gleeson had found that the Court of Criminal Appeal had rightly held that it had no power to re-open an appeal and pointed out: ‘Rights of appeal are created by Act of Parliament. Acts of Parliament decide the jurisdiction and powers of Courts of Criminal Appeal.’ The submission put to the Committee was therefore that the Parliament could change the CLCA such that a convicted person who had exhausted all of their current avenues of appeal could make application to have either their appeal re-opened or for there to be a second appeal to the Full Court. It was submitted that the application would be to the Supreme Court and would be on the same basis as proposed in the CCRC Bill for the referral of a case — that is, there was now available ‘argument, evidence or information not raised in the proceedings which led to the conviction’. The submission argued that the advantages of amending the legislation in this way included not only the correction of the fundamental problem identified with the existing legislation concerning criminal appeals: namely, that only one appeal was allowed, but also it would mean that the convicted persons would have direct access to the courts, and that the courts would be empowered to handle all aspects of criminal cases. Such amendment would provide tacit acknowledgement by the Parliament that in regard to criminal appeals the facts and the understanding of facts (particularly scientific) can change and develop over time. It would also make the administration of criminal justice in South Australia directly comply with the provisions of the United Nations International Covenant on Civil and Political Rights. The Australian Human Rights Commission also made a submission to the Legislative Review Committee of South Australia, to support the intention of the Bill 212

introduced by Ann Bressington to establish an independent body with powers to investigate claims of wrongful conviction and refer substantial cases to the Full Court for appeal. In its submission, the Australian Human Rights Commission stated:

The Commission is concerned that the current systems of appeal in Australia, including in South Australia, may not adequately meet Australia’s obligations under the ICCPR [International Covenant on Civil and Political Rights] in relation to the procedural aspects of the right to a fair trial. More particularly the Commission has concerns that the current system of criminal appeals does not provide an adequate process for a person who has been wrongly convicted or who has been the subject of a gross miscarriage of justice to challenge their conviction (Australian Human Rights Commission, Submission to Legislative Review Committee of South Australia, 2011).

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Chapter 25

Why no progress

Channel 7 Today tonight, (Adelaide) on 6 December 2011, discussed why there was no progress in reopening David Szach’s case:

Paul Makin (presenter): But, first tonight, imagine being sentenced to life imprisonment for a crime that you didn’t commit? Years later you find evidence that shows that your conviction was wrong, but there’s nothing legally you can do. It’s a flaw in our legal system that has kept many innocent people behind bars for years. There is a just solution that works in the UK and Canada, but our attorney-general John Rau won’t even discuss it. Graham Archer reports on one man’s struggle with a system for a fair-go and a fair trial.

David Szach: I did not do it. I did not do it. It had nothing to do with me.

Graham Archer: For thirty-two years he’s proclaimed his innocence.

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David Szach: I’d always been told that the evidence of Dr Manock had provided the Crown the capacity to convict me.

Graham Archer: Szach received a life sentence, but continued to protest his innocence, and has done so since his curious release after fourteen years behind bars.

Are you saying it was an easier option for the government to let you go rather than to investigate the case?

David Szach: Definitely — and that fact stands given the circumstances of that release.

Graham Archer: By 1994 he’d gathered evidence from independent pathologists Professor Knight and Dr Collins which finally exposed Dr Manock’s phony science.

Dr Byron Collins: In my view I think this case should be returned to the court system for assessment of the evidence as it was at the time and new evidence which has been provided.

Graham Archer: Here’s the rub. In Australia, there’s no way to have a case reheard once the appeals have been completed except via a plea to the attorney-general. At the time that was Trevor Griffin who rejected Szach’s submission based on the advice of the Solicitor-General John Doyle, now our Chief Justice.

David Szach: So here I have the Solicitor-General employed by the government saying to the then attorney-general that Manock’s evidence was neither here nor there — his evidence is immaterial to the verdict.

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Graham Archer: It’s a baffling conclusion. This is the man that conducted the autopsy, the State’s head pathologist, presented to the jury as an expert. His opinion on time of death and disposal of the body within a very narrow window puts Szach squarely in the frame and goes unchallenged. His testimony is described by the prosecution as ‘objective and scientific’. But fifteen years later when the whole lot is found totally baseless, the Solicitor-General says, ‘ah, but his evidence had little or nothing to do with the conviction.’ You wonder what the jury might have thought. It was out of step with what the prosecution said at the trial.

... Now fast-forward to January 2011 and Szach tries yet again. The system hasn’t changed. He lodges a comprehensive petition for mercy with the Governor, which automatically goes to the attorney-general John Rau for assessment ... Here’s the reply ten months later. One page, just a dozen lines saying, ‘The Attorney General has noted that you have not provided any evidential material, nor outlined the impact of any claim of error in the evidence of Dr Manock in the context of the issues in dispute at trial.’

David Szach: Ten months of my time became wasted because if I read that letter all I can feel is that they obviously never read the material.

Graham Archer: Whatever John Rau did or didn’t do, it’s impossible to reconcile the letter with the contents of the petition which contains a detailed analysis of Dr Manock’s failings and the influence of his evidence on the issues in dispute at the trial.

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Tony Kerin, solicitor: It would be disappointing to receive just one page to say nothing’s changed and we are not changing our opinion.

Graham Archer: Lawyer Tony Kerin is the SA President of the Australian Lawyers Alliance, and though not commenting on the specifics of this case, says the process is far from fair.

Tony Kerin: The system we’ve got now is convoluted. It’s ancient, it’s archaic and it’s very difficult to work your way through it.

Graham Archer: His organisation supports the proposal of a Criminal Cases Review Commission, based on a UK model, which independently assesses possible serious wrongful convictions, then refers those with merit back to the court.

Tony Kerin: At the moment we have the Crown essentially judging the Crown. An independent body would be far more independent, as you’d expect, and it would be easier if you follow some of the models in the world — it would be easier to achieve a hearing than what the current petition process does.

Graham Archer: Easier indeed. So far in this State, not one petition has ever got past first base. And when we asked John Rau to provide legal reasons for his decision in David Szach’s case — he simply refused.

David Szach: Surely someone making a decision which is effectively about life and death for you ought to give details. There’s no transparency.

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Tony Kerin: The law is constantly evolving and there are ways it can improve and adapt to social change, as it must, on a regular basis. One of the ways our organisation says it should change is that this body, independent body, different from what’s existed in the past, should be an idea whose time has come and every government, preferably a national approach, should take it on board and seriously consider it.

