by Sue Williams
On the last night of the hearing, a group of journalists got together to play their own ghoulish version of ‘Trivial Pursuit’, with all the questions and answers centred on the committal. Sample: Whose blood was found on the Kombi? For the answer, choose from the following: Peter Falconio, Azaria Chamberlain, Skippy the Kangaroo. Answer three was the correct one: the Kombi had earlier hit a kangaroo on the road. Whose DNA was it on Joanne Lees’ shirt? Answers: Peter Falconio’s. Bradley Murdoch’s. Forensic scientist Carmen Eckhoff’s.
And what are the odds on a conviction at the trial? Answers: 640 billion to one, 378 to one, or evens. The most popular answer was lost somewhere amidst the laughter.
CHAPTER FORTY-SIX
DNA AND THE LETTERS OF THE LAW
THE TRIAL OF BRADLEY JOHN MURDOCH was at last due to start in May 2005, but the agonisingly long eight-month wait was making everyone jittery. Murdoch had now been behind bars for more than two years and, sitting in the confines of his Berrimah Jail cell, couldn’t understand why the run-up to the trial was taking so long. Seventeen thousand kilometres away in Brighton, England, Joanne Lees was impatiently thinking exactly the same thing. But both sides in the case were painstakingly combing through all the evidence, witness statements and mountains of paperwork to find any gaps in their knowledge that needed to be filled, any holes in their evidence that required plugging and, in the case of the defence, anything that might suggest their client’s innocence. The court prosecutors and the police were determined to make sure every ‘t’ was crossed and every ‘i’ dotted before the case would eventually rumble back on to centre stage; and Murdoch’s defence team was similarly anxious to make their challenges as forceful, and their denials as watertight, as possible.
For the case as it stood against Murdoch was certainly not conclusive. There was no actual witness to the murder of Peter Falconio — as even Joanne hadn’t seen exactly what had happened behind the Kombi that fateful night — no body, no murder weapon and no apparent motive. Instead, the allegation of murder was purely circumstantial. It rested on Joanne’s identification of Murdoch; the fact that he’d changed his appearance and that of his vehicle so dramatically after the attack on Peter; the possibility that it was him pictured on the Shell Truckstop video which placed him in the area at the time; the discovery of a hairtie matching Joanne’s in his Landcruiser; James Hepi’s testimony that he’d talked about hiding bodies and had made manacles similar to those used against Joanne; and, lastly and perhaps most importantly, the DNA on Joanne’s T-shirt, on the Kombi steering wheel and on its gearstick.
The police were utterly convinced they had their man, but knew that at best there was only a 60-40 chance of a conviction on the evidence they’d presented at the committal. They desperately needed something else. And, one evening, working late in the lab, it finally dawned on forensic scientist Carmen Eckhoff that she’d perhaps overlooked something quite critical.
A year before, she’d read about the pioneering work of a scientist at the UK Forensic Science Service DNA unit at Wetherby in West Yorkshire, England, who was an expert in a new method of analysing DNA, called Low Copy Number (LCN) testing. A technique sensitive enough to produce a DNA profile from just a few cells of a tiny sample left at a crime scene or on a victim, it had first been discovered in 1999, and Dr Jonathan Whitaker had since become the foremost scientist to perfect the method.
Because this kind of testing required only a miniscule amount of DNA, it had revolutionised police forensics investigations in Britain. Dr Whitaker had personally been involved in bringing a number of offenders to justice years after their crimes. In 2004, for instance, tiny dandruff flakes left in a discarded stocking mask finally led to the conviction of one man, Andrew Pearson, for staging an armed robbery — in 1993. Another, Anthony Ruark, was jailed for life following the analysis of a tiny amount of semen left on the clothing of his murdered girlfriend eighteen years before. Even more famously Dr Whitaker had also been called in to re-examine a case that had happened more than forty years ago. He found tiny specks of a man’s DNA on his female victim’s clothing and was able to confirm that James Hanratty, the man later hanged for the crime but whose family and friends had long protested his innocence, was indeed the villain of the piece.
