Tuesday, June 16, 2009

A postscript to the final scene of 3 Acts of Murder. by Estelle Blackburn - 5 Comments

Beneath a huge liquid amber tree in the middle of a Perth cemetery, a postscript to the final scene of 3 Acts of Murder, is engraved on an old, neglected tombstone:

 

How many people stopping to look at the inscription and the four broken glass domes containing faded plaster flowers would know that grave EA 162 in the Congregational section of Karrakatta Cemetery is that of the famous Murchison murderer, Snowy Rowles, by his real name John Thomas Willliam Smith?

How many people watching the ABC’s telemovie 3 Acts of Murder on the ABC on the 77th anniversary of Snowy Rowles’ execution would stop to wonder if he should have gone to the gallows in Fremantle Prison at 8am that day?

Did he really murder Leslie George Brown, alias Louis Carron…. could there have been any truth at all to his claims of innocence…  was he guilty beyond reasonable doubt as the law requires?

Could Snowy Rowles have been convicted of Carron’s murder if his trial had been held today?

And, equally, could he have been convicted of the murders of the other two men who disappeared in December 1929 after being last seen with him at Narndee Station on their way to continue a contract on the Rabbit Proof fence?

While Snowy Rowles wasn’t formally convicted of the murders of James Ryan and George Henry Lloyd, he certainly was deemed to be guilty by everyone, particularly investigating officer Detective Sergeant Manning and the prosecution, who raised it at his trial of the murder of Carron.

The jury’s verdict of wilful murder for Carron’s murder was supported by two appeal courts – the Full Court in Perth unanimously dismissing his appeal, and the greatest legal judicators in Australia, the judges of the High Court of Australia, sitting in Melbourne, dismissing his appeal by a majority verdict of two to one.

As well as the question as to whether Rowles could be convicted today, there’s the question whether appeal courts would dismiss his appeals that there had been a miscarriage of justice on the grounds that:

1. Evidence relating to the disappearance of two men James Ryan and George Lloyd and to my association with them was wrongfully admitted.
2. That the trial judge wrongfully admitted evidence by one Arthur William
3. Upfield, a novelist, the effect that during October 1929 I was present and took part in a discussion relating to the disappearance of human bodies. And that I had been arrested on another charge and had escaped from legal custody.
4. That there was no evidence that Louis Carron was dead
5.  That the learned trial judge misdirected the jury on the evidence

Suspicious as it was, the evidence against Rowles was all circumstantial:

• He was the last person to be seen with Carron, who left Narndee Station camp with him, and the last person to be seen with Ryan and Lloyd.

• He had in his possession items belonging to the men – including Ryan’s Dodge utility truck and various items including two watches that were almost certainly Carron’s.

• He offered varying reasons for being in possession of these items.

• He had been present earlier, on 6 October 1929, at a discussion by an author searching for a murder plot about how to destroy a human body without leaving any trace, by burning, pulverising bones and applying acid to metal - and it appeared that the three had been burnt, though metal left. The ashes of the eight large fires near Challi Bore where Ryan and Lloyd’s fencing tools and cooking utensils were found contained steel frames of suitcases, buttons, sprigs and eyelets from boots, metal eyelets from tents, bet buckles and metal part of an accordion – Lloyd having played one – and the ashes at the bore at the 183-mile,near where Carron was last seen, contained false teeth in the upper and lower jaws and his wedding ring.

• He had a criminal record – of stealing, unlawful possession, breaking and entering, and a traffic matter.

• He was on the run, having escaped legal custody while awaiting sentence on two charges of breaking and entering.

Former UK Detective Chief Inspector Robin Napper now lives in Perth, where he is a consultant on legal cases.

Mr Napper says there's little doubt that Rowles would be considered a 'Prime Suspect', still today, and would probably be convicted in Western Australia, where there has been a bout of proved wrongful convictions in recent years - though probably not in other jurisdictions.

‘If he has property belonging to the dead men, including the car, then he has some pretty difficult questions to answer,’ Mr Napper says. ‘But, with no direct forensic link with the dead bodies or the crime scene, there must always be a question mark over the case.

‘Even having a wedding ring, although obviously suspicious, he could have come by it or stolen it from the actual murderer, for instance. Having realised that any property he had, however he came across it, could link him to a murder, would have flipped him out. And being on the run from jail he would have realised, especially in those days, that he had no chance before any courts. That still prejudices juries these days.

‘In any age, it is very dangerous to convict without a direct link to the crime scene.’

One of Rowles’ grounds of appeal, that there was no evidence that Louis Carron was dead, could easily be resolved in this age of high-tech forensics.

While a wedding ring found in a fire does not necessarily mean its wearer is dead, some evidence was provided even then by the false teeth matching the evidence of work done by Carron’s New Zealand dentist.

Dental evidence these days would be even more certain, dental records being far more precise.