Graham Archer: Attorney-General John Rau issued a flat ‘no’ to any idea of supplementing our appeal process, and declined a request for an interview. Former High Court Judge Michael Kirby on the other hand was more upfront.

Justice Michael Kirby: The High Court won’t receive new evidence however compelling it may be and that is a weakness in our appeal system in Australia — that we can’t in the final court receive new evidence where for example it is compelling and shows the person is actually innocent.

Colleen Egan (a journalist from Western Australia who took up the case of Andrew Mallard): The system is set up so that it’s supposed to work properly and there’s nothing really for the people who fall between the cracks if the system doesn’t work properly for them.

Graham Archer: Perth journalist Colleen Egan wrote a book documenting the years it took her, family members, a couple of politicians and a group of dedicated lawyers to free Andrew Mallard who’d served twelve years in jail for a murder he didn’t commit.

Colleen Egan: I think it’s a lot easier for the government, the politicians, the legal fraternity, the police force, courts,

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for everybody, if they don’t concede an innocent person is in jail. It’s a lot easier for them if that isn’t real.

Joe Crowley (a barrister from Queensland): On the Stafford case three lawyers, three scientists, a journalist, an academic and a private investigator took about four years to finally have the conviction overturned and all of those people worked for no money. So it’s very difficult under the current system to have a wrongful conviction overturned.

Graham Archer: Barrister Joe Crowley based at Bond Uni was one of that team which managed to have Queenslander Graham Stafford acquitted of murder after having spent over a decade behind bars.

Graham Stafford file tape: I’d just like to thank everyone who’s supported me throughout all this ... this nightmare (breaks down).

Joe Crowley: The burden of overturning these wrongful convictions really is shouldered by innocence projects like the one we have at Bond University which worked on the Graham Stafford case. In a developed economy with a sophisticated legal system like Australia I think that we probably could come up with a better way to proceed.

Graham Archer: There’s no reason why South Australia couldn’t be a leader in this area?

Tony Kerin: No, and indeed, wouldn’t it be great to hark back to the years when South Australia was a leader on justice issues — and this could be a sign those days are returning — but I won’t hold my breath.

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David Szach: What happened to me could have happened to anybody and it could still happen to anyone.

Paul Makin: The Legislative Council Review Committee will begin its consideration of a Criminal Cases Review Commission in the New Year. Meanwhile, David Szach has written to John Rau requesting the legal basis on which he has been denied the chance to put his new evidence to the court.

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Chapter 26

A tortuous process

In a circumstantial case, about twelve months prior to David Szach’s trial, Edward Splatt was wrongfully convicted of the murder of Mrs Rosa Simper in her Adelaide home in 1977. Splatt always maintained his innocence and continued to protest. It was never in Splatt’s mind to accept his sentence passively. His lawyer, Jack Elliott, had exhausted all legal avenues. Like David Szach, nothing swayed Splatt, though, from proving that he was innocent of all association with the murder of Mrs Simper. Ultimately, a Royal Commission, lasting fourteen months — the longest and most expensive in South Australia’s history — recommended that Splatt’s sentence in 1984 be set aside after he had served six and a half years of his life sentence. Seventeen significant pieces of evidence presented by Sergeant Barry Cocks, head of the Technical Service Division of the police department, were found to have no substance when examined by specialist scientists. Inappropriate scientific testing, pseudo-science and untested theories had prevailed instead to convince the jury of Splatt’s guilt. The evidence had gone unchallenged at the time of the 221

trial, and not challenged by expert scientists until it was too late. Even a fish lolly, ‘recovered’ at the crime scene, eight months after the crime had been committed, was used as evidence against Splatt; two tiny fragments of blue and white cotton fibres, about a half millimetre long and adhering to the fish lolly, were found to be similar to fibres on Splatt’s blue and white shirt that was taken from his wardrobe. With the closing of legal avenues, a Royal Commission would not have been established but for the exhaustive efforts of The Advertiser investigative journalist Stewart Cockburn calling attention to the flawed nature of the case. The establishing of a Royal Commission, however, also depended on the winning of the state election by Labor — the shadow attorney- general promised a Royal Commission if Labor won. Otherwise, Splatt would have languished in prison. If a fair and independent process of review had been in place as part of our legal system, Splatt and others would not have had to depend on support from the media and fortuitous political circumstances to correct such egregious errors. The Splatt case exposed the flawed nature of the forensic system, which included the mishandling of forensic material collected by police at the crime scene, the overzealous behaviour of the police in pursuing Splatt at the expense of following other lines of inquiry, inappropriate methods and techniques used to examine material from the crime scene by scientists, and the improper presentation of the evidence in court. Other factors concerned the necessary support and funding required for the defence to challenge scientific evidence presented by the Crown; support for jury members lacking in technical or scientific expertise to grasp the

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complex nature of forensic evidence presented in court; and the transparency of the jury in their findings. As a consequence of the Splatt case, the Labor Government of South Australia instituted reforms to forensic services. These included the creation of a new division of forensic science, the State Forensic Science Centre; it would ostensibly be independent of the police force. Forensic science services, previously provided by a number of agencies, came together under one organisation. These changes took effect after 1984, too late to have an impact on Szach’s trial, which occurred about a year after that of Mr Splatt in 1978. The same forensic mistakes were repeated in the Szach case, which included the selection or distortion of evidence to support a preconceived view and the inability of the defence to challenge the scientific evidence at the time of the trial. Splatt and Szach persisted year after year to proclaim their innocence. After ignoring essential points of justice in the trials, the cases of Splatt and Szach had foundered with the dismissals of their appeals by the Court of Criminal Appeal in South Australia. From then on the gates virtually closed on accepting new evidence on appeal. The High Court rejected the application for special leave in both cases — the appeal could only be on points of importance in law. It was left to the media to take on the cases when legal avenues ceased to exist. The Advertiser adopted Splatt’s case but there was no one like Stewart Cockburn to take on Szach’s case. Public response from the Adelaide community led to a Royal Commission for Splatt. No one waved a banner for Szach. On a wider scale, largely as a result of both the Lindy Chamberlain and Splatt cases, the National Institute of Forensic Science (NIFS) was formed with the aim of 223

improving the standards in government laboratories. The laboratories had been essentially controlled and operated by the police and lacked the independence argued for in the Splatt Royal Commission. Although changes were made to the forensic system following the findings and recommendations of the Royal Commission, continued vigilance was necessary, especially in circumstantial cases, to avoid errors in the presentation of forensic evidence. Scientific or pathological evidence needed to be checked by other specialists (peer reviewed) in the respective scientific fields. In the UK, the formation in 1997 of the Criminal Cases Review Commission to assess whether convictions or sentences should be referred to a court of appeal has led to over 360 referrals (70 per cent) being quashed, including the overturning of around one hundred murder convictions. The IRA bombing cases, including the Birmingham Six and the Guildford Four cases fundamentally changed the British justice system. The Birmingham Six were jailed on terrorism charges over two pub bombings in Birmingham in the 1970s. The blasts killed 21 people and were blamed on the Provisional IRA. Paddy Hill and the other five were jailed for life. They were eventually released after new evidence proved they were innocent. Paddy Hill, one of the convicted for the bombings, on a visit to Australia in 2010, said on Background briefing:

