JUSTICE CARL SHANNON; ROYAL COMMISSION INTO CONVICTION OF EDWARD CHARLES SPLATT:
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EDWARD SPLATT CELEBRATING HIS NEWLY WON FREEDOM WITH REPORTER STUART COCKBURN;
""AT ABOUT 11.30 AM, A SCREW CAME AND ESCORTED ME TO THE BARRIERS WITH MY PROPERTY. STEWART AND YVONNE WERE WAITING IN THE VISITING AREA. MY RELEASE PAPERS HADN’T ARRIVED. THE PRISON DEPARTMENT WAS STILL WAITING FOR MY PARDON FROM THE GOVERNOR. STEWART TOLD ME IT WAS ALIVE WITH REPORTERS OUTSIDE THE PRISON WAITING TO INTERVIEW ME.
EVERY MINUTE NOW SEEMED LIKE AN HOUR. I WAS GIVEN THE OPTION OF LEAVING VIA THE BACK GATE BUT DECLINED BECAUSE IT WOULD BE UNFAIR TO ALL THE REPORTERS AND SUPPORTERS WHO HAD BEEN WAITING ALL MORNING.
FINALLY, AT 12:07 PM I WAS HANDED MY RELEASE PAPERS AND A ROYAL PARDON FROM THE GOVERNOR OF SOUTH AUSTRALIA. THE FRONT GATE SWUNG OPEN AND I STEPPED OUTSIDE A FREE MAN. I CANNOT EXPLAIN THE FEELING STANDING OUTSIDE THOSE GATES, FACING THE HUNDRED OR SO REPORTERS AND FRIENDS.
I MADE A SHORT SPEECH AND WAS THEN DRIVEN AWAY BY STEWART COCKBURN FOR A HOME COMING RECEPTION. IT FELT GOOD DRIVING DOWN THE PORT ROAD A FREE MAN.
ARRIVING AT MY PLACE THE REPORTERS WERE THERE AGAIN IN MASS. SUDDENLY EDWARD SPLATT WAS A CELEBRITY. FOR THE REST OF THE DAY I WOULD HAVE TO GET USED TO THE CAMERAS AND REPORTERS. IT WAS ALSO GREAT TO PICK UP MY DOG, SHEEBA; SHE STILL KNEW ME AFTER ALL THIS TIME.
CHANNEL 2 HAD BEEN KIND ENOUGH TO SUPPLY MY FAVOURITE DISH. I HAD SAID TO THEM DURING AN EARLIER INTERVIEW, ‘THE FIRST THING I WILL SINK MY TEETH INTO IF I AM RELEASED IS A LARGE CRAYFISH WASHED DOWN WITH CHAMPAGNE.’
UNLIKE LINDY CHAMBERLAIN I HAD NO LARGE OFFERS FOR EXCLUSIVE INTERVIEWS. ALL I RECEIVED FROM CHANNEL 2 WAS THE CRAYFISH AND CHAMPAGNE. I DARE SAY I JUST DIDN’T HAVE A GOOD MANAGER TO LOOK AFTER MY INTERESTS. FINALLY, I DID RECEIVE AN OFFER FROM CHANNEL 7 FOR AN EXCLUSIVE INTERVIEW. THE OFFER AT FIRST WAS $5000. NO PAPERS WERE SIGNED TO SEAL THAT DEAL AND THE FINAL PAYOUT WAS ONLY $4000. ANYHOW, IT’S TOO LATE IN LIFE TO WORRY ABOUT THESE THINGS. THE ONLY THING THAT REALLY MATTERED WAS, I WAS FREE AND HAD PROVEN THAT THE SMALL MAN CAN WIN. ALL YOU NEED IS THE TRUTH AND DETERMINATION. I FORTUNATELY HAD BOTH THOSE QUALITIES.
I FINALLY GOT THE CHANCE TO KICK MY SHOES OFF AND PUT MY FEET UP ON THE LOUNGE WITH YVONNE. TODAY WILL BE A DAY NEITHER OF US WILL EVER FORGET."
FROM EDWARD CHARLES SPLATT'S CELL HOURS BEFORE BEING RELEASED FROM PRISON FOLLOWING HIS EXONERATION BY THE SHANNON ROYAL COMMISSION; PRISON; FROM CURRENTLY UNPUBLISHED BOOK TENTATIVELY TITLED "FORENSIC FAILURES" BY TOM MANN; I AM GRATEFUL TO DR. ROBERT MOLES FOR MAKING A MANUSCRIPT OF THIS IMPORTANT WORK AVAILABLE TO THE READERS OF THIS BLOG;
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While preparing a recent post on Dr. Ross James' court challenge to the Medical Board of South Australia's finding of professional misconduct in connection with his evidence in the Henry Keogh case, I was intrigued by the reference to a Royal Commission called into the conviction of a man named Edward Charles Splatt and decided to learn more about him.
