Ep.9 Badly Degraded

The case of Lindy Chamberlain and Andrew Fitzherbert are linked by the retired DNA expert Barry Boettcher and Barry also happens to have a connection to the host's husband! The Lindy Chamberlain case reveals more erroneous forensics. A discussion with Professor Boettcher reveals a very limited scenario for Andrew's blood to be present at the murder scene and rules out it being shed contemporaneously to the murder. 

Transcript

MURDER AND THE HELLCATS

EPISODE 9 

Previously on Murder and the Hellcats.

KEN COX: I initially picked only six of those 20 scene swabs to look at the ones I thought may not be so closely associated with the major blood pooling. And three of those were all the same and were different from the others.

MICHAEL STRUTT: There was no reason to think that it should have been more than two people. There were only two people seen in the bank. And the profile on the balaclava we tested was consistent with two people. But the problem is if you took it at two people, there was a part of the profile that exonerated Mark.

CATHERINE MCHUGH: I'm Catherine McHugh, and this is episode nine of Murder in the Hellcats.

ACT I

You are likely aware that the Lindy and Michael Chamberlain case was the most famous miscarriage of justice in Australian criminal history, but you might not know about the man who argued that the so-called foetal blood identified by a government forensic scientist was in fact not foetal blood. The same man who discovered the errors in Mark Rent's case and has reviewed Andrew's case.

In summary, Lindy Chamberlain was convicted of killing her nine-week-old baby Azaria in October 1982, and her husband as an accessory. Azaria disappeared in August 1980 while the family was on a camping holiday at Uluru and was never seen again. That original inquest held at the end of 1980, found a dingo had likely taken the baby, but the Northern Territory Supreme Court ordered a second inquest. Why?

A forensic dentist who had given evidence at the first inquest, Kenneth Brown did not appreciate the fact that his findings had not been believed. In response, Brown sent Azaria's clothing to a leading British forensic pathologist, Professor James Cameron. He found a bloodied human handprint on the jumpsuit. He also said the circumferential bleeding at the collar of the jumpsuit suggested the baby had been decapitated.  

Professor Malcolm Chakin, a textiles expert, analysed the jumpsuit and found that the damage was caused by a bladed instrument and had been cut in such a way as to simulate dog bites. 

But the clincher came from Joy Kuhl, a New South Wales forensic biologist, who was asked by the Northern Territory Police to examine the Chamberlain's car. She declared a substance taken from under the dashboard of the Chamberlain's car to be foetal haemoglobin, citing it in 22 areas of the car and items found inside the car.

 Added to this was the Northern Territory government at the time. It was keen to respond to the angry mob mentality that the Chamberlains must be guilty because Lindy did not cry enough about her baby's death on camera. And no child had ever been taken by a dingo before in Australia. With the case being reported like a soap opera, was it any wonder that the old political fallback of seeming to be tough on crime sealed the deal?

The result of that second inquest was an indictment charging Lindy with murder and her husband Michael, as an accessory after the fact. The case went to trial and they were both found guilty. Michael was given a suspended sentence and Lindy was given life with hard labour.

There were two appeals, both failed, but voices were growing louder about a miscarriage of justice. Six years after Azaria's disappearance, her matinee jacket was found at Uluru and Lindy was released. A royal commission in that year delivered an open verdict, although Lindy and Michael were formally exonerated in 1998, a third inquest in 1995 also made an open verdict. It wasn't until 2012 that a fourth inquest made the same finding as the first that a dingo took and killed Azaria.

The bad forensics in this case started with the poor preservation of physical evidence. The ground sheet in the tent was not checked for paw prints. The baby's jumpsuit found a week after the death was moved by the police before it was photographed. The bloodied hand print on the jumpsuit turned out to be dust. Azaria was too old to still have foetal haemoglobin in her body. The tests Joy Kuhl performed were later discredited. There was no blood in the car because the tests she was using also detected iron, and that's what she was actually picking up under the dashboard. The substance suspected of being blood was a sound-deadening chemical sprayed during the car's manufacture.

