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[2007] VSC 572
Supreme Court of Victoria
2007-12-20
TEAGUE, CUMMINS AND COLDREY JJ
Original judgment source is linked above.
This matter does not appear to have been pursued any further.
77 As is clear from the trial evidence, the defence submitted a sample of the hair of Gladys Wain for analysis which was found to bear no similarity to the hair located on the blanket.
78 On this issue, the relevant portion of the Petition of Mercy is in these terms:
(i) The exhibits were located in the Crown's official Criminal Trial Brief file, a closed file stored under secure protection at Public Record Office Victoria on behalf of the Office of Public Prosecutions Melbourne.
(ii) Within the file the exhibits were contained in an envelope clearly labelled to identify its contents and initialled for verification by the chief investigating detective.
(iii) The exhibits accord with contemporary descriptions of their appearance.
(iv) Section 22(1) of the Public Records Act (Victoria) 1973 states: "A public record produced from the Public Record Office shall have the same evidentiary value as if it had been produced from the public office from which it was transferred."
The mt DNA test proved inconclusive due to lack of sufficient retrievable mt DNA in the acquired sample. A further test in March 2004 revealed the presence of contaminant DNA - presumably from persons who had handled the exhibit during the preceding 82 years. [The Victorian Institute of Forensic Medicine - the only appropriately accredited mt DNA analysis laboratory in Australia - has indicated that it does not have the resources to apply other than its "standard procedures" for removing contaminant DNA and neither does it have the resources to develop a forensically accredited test to a level of expertise equal to that which US laboratories - for example the US Armed Forces DNA Identification Laboratory (AFDIL) and the US Federal Bureau of Investigations (FBI) laboratory - presently offer for decontaminating and extracting mt DNA from ancient hair.]
However, the microscopic examination conducted by the Victorian Institute of Forensic Medicine gave rise to the opinion that the Crown's crucial hair evidence was flawed. The Institute advised that an opinion be obtained from a leading scientist in the field of forensic hair comparisons: Dr James Robertson, Director of Forensic Services, Australian Federal Police, Canberra.
Following negotiations liaised by Morgan, the Office of Public Prosecutions (Victoria) agreed to permit the exhibits to be released from the prosecution's Trial Brief file to the Victorian Institute of Forensic Medicine and from thence to Dr James Robertson in Canberra.
In order to ensure continuity of the legal integrity of the hair samples as court exhibits, Dr Robertson conferred Australian Federal Police evidentiary status on the exhibits for their transmission to him in Canberra. The hairs were then examined by Dr Robertson.
(i) The conclusion reached by the chemist Price - in declaring the blanket hairs and the victim's hairs "derived from the scalp of one and the same person" - was invalid, as the statistical data for this kind of comparison is not available in 2005, let alone in the 1920s.
(ii) Dr James Robertson, Director of Forensic Services, Australian Federal Police, an expert of world standing in forensic hair comparisons, can demonstrate that the hairs in the Ross trial exhibits are not similar but in fact showed distinct differences and in his opinion the two exhibits cannot be from the same source.
It is respectively submitted that had this evidence in relation to the hair been available at the trial, it is not merely far from certain that the jury would have returned the verdict which it did return, but it is probable that it would not have done so.
79 We should say at once that there is nothing to suggest that the hair samples located in the Trial Brief file are other than authentic.
80 The significance of Dr Robertson's report is such that it should be set out in full.
The central technique used in the forensic analysis of hairs is examination using microscopes. This will usually start with examination at quite low magnification (up to x30 or x40) and usually with overhead light or epi illumination. At this magnification and with reflected light the overall shape of the hair, its colour, condition and appearance of the root and tip ends can be assessed.
Hairs consist of three anatomical parts, the outer scales and cuticle, the body of the hair called the cortex and a central canal called the medulla. The latter is not always present in human scalp hair. The medulla can be seen at low magnification if hairs are placed in a suitable mountant (a liquid chosen for its optical properties) on glass microscope slides.
The visual colour of hair results from a visual perception but at a microscopic level the presence of pigment in the cortex is the main determination of colour. The detail of the pigment particles or granules and their arrangement into groups can only be seen using transmitted light at higher magnification of up to x400 total magnification. At this level other detailed features can also be seen in the cortex. The presence or absence of these features is used along with the previously mentioned features, to differentiate (tell apart) hairs from different people.
This is the basis of the forensic examination of hairs and it relies on the variation in these microscopic features being less in the hairs from one person than hairs from different people.
In fact, the examination process relies on the scientist looking for differences. Only when no significant differences exist can an inclusionary opinion be considered.
