52

Dead Wrong: When the Law Makes a Fatal Mistake

When Timothy Evans fell to his death on the gallows at England’s Pentonville Prison on 9 March 1950, the 24-year-old lorry driver had no way of knowing that his execution would become the catalyst for the many anti–capital punishment arguments of the future.

Timothy Evans went to the gallows for the murder of his baby daughter, Geraldine. At Evans’ trial the main witness for the prosecution was his landlord, John Christie. Three years after Evans’ execution, Christie confessed to murdering six women and having sex with their corpses. The women’s bodies, including that of Evans’ young wife, Beryl, were found in wall cavities, under the floorboards and buried in the backyard of his house. As well as killing Timmy Evans’ wife, Christie also confessed to murdering their baby Geraldine.

John Reginald Halliday Christie went to the gallows at Pentonville Prison in July 1953. The unfortunate Evans was eventually granted a posthumous royal pardon in 1966. His body was exhumed from Pentonville Prison and reburied in consecrated ground. The Christie Murders are told in chilling detail in the movie 10 Rillington Place. (The full story of the Christie murders is in chapter 11 of this book.)

The other most quoted case by the anti–death penalty lobbyists is that of Derek Bentley, whose hanging was the classic misuse of the death penalty and possibly the most shameful act in the long and disgraceful history of alleged British justice.

Although Bentley never pulled the trigger and, for that matter, never even held the gun, he was convicted of the murder of a policeman when his associate, 16-year-old Chris Craig, deliberately shot and killed a constable while caught on a rooftop after attempting to rob a store in London in 1953. Because the underage Craig couldn’t pay the ultimate price for the life of the policeman, Bentley, who suffered with epilepsy and had the mental age of an 11-year-old, was rushed to the gallows under mammoth protest from an outraged public.

The sacrificial lamb, Bentley, was heard to say, ‘Let him have it,’ seconds before Craig opened fire on the policeman. The prosecution maintained that Bentley was calling to his partner, telling him to shoot to kill. The defence argued that Bentley was telling Craig to hand the gun over and surrender.

The jury chose to believe the prosecution, and the luckless Bentley went to his death in what criminologists now claim is the indefensible argument against capital punishment. Chris Craig served 10 years of his life sentence and was released from prison in 1963. He never came to the attention of police again.

While such travesties of justice were allowed to happen in the 1950s, experts believe that it could never happen today with modern technology such as DNA. Yet, where the death penalty is still in existence, there is always the possibility that an innocent person could be the victim of a miscarriage of justice. Where it is abolished, the possibility does not exist.

This in itself is a very strong argument against capital punishment and there seems little doubt that the unfortunate executions of Evans and Bentley played a significant role in the eventual abolition of the death penalty in England.

But while the British justice system has always been the yardstick used in the argument against execution, Australia’s anti–capital punishment lobby has its own classic case against the reintroduction of capital punishment.

In November 1973, Johann Ernst Siegfried (Ziggy) Pohl was convicted of strangling his wife, Kum Yee ‘Joyce’ Pohl, at Queanbeyan in southern New South Wales. He was sentenced to life in prison. He appealed against the conviction but the appeal was dismissed in August 1974. Ziggy stayed in goal.

Ziggy Pohl vehemently proclaimed his innocence, saying that his English was very poor and he did not know that the answers he was giving to the police would be misinterpreted to go against him. But the circumstantial case against him was strong. On the surface, Ziggy was the only person likely to kill his wife. Furthermore, he could not account for his actions at the time of the murder. It looked like an open and shut case.

But there was no motive. No one could come up with a logical reason why the outwardly happy and secure Ziggy Pohl would want to kill the woman he so obviously loved and shared his every moment with. But that aside, the kindly German immigrant with the big smile and the sad eyes was bundled off to Long Bay jail to serve out his term with the most vile killers in captivity.

Ziggy Pohl was a model prisoner and was released on parole after serving only 10 years of his life sentence. Having taught himself to read and write English during his prison years, Ziggy Pohl set about trying to prove his innocence. But his efforts were to no avail. No one would listen and no one cared. It appeared that Ziggy would spend the rest of his life with the stigma of being a convicted murderer.