A group of amateur scientists conducted an experiment with a domestic dog, and were able to show the holes on Azaria's jumpsuit were capable of being made by a dog.

There was one person who knew from the beginning that Joy Kuhl. The forensic scientist hired by the Northern Territory government to analyse the Chamberlain's car was wrong. I drove with my partner Michael McHugh, a barrister at the time to visit retired genetics professor Barry Boettcher at his home near Newcastle. It turns out they had a connection. It was Michael's father Michael McHugh senior.

PROF BARRY BOETTCHER: I had met your father during the Chamberlain case. I went to Michael McHugh’s chambers and met him and had a bit of a talk. I can't remember too much of what was said, but yes, I can remember your father. 

MICHAEL MCHUGH: I was living in London. I didn't do law myself till many years later, but I'd been living in London. He came over and when I'd left the dingo had done it. And he came over and, and said, oh yeah, she's been convicted. And a few days later he said, I'm going home. I'm going home to defend Lindy Chamberlain.

And I said, well, hold on, you just told me you thought she did it. He said, oh, no, no, no. She was convicted and now she's got some appeal and I'm going to run the appeal in the High Court. And he said I don’t know whether she's guilty or innocent. I'm there to run the case.

And of course, he ran it and ended up almost getting there. It was four three and it's still a famous legal case referred to, very often in courts of criminal appeal. And the high court said, ah, well the jury were there, we weren't. And not withstanding some of these doubts, the jury could have or must have, decided put aside those sorts of concerns and they convicted them. And of course we now know very different and your evidence was crucial in that case.

BARRY: What happened was I knew within half an hour of reading Joy Kuhl’s work notes that she was not guilty. I knew that the evidence was absolutely flawed. 

MICHAEL M: Well, you knew there was a reasonable doubt. 

BARRY: No, I knew it was wrong. I'll show you.

CATHERINE DAVEY: To say that I truly understood what he then showed us would be a lie. In summary, what Dr. Boettcher testified at the original trial of the Chamberlains was the testing method used by government forensic scientist Joy Kuhl likely produced false positives for foetal blood. Boettcher’s rebuttal of Kuhl’s work was detailed and scientific. And this was a problem. At the time, everyone agreed, Professor Boettcher’s explanation was too technical and was lost on the jury.

Lawyers are not forensic experts. Juries are not forensic experts. Judges are not forensic experts. Yet a decision of innocence or guilt when it depends on science is made on the most compelling argument that a jury understands and not on the actual definitive science. Moreover, the scientist who has the best communication skills, who can make the most articulate case in the most commonly understood terms will help win the case, not the scientist with the most scrupulous science. This has been a revelation to me: that if Professor Boettcher had been believed overjoy Kuhl, the Chamberlains would probably never have been convicted.

How many do you think you've been asked to be an expert witness and examine DNA evidence or how many cases do you think you've done?

BARRY: I've possibly been involved in 50 to a hundred cases. I couldn't, say exactly because it's been over quite a number of years. As I indicated I started in 1964. I was brought into a number of cases whilst I was at the university, and I've certainly been brought into more since I've been retired. 

CATHERINE: The Mark Renton case; how did you get involved in that?

BARRY: In the Mark Renton case, mark Renton contacted me directly. He wrote to me and said, basically, I'm in prison. A major reason why I'm in prison was that at my trial evidence was given that my DNA was on a balaclava, and he said, I have never worn that balaclava. And he said, can you have a look at the evidence which I did.

BARRY: There were four pieces of DNA found on that balaclava. Renton and his co-accused were tried at the same time in the same court. I didn't realize that was possible, but I do now. It was very early days of DNA and only one class of DNA was referred to in court. It was called the FES system, and there were four pieces of FES DNA called 10, 11, 12 and 13 and Renton’s co-accused was FES 10 13. So it was possible that that DNA came from Renton’s co-accused. But Renton was 12 12. And the simplest explanation for four pieces of DNA is that it came from two people and the possibility is the DNA came from Renton co-accused 10 13, and the other person was 11 12.