And that’s the worst thing about prison. As soon as you go in and your family come and they go ‘Are you all right?’ ‘Yeah, everything’s great’ — how in the name of God can it be all right? I’m serving 21 life sentences for something I know nothing about.

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What the CCRC had shown in the United Kingdom was statistically likely to occur here, given the common origins and similarities of the legal systems. The least that could be offered to those who are wrongfully convicted for crimes they did not commit was to provide an independent means of addressing a miscarriage of justice. That could not happen through the arbitrary decision of one person, usually, the attorney-general, who was more likely to be influenced by other factors, such as public sentiment, political pressure, cost, vested interest, embarrassment to the system and maintaining the status quo. A re-examination of a number of high profile cases in Australia, nevertheless, had ultimately led to the exoneration or pardon of persons convicted for crimes they hadn’t committed. In each case, the process, however, had been time-consuming, tortuous, legally demanding and very costly, sometimes requiring the establishment of a Royal Commission as it did in the Splatt and Chamberlain cases. In addition, it caused undue mental distress to all concerned. In a well-publicised Western Australian case, Andrew Mallard was wrongfully convicted and jailed for twelve years over the 1994 murder of Mosman Park jeweller Pamela Lawrence. Colleen Egan, a Perth journalist, investigated Andrew Mallard’s story and helped uncover evidence that led to Mallard’s release in 2006. He was convicted on confessions allegedly given during unrecorded interviews. Mallard’s first appeal to the Supreme Court of Western Australia in 1996 was dismissed for lack of new evidence. The attorney-general referred Mr Mallard’s case to the Court of Criminal Appeal of Western Australia in 2003, but the appeal was

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unsuccessful. Finally, the High Court unanimously agreed in November 2005 that there had been a miscarriage of justice and quashed his conviction. During the hearing, Justice Michael Kirby had said that on one of the pieces of evidence alone — a forensic report, not disclosed to the defence — a re-trial should have been ordered. Mallard was released in February 2006. Like Mallard’s case, the process of proving a miscarriage of justice often involved third parties to an extraordinary level, such as galvanising of public opinion, petitions and media backing, to circumvent the constraints of the legal system. An opportunity for this process to occur openly, with facility and without bias, was through an independent statutory body, such as a South Australian Criminal Cases Review Commission. South Australia could lead the way in forming a CCRC. There were about twelve serious criminal cases in urgent need of review.

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Chapter 27

Innocent people locked up in jail

Channel 7’s Today tonight (Adelaide) interviewed Dr Bob Moles about the Human Rights Commission submission on 2 March 2012.

Paul Makin (presenter): Tonight, a virtual bombshell exposing a fundamental flaw in our justice system which means that innocent people can remain in jail, even when there is irrefutable evidence of their innocence. Now one of our most respected national legal bodies has confirmed this glaring embarrassment. Author and lawyer Dr Bob Moles has the details

... Now for years, you’ve complained about the difficulty of those convicted of a crime being able to get fresh evidence back into court to prove their innocence. Why has it been so hard?

Bob Moles: Well, because basically with the criminal appeals system in Australia, once a person has had an appeal which has been rejected — if after that totally compelling evidence emerges that they are in fact

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innocent — they have absolutely no legal right to any further review of their case.

Paul Makin: But what about DNA, for example, now that we have modern technology, DNA; there would be a proper process with that coming in, you would think?

Bob Moles: You would think so, wouldn’t you, yes, but we don’t have that in Australia. They do have it in other countries, in Britain and Canada, for example, but we don’t have such a process here at all.

Paul Makin: So, in other words, our system has not kept pace with modern forensic investigations?

Bob Moles: Absolutely, and also it hasn’t kept pace with modern legal developments in other comparable countries.

Paul Makin: So, what’s available?

Bob Moles: Well, at the moment, nothing is available. Once you’ve had your appeal rejected and after that compelling evidence emerges that you are in fact innocent, there is nothing further that can be done, unless of course you get the consent of somebody.

Paul Makin: You can petition the Governor?

Bob Moles: Yes, you can.

Paul Makin: And the Governor can’t do anything. He’ll pass it on to the attorney-general?

Bob Moles: That’s correct.

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Paul Makin: And the attorney-general does what?

Bob Moles: And the attorney-general can just ignore it if he chooses to do so.

Paul Makin: He does not have to give a reason for him knocking back the petition?

Bob Moles: No, in fact he’s rejected a good many petitions over the last few years and he hasn’t given any reasons for any of them.

Paul Makin: So, there’d be innocent people locked in jail right now because the attorney-general doesn’t want to proceed with that?

Bob Moles: Beyond any shadow of a doubt, that’s true.

Paul Makin: How do you describe that system?

Bob Moles: I just think that I’m ashamed to be in Australia, as a lawyer, and to be part of a system which operates like that. That’s why we’re doing what we’re doing.

Paul Makin: OK, we come now to the legal bombshell, and the folks at home are going to be blown away with this one. You have had something of a breakthrough from outside the system which will stir things up no end. Tell us about that.

Bob Moles: Ok, well over the last few months we’ve put in submissions to the Australian Human Rights Commission, and they’ve just issued an opinion in which they’ve clearly stated that the appeals system in Australia fails to comply with fundamental international human rights obligations.

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Paul Makin: Now, that’s worth repeating.

Bob Moles: Yes.

Paul Makin: We do not comply with human rights? The Human Rights Commission says we do not comply; our legal system does not comply?

Bob Moles: Yes, the Human Rights Commission is Australia’s peak body for monitoring compliance with human rights and it says, very clearly, that we do not comply, in our criminal appeals system, with international human rights obligations.

Paul Makin: Bob, when you found that out what was your initial reaction?