The final step in the examination process involves direct comparison of two hairs using a comparison microscope. This consists of two transmitted light microscopes linked with an optical bridge, which allows the examiner to compare the two hairs side by side.
The basics of the above process have changed little this century and much of what is known about the microscope features of hairs was known in the early decades of the 1900's.
Today it is possible to conduct DNA testing on some hairs. Where this is not possible or not successful the fundamental examination process is the same today as 100 years ago.
Finally, as the differentiation of hairs from say two persons is based on there being greater recognisable differences (variations) between the hairs of individuals than within the hairs of each individual an essential [underlining in original] prerequisite for a meaningful examination is to have enough hairs from each individual to reveal the range of variation within and between individuals. It is generally considered for a meaningful examination, a sample from an identified (known) source should consist of from 40 - 100 complete hairs. These would usually be pulled or combed to ensure the roots were present.
The sample relating to the 1922 Ross case consists of three pieces of cardboard onto which are attached three separate samples of hair.
From information supplied to me along with the samples I understand that Colin Campbell Ross was convicted of the 1921 murder of a 12 year old girl, Alma Tirtschke, and that evidence was presented at trial in 1922 that a number of hairs, recovered from a brown-grey coloured blanket from the lodgings or house of Ross, were said to have come from the deceased. The precise nature of the latter evidence is not the subject of this report. I further understand that a Mrs Wain, a female friend of Ross, was excluded as the source of the hairs on the blanket. Ross was convicted of the murder and hanged.
On this card was a group of visually reddish brown hair in the rough shape of a figure 8. The hairs were held by a glass slide and tape. I removed ten hairs from this sample and placed them on individual glass microscope slides in a semi-permanent mounting medium (Hystomount) for further examination.
The hairs ranged in length from about 4 to 17cm. None had a root present and most had been cut at both ends and hence were segments of hair shafts. All had a distinctive reddish/orange brown colour. The central medulla was visible in some of the hairs.
I also recorded the detailed microscopic features of five hairs.
2. A brown piece of card which was labelled "Hair Mrs Wain."
On this card was a circular group of hairs held on the card by a broken glass slide. I removed ten hairs from this sample and prepared them as for the hairs from Tirtschke. The hairs ranged from about 7 to 13cm.
Three had roots present. The remainder had cut or broken ends. All had a light yellow brown hue. Detailed microscopic examination revealed the hairs to be relatively featureless.
On this card was a tightly configured group of hairs in the shape of a figure eight. The hairs were held on the card by a piece of (browning) clear adhesive tape. I removed eight hairs from this group due to the smaller number present and the desire to maintain the integrity of the appearance of the group. These hairs ranged in length from 7 to 20cm and only two had roots present the remainder having cut ends. One hair had a so-called club root, which is normally associated with hairs which have been naturally lost. The second had what appeared to be a so-called ribbon shaped root which would normally require some force for removal, such as combing. I examined all hairs in detail and recorded their microscopic features. These hairs had more visible features than hairs from the two known samples 1 and 2. Furthermore, the microscopic features would support a conclusion that the hairs in this sample were from a single source.
The hairs from all three sources, Tirtschke, Wain and the blanket, were all easily differentiated at the stereo microscopic level based on colouring. This was confirmed at a more detailed microscopic level where there were very clear differences in colour, pigmentation and other features.
In my opinion, the hairs recovered from the brown-grey blanket could not have come from the deceased, Tirtschke or from Mrs Wain.
This conclusion has to be tempered by the following:
(a) as the hair sample from Tirtschke was cut it was not possible to examine the microscopic features at the root end of the hairs.
(b) as all of the hair samples are over seventy years old there may have been changes in colour.
Despite the above potential limitations the extent of the differences and the very distinct colour of the Tirtschke hair are such that I consider it very unlikely the hairs on the blanket could have come from Tirtschke.
No hairs were received from Ross and hence no conclusion can be reached as to whether or not the hairs could have been his own. In the absence of hairs from Ross any inclusionary conclusion would have been unsafe, regardless of any findings or conclusion resulting from examination of other hairs sample.
81 We note that Dr Robertson is an acknowledged expert in the field of hair and fibres and has published widely. He was, for example, the editor of "The Forensic Examination of Hair", CBC Press 1999.
82 Dr Robertson's opinion is, in effect, the reverse of the opinion expressed at the trial by Charles Price, who described himself as a Government Medico Legal Analyst, (and who was apparently a chemist).