However, the evidence given was not that the DNA could have come from two people, but that the DNA came from three and maybe even four people. and that was necessary to convict or to conclude that Renton’s DNA was on the balaclava, but it was not. Following the Occam's Razor where the appropriate conclusion to come from information is one that explains all of the facts and is the simplest explanation. 

The simplest explanation for four pieces of DNA is: it came from two people. It could have come from Renton, this co-accused and one other person. And if that were the case then Renton was exonerated, he was cleared of his DNA being there. The alternative was that if it came from three or more people, it included more than 90% of the Australian population, and under such circumstance the evidence, was far more prejudicial than probative. And in fact, I wrote that up for the Australian Journal of Forensic Sciences. 

I also reported to the Crime and Misconduct Commission in Queensland and laid a complaint that the forensic scientist.

Again, the Crime and Misconduct Commission to me appeared to want to simply accept the case that had been presented by the Crown. They did not accept my criticisms of the forensic biologist's testimony in court. And of course this didn't sit well with me because Ockham's Razor is something that we in science use that the appropriate explanation or the appropriate conclusion to reach from results is the one that explains all of the data and is the simplest explanation. 

ACT II 

CATHERINE: How did you get involved in the Andrew Fitzherbert case?

BARRY: I got involved in the Andrew Fitzherbert case when I was in Queensland. I was visited by Lloyd Hamilton, a Mrs. McGinnis and several other people who were friends of Andrew Fitzherbert. They came to visit me and brought with them documentation from the Andrew Fitzherbert case.

CATHERINE: And what did they bring you at that time?

BARRY: They brought to me some court documents, including some Profiler Plus documentation. I had a look at this material, quite quickly and immediately realised there's a major problem with the DNA results.

CATHERINE: So what year was this?

BARRY: It was in December, 2004. I quickly looked at the printouts from Profile Plus because these are the results that you actually rely on. And ask a question: do the conclusions give you the expectation for these results? In other words, if the conclusions are correct, would I have got these results? And I came to the conclusion very quickly no. The reason is that the Profiler Plus printouts of the DNA extracted from the cardboard on the near the surgery wall, the sample obtained from surgery floor and the mixed sample from near the sink, showed that by comparison with Andrew Fitzherbert’s reference DNA, those samples in the surgery were degraded.

Now the reason for this is that when results are printed out by Profiler Plus they record the fluorescence, which shows up as peaks on a graph of the samples that come by an electrical current through a jelly or a gel. And on the lefthand side of the printout, the lefthand peaks represent what I will call short pieces of DNA and those on the righthand side represent, peaks recorded by the long pieces of DNA. And the difference between them is that those on the left are about a hundred units of DNA long. Those on the right are about 300. Now it's quite common knowledge in the laboratory and in fact it's shown in the Profiler Plus manual that if you degrade DNA, it's the big pieces of DNA that degrade first or show most degradation. In other words, a 300-unit long piece of DNA will break before a 100-long piece of DNA. Now, when I looked at the printout from Fitzherbert's reference DNA sample I looked at those peaks given from the sex chromosomes, the X and the Y chromosome, and compared them with the longest pieces of DNA, which are referred to as D7and D18.

In Fitzherbert's reference DNA, the shortest pieces or the peaks given on the graph by the shortest pieces were 4.4 times as high as the peaks of the longest piece of D7 and the shortest pieces of DNA were 2.9 times higher than the longest piece D18. So we've got those values, but the short pieces are about three or four times as high as the long pieces.

But when we come to the cardboard against the surgery wall those values turn from 4.4 to one to 31 to one. In other words, the short pieces are there 31 times or the peaks are 31 times as high as D7 and 16 times as high as D18. So this shows that the long pieces of DNA are there in far fewer copies because they've been broken.

