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Bedazzled by DNA - is it enough to convict?

By Mary Garden - posted Thursday, 9 August 2007


There were no witnesses, no motive established, no murder weapon found. It was celebrated as a landmark case as it was the first time in Australia someone was convicted of a crime on the basis of DNA evidence alone.

Towards the end of the six-day trial the prosecutor proclaimed to the jury, “These are amazing times. But they’re times the likes of Andrew Richard Fitzherbert has good reason to fear, every good reason to fear. The ability to identify those guilty of a crime [from DNA] … has reached an awesome stage.”

But was DNA evidence enough?

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In August 1999, palm reader Andrew Fitzherbert was sentenced to life imprisonment for the murder of Brisbane veterinarian Kathleen Marshall, 52. Marshall was subsequently dubbed the “catwoman” because she was president of the Cat Protection Society and at the time of her murder was caring for about 17 cats while she looked for homes for them.

Discrepancies in the case have puzzled observers for years, including such basic information as the time of death. A Health Department scientist told the court that Marshall probably died between 9pm on Thursday, February 27, 1998, and 3pm the next day.

On the basis of this, the prosecution argued that the murder was probably committed on Thursday night. Only family members could support Fitzherbert’s alibi for that night, hence the prosecution said this alibi was “a concoction of lies” they had all “cooked up”.

But it is much more likely the murder took place some time on Friday night. Four witnesses, including the local newsagent and pharmacist, testified they saw Marshall late Friday afternoon. Warren Smith, who lived across the road from Marshall, claimed he heard her front door close at about 6pm and again at 8pm that night. The door had a large doorknocker that made a loud and distinct sound whenever the door was shut.

Marshall’s body was found early on Sunday afternoon in the surgery beneath her home at Wilston, in Brisbane’s inner north. Four members of the Cat Protection Society went to her home for a directors’ meeting and noticed blood on the downstairs surgery door. They called the police, who discovered the decomposing body, in a white and blue striped dress, lying face down inside the surgery.

There were no signs of forced entry to the cream-coloured weatherboard house shielded from the road by overgrown trees. Her three dogs, including a german shepherd, had been cordoned off on the back veranda, leaving friends to believe she’d been expecting someone, that she knew her killer.

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A post-mortem examination indicated Marshall had been dead for more than 24 hours and had died from about 50 stab wounds to her head, face, arms, chest, neck and abdomen. There were no signs of sexual assault. Slashes to her hands indicated she had desperately tried to fight off her killer. Twenty-five swabs of blood were taken from the murder scene - including five tiny spots of blood later analysed as being from a male - along with a variety of other items, and delivered to the John Tonge Centre.

In their investigation, police focused on members of the Cat Protection Society, whose aim is to promote the welfare of cats. Over the years there’d been constant infighting in the society and since the sacking of the treasurer, Virginia Houston, in August 1997, the clashes had intensified.

Houston went into hiding after Marshall’s body was discovered saying she feared for her life. She said she knew too much of the going-ons of the society and claimed the murder was connected to money, as a lot of money passed through from bequests of its elderly members. Though originally a “person of concern”, Houston was eventually cleared of suspicion.

Over a period of four months the police obtained blood samples from more than 50 people. Forty-nine-year-old Andrew Fitzherbert was the last person tested.

Fitzherbert, then aged 49, had no criminal record and those who knew him described him as a pacifist. An acclaimed palm reader, with three books on palmistry published, he did readings from his home in Zillmere and also helped his partner, Ruth Bennett, run the Windsor spiritualist church.

Houston had gone to the church for several years to get psychic readings. Fitzherbert later said in court, “Virginia would go on endlessly about the [Cat Protection] society and its disputes”. It was Houston who suggested they join the society for she needed support of “goodies”, as opposed to “baddies”, to overcome the corruption. Bennett became a member in May 1997.

On Wednesday, July 1, 1998, Detective Geoffrey Marsh seized a number of items from Fitzherbert’s house. On the basis of DNA found on a handkerchief, and despite having an alibi, Fitzherbert was arrested that Saturday.

On the Friday, February 28, the likely time of the murder, Fitzherbert and Bennett attended a meditation circle with friends and then visited Bennett’s daughter, Cathryn Beck. Bennett said they arrived home well after midnight and went straight to bed. “To think Andrew sneaked out, drove to Marshall’s and for some reason killed her is ridiculous. At that time Marshall would be wearing nightclothes, not the day clothes they found her in. Why would she let him in at that hour? He didn’t even know her.”

Marshall’s house was about a 20-minute drive from their home. At the time of the murder, Fitzherbert’s car was in a garage getting some repairs and they were using Bennett’s car. At no time did the police conduct an examination of the car to search for bloodstains or a weapon.

The hearing began in July 1999 in the Brisbane Supreme Court. The cornerstone of the defence was DNA evidence given by Ken Cox, a forensic biologist from the John Tonge Centre - a laboratory with a history of errors.

At the time Cox did the testing for this case, the John Tonge Centre had not obtained accreditation from the National Association of Testing Authorities. Indeed, in late 1998, NATA’s investigations discovered shortcomings including poorly documented records, unsealed evidence, unrestricted access to specimens and potentially contaminated specimens in the refrigerator.