83 At the time of his trial, Colin Ross was deprived of the opportunity of having a comparison of the blanket hairs and those taken from the head of Alma Tirtschke examined by an independent expert. Furthermore, whatever view may be taken of the expertise of Mr Price (and there is no specific record of his qualifications available to us) it is difficult, if not impossible, to reconcile his conclusions with his observations. In any event, if the jury had had before it a forensic opinion of the type advanced by Dr Robertson, a very different view may have been taken, not only of the reliability or veracity of the confessional evidence, but also of the evidence of Olive Maddox and Ivy Matthews of having observed Alma Tirtschke in the wine saloon.
84 Of course, insofar as the veracity of Sydney Harding's evidence of the jail yard confession is concerned, the new forensic evidence could also have been viewed by a jury in conjunction with the additional material about Mr Harding's previous false swearing.
85 The evidence of Dr Robertson is credible and constitutes fresh evidence. Moreover, it was not evidence of a type which the defence could have obtained at the time of the trial given the refusal of the Crown to make any of the hair samples available.
86 The test to be applied by an appellate court in determining whether the miscarriage of justice has occurred is set out in the case of Gallagher v The Queen[28] namely, that an appellate court will conclude that the unavailability of fresh evidence at the time of the trial involved the miscarriage of justice only if it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the accused of the charge if that evidence had been before it.
87 We are not considering this matter as an appellate court. Nonetheless, given the importance of the hair evidence, not only to the acceptance of the confessional evidence which was vital to the Crown case, but also to the rejection of what may otherwise have been the exculpatory evidence of key defence witnesses, we are driven to the conclusion that there has been a miscarriage of justice as that concept is applied by the appellate courts.
88 Although it is not within our remit to determine whether the proviso in s.568(1) of the Act (as interpreted in Weiss v The Queen[29]) is enlivened upon a consideration of the whole of the evidence, we venture the view that it is not.
89 It needs to be understood, however, that a finding that there has been a miscarriage of justice does not automatically result in an acquittal. Rather, in a case such as the present one, it would, in our opinion, result in the quashing of the conviction and the ordering of a new trial. Of course, in this case, no new trial is possible, but that would not prevent a Court of Appeal, seized of the matter by way of a reference pursuant to s.584(a) of the Act, from quashing the conviction of Colin Ross.
90 The Attorney-General also has the option of granting a pardon independently of this statutory regime. Such a pardon is not, however, the equivalent of an acquittal, and the conviction itself would remain formally unreversed.[30] Nonetheless, it could constitute a recognition or acknowledgement that the culpability of Mr Ross cannot now be conclusively determined.
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[1] (2001) 1 VR 119 at 120-1.
[5] See also Ellis [2003] EWCA Crim 3356 at [7]; Foster [2003] EWCA Crim 178 at [7]- [8]; Ashley King [2000] Crim LR 835, CA; Johnson [2001] 1 Cr App R 403.
[9] See for example Pollitt v R [1992] HCA 35; (1991) 174 CLR 558.
[10] See Re Ratten [1974] VicRp 26; [1974] VR 201 at 212.
[11] See Thomas v The Queen [1980] AC 125 at 134-5.
[13] See also Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 per Gummow J at 391.
[14] Sentencing (State and Federal Law in Victoria) 2nd ed. 1999 Fox and Freiberg, p.1099.
[15] Accounts of the trial printed in The Age and The Herald are available in microfiche format.
[19] In his evidence at the trial, Mr Ross said that the appointment was so that Ms Wain could look at some linoleum from the saloon. The lease was due to expire on 31 December and he was leaving the place. Ms Wain essentially confirmed this account stating, in her evidence, that Mr Ross had promised her mother first preference for the linoleum and any furniture she required when the saloon was closed.
[20] Ibid Australian Archives ACT: WW1 Records Series B2455: Personnel Dossiers for 1st Australian Imperial Forces Ex-service Members; ex-service member no. 14163/65464: Sydney John Harding.
[21] See "The Gun Alley Tragedy" ibid pp 47-48.
[22] The Argus, 25 February 1922, p.21.
[23] The Argus, 25 February 1922, p.22.
[25] The basis of the dissent of Isaacs J was that the alleged confession of the accused Ross to Sydney Harding squarely raised the issue of manslaughter insofar as the killing may have taken place at a time subsequent to the sexual act.
[27] Author of "Gun Alley (Murder, Lies and Failure of Justice)" (2005) Simon & Schuster.
[30] See Sentencing, 2nd ed. 1999 Fox and Freiberg, p.22-23.
(2001) 1 VR 119
(1922) 30 CLR 246
(2000) 201 CLR 414
(1991) 174 CLR 558
(1995) 186 CLR 51
(1995) 184 CLR 348
(1986) 160 CLR 392
(2005) 224 CLR 300