And when we look at the surgery floor samples, the values are 20 to one and 11.6 to one. Now there's a possibility that there's something in the surgery that is degrading the DNA in those samples. Now it's a sample of blood that's on the cardboard, and it's a sample of blood that's on the surgery floor. But then you extract the DNA and if there's something in the surgery that's degrading the DNA, it'll degrade those long pieces more than the short pieces. But when we come to the mixture we've got DNA there from two people. And it was assumed by the Crown that the DNA, the mixture was of blood from Kathleen Marshall murdered and from Andrew Fitzherbert. There was no DNA attributed or that from Kathleen Marshall's body ever examined. But it was assumed that a blood stain on the floor came from Kathleen Marshall and that DNA in the mixture was a mixture apparently from Kathleen Marshall and from Andrew.  Now in that mixture, the DNA from the female and Kathleen Marshall was the major component. Now, we can estimate the relative proportions from the X and Y chromosome because a female has two X chromosomes and a male has an X and a Y so that we can be certain that the Y chromosome, was appropriate to Andrew Fitzherbert.

Now, when we take the DNA, that's assumed you come from Mar Marshall and split the. X chromosome DNA between Marshall and Fitzherbert. I have assumed that the amount of X chromosome DNA from Fitzherbert is the same as the amount of DNA from his Y chromosome. And so I've taken that away from the total X chromosome DNA. I'm then able to calculate for Marshall's blood, what was the ratio of X chromosome DNA compared with the very long pieces of DNA and find that it's 2.8 to one and 2.4 to one. In other words, the long pieces of DNA in Marshall's DNA mixture extracted from the blood has not degraded at all. 

So we are here finding that a mixture of DNA, one part of it is badly degraded for Fitzherbert’s, the other part of it Marshall’s is just as though it was brand new, not degraded at all. Now, if there had been something in the surgery that was degrading DNA, it would've degraded both samples of DNA in the mixture, but it hadn't. 

And so what we are left with is the conclusion that when the DNA from Andrew Fitzherbert was deposited in blood in the surgery it was already degraded. In other words, there were old blood samples. If the conclusion that Fitzherbert and Marshall bled in the surgery at the same time, the DNA in their mixture would've been in similar condition.

Fitzherbert's blood did not come out of Fitzherbert's body at the time that Marshall was murdered. It may well have been deposited at about that time, but it certainly was not deposited at the same time as the murder.

CATHERINE: So does it have to be Fitzherbert's blood? Can it be either any other of his DNA material that was mixed with her blood?

BARRY: These five blood spots were chosen because they appeared different in appearance to other blood spots. In my opinion, there was some bias towards the blood spots that contained blood from Andrew Fitzherbert. Now, why did they appear different?  But apparently there was something that drew the attention of the investigating people at time who had no idea that there was anybody other than Kathleen Marshall involved.

CATHERINE: So is it, is it unusual that the victim's blood, they had bone, they had flesh, they had blood from Kathleen Marshall, why they wouldn't have got a sample? Cause I'm thinking, well, you need that; you might find some blood in his car or on a weapon.

BARRY: I find it surprising that Marshall's blood was not identified with certainty it's regarded as certainly an error on behalf of the prosecution people that Kathleen Marshall's DNA profile wasn't established

CATHERINE: So with the blood being older, Andrew's blood being older, can you tell how much older?

BARRY: It will depend of course on bacterial action. It will depend on how it's been stored in the meantime, even whether there's preservative put in with it. I've got no idea at all. But it's an appreciable time prior to the murder of Kathleen Marshall.

CATHERINE: You said you're not sure if it was blood. It could have been, could it be skin? Can it be some other part of Andrew that got there?

BARRY: The DNA that was extracted showing Andrew Fitzherbert's DNA didn't come from skin. That'd be quite apparent at the time. I think the most likely is blood from blood cells from white blood cells because red blood cells don't have any DNA in them. But it could come from, for instance, saliva. Our saliva has many, many cells in it. Our, blood has a minority of white blood cells. I think the estimate is there's only about one white blood cell to every 500 red blood cells. Saliva is full of, uh, it's a rich source of DNA. So one might suggest that it could have been saliva cells. I don't expect sperm cells because they require a different method of releasing the DNA, but I personally feel that it was most likely DNA extracted from an old blood sample from Andrew Fitzherbert.