Bob Moles: Well, I was very pleased to have this recognition from such an important body within Australia, but the whole thing is really quite shocking, isn’t it?

Paul Makin: Our whole legal system is in breach, that’s incredibly serious stuff?

Bob Moles: It’s a very serious thing because it applies across Australia and it’s also been in that condition for over thirty years.

Paul Makin: Thirty years?

Bob Moles: That’s right, that was when the international treaty came into existence, or that’s when we signed and ratified the international treaty.

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Paul Makin: OK, does anybody within the system — are they aware of this — has anybody shown any interest at all?

Bob Moles: Not as yet. Our hope, of course, is that this will change now very quickly, because for any legal official and indeed for any private citizen within Australia, we all have an obligation under the treaty, to comply with it.

Paul Makin: So, what does that mean for somebody who believes they’re innocent? They may have exhausted every avenue, as we stand right now, but under this particular Human Rights Commission ruling, where do they stand?

Bob Moles: OK, what it means now is that all attorneys- general across Australia, state and federal, should now pay some very urgent attention to that opinion from the Human Rights Commission and ask themselves, as a matter of some urgency, what they need to do to comply with the international treaty.

Paul Makin: And you’ve called for a Royal Commission?

Bob Moles: Yes.

Paul Makin: Do you believe that will be successful?

Bob Moles: Oh look, if we can have a Royal Commission into something like the McGee case, or some of the others sorts of issues which we’ve had a Royal Commission on, why would we not have a Royal Commission into something where a very basic part of our criminal justice system is falling into disrepute?

The cases involving Frits Van Beelen for the murder of Deborah Leach, David Szach for the killing of lawyer 231

Derrance Stevenson, Derek Bromley for the murder of Stephen Dacoza and Henry Keogh for killing his fiancée, were each in urgent need of review because of faulty forensic evidence presented by pathologist Colin Manock. The testimony by Manock in each case played a central part in the prosecution of each of them. All attempts to address these potentially serious miscarriages of justice had failed with the Attorney General advising the Governor of South Australia not to grant a review. Former High Court Judge Michael Kirby stated in an interview on Today tonight (Adelaide):

My own belief is that we in Australia should move, throughout the country, federal and state and territory, to have a Commission that has the time and the skill and the expertise and the DNA evidence where it’s available to look into these matters so that we don’t have on our conscience as a society people in prison who are innocent and people who have been pardoned but still have the stain of conviction on their names.

— The Legislative Review Committee recommendations

On 4 April 2012, in oral evidence to the Legislative Review Committee inquiring into the establishment of a CCRC, Dr Harding, forensic scientist, said:

So in a criminal case it is not only the discovery, for example, of information that a witness has either knowingly or otherwise given false or misleading evidence to the jury that can make it necessary for a case to be revisited by the Court if justice is to be truly done; it can

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and it will happen because of changes and advances in science and technology and the further understanding thereof. We can understand, these days, that this will from here on always be the case, and so we should realise that courts need to be provided with, and able to operate in an environment that allows for and can cope with this.

… Surely therefore legislative changes should, indeed must, be made for the protection of the rights that individuals convicted of serious criminal offences are entitled to. The Parliament of South Australia, through this Committee, could ensure that protection. And in so doing set the benchmark for the nation.

The Legislative Review Committee released its report on 18 July 2012. It recommended that a CCRC not be established in South Australia or at a national level at this time. It did however recommend that the Criminal Law Consolidation Act be amended to provide that a person may be allowed at any time to appeal against a conviction if the court is satisfied that the conviction is tainted. This meant that there must be some fresh and compelling evidence in relation to the offence which would indicate that there had been a substantial miscarriage of justice. It also recommended that the attorney-general consider amendments to legislation to provide that a person granted a pardon for a conviction should be eligible to have their conviction quashed. Another recommendation of the committee was that consideration be given to establishing a Forensic Science Review Panel to enable testing or retesting of forensic evidence which may cast reasonable doubt on the guilt of a convicted person. In such cases there would then be a power of referral to the Court of Criminal Appeal. Such a

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panel, if established, would have a role not like that of a CCRC but restricted to forensic issues.

— Amending the criminal appeals legislation

The attorney-general, John Rau, in response to the Legislative Review Committee’s recommendations, introduced into Parliament on 28 November 2012 a Statutes Amendment (Appeals) Bill which, he said, was intended to improve the present procedure for appeals in South Australia. The Bill introduced four new measures:

 First, the Bill provides for new procedures for renewed defence appeals against conviction in the event that ‘fresh’ and ‘compelling’ evidence comes to light after the usual right of appeal has been exhausted. These new procedures will apply to convictions imposed in any court. The Bill utilises the definitions of ‘fresh’ and ‘compelling’ in Part 10 of the Criminal Law Consolidation Act 1935 for renewed prosecution appeals against an acquittal for a serious offence. These definitions should not preclude genuine applications, but a reasonably high threshold is necessary to guard against unjustifiable applications by convicted applicants. An applicant must satisfy a court that the evidence is both ‘fresh’ and ‘compelling’.

 Second, the Bill provides that a person granted a full pardon for a conviction will be eligible to have their conviction quashed.

 Third, the Bill provides that if a defendant appeals his or her sentence on the ground of error and therefore that a lower sentence should have been imposed, or 234

alternatively on grounds that the sentence was manifestly excessive, then the prosecution will have an automatic right of cross appeal without the usual need to obtain permission to appeal. The prosecution can appeal on the basis that an error was made by the sentencing court and the sentence should be increased or on the basis that the sentence is manifestly inadequate.

 Finally, the Bill provides the chief justice with a discretion to constitute the Full Court by a bench of two judges (rather than three) for both sentence and conviction appeals.

Dr Bob Moles, a tireless campaigner and advocate in miscarriages of justice, wrote to his supporters:

We are pleased to advise that the Bill to establish a new right of appeal for those who claim to be the victim of a miscarriage of justice will be introduced to the parliament on Wednesday, 28 November.

The attorney-general will provide some explanation as to why the Bill is required upon its introduction ... this will be an historic event.

That evening on Today tonight (Adelaide) Graham Archer spoke to Ann Bressington:

Graham Archer: Would you describe this as a historic reform?

Ann Bressington: Absolutely, it is. Rarely can we get a time in parliament that we can actually collaborate in a reform to the justice system which is going to impact on people’s lives in a positive way, and this is one of them.

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Graham Archer: The process up to now has been a political one rather than a legal one. And, from being the least likely place to change our justice system to the better if passed, this will make South Australia a national leader.