In layman’s terms, his tests amplified minute traces of DNA and the findings which, while no longer having the billions-to-one statistical odds of good clear samples, could still tell investigators that the chances of it being anyone else’s DNA were millions to one against.
As a result, Eckhoff had travelled to England five months before to take Dr Whitaker DNA samples from the Kombi’s steering wheel and gearstick. He’d found traces of Murdoch on both. But just before the voir dire, the preliminary hearing of legal issues before the trial itself started, Eckhoff looked at her files again. His tests had proved impressive and it suddenly dawned on her that maybe she should also have given him the cable ties with which Joanne had been handcuffed to test them for traces of Murdoch’s DNA to see if he could be linked even more closely to the attack on the tourists.
It was only a few days before the voir dire and, in all honesty, that kind of testing should have been done well in advance. But, she decided, it was still worth a shot. It was late evening in Darwin, but still early morning in England. With a trembling hand, she picked up the phone and dialled the number of the UK forensics service.
MURDOCH’S DEFENCE LAWYERS were also focussing on the DNA found by the Northern Territory Police in the Kombi and on the T-shirt. Their client was still protesting his innocence and insisted the presence of his DNA merely meant that the police had tried to set him up.
The massive world attention on the case had put incredible pressure on them to find the tourists’ assailant. Murdoch told his solicitor Mark Twiggs that he’d simply been in the wrong place at the wrong time. The big reward being offered for information leading to the arrest of their attacker had already given plenty of his enemies $250,000 worth of reasons to try to frame him and now, he said, people — either the police or adversaries like James Hepi — were planting his DNA on the scene. He could easily have brushed up against Joanne at the Camel Races, or by the Red Rooster chicken shop in Alice Springs where the couple had eaten beforehand. He had receipts to show he’d been at the Repco motor parts shop on the other side of the road, for God’s sake. His DNA in the Kombi? With his mechanical skills, he was always helping out motorists in trouble, particularly when they were driving such vast distances in such obviously unsuitable decrepit old vehicles.
Grant Algie and Twiggs mulled over the DNA evidence together, day after day. They’d already pointed out that the Darwin forensics lab hadn’t been accredited until much later, something the prosecution countered had merely been a technicality due to a lack of fire exits rather that any flaws in the testing procedures. But they felt they needed more. And finally they came up with a name: Ian Barker QC.
Barker is one of the sharpest legal minds, and most forceful court personalities, in Australia. His masterful prosecution of Lindy Chamberlain at the 1982 trial led to a jury convicting her of killing baby Azaria — a conviction later overturned on new evidence — and the extraordinary sentence of life imprisonment with hard labour. He is, however, widely recognised as a fiendishly acute intellect, a marvellous orator and a firsthand expert on the unreliability of DNA evidence. Despite his star turn as the Crown Prosecutor, Chamberlain was later acquitted when it was found that the ‘foetal blood’ Sydney forensics expert Joy Kuhl had testified was splashed around the family’s Holden Torana and in Lindy’s husband Michael’s camera bag, was actually standard vehicle sound deadener.
With Kuhl playing a small role in the investigation into Peter’s disappearance by examining the Kombi after everyone else had run tests, that faint tinge of doubt about the dependability of the DNA evidence was already there. If Barker were onside, that doubt could well be intensified to Murdoch’s benefit. Algie and Twiggs agreed, and signed up the QC to help with their att
ack on the DNA evidence, to try to discredit it at the voir dire so that it could be ruled out for the trial. When the prosecution heard about Barker’s appointment, they were stunned.
THE NAME OF THE JUDGE for the Falconio case — Brian Martin — was finally announced, and sparked a fresh frisson of excitement among the journalists. In even further echoes of the notorious Chamberlain case, Brian Martin had been the Northern Territory’s Solicitor-General at the time, the man who’d played a pivotal role in bringing the original murder charges against Chamberlain. When pressure mounted for an inquiry into the conviction in 1985, he travelled to Germany to visit the maker of the forensics test that had identified the presence of ‘blood’ in the van. When he returned, he declared there was no grounds for a judicial inquiry. The makers of the test later wrote to him saying he had ‘misunderstood’ some of their points.