The remains of murdered 14-year-old Sharon Mason were identified by dental records when they were found nine years after her 1983 disappearance in the Perth suburb of Mosman Park. The lower half of her body was in a state of adipocere and the rest was just a collection of dry bones.  Amongst these, which made up 60 per cent of her upper body, there was her jaw bone and teeth. Her orthodontist Richard Cooke could readily, positively identify the remains.

These days, DNA can be extracted from teeth, too, as well as from blood, saliva, hair and bone.  DNA was irrelevant to the false teeth in the remains of the fire by which Rowles supposedly burnt Carron’s body – but there could be now positive DNA evidence from the pieces of skull bone.

The Government Pathologist, Dr McKenzie, could only give an opinion at the time that the bones were the skull of a white man rather than of an Aboriginal.  These days it could be ascertained with certainly whether it was Carron’s skull from DNA from Carron’s mother, Janet Brown, and his two children.

While this would prove that Carron was dead, it would not prove that it was Rowles who had killed him.

Even without proof that the ‘victim’ is dead, people are still, these days, being convicted of the murder. There are several more recent cases.

The most famous is that of Lindy Chamberlain for the murder of her nine-week-old daughter Azaria at the Ayers Rock (Uluru) camping area in August 1980.  There was no body found and despite claims by Azaria’s parents and others at the camp that the baby was taken by a dingo, Lindy was convicted in 1982 and sentenced to life imprisonment, failing several appeals including to the High Court.  The chance finding of the baby’s matinee jacket dear dingos’ lairs in 1986 led to her immediate release and exoneration in September 1988.

Nearly as famous would be the more recent conviction of Bradley Murdoch for the murder of British tourist Peter Falconio on the Stuart Highway between Tennant Creek and Alice Springs in July 2001.

Falconio’s body has never been found and there are many conspiracy theories questioning the testimony of his girlfriend Joanne Lees, who was traveling in the Kombi van with him and who escaped the killer despite a search for her by him and his dog.

There are suggestions of a drug-deal link and of Falconio faking his death.

Murdoch was convicted, essentially on DNA evidence from her tee shirt, in December 2005 and has lost two appeals, including to the High Court in June 2007.  He is serving a life sentence with a minimum of 28 years.

In Western Australia there have been two body-less murder convictions during the past decade, one, Rory Christie, being released on appeal, the other, Anthony  Rinaldi, serving a life sentence with a minimum period of 23 years.

Anthony Rinaldi’s estranged wife Anne went missing from her Attadale unit in 2002 and Rinaldi was convicted of killing her in 2003.  There is no body and like Rowles and Falconio, Rinaldi protests his innocence. Like Rowles and Falconio, appeals to the Court of Criminal Appeal and the High Court were dismissed, the latter in June 2007.

Like Rowles, the case against Rinaldi was circumstantial, including blood traces alleged to have been found in the back of his Lancruiser – whether it was in fact her blood, how old it was and how it got there, being amongst his grounds of appeal.  

Canadian-national Rory Christie’s ex-wife went missing in the Perth suburb of Daglish in 2001 and despite there being no body, Christie was convicted of her murder.  He spent four years in prison after winning an appeal, and the case being dismissed by the judge at his re-trial.
The most astonishing case of body-less murder charge was that of Leonard John Fraser, charged with the murder of Natasha Ryan in Queensland in 2003.  

Halfway through Fraser’s trial, police were tipped off that Natasha was not dead. The anonymous note said: Natasha Ryan is alive and well. You can contact her on ….

The 14-year-old who had been missing since 1998, had, in fact been hiding away in a cupboard in the North Rockhampton home of her boyfriend Scott Black for almost five years.  Fraser was convicted of other murders and is locked away for life – while his ‘victim’ Natasha had a son to Scott, whom she married last year.

Further forensic evidence that might have helped convict or acquit Rowles these days would be examination of his tyre tracks. This would have particularly proved or disproved his post-conviction statement from Fremantle Prison’s condemned cell that he had found that Carron had accidentally taken poisoned butter baits used for foxes and he burned the body instead of calling police out of fear because he was on the run.

This was seen as confirming his guilt, through time estimations that he could not have travelled the necessary distances.

Tyre tracks later freed a man convicted of another body-less murder of the same era as Carron’s, the 1936 murder of a country store owner in Grenfell, NSW.  The conviction was overturned in 1952 when tyre tracks at the scene were proved to not belong to the car the supposed murderer owned.  Frederick McDermott had been convicted and sentenced to death in 1947. Fortunately the sentence was commuted to life imprisonment. Thanks to the sleuthing of journalist Tom Farrell, he was released after six years in prison.

The body of the victim, William Lavers, was finally discovered 68 years later, the bones and skull that had been hidden in a cave six kilometers away identified by DNA.  The real killer had got away with it.

The evidence of author Arthur Upfield is by any standard alarming.  It was the fact that Rowles did not follow the suggested body disposal exactly that got him arrested.  If he had indeed pulverised the bones and applied acid to the metal, he could not have been charged.

Burning bodies to hide any evidence was certainly not new and could not in any way be linked to the author’s murder book discussions.