Ann Bressington: This reform is about setting right a terrible injustice that’s existed for a very long time. It’s probably the first step now in setting that right and making sure that it is a justice system not just a law and order system ... We need to be aware that while we have innocent people in jail the real criminals, the real murderers, the real rapists are still out there doing what they do, so until that is righted we don’t have a justice system and people can’t actually feel safe.

The Bill to create a new statutory right of appeal in criminal cases was passed by the lower house of the South Australian Parliament on 7 February 2013. An historic day! And two more steps — approval by the upper house and proclamation so that it could become law. In debate on the second reading, Deputy Leader of the Opposition, Vicki Chapman, reminded members of the house that there was an old adage: ‘better that a guilty person go free than an innocent person be hanged.’ She referred to the case of Henry Keogh:

It is a well-known case in South Australia. I mention it because it is probably the aspects in respect of forensic and expert evidence in that case that one does need to reconsider whether this whole approach is meritorious, and that is not in any way to reflect on whether I have any personal view as to the guilt or innocence of Mr Keogh.

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In closing the discussion on amendments to the Bill, attorney-general John Rau said:

In terms of the business about the case review process, I think it is very important ... to bear in mind that the present process for people who have been convicted and exhausted their repeal rights is very, very mysterious. It is mysterious because what happens is that they are languishing in gaol, they have no right of appeal. What they do is write to the Governor and they say, ‘Governor, please let me out. I’m a good person.’ The Governor then seeks advice from the Solicitor-General, who has to read a lot of material and form an opinion and inform the Governor, and then ultimately the Governor makes a decision.

None of that process occurs in any way in a public forum. It is all happening behind closed doors, as it must because it involves the Governor. However, what we are doing here is bringing that to a public forum, which is a court. So, anybody who believes they have one of these cases is able to appeal, take the matter to a court in a public forum and say whatever they want to say in public, hear whatever anyone else wants to say about it in public, and we have that marvellous disinfectant of sunshine just covering the whole circumstance — magnificent. I am starting to feel quite warm about it right now. I commend the Bill, as amended, to everybody, and I believe we will move swiftly through the committee stage of the Bill.

The Bill was passed by the upper house of the South Australian Parliament on 19 March 2013. One of the first to respond was Professor Economides, Dean of Law, Flinders University:

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I am pleased to announce that joint research conducted at the law school at Flinders University has significantly contributed to the passing of the Statutes Amendment (Appeals) Act 2013 (SA). The Act that has just been passed by the South Australian parliament represents an historic change in the system of criminal appeals in Australia. It provides a new right for a second appeal or a further appeal in criminal cases where previously appeal rights had been exhausted. It requires fresh or compelling evidence that there has been a miscarriage of justice. It is the first time in 100 years that the appeal rights in Australia have been changed. It is also the first time that there has been any differentiation in appeal rights between the various states and territories. The Australian Human Rights Commission has made it clear in its submission to the South Australia parliamentary inquiry that the appeal provisions currently applicable in all states and territories of Australia (apart now from South Australia) do not comply with international human rights obligations. It says that they fail to respect the right to a fair trial, and they do not allow for a fair opportunity to appeal once compelling evidence of a wrongful conviction emerges. The problem arises in the situation where a person has been convicted and has had an unsuccessful appeal. If it is subsequently discovered that the person has not had a fair trial (either through some non-disclosure, discovery of legal error or non-probative evidence having been used) the appeal courts cannot re-open the appeal and the High Court cannot admit the fresh evidence. The only remaining procedure is to petition for a referral to the court of appeal, but that is said to be entirely discretionary on the part of an Attorney-general and not judicially reviewable.

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The Australian Human Rights Commission, the Law Council of Australia, the Australian Lawyers Alliance and the South Australian Law Society had all put in submissions supporting these important changes. National President of the Australian Lawyers Alliance, Tony Kerin, said The Statute Amendment (Appeals) Bill 2012 was a commendable piece of legislation that had been brought to fruition by a number of people engaging with the South Australian Government about significant unjust conviction cases around the country during the past fifteen to twenty years. Former New South Wales Director of Public Prosecutions Nick Cowdery, who retired in 2010 after sixteen years as the state’s chief prosecutor, welcomed the reform as an Australian first. Attorney-general John Rau’s predecessor, Michael Atkinson, however, criticised the reform — it would ‘lead to a spiralling number of baseless appeals from prisoners that would drain the resources of an already- stretched Supreme Court.’ In response to the new appeals act, Michael Kirby wrote for the Financial review 2 May 2013:

The desire of human minds for neatness and finality is only sometimes eclipsed by the desire of human minds for truth and justice. There will always be a disinclination to reopen a conviction, particularly where it has been reached after a lengthy trial and a verdict of guilty from a jury of citizens. Sometimes, however, that disinclination has to be confronted and overcome.

That is why the new South Australian legislation is so important. It is why I congratulate the Parliament of South Australia. And I have a special and personal reason for doing so. 239

Soon after my appointment to the High Court of Australia in 1996, I sat as one of three Justices hearing an application for special leave to appeal against a decision of the Court of Criminal Appeal of Western Australia. That court had rejected an appeal by Mr Andrew Mallard against his conviction of murder. The High Court rejected the application and Mr Mallard proceeded to serve his sentence of life imprisonment. A decade later, with fresh counsel and new arguments, based in part on fresh evidence, Mr Mallard petitioned the Governor of Western Australia to reopen his conviction. The case was referred to the Court of Appeal of Western Australia. It rejected the application. Once again, the matter was brought to the High Court. But this time the arguments were fresh and were more persuasively elaborated. The High Court upheld the appeal and set aside Mr Mallard’s conviction. Eventually a judicial enquiry concluded that he was actually innocent of the crime. He was released from prison and finally paid monetary compensation. Yet no one could wipe away the years of imprisonment and the intense frustration of knowing that he had been wrongly convicted. Although I took part in the second hearing and joined in the orders of the High Court, those orders and their outcome could not erase the sense of pain and regret that my earlier orders had, unknowingly, resulted in the imprisonment of an innocent man for more than a decade. This case, and others, convinced me that better institutional and procedural arrangements had to be provided.