For a start, I learned that Mr. Splatt was set free after the Shannon Royal Commission found that additional scientific evidence by the Shannon Royal Commission after additional scientific evidence cast doubt on the validity of the Supreme Court verdict against Splatt - and Justice Carl Shannon ruled that, "it would be unjust and dangerous for the verdict of guilty to stand."
But it was clear to me that Mr. Splatt was only exonerated because of the intervention of a phenomenal investigative reporter named Stewart Cockburn burrowed into the case and drew public attention to it - and because of dedicated lawyers who had the ability to tackle the scientific evidence in the case - virtually the only evidence to incriminate him.
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By way of background, as provided by the Networked Knowledge Web-Site:
Rosa Amelia Simper died on 3 December 1977.
Don Spurling, her son in law who lived next door found her on her bed, strangled with her bra, mutilated about the vagina and rectum, with a chisel like instrument, her nose broken, clothing torn, house ransacked.
A few possessions and about $200 were taken.
The clock in the bedroom had stopped at 2.48am after the plug was removed.
A pathologist said she had died between 3am and 4am, allowing for 2 hours either way.
An iron had been turned on and left on the bed beside the body for the apparent purpose of starting a fire.
But the heat was on too low and it only resulted in scorching.
The government offered a reward.
Traces of paint and metal were found on the windowsill, where the window had been jemmied open by an intruder.
The traces were also found on the bed sheet.
Attention was focused on the Wilson factory only 40 metres away.
Of the 8 or 9 men who worked there, Ted Splatt was determined to be the prime suspect.
He was arrested 3 March 1978, and found guilty 24 November.
Justice Roma Mitchell sentenced him to life.
His appeal was dismissed on 28 February 1979. The High Court refused him leave to appeal on 12 September 1979.
Stuart Cockburn took up his case and a movement started.
A Royal Commission was set up, and Judge Carl Shannon QC on 1 August 1984 recommended he be pardoned.
In the soul searching that followed, it was decided that a reform of the South Australian forensic science system was necessary, and in fact it was carried out.
Today the Forensic Science Centre in South Australia is independent of the police force.
For administrative purposes only, it is under the Department of Services and Supply.
It has all disciplines housed under one roof and has a highly qualified director.
The investigation of the case has become a model and an inspiration for those confronted by apparently unshakable court decisions.
Splatt was not well educated and was a spray painter at Wilson’s.
He had some petty convictions.
He had not been in trouble during the previous 8 years.
It is said he had a bit of a temper.
There was no evidence that he knew Mrs Simper.
Some youths playing around nearby said they saw someone near her gate, but could not identify Splatt.
Sergeant Frank Barry Cocks was a policeman specialising in forensic science, and describing himself as a technician concluded that the traces must have been left by the murderer.
With trace elements smaller on the window sill than on the bed, Cocks theorised that those on the bed must have fallen out of the turn-ups of the trousers of the murderer.
There were paint flecks, birdseed, hairs and metal traces.
It is said the search narrowed too quickly.
It should have looked at other factories, and the preponderance of the elements in the environment.
Splatt’s clothing was found to include trace elements at the scene including those not at the factory.
Splatt said that he had been out at an office party that night.
At 2am he had gone to his mother in law’s room to get some tablets.
His wife said that he was with her all night.
Mrs Condon swore an affidavit, but died some 2 weeks before the trial.
Bette Rogers, the JP who was present at the signing of the affidavit said that Mrs Condon seemed reluctant to sign it, and unwilling to touch the bible when she swore on it.
There was no primary evidence to implicate Splatt.
Cocks found 3 fibres from the bed sheet, which were like those on Splatt’s trousers.
Anna Parabyk was a forensic chemist involved with the case.
There was some confusion over whether she had been sent grey fibres which were in the trousers too.
The trousers were also found to contain paint, metal and birdseed traces similar to those found at the scene.
A shirt of his also had fibres similar to those found at the scene.
His car coat had similar foam particles to those found at the scene.
Rex Kuchel, a botanical expert, identified wood from the windowsill as being jarrah, like a particle found on Splatt’s car coat.
Both fragments looked as thought they had been painted.
Dr Colin Jenner, from the Waite Institute said that the seed particles had not been heated or cooked, so they were unlikely to have come from a biscuit.
Splatt had a birdcage at his home with similar seeds being used.
Splatt had said he had not worn the trousers since 1975, and had put on 14 kilos so they no longer fitted him.
The case focused on the theory of proportionate transfer – paint to metal (75/25) on the trousers matched the proportions at the scene.
The Locard principle of transfer backed this up.
The proportions on other employees were more the other way around.
