11 September 2014

Analysis of Lingering Doubts by Dr Bob Moles

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Deb Drummond and Janice Teunis, Lingering Doubts – Going inside Brisbane’s Arcade
Murder
Copyright Publishing (2013) ISBN 978-1-921452 01 7 262pp

This is a book which has all of the classic ingredients of a “miscarriage of justice” case. The death of a young girl in the most appalling circumstances. The understandable public alarm and outrage in the media. The very quick identification and apprehension of the suspect, sufficient to restore public confidence in the agencies of law and order. The question is, of course, were those handling the investigation too quick off the mark?

Bronia Armstrong, nineteen years of age, was found dead at an office in the centre of Brisbane in January 1947. It was one of the rooms connected to the health practice where she worked as a receptionist. Her immediate boss was Reg Brown who was subsequently convicted of her murder.

The analysis in this book has been compiled by his descendants. It has all of the surreal qualities of other miscarriages of justice including those of Lindy Chamberlain, Edward Splatt, David Szach and Sue Neill-Fraser. The first two have already been recognised as miscarriages of justice, and I am confident that the other two will be in due course. The common feature is that in each case, a person without any record of previous violence, suddenly engages in the most appalling acts in taking the life of another – in most cases someone close to them. Soon after, the alleged perpetrator is seen acting perfectly “normally”. The police, of course, would say that it just goes to show how devious and wicked the person is or was. The other explanation is that they got the wrong person. Reg Brown was by all accounts (he was an accountant) a peaceful and family-loving man. Conservative, hard-working and part of Brisbane’s comfortable middle-class. He was the manager / accountant at a health service centre in town. Bronia Armstrong was his assistant, and a good friend of Reg’s son Ian. Reg said he’d always treated her as a daughter. (p29)

One day, Bronia’s body is found on the floor of one of the consulting rooms at the health practice. Reg had only that morning reported to the police that he’d been attacked the previous evening by some hoodlums in the street near his office. His hands had various cuts and bruises to them which could indicate possible bite marks.

When the police turned up to the scene of the murder, and (literally) looked around for a convenient suspect, there was Reg with bruised fingernails and bits of skin off his hand. The love and support of one’s fellow human beings can be a very fickle thing. “In the space of a few hours Reg Brown’s lifetime of good character was deemed inconsequential. He was suddenly labelled a liar and a murderer and people he was barely acquainted with arrived at the [police station] prepared to vilify him.” (p35) Immediately, Reg was transposed by the media into someone who was smug, sure of himself and slightly sleazy (p20). The fact that Bronia had been outwardly friendly to Reg and his family and had visited them at their home would now be overlooked. (p88)

Reg suffered from a number of flaws common to people in such cases. He disliked injustice (p45) and believed that being innocent and trusting in the legal system, would lead to a correct result. When first asked to go with the police in relation to their inquiries, Reg tried to reassure everyone by saying “it’s all a mistake, it will soon be sorted out”. (p49) The alarm bells should ring when the authors note that all of the police evidence was handed to them on the first day of the investigation and throughout all the subsequent inquiries, nothing further occurred to encourage them to alter their line of inquiry to any significant degree. (p187) With the experience of significant numbers of wrongful convictions, the phenomenon is called “tunnel vision”.

There are a number of other common factors. The police, being confident that they have identified the perpetrator of an unforgivable act, show no sympathy. In this case the police were described as “intimidating and harsh” (p48)

Sometimes they can be over confident and slack about following “proper” procedures. One policeman gave evidence about lengthy interviews with the accused and was able to recite them in detail, without notes - or with rough notes “not presented at trial”. (p25) Why would they follow up other leads, when they have the perpetrator in custody? The book records that the alibi of another person of interest was taken at face value (p84) and that another wasn’t even asked for an alibi (p129). It also appears that other evidence inconvenient to the prosecution case was either overlooked or not pursued. (pp71, 86) It is often the experience with such cases where police have strong suspicions but very little evidence that a convenient informant materialises. In this case, there was a convenient “eyewitness” to inform police about Reg’s prior inappropriate behaviour with the deceased girl. (p91) Another one of the convenient witnesses appeared to have been given certain benefits by the state. (p163)

Another common problem is the fact that forensic procedures may often be incomplete or inappropriate. In this case, some of the forensic evidence had been thrown away after the initial forensic tests had been done. (p65) The forensic examination at the scene was incomplete (the failure to take temperatures) and key pieces of evidence which did not fit the crime scene were “overlooked”. In this case it was the presence of ants on the body which might have indicated that the body had been moved. (p97) There also appeared to be inconsistencies between the injuries to the accused and the lack of injuries to the deceased. (p99) Indeed, it seems the police were keen to ensure that no further testing was carried out on some of the crime scene items. (p101) Sometimes presumptive tests were used without follow-up confirmatory testing. (pp101, 103)