Cox gave the jury a background to DNA analysis, and went on to give a lengthy explanation of loci, alleles and probabilities in relation to the scene samples and Fitzherbert’s blood profile. He concluded there was “one chance in 14 trillion the blood found at the crime scene was from someone other than Fitzherbert”.

This staggering probability of one in 14 trillion is very impressive and persuasive, given that the population of the Earth is about 6.5 billion, but is it accurate?

Fitzherbert’s lawyer, Laura-Leigh Cameron-Dow of Slater & Gordon says the DNA results do not support this probability. “I’ve been given alternate (sic) estimates from other experts of 1 in 100,000,” she says. “Ken Cox included test results in his analysis that shouldn’t have been recognised in court as reliable. The defence didn’t query Cox as to whether the results received from samples were strong enough to be recorded as positives under scientific guidelines established for use of DNA evidence in the courtroom.”

Professor Barry Boettcher, influential in uncovering problems with evidence in the Azaria Chamberlain case, also disputes Cox’s interpretations. “Cox’s estimate might be out by a factor of a million. There is just no possibility of determining the accuracy of the figure given to the jury. But it would have sounded highly impressive to them.”

Boettcher says when he examined the graphs of the DNA profiles the DNA from the male blood at the scene seemed to have deteriorated more than Marshall’s. “There is a chance the greater deterioration of the DNA in the male blood was due to it being deposited some days earlier than Marshall’s murder.”

However, Prosecutor Paul Rutledge described the numbers provided by Cox as “awesome”. “Fitzherbert has left traces of himself at the scene of Kathleen Marshall’s murder … the man who left the blood in that surgery is guilty of the murder.” This is what is known in the profession as the “prosecutor’s fallacy” - the fallacy being that the rarity of the DNA profile is equated to the likelihood of guilt.

In his summing up, Justice Ken MacKenzie said: “You would exclude as unreasonable on the basis of the scientific evidence any suggestion that someone else may have left the blood at the scene and you would therefore be satisfied beyond reasonable doubt that the accused was the killer.”

There was, in effect, no evidence whatsoever that the man who left the blood in the surgery killed Marshall. And as defence counsel Jeff Hunter pointed out, Fitzherbert had a rock solid alibi for Friday night. If the evidence of the alibi witnesses was to be accepted, there was simply no opportunity for the accused to commit the murder, and what was conspicuously absent was a motive. Hunter cautioned the jury from being prejudiced by the fact that Fitzherbert was an eccentric middle-aged man, who might be a bit strange and a bit weird, and who holds some [spiritualism] views they might find odd.

Rutledge described the DNA evidence as going “cleanly, directly to the heart of the matter”, and said Fitzherbert was a liar, reminding the jury they’d been given the “expert evidence” of a scientist compared to the “garbage bin of the sciences of palmistry”.

It took the jury less than four hours to decide Fitzherbert was guilty. In sentencing him to life imprisonment, Justice MacKenzie said to Fitzherbert, “This is a crime of which you would not have been convicted but for the recent explosion in knowledge in the field of genetics”.

However, Bond University’s Chair of Criminology Professor Paul Wilson points out that DNA evidence is not infallible, as most people think. “Forensic Science is part art, part science. It’s very, very dangerous to convict purely on forensic science evidence and even with DNA evidence there can be problems. How DNA is collected, transported, stored, analysed, interpreted can lead to errors and miscarriages of justice.”

After the trial a spokesperson for the Cat Society said the group was pleased there’d finally been closure. Marshall’s lawyer Ian Galton said the verdict brought to an end an “awful situation” for the family. “At least we got justice at the end of the day.”

Fitzherbert appealed his conviction in March 2000 and acted for himself. He was unsuccessful.

For the last nine years, Bennett has visited him in prison almost every week. “At the time, it was like, I don’t believe this is happening. It was surreal. I thought we had a justice system in Queensland, but it turned out to be just who puts up the best argument in court. My life has been on hold ever since. They virtually put me in prison too.”

Fitzherbert had the right to retest the blood samples at the government’s expense at the time of his trial and at his appeal, but was not made aware of that right. Since 2003, Cameron-Dow has made several requests to the Queensland Attorney-General to release crime scene samples for testing.

Attorney-General Kerry Shine wrote to Cameron-Dow in May this year and said he wouldn’t allow further testing as all items had been tested, and there was nothing wrong with the DNA testing method. Cameron-Dow claims not all items were tested and Cox admitted this. She says she made no allegations about the testing method, only Cox’s analysis of the results. Cameron-Dow is appealing the Attorney-General’s decision. If unsuccessful, the only recourse after that would be a request to the High Court for permission to retest crime scene samples or to review the case.

In some countries it is mandatory that convicted people have access to samples. Cameron-Dow says it should be Fitzherbert’s right to retest. “Is the Attorney-General saying that because Fitzherbert has been convicted, he can no longer attempt to prove his innocence at his own expense?”

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An edited version of this article was first published in The Courier-Mail on August 4, 2007.



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About the Author

Mary Garden is a freelance journalist who lives in Queensland. Her articles on a wide range of issues have been published in magazines and newspapers in Australia and overseas. She is the author of The Serpent Rising - a journey of spiritual seduction (a memoir based on her years in India in the 1970s) and has recently completed her PhD titled "Blogging in the Mainstream:
journalist-blogs and public deliberation".

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All articles by Mary Garden

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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