Fire had been used just a few years earlier, in another famous case in Western Australia’s isolated bush country, the murder of two officers from the WA Police Department’s gold stealing branch. The thieves they surprised at their secret gold treatment plant in the bush shot them and dismembered and partly burnt their bodies in the furnace before throwing them down an abandoned mine shaft 10km from Kalgoorlie in 1926.  

While Rowles’ mistake was to not grind the burnt bones finely enough and dispose of any metal, these murderers didn’t burn the bodies enough to stop feasting flies.  The remains of Inspector John Walsh and Detective Sergeant Alexander Pitman were found two weeks after they went missing thanks to the swarm of flies over the mineshaft.

One arrested man turned Kings’ evidence and the two others, Phillip Treffene and William Coulter, were hanged at Fremantle Prison on 24 October 1926.

Rowles’ appeal ground that the other related cases and his prior convictions should not have been mentioned at trial could well have been ignored in modern times, as it was in Rowles’ case.

In the 1994 trail of Arthur Greer for the wilful murder of 14-year-old Sharon Mason whose remains were found buried behind his shop, Greer won an appeal on his conviction on circumstantial evidence.

His prior convictions were well publicised before his re-trial so that no juror could have been ignorant of them, and his earlier wilful murder conviction, quashed at appeal, was mentioned at his re-trial but the trial not abandoned.

So, was Snowy Rowles guilty or innocent?  We’ll never know unless some astounding piece of fresh evidence turns up.  And occasionally it does.

Colin Campbell Ross, executed in Melbourne in 1922 for the rape and murder of 12-year-old Alma Tirtschke, was pardoned in June 2007 - 85 years too late for the publican Ross who always protested his innocence.

Thanks to Kevin Morgan’s 15-year research and authorship of Gun Alley: Murder, Lies and the Failure of Justice, forcing DNA testing of the several strings of hair that convicted him and proving these hairs found on a blanket were not the victim’s as the government chemist claimed at trial.

In Western Australia, Darryl Beamish was exonerated in 2005, 44 years after his conviction of the 1959 murder of socialite Jillian Brewer on the discovery of fresh evidence.  Fortunately his death sentence had been commuted to life imprisonment.  And John Button was exonerated in 2002, 39 years after his conviction for killing his girlfriend Rosemary Anderson by running her down.

These three cases prove fresh evidence can prove innocence even decades later – as do the hundreds of cases around the world where DNA testing is proving miscarriage of justice.  However this would appear to be very unlikely in Rowles’ case.

The barrister who undertook the new appeals for Button and Beamish, Tom Percy QC, says that irrespective of Rowles’ objective guilt or innocence, the case against him at trial was at best a thin, circumstantial case.

’It was long on speculation and suspicion, and very short on objective proof,’ he says.

’The evidence of Upfield was in my view not relevant or admissible, and should never have been allowed to surface at the trial. It was general and nebulous, and the prejudicial value of it far exceeded any probative value it may have had.

’In this day and age there may have been forensic tests that could have proved the allegations and Rowles’ guilt. Conversely, such tests may have cleared him completely.

’All that a modern day commentator can say with any certainty is that on the evidence presented at trial he should have been acquitted. A judge these days would probably have withdrawn the case from the jury and ordered his discharge.

’It remains a salutory reminder that the death penalty is wrong. If any further proof of that proposition was needed.’

Victorian Premier John Brumby said the Colin Campbell Ross case showed how far forensic technology had come - and it reinforced the decision to formally abolish the death penalty in Victoria in 1975.

Speaking on Fairfax Radio, Mr Brumby said it was not inconceivable there could be other instances of people being executed for crimes they did not commit.

There have been too many others – in Australia and around the world. Probably the most famous wrongful execution in the British justice system, on which the Australian justice system is based, was that of Timothy Evans, hanged in Britain in 1950 for the murder of his wife and baby.

He was posthumously pardoned in 1966, after a crusade by the author of 10 Rillington Place, Ludovic Kennedy, and acceptance that the killer was Evans’ boarder, Reginald Christie Christie was executed in 1953 for the murder of his wife and five other women whose bodies he hid through the house.  

The death penalty was removed from Western Australia’s statue books in 1985, though no one had been executed since 1964.  The last was infamous serial killer Eric Edgar Cooke, who murdered eight people and violently attacked a further 14.

Cooke was the last of 42 men and one woman who walked from the condemned cell through the main block to the punishment cells out the back, then took the final 47 steps to the gallows, having been told by a judge who’d placed a black cap on his head:  ‘You will be taken from this place to a place of execution, where you will be hanged by your neck until you are dead. May God have mercy on your soul.’

How many of those 43 condemned people were innocent – and was one of them John Thomas William Smith, alias, Snowy Rowles, as he claimed to the end?

Either way, he’s added to the romance of Australia’s iconic Rabbit Proof Fence – and gained further fame through national screening on the ABC of the3 Acts of Murder telemovie about him.

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