Cocks had a dominant role in the case.
Splatt was convicted, and the Court of Criminal Appeal said that there were too many coincidences.
Cockburn said he found the scientific evidence almost impossible to follow, and some jurors had told him the same thing.
Trevor Griffin as the Attorney-General ordered 2 reviews of the case by Bishop and Bollen.
Moran eventually recommended a Royal Commission.
Mr RL Fish from the Home office was critical of the State’s forensic science system.
Cocks had been at the crime scene, done the initial scientific evaluation, and instructed the scientists.
Possibly some particles had been deposited at the crime scene by the investigators.
It was said there were fibres on the bed sheet which could have matched every shirt in Splatt’s wardrobe.
Parabyk could not judge the significance of her sample, because she did not know anything about the wider selection which was available.
There were 30,000 suits similar to Splatt’s .
With the hair found on Ms Simper’s breast, Dr Harry Harding did not receive it until 7 months after the investigation began.
What objective measurements had been made to confirm the proportions referred to? Many of Cock’s assumptions had been converted to facts.
The Shannon Commission began on 5 April 1983 – and said that when the evidence was examined in detail, it lost its superficial plausibility.
The foam spicules were covered in 5 minutes at the trial, but covered 3 weeks of the Commission.
Shannon concluded the evidence should not have been admitted.
The zinc particles on the window sill were found to be quite different to those of the alleged nail which was found.
The fibres sent to Parabyk were found to be not representative of the trousers at all.
There was doubt as to whether there had been any grey fibres at all – which were evident in the trousers.
It seemed that the wood particles could have been jarrah – or some other hardwood.
The oil in the wood which was thought to be evidence of paint turned out to be the sap in the wood.
The ‘seeds’ too had probably been wrongly identified.
The fragments could have come from a biscuit after all.
It seemed that Kuchel had been told what to expect before he examined it.
It seemed that the particles involved could have been airborne.
One does not have to prove that, he said, it only has to be a possibility.
Even the trace elements on the windowsills had not been compared to other windowsills at the house.
Dr Robertson from Strathclyde said that the jury were seldom given appropriate context to enable them to weigh the evidence.
Michael Abbott and Stewart Cockburn were told that another man had committed the crime.
But the investigation was now 7 years old and really it was impossible to say.
The case demonstrated how apparently solid scientific evidence can come undone.
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Back to the Mann Book:
Judge Shannon was clearly disturbed by the fact that the scientists testing on behalf of the Crown repeated misled the jurors by giving opinions that were not supported by the evidence and, in any event, were beyond their areas of expertise. (A common fault attributed to Dr. Charles Smith in many of the cases probed y the Goudge Inquiry);
"One of the biggest problems concerned the language of communication, and therefore understanding, between the two disciplines," writes Mann, quoting Shannon.
"Scientists not versed in legal technicalities often described their findings using loose phrases that might have been acceptable in a scientific context," Mann continues;
"Especially important was the way in which the scientist compared the trace material on the bed sheet of the deceased with material found on Splatt’s environment.
According to Judge Shannon the use of expressions such as ‘consistent with having come from a common origin’ or ‘consistent with them coming from the same source’ was an extremely dangerous exercise.
He suggested that such expressions were like a bridge ‘from the path of similarities to the separate rock of commonality of source or origin.’
Judge Shannon pointed out that Dr Collins, as scientific witness for both the paint and metal particles, went beyond his scientific domain to link the zinc coatings found on the windowsill at the point of entry and the aluminium particles on the bed sheet with Splatt’s environment.
Dr Collins said that the zinc coatings were ‘more compatible with an origin in the accused’s garage’ and ‘the aluminium particles and all other trace materials mentioned from the deceased’s and accused’s sources are in my opinion consistent with contact transfer from one source to the other.’
Judge Shannon could only imagine the impact of statements like those of Dr Collins on the minds of the jury.
Dr Taylor, Senior Lecturer at the University of Adelaide, commented on Dr Collins’ statement of evidence concerning the ‘contact’ conclusion of the aluminium particles:
To judge whether in his opinion contact took place is beyond his scientific competence, since his evidence is one purely of similarities, not of possible bodily contact.
To be asked to give a conclusion on this matter is improper, since his conclusions are no more than beliefs, beliefs which to him have no consequences.
To others, however, who may feel that his beliefs have greater weight coming from a scientist and who may be swayed in their opinions on this matter the situation is different.
They may be the ones called upon to judge this matter precisely and in doing so their decision has definite consequences, in this case to the accused.
I mention ‘in this case’ intentionally, since the case for the prosecution links the Locard principle of body contact directly and unequivocally with the assault and death of the victim.
The second matter for concern on forensic aspects was the inter-relationship between Sergeant Cocks and his ‘Scientific Section’ on the one hand and the forensic scientists on the other hand.