Immediately, the press were jumping to all sorts of conclusions. With Joanne already compared to Chamberlain, and claims floating around that perhaps she’d had a hand in her boyfriend’s killing, how on earth could the case proceed fairly under the charge of a man who’d once been so convinced of another woman’s guilt in similarly mysterious circumstances in the Australian outback? The agitation was, however, short-lived. The DPP’s press officer immediately jumped in to explain: this was a different Brian Martin.
This indeed was Brian Ross Martin QC, appointed as Chief Justice of the Supreme Court of the Northern Territory in January 2004. Before that, the former Commonwealth DPP had been a judge at the South Australian Supreme Court where he’d presided over the infamous Snowtown ‘bodies-in-a-barrel’ murder trials. It had been a long and infinitely complex series of hearings but he’d acquitted himself with great aplomb. He had a reputation as a man as firm as he was fair, who brooked nonsense from neither prosecution nor defence. The stage had finally been set for the legal jostling that would immediately precede the trial proper.
BRADLEY MURDOCH’S FATHER COLIN had been unwell for some time, and the strain of having his son behind bars wasn’t helping. As the first stage of the voir dire began on 7 March 2005, he took a turn for the worse. Four weeks later, he was dead. Murdoch was devastated. He applied for permission to attend his father’s funeral. It was refused. His lawyers were outraged: after all, their client was only on remand, he hadn’t been convicted of an offence. But their protests fell on deaf ears. On April 19, Colin Murdoch was buried without his son in the congregation to mourn him.
JOANNE LEES WAS STUNNED when she received a call from a friend about an article in Britain’s Daily Mail newspaper by her old foe Richard Shears. She’d assumed all would be quiet in the lead-up to the trial, due to begin on 3 May 2005 in Darwin’s Supreme Court. She couldn’t have been more wrong. She tore open the newspaper to see her own and Peter’s faces smiling back out at her. The headline chilled her. ‘Why I still have huge doubts about the Outback Killer’, it ran in huge, bold type.
The article went on to say that lawyers in the case would say that Murdoch, a man with a bad reputation, had been the perfect fall guy for police. And the reason they’d be able to do so with such confidence was because of all the discrepancies in Joanne’s story. Joanne, already dreading returning to Australia for the trial, felt sick to her stomach.
ACROSS THE SEAS IN THE world’s newest nation, East Timor, John Daulby, the senior police officer who had headed the investigation for so long into Peter’s disappearance, was watching developments closely. He’d taken extended leave to fill a post as an advisor to the East Timor police service, based in the capital, Dili. As his year overseas came towards its end, he was asked if he’d consider extending his term. Eventually, in April 2005, just after the 30th anniversary of the beginning of his police career, he decided to resign from the Northern Territory force, in order to keep on making a contribution to the developing world.
The job was tough, but it was rewarding. ‘Working with a nascent police force, which only knows a dark past, is bloody hard,’ he says, sitting in a little café in Dili. ‘I do have a few regrets, though. I love the police, and I’m proud of my service in the Northern Territory Police, and am proud of the men and women I’ve worked with throughout my career. But I feel I left Darwin perhaps a year early. I would have liked to have seen this case to its end. I feel I left some things undone. But it felt like the time was right to move on. I wasn’t running away or trying to escape; the door was closing there, and another window opened here.’
He visited Darwin often and was in touch regularly with some of his colleages from Taskforce Regulus to keep apprised of the case. He felt he’d lived every day of the past three-and-a-half years trying to discover what had happened to Peter, and just couldn’t let it drop. He was full of admiration for those colleagues who’d continued on, giving their all to the investigation. ‘You know, people like David Chalker, Megan Rowe and Paula Dooley-McDonnell deserve commendations for the work they’ve done,’ he says. ‘They’ve worked so hard, and been so diligent and committed. The terrible thing is, if the trial ends in an acquittal, they’ll be made to feel as if they’ve failed. If it ends in a conviction, at the very least, their contribution should be recognised.’
As for his own role in the case, he believes there were some mistakes, but he did the best he possibly could in the circumstances. ‘My biggest regret was that I wasn’t there when it first happened,’ he says, looking off into the distance. ‘Joanne should have been coerced into facing the press. The whole thing would then have played out so differently. I would have insisted she’d done it.’