The new SA legislation is a first step. Judges, lawyers and administrators throughout Australia will be studying the operation of the new law with vigilance. Any law that helps society to avoid serious miscarriages of justice is to be welcomed. I praise the lawyers and civil society 240

organisations who have been urging the adoption of such a law for so long. Their success is an instance of democracy. It shows that sometimes in Australia principle triumphs over complacency and mere pragmatism. I hope that other jurisdictions in Australia will take steps to enact legislation for the same purpose. Wrongful convictions and miscarriages of justice haunt the conscience of a civilised society. The Statute Amendment Appeals Act (SA) was proclaimed on 5 May 2013. Michael Kirby wrote a letter to Graham Archer, executive producer of Channel 7’s Today tonight thanking him for the support for the Criminal Appeal Bill. He said:

This Bill introduces the first substantive reforms of criminal appeals in Australia for more than a century. ... Without the support of programs such as yours, it is most unlikely that the pressure would have existed upon the political process to deliver a just and reformatory outcome.

David Szach tested the waters of the new appeal law and faced an unexpected obstacle. After applying through his lawyers to the Legal Services Commission for funding to take his challenge to court, the curt reply stated:

Your client has long since served the sentence imposed by the Court and it appears that the only purpose for an appeal would be to have the conviction quashed, with no other practical benefit to be claimed by your client. While this may be of some significance to your client, the fact that any appeal will have no affect at all on his liberty, which he regained some time ago, means that it would be

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inappropriate to spend limited public legal aid funds on this case.

It looked as though the good will and hope for victims of miscarriage of justice could disappear under an administrative imposition. Bob Moles and Bibi Sangha were quick to respond in an article ‘Funding appeals is in the public interest’ (Website: http://newmatilda.com/2013/05/20/funding- appeals-public-interest):

In its reasoning, the Commission appears to have overlooked the public interest in identifying those who have been guilty of serious crimes and ensuring that they are apprehended and punished. After all, if Szach is innocent of the murder then surely some other person (or persons) is (or are) guilty of it. A solved crime is turned into an unsolved crime and a very serious one at that.

In addition, there is the possibility that in examining the errors at trial and the reasons for them, one might identify ‘systemic’ errors. It may be that the errors in this case are linked to similar errors in other cases. Is there not some considerable public benefit to be achieved in finding out if that is the case, and if so looking at those other cases?

Then, of course, there is the situation of Szach. At present he is suffering from motor neurone disease and any undue delay in dealing with this matter is of great concern to him. Clearly, if he is innocent of the crime for which he has been convicted, he is entitled to have a public declaration to that effect. His children, his parents, his family and friends might like to know the truth about what has occurred. So too might the family of Derrance Stevenson.

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If he is innocent, and if there was some element of fault on the part of the state in the investigation and prosecution of the case, then that might enable him to obtain compensation for the wrong which has been done to him.

Having studied a great many cases of wrongful convictions in Australia, Canada and Britain, we cannot recall such an explanation having been put forward anywhere as an excuse to refuse further inquiry or judicial determination of such a matter. In the UK there has been vigorous debate as to whether there are proper grounds for appeal in individual cases. However, in Szach’s case, the rejection was not based on the lack of grounds for an appeal, but solely on whether there was a public interest in funding such an appeal.

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Chapter 28

Miscarriage of justice The case of David Szach is a serious miscarriage of justice. The foundation on which the case was based — the sighting of Szach coming out of the house, having supposedly committed the crime, and Dr Manock’s evidence — was flawed. Improper police procedures used in the identification of Szach by Mr Short, combined with Dr Manock’s evidence based on unsound scientific principles, significantly contributed to the flawed evidence and to the miscarriage of justice. These flaws alone, proving the evidence at the trial to be non-probative, should have been enough to set the conviction aside, even where there was other evidence of apparent guilt. As well as the lack of underpinning of the Crown’s case, the events which followed that involved Szach — their sequence and timing, as reconstructed by the Crown — lacked credibility. The Crown’s case failed to confront the evidence which was not produced by the police, such as the cash dockets from the petrol stations, and by people not called as witnesses, such as the Stateliner bus driver.

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More disturbing, it appeared that evidence had been manipulated for the Crown’s case, to support a preconceived view. In particular, the evidence given by the service attendants at the Port Wakefield petrol station was most likely distorted, given the high speeds that Szach would have had to travel at night- time to Port Wakefield and on to Kingoonya to fit in with that scenario. The judge (and Szach’s own defence counsel) believed in Szach’s guilt and this strengthened the Crown’s case through his comments of suspicion and innuendo. Szach’s case ‘screams out as a set up’, as stated by Elliott Johnston, but the police in their overzealousness had singled out who they thought to be the killer and had not pursued other lines of inquiry. Gambardella, charged as an accessory after the fact, was let off by the magistrate at the committal. Evidence strongly suggested that it was a premeditated murder, carried out at a later time than specified by the Crown, and carefully planned to implicate Szach. If Szach had planned the murder in the time span of 5.20 to 6.40 pm he could not have chosen a worse time, at the end of a working day for Derrance Stevenson with the likelihood of house or phone callers. Like many cases involving the presentation of forensic evidence, little opportunity exists to challenge scientific evidence presented by the Crown. Pathology specialists Dr Bryon Collins and Professor Bernard Knight did challenge the scientific evidence presented by Dr Manock after thorough research had been carried out — a time-consuming process which took many years to complete. In Szach’s case the findings were presented too late — the appeal process had passed and all legal avenues had closed. Szach’s 245

defence did not have the resources to sufficiently challenge Dr Manock’s findings at the time of the trial or soon after. Most people who knew Szach described him as a mild-mannered person, not given to flights of anger or cursing; it was hard for them to reconcile his character and his persistent efforts for more than thirty-five years to clear his name as someone who could have committed this murder. Miscarriages of justice were likely to continue, despite the best efforts to implement reforms such as developments in forensic science, better procedures for forensic scientists and police, and independent organisations to examine fresh evidence. Errors do occur. What was not acceptable was the apparent lack of effort on the part of the legal system and others to redress those problems, particularly the reticence under which appellate courts operated. By not re- examining likely cases of miscarriage of justice, tacit approval was given to the status quo that wrongful convictions could stand. This reflected on the moral capacity of our society to reform and to offer a more humane response.