Judge Shannon said that some of the scientists also appeared to have a dual role—an investigative police role and a scientific analyser and cited the examples of Dr Collins and Dr Powell who examined the homes of both the deceased and Splatt for evidence to support their scientific findings.
They carried out investigations more akin to the role of a policeman and from their search made non-scientific statements as witnesses. (Dr. Charles Smith admitted that he perceived himself as a member of the prosecution time - and that he had trouble acting neutrally even after he learned that he was supposed to act independently as a scientist in the courtroom);
Judge Shannon gave the example of zinc particles, M and N, found on the windowsill at the point of entry.
In the post-trial period, Dr Collins and Dr Powell searched Splatt’s home for evidence of metals of any kind and made a scientific analysis of those particles in relation to a particular roofing nail found with zinc coating missing.
Dr Powell gave evidence before the Inquiry:
The prisoner had built a number of lattice fences using strips of galvanised steel that had been secured with nails . . . The origin of both particles M and N from the windowsill is consistent with the use of galvanised nails from the prisoner’s shed or the use of galvanised steel during building such as the galvanised lattice fences at the prisoner’s house.
He was cross-examined as to those statements:
‘You have never examined any of the other nails?’
‘No, we didn’t examine any other nails.
‘How can you say it is consistent with it?’
‘The fact that the particle shows that it’s been subjected to shear . . . To produce this particle there has to be some process by which the particle was separated from its source.’
‘What nail did you find that had been subjected to shear, what nail in the Splatt source?’
‘We’ve only examined one nail in the Splatt prisoner’s shed . . . What I an doing is taking into account that I saw that there were structures at the prisoner’s residence that had been made from galvanised steel and the use of galvanised nails . . .’
‘Do you agree that scientifically these are mere theories unsupported by any scientific investigation?’
‘I saw these components there but we did not take a sample of the galvanised steel.’
‘So they remained as mere theories and nothing more?’
‘I think they are reasonable (I was going to use the word “conclusion”). I think they are reasonable statements to make . . . A reasonable deduction I think is perhaps the better word to use.’
Judge Shannon couldn’t understand how Dr Powell in a scientific context could make such a statement. Dr Collins also gave evidence at the Inquiry concerning the testing of one galvanised nail from Splatt’s garage:
It must be realised that although M and N do not appear to match that particular nail, it was the first and only one of many galvanised nails in Splatt’s garage to be tested.
Moreover, Splatt’s shirt and trousers yielded a number of slightly variable particles compatible with a derivation from more than one galvanised steel object.
Again, therefore, the statement that particles M and N did not match is an over-simplification in view of the number of particles still available for testing on the very shirt and trousers which featured in other matches.
What Shannon construed from both the statements of Dr Collins and Dr Powell was ‘that chemical analysis has established that M and N did not come from the galvanised nail taken from the prisoner’s source.
But the prisoner had in his possession many more galvanised nails and galvanised material which have not been analysed and have not been examined at all; if that material were to be examined and analysed one might (or would be likely to) find a match.’
Judge Shannon continued to grapple with the statements and wrote:
It is in this context that one must consider Dr Collins’s already quoted statement: ‘therefore the statement that particles M and N did not match is an over-simplification . . .’
Since chemical analysis has established that particles M and N are not only different in composition the one to the other, but both are different in composition to the zinc coating of the nail—since that has now been definitively established, how in the world can it be said that to state that ‘particles M and N did not match is an over-simplification’. That is language which I simply do not understand either in a scientific or a non-scientific sense . . . they are statements which have all the indicia of a police investigatory suggestion.
The statements made by scientists like Dr Collins and Dr Powell went to the very heart of the inquiry where improper presentation of scientific evidence cast doubt on the jury’s verdict.
They were symptomatic of loose expressions made by a number of scientists for making comparisons between the trace materials found at the either the environment of the crime scene or that of the accused." (We learned from the evidence at the Smith Inquiry that Dr. Charles Smith would often throw in prejudicial comments which had nothing to do with the expertise he was supposed to offer to the Court);
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We now know that Australia's criminal justice system failed to protect Esward Splatt from this onslaught of flawed science and scientific witnesses who failed to respect their boundaries in the judicial process. (The same can be said about Ontario's criminal justice system in relation to Dr. Charles Smith.);
Judge Shannon said that Splatt’s trial had ‘represented an encounter of the closest possible nature between two systems or disciplines: the discipline of law and the discipline of science.’
He said, ‘It is in my opinion that from the close encounter, neither discipline escaped unscathed; they both bear the scars of that encounter.’
To this Bloggist, the scars experienced by the legal system and by forensic science come no where near the scars suffered by Edward Charles Splatt.
Harold Levy...hlevy15@gmail.com;