OVER IN THE US, A NEW movie was premiering at Robert Redford’s Sundance Film Festival. A small Australian horror film made on a miniscule $2 million budget, it was, however, making waves around the world. Called Wolf Creek, it was billed as loosely based on the stories of Peter Falconio and backpacker killer Ivan Milat. About three British tourists, two women and one man, travelling through the outback who tangle with an evil murderer played by John Jarratt, the film was so graphically violent, there were reports of members of audiences actually vomiting and others fainting as they watched.
First-time feature film director Greg McLean had himself been affected by the story of Peter’s disappearance, Milat’s gruesome toll and the horrific Snowtown killings. ‘Australia, once the world’s favourite beach, suddenly became a place where lonely, deranged men with murder on their minds stalked empty highways,’ he says. ‘Looking for vulnerable tourists a long way from home …’
The film pays homage at various times to the Falconio case. At one point, an orange Kombi sits in a car park. At another, a man looking very like Murdoch grins in a bar towards the camera. And at another, the one tourist to survive the killing frenzy is actually accused of murdering his mates. Neither of the bodies of the dead are found, and the real murderer is left to roam free.
In the first press kit handed out at previews, Murdoch’s name was used prominently in the notes. When the legal ramifications were pointed out, that was hurriedly changed.
Wolf Creek quickly became a massive hit around the world, and was due to open in Australia at about the time the trial was meant to start. The low-budget shocker was making a small fortune for its ‘friends and family’ backers. Years before one of the producers had approached an old schoolfriend to ask him if he’d like to invest in it. Mark Twiggs, as unaware of the movie’s subject matter as he was of its commercial potential, declined.
BACK AT THE SPOT WHERE Peter vanished three-and-a-half years before, another man suddenly met a violent death. A thirty-one-year-old soldier lost control of his military truck after a tyre blew en route to a defence exercise 10 kilometres north of Barrow Creek. He was not wearing a seatbelt, and died soon after.
THE VOIR DIRE BEFORE Chief Justice Brian Martin QC was to last just ten days over two separate hearings. The prosecution would be laying some of its cards out on the table in terms of the evidence it was proposing to present before the jury; the defence would have its chance to challenge their plans.
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br /> Rex Wild QC explained that, in contrast with his case during the committal, he would be leading his case on the allegation that Murdoch had been running drugs between South Australia and Western Australia when he happened upon Peter and Joanne. Wild’s deputy in the prosecution, Tony Elliott, then took over. Wild, with his full caseload, was needed elsewhere. He was running another murder case at the same time, against two teenagers accused of tying up two Thai-born sex workers and throwing them off a bridge, weighted down with car batteries. The boys hoped crocodiles would eat the prostitutes but ‘salties’ only attack living, moving prey. The womens’ bloated bodies were spotted by tourists out on a crocodile-watching river trip.
In Wild’s absence, Elliott told the court the prosecution in the Falconio case also wanted to talk about the guns Murdoch had in his possession when he was arrested in Port Augusta. Algie protested.
But it was when the DNA evidence was presented that Algie really saw red. Whitaker had been given the cable ties and, after carefully unwinding the black masking tape from around them, he’d diligently set about testing them with his LCN techniques. What he claimed he’d found had astounded Eckhoff. From the miniscule traces of cells he discovered inside the cable ties, he said he was able to identify one man: Murdoch.
The prosecution was triumphant — this was proof that Murdoch had not only handled the manacles but in all likelihood had made them. The defence were furious. They protested that this new development had been sprung on them at the last minute, when they’d had no time to independently verify Whitaker’s results. Furthermore, the tests the scientist had carried out on the DNA from the Kombi gearstick and steering wheel had effectively destroyed the samples. Ian Barker made an immediate application to have the hearing stopped and the trial date put back to allow them to have their own DNA tests carried out on the cable ties.
When Whitaker came into the court, he was asked if it would be possible to do more tests in the UK for the defence to witness. He said it would. The judge then ruled that the trial be postponed until October 2005, to enable Murdoch’s lawyers to examine fresh tests.