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Chapter 29

A landmark case lights up Szach’s hope for justice Under the new law for the right of appeal with fresh and compelling evidence David Szach had hoped to have his case reviewed. An administrative setback for Szach allowed Henry Keogh, who had been in jail for twenty years as part of a life sentence for the murder of his fiancée in a bath, to be the first of Dr Manock’s cases to be reviewed under South Australia’s new appeal rights. Whatever happened in Keogh’s case — a landmark case for Australia — would set a precedent for David Szach and others in waiting; in particular, for South Australia, it would involve those cases in which Dr Colin Manock, the state’s chief forensic pathologist, had given crucial evidence at the trials. For twenty years, Henry Keogh’s father had maintained his son’s innocence, and called the challenge ‘the light at the end of the tunnel.’ In a five-day long hearing in the Supreme Court, Marie Shaw QC, appearing for Henry Keogh, referred to a report from Flinders University pathologist Professor Tony Thomas which detailed evidence for an innocent

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cause for Anna-Jane Cheney’s death. Professor Thomas was convinced that the bruise on her left leg was more than a day-old at the time of death. And from her medical records, it appeared that Anna-Jane Cheney had been taking the anti-histamine Hismanal, which could have adverse — even fatal — side effects. Ms Cheney could have died from anaphylactic shock, not murder. Professor Thomas said his opinion was supported by crime scene photographs which showed Ms Cheney’s face was swollen after her death. Ironically, Dr Manock had already recanted on his own evidence prior to the hearing. He admitted to the Medical Board in 2004 that a microscope sample of the so-called ‘thumb bruise’ on her lower left leg showed no bruising, but he had not informed the prosecution or the defence of that at the time of the trial. He admitted later that the bruises could have been up to twenty-four hours old or even older. Marie Shaw stated at the hearing that forensic evidence did not support Dr Manock’s hypothesis that Keogh had grabbed her legs and lifted them up over her head to cause drowning. Justice Kevin Nicholson deliberated over the findings of the hearing and found it ‘reasonably arguable’ that convicted murderer Henry Keogh suffered ‘a substantial miscarriage of justice’. ‘It’s an exciting time — we’re one step closer,’ Mr Keogh Sr said. ‘That light at the end of the tunnel is getting a bit brighter.’ Several months later, the Full Court of the Supreme Court overturned Keogh’s conviction. In the wings, hoping for that light to shine on them, were Szach, Splatt, Van Beelen, and Bromley.

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Index beyond reasonable doubt .... 107, 116

A Blieschke, Liz ...... 22

blood on Datsun ...... 79 Adelaide Now……………..………192 Bolic, Danny ...... 44 Advertiser………………………….….21 Bonnin, Dr Jim .. 47-48, 175, 199, Appeal (Szach) ...... 137 203 Appeal to Attorney-General.. Borick, Kevin .. 27, 29-30, 36, 39- ...... 166-173 40, 54-59, 76, 86, 91, 174, Archer, Graham .... 184-190, 214- 211 219, 235-236, 241 Bressington, Ann .. 206-208, 212, Atkinson, Michael ...... 177, 239 235-236 attaché case ... 17, 37-38, 67, 88- Bromley, Derek .... 199-203, 205, 89, 110, 121, 134 232, 248 average speed ...... 90, 93-94, 99

C B

Calley, Robin ...... 39 baby deaths...... 195 Carter, Gary ...... 200 Background briefing ...... 195 Celon, Danilo ...... 22 Barnes, Alan....89, 141-143, 145, Chair of the Parole Board ..... 151 186-187, 189, 193-194 Chamberlain, Lindy ...... 223 249

Channel 7 6, 35, 86-87, 112, 124, Criminal Cases Review

130, 184, 214, 227, 241 Commission ..... 206-207, 211,

Chapman, Vicki ...... 236 217, 220, 224, 226

Cheney, Anna ...... 205 Criminal Law Consolidation Act

Christianos, Ross .... 5, 11, 44, 63, ...... 167

65-66, 72, 102, 105 Crowley, Joe ...... 219 circumstantial cases .... 116, 201, Crown address (Brian Martin)

224 ...... 108 circumstantial evidence 101, 103-

104, 108-109, 116, 136, 139, D

179-180, 197, 201, 209 clotting of the blood ...... 48-49 Dacoza, Stephen ...... 199

Cohen, Hagar (ABC) ...... 195 Datsun 260Z ... 12, 17, 22, 25, 35,

Collins, Dr Byron 37, 42, 92, 147

evidence of Dr Manock .... 155 David, Michael……………..148-152

Collins, Dr Byron ...... 78 Debelle, Penelope ...... 131 committal proceedings ...... 30 defence address (Elliott Cook, Detective ...... 17 Johnston) ...... 100 Cooling Formula ...... 162 Donald, Dr Terry ...... 173-174 Court of Criminal Appeal …..131, Doyle, John (former solicitor- 137, 167, 208, 211, 223, 225, general) ...... 167 233, 240

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Dudek, Andrew (lawyer)...... 150, Flinders University ...... 174, 207,

152, 154, 166-167, 170, 172 237-238, 247

Duncan, George... 22-23, 26, 143 Flinders University School of Law

Dunstan, Don (former premier of ...... 207

SA)...... 22, 24-25, 27 fluidity of the blood ...... 50, 154

Forresthall, Pauline……………….46 E Four corners ...... 173, 195

Fox, Laurel ...... 40 Eastman, David .... 201-204, 208- freezer within an hour of death 210 ...... 50, 106 Economides, Professor ...... 237

Egan, Colleen ...... 218, 225 G execution-style murder .. 88, 134,

185 Gambardella, Gino . 7, 10, 20, 28-

31, 36-37, 45-46, 60-61, 64, F 66, 88, 98, 101, 103, 116,

118, 122, 132-135, 138-139, fingerprints ..... 5, 8, 19, 79, 82-84 141, 144-145, 148, 171, 185, 109, 120 187-189, 245 Flaherty, Frances ...... 32 garbage bag ... 37-38, 88-89, 120, flawed nature of the forensic 134, 172 system ...... 222 Goodfellow, John….41-42, 92-94 251

Griffin, Trevor (former attorney- Human Rights Commission . 212,

general) 2, 167, 169, 172, 177, 213, 227, 229, 230, 231, 238,

191, 209, 215 239

Hutchison, John ...... 44

H hypostasis ...... 48-49, 156-158

Haddon, Detective ...... 17-18, 87 I Harding, Dr Harry…181-183, 211,

232 impersonation ...... 134

IRA bombing cases ...... 224 Harris, Julie ...... 36

Harrison, Kevin ...... 42 J Hartnett, James (ex-director of

Legal Services Commission)...151 Jackson-Nelson, Marjorie

(former Governor of SA)..177 Harvey, Superintendent.... 10, 13 James, Dr Ross High Court (appeal)………...... 140 ..... 154, 205, 211 James, Roger ...... 23 Highfold, John ...... 198, 199