By the time much of this evidence comes to be put before the public in the trial, it may seem almost rude to suggest that everything has not been done properly. In those days, before the comfort of television, people were keen to get out and see what was happening. The authors say that in this case Reg was confronted with huge crowds which turned out to see the public enemy. Here, some 300 people waited in the hot sun for hours to get into the court. (p61) The Crown prosecutor’s zeal (p136) may no doubt help to explain why proper rules of evidence and procedure were not followed. One of the prosecution police witnesses was described by a senior officer as a “near expert” which means that his opinion evidence should have been held to be inadmissible. (p140) The legal position is that only “real experts” can give opinion evidence in such cases.

In this case even witnesses, without any pretence to expertise, were allowed to express opinions about where certain noises had come from, and their evidence was contaminated by the way in which it was elicited by showing them around the scene. (p150) As the authors state, it was clear that the detectives had led the witnesses to make false assumptions. (p152) The evidence of one “witness” was referred to by the prosecution without that person ever being produced in court. (p176) Inappropriate fingerprint “evidence” was described by the examiner as insufficient to be used in court – but it was. (p142)

The authors say that the failure of the defence lawyers to object to this was puzzling. (p177) They also observe that sometimes the defence did not pursue appropriate lines of inquiry. (p130) Such reticence on the part of defence lawyers is a common feature in such cases. As Reg found to his cost, with the benefit of hindsight, the most trivial of everyday incidents can be turned against him and will be seen to be more dubious. (p116) Reg, every time he opened his mouth, was labelled a liar. (p183)

The outcome was predictable if deeply regrettable. Throughout, Reg stuck to his belief that truth would prevail over adversity. (p190) Despite that, Reg was convicted of this heinous offence and sentenced to life with hard labour. Many of the police officers involved in the case were given letters of commendation or other prizes for their “devotion to duty”. Some went on to obtain high office and some of them along with others were subsequently found to be guilty of corruption.

The final twist in the tail is when we learn that Reg (or someone on his behalf) took his life - by hanging in his prison cell - barely a week after he was convicted. There is no doubt that such cases are the working out in real life of the old good vs evil stories. Police investigators, prosecutors and even members of the public can excuse the lack of attention to detail or the failure to follow proper procedures, because of the wickedness of the crime and the obvious evil involved.

But what if, as the authors suggest, the lack of attention to detail in the investigation and prosecution, means that the wrong person was convicted? Then, of course, we haven’t corrected a social wrong, but perpetrated another, maybe as bad as the original crime itself. Then of course the inevitable question arises. Is it better to “put things right” or to “let sleeping dogs lie”. On many occasions, the authors recognised that “an inconvenient truth” can be very troublesome to those (sometimes including themselves) who may not wish to hear it. I believe them when they say that they were “seeking the truth” whichever way it was to come out. They have provided compelling reasons to suggest that this was in fact a serious miscarriage of justice. In terms of legal procedures, it is never too late to put things right. There have been many other cases where people brought appeals long after their cases were thought to have been finally determined. Throughout the cases (UK and Australian) there are constant references to the need to maintain confidence in our criminal justice system and in our system of appeals.

On 16 September 2012 it was reported in Victoria that the case of John Bryan Kerr who had been convicted of murder in 1949 had been reopened after another person recently confessed to the crime: “Police expected to contact the Office of Public Prosecutions for the John Bryan Kerr conviction to be reviewed.” The article also reported that: “In 2006 an appeal for mercy was made to Victoria’s Chief Justice in the case of Colin Ross, hanged over the notorious Gun Alley Murder in 1921. In May 2008, Mr Ross was pardoned by the Governor of Victoria.”

In December 2010 it was reported, “Fred McDermott, an itinerant shearer and alcoholic, was convicted in 1947 of the murder of Bill Lavers, an English-born shopkeeper and service station operator at Grenfell, in southern NSW.” It continued, “A hearing begins today in the Court of Criminal Appeal, against a murder conviction, in which the victim has been dead for 74 years—and the accused for 33.” In May 2013 the conviction was set aside and a verdict of acquittal entered.

There have been four cases in the UK where those who were hanged have had their convictions overturned. The authors are to be congratulated for their painstaking work and the clear and balanced presentation of their findings. It is clear that they have worked hard to do what those with legal responsibilities in relation to the case failed to do. It will be interesting to see whether it leads to the conviction being challenged through the courts in due course. I am clearly of the view that it ought to be – although I am well aware of the considerable procedural issues which might stand in the way.

Robert N Moles 1 April 2014

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