CATHERINE; I understand that you saw the Atchison report.

BARRY: I have seen the Melbourne report on the results from Andrew Fitzherbert. But that report, although it looked at various things, really didn't look at the topic of whether the DNA was degraded. It looked at what alleles were present in the accuracy and all of this sort of thing. But in my opinion it didn't get to the nub of the situation.

CATHERINE: So my question also about timing is each of these 20 people who were tested, the men who were tested, took a few weeks for each man's DNA to results to come back. So we understand it. Yet, Andrews was taken one day and by the next day they went to arrest him. Is that turn around possible? Is it likely?

BARRY: It's possible to of course process DNA within a day or two from collection and commonly the police procedure is to obtain blood sample from my suspect, take it straight to the laboratory. And very often it's the laboratories procedure to process that virtually straight away,

CATHERINE: What other theories are there of how his DNA could have got there in that degraded state?

BARRY: I'm afraid I just fail to understand how Andrew Fitzherbert's degraded DNA was found in the Kathleen Marshall surgery. Material from Andrew Fitzherbert could have been deposited at the time Kathleen Marshall was murdered, but it was not blood from Andrew Fitzherbert at the time that Kathleen Marshall was murdered. And I consider it has to have been obtained well beforehand, stored in some way, and then brought into the surgery at that time.

CATHERINE: I'm just going to summarise what I learned from speaking to Professor Barry Boettcher. When Professor Boettcher reviewed the DNA documentation he found that Kathleen Marshall's blood or what was assumed to be Kathleen Marshall's blood was recently deposited, and the DNA profile of Andrew Fitzherbert found in the vet surgery was to degraded.

 If there was a chemical or other element that caused Andrew's blood to degrade in the surgery, it should have also degraded Kathleen's DNA, which contradicts the evidence of the mixed sample. 

Why didn't Ken Cox reveal this in his conclusions? And why didn't Bentley Atchison pick this up in his review of the DNA material? In Atchison’s case it was, according to Professor Boettcher, a matter of him not focusing on the age of the DNA. In the case of Ken Cox, Professor Boettcher revealed he'd had a conversation with a whistleblower from the John Tonge Centre. This whistleblower informed him that JTC DNA scientists at that time were not aware of aged DNA or how to read it. They had never been instructed on it. 

Because of the mixed DNA sample, it was not possible to say that Andrew's blood was shed at an earlier time in the surgery before Kathleen was killed. Instead, Andrew's blood was degraded before it was then deposited in the surgery at the time of the murder. And the degraded blood also ruled out the idea that they, the killer, or someone who was trying to frame Andrew, had a sample of his blood taken from him and immediately frozen and then later left at the crime scene. Frozen blood would not have looked degraded if it had been left at the crime scene. Professor Boettcher also dismissed the idea that Andrew's blood could have been planted after the discovery of the crime. 

Professor Boettcher concluded that Andrew's DNA found in the surgery was from an old sample of his blood stored and then left at the scene when Kathleen was killed. Professor Boettcher admitted for that to happen, it wouldn't be by chance. It would've taken planning. 

Before I conclude this episode, I would like to mention that Emeritus Professor Barry Boettcher passed away in April 2024. I met him and his wife Moira at their home near Newcastle and I interviewed him for three hours. He was generous with his time. He was awarded the member of the Order of Australia in 1998 for his services to science. After he retired in 1993 he remained devoted to good science and was regularly called on to review cases and give his expert opinion. Unfortunately, he became accustomed to the fact that unsound forensic science in Australia has been, and continues to be, regularly accepted by the courts. I am very grateful for his contribution to this podcast.

Next time on Murder and the Hellcats.

BARRY BOETTCHER: The case has been one where I have been involved for quite a number of years and have been absolutely perturbed about it. In my opinion, it is a case which is worse than the Chamberlain case.

RONE GRICE: I said to Ken you have only provided the prosecution scenario that the blood from Fitzherbert and the blood of Marshall were deposited contemporaneously. I said, you can't say that. We don't know that for sure.