Holloway, Minister of Police . 191 Johnston, Elliott defence address……………..100 Hood, Dennis ...... 190 defence lawyer...... 27 House on Greenhill Road..61-62,

86, 192

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K Leach, Deborah ...... 26, 163, 197- 198, 231

Karpany, John ...... 200 Legal Services Commission ..... 3,

Kelvin, Richard .... 142-143, 193- 46, 100, 133, 138, 142, 147,

194 149, 150-151, 192, 241

Keogh Sr ...... 248 Legislative Review Committee

Keogh, Henry 204-206, 211, 232, ...... 207, 211-213, 232-234

236, 247-248 Lennox, Raymond ...... 35

Kerin, Tony ...... 217-219, 239 Lundy, Mark ...... 198

Kingoonya .16, 40-42, 70-72, 92- lynchpin of the case ...... 130

94, 99, 104, 136, 147, 150,

245 M

Kirby, Justice Michael ... 77, 207-

208, 218, 226, 232, 239, 241 Mader, Arthur ...... 38

Knight, Professor Bernard ... 163- Makin, Paul .... 214, 220, 227-231

164, 178, 183, 188, 215, 245 Makowska, Joyce ...... 44

Kruse, Constable Kenneth ...... 82 Mallard, Andrew .. 218, 225-226, 240

L Manock, Dr Colin evidence...... 49

Langley, Mark ...... 142 preliminary examination ...... 8

qualifications ...... 47

253

Manock’s evidence ...... 165 Mr Short’s evidence ...... 74

Marshall, Professor Tom .. 53, 57, Muir, Neil . 89, 142-143, 145, 193

160, 162, 182 Mulligan, former president of SA

Martin, Brian Law Society ...... 21

Crown address……………….108 mysteries 101, 107, 115, 130, 172

Crown Prosecutor ...... 27

Mayes, Kym………………...... 150 N

McDonough, Helen ...... 32

McEachern, Detective Sergeant National Insitute of Forensic

...... 7, 28, 121 Science (NIFS)…………………223

Media… 2, 131, 147, 206, 208, Neighbour, Sally ...... 173-176

222-223, 226 Nicholson, Justice Kevin……...248

Non-parole period…………….…153 Millhouse, Justice

ruling on parole ...... 153 O miscarriage of justice... 140, 165,

169, 181, 201, 203, 210, 213, O' Brien, Bob.………………………..87

225-226, 233, 235, 238, 242, O’Halloran, Justin ...... 4

244, 246, 248 O’Shea, Mick...... 23

Mitchell, Justice Roma ...... 24 opal 11, 19, 22, 29, 40, 43-45, 63, Moles, Dr Bob . 2, 175, 192, 206, 65, 70, 91, 95, 98, 102, 125, 227-231, 235, 242 187

254

P Rau, John ...... 211, 214, 216-218, 220, 234, 237, 239

Palmer, Geoff………..……………...93 Rayney, Lloyd ...... 201

Palasis, Garry ...... 28 reasonable doubt .... 73, 100, 103,

Patterson, Chris ...... 174 107, 115, 127-128, 130, 136,

Pek, Eugene...... 43 139, 166, 195, 233

Perry, Emily ...... 198 released on parole ...... 1, 151

Petition to the Governor ... 6, 177 rifle ...... 18, 82-83, 108, 118-119 pillow missing ...... 120, 172 Robinson, Detective . 17-20, 104,

Plueckhahn, Professor .. 154, 200 106, 113, 140

Port Augusta ...... 16, 70, 92-94 Rofe, Paul ..... 27, 43, 82-83, 152,

Port Wakefield 16, 38, 70, 89-90, 153

91, 93-94, 99, 104, 113, 122, Rogers, Alec…..41-42, 71, 92-94

136, 147, 245 Royal Commission ... 24, 27, 199,

Porter, Liz ...... 191 206, 221-225, 231 possible scenario ...... 132 Royal Commission into

Pounder, Dr Derrick ...... 197 Aboriginal Deaths in Custody

...... 199 R

rate of cooling ...... 51, 58

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S Stevenson, Derrance background…………………21-25

Salisbury, Harold (former police homosexual relationship ... 24

commissioner) ...... 24 Stogneff, Peter...... 142, 193

Sangha, Bibi ...... 206, 242 Strickland, Ron .. 13, 15, 65, 105,

Scott, Dr Andrew ...... 79-82 122-123, 132

Shaw, Marie ...... 247-248 summing up by Justice Wells 115

Shea, Anne 3-4, 23, 133, 137, 149 Sunday Mail ...... 193

Shields, Rodney ...... 36 Swalling, Keith ...... 37

Short, Henry ...... 33 Szach, David

Short’s testimony ...... 165 Appeal…………………………….137

Simper, Rosa ...... 26, 221 motor neurone disease ... 242

Splatt, Edward... 4, 181, 221-225, Parole Board………. 1, 151-153

248 relationship with Derrance 61

Stafford, Graham...... 219 sentence………………….129-131

Standing, Detective 9-16, 18, 140 statement at trial ...... 60

Stateliner Bus Depot...... 19 travel to Coober Pedy ...... 14

Statutes Amendment (Appeals) Szach, Jardislaw ...... 35, 99

Act 2013 ...... 238, 241

Statutes Amendment (Appeals)

Bill ...... 234

256

T U

Telfer, Constable Andrew... 7, 17, united force of all the

18 circumstances...... 115, 128

The Sunday Age ...... 191

Thomas, Dr Tony ... 174, 247-248 V

Thorsen, Chief Superintendent

...... 13-14 Van Beelen, Fritz . 163, 181, 197- time of death . 50, 73-74, 78, 113, 198, 205, 231, 248

121, 135, 149, 152, 159-160, Vaughan, Joanna ...... 192

162-164, 166-168, 170, 177- verdict of the jury ...... 129

180, 182, 187, 189, 192, 197- Von Einem, Bevan . 23, 143-144,

198, 209, 216, 248 187, 193-194

Time of death (Dr Collins report)

...... 159 W

Timeline of events ...... 99 Waye, Peter...... 6, 13, 14, 21 Timing of placement of body in Wells, Justice Andrew the freezer (Dr Collins report) judge at Szach's trial ...... 28 ...... 154 summing up ………..………..115 Today tonight 184, 214, 227, 232,

235, 241 Winchester, Colin .... 17, 201, 203 Truscott, Stephen ...... 198 Wordley, Dick...... 145, 146 257

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