In September 1990, 17 years after Ziggy Pohl’s conviction and seven years after his release from prison, the most amazing thing happened. Roger Graham Bawden (aka Roger Graham) walked into the Queanbeyan police station and confessed to the murder of Mrs Pohl. It had been on his conscience for almost two decades and he had to get it off his chest.

While he was interviewed by detectives, Bawden gave information that only the killer could have known. When asked why he had not come forward earlier, Bawden maintained that he had left the district shortly after he strangled Mrs Pohl when she surprised him burgling the house, and that he had no idea her innocent husband had been found guilty of his (Bawden’s) crime. Bawden claimed he first heard of Ziggy Pohl’s conviction when he returned to his home town only weeks before he confessed to the killing. He claimed that he had gone all of those years thinking that the murder was unsolved.

Ziggy Pohl was unconditionally pardoned in May 1992 and eventually awarded $1 million compensation for his decade behind bars. In a strange irony, Roger Graham Bawden pleaded guilty to murder and was sentenced to only eight years in prison.

But what if capital punishment had been the law at the time of Mrs Pohl’s murder? What if the kindly German immigrant Ziggy Pohl had been put to death for strangling his wife? And if capital punishment had still been in force 17 years down the track, would Roger Graham Bawden also have been hung for the same murder?

Admittedly, all of these questions are hypothetical, but it does lay a very solid foundation for the argument against the death penalty. Some of the best legal brains in the country agree that there is no way that Ziggy Pohl would have been put to death if capital punishment had been in force at the time of his wife’s murder. The fact that he was released after serving only 10 years of his life sentence is, in itself, an indictment of what the parole board thought of Mr Pohl’s conviction. In other words, it would appear that there was always some doubt in a lot of people’s minds that Mr Pohl did indeed murder his wife. There was no eyewitness, no confession and no motive.

And if he did commit murder, then it certainly wasn’t premeditated. It was more of a crime of passion or a violent act committed in a fit of rage. Even the strongest advocate of capital punishment would find it hard to hang a man under those circumstances.

However, had the death penalty been in force in New Zealand in 1970, there seems little doubt that an innocent man would have gone to the gallows for a double murder he did not commit.

On 17 June 1970, in the small farming town of Pukekawa, south of Auckland, Harvey and Jeannette Crewe were shot and killed in the lounge room of their home and their bodies dumped in the local river, where they were found several months later. One of the bodies had been weighed down with a trailer axle, which led police to the nearby house of Arthur Thomas.

Arthur Thomas had unsuccessfully courted Jeannette 10 years earlier and police claimed that Thomas was still besotted with her, and murdered her and her husband in a jealous rage, even though Thomas’ wife swore that her husband was at home in bed with her when the murders took place.

A spent cartridge shell found at the scene of the crime, which was alleged to have been planted by police, loosely linked the murder weapon to Thomas. The rest of the evidence was circumstantial and even though there were no fingerprints, footprints or eyewitnesses, a spirited prosecution case saw to it that Thomas was found guilty of murder and sentenced to life imprisonment.

But Arthur Thomas’ friends and family never gave up in their belief in his innocence, and he was eventually granted a retrial in 1973. Amid public outrage and disbelief, Thomas was again found guilty and again sentenced to life imprisonment.

A further appeal was rejected. It wasn’t until 1979, soon after the publication of David Yallop’s worldwide bestselling book about the case, Beyond Reasonable Doubt, which offered evidence beyond any reasonable doubt that Arthur Thomas had been railroaded for a crime he definitely did not commit, that New Zealand’s Prime Minister, Mr Muldoon, took the extraordinary step of overruling the entire New Zealand judicial system by personally granting an immediate pardon.

Arthur Thomas was eventually awarded $1 million in compensation for his nine and a half years behind bars. The real murderer was never found.

Arthur Thomas had been convicted twice of the same double murder and with all avenues of appeal exhausted, had the death penalty been the law of the land at the time, the kindly, mild-mannered dairy farmer would most certainly have gone to the gallows.

On the other hand, pro–death penalty advocates will argue that there is a list of criminals who have been released from jail to kill and that if they had been executed in the first place, their further victims would still be alive.

They cite such cases as that of Barry Gordon Hadlow, who was sentenced to life imprisonment for the sexual assault and murder of a five-year-old girl in Townsville in 1962. Hadlow was released in 1985 and in 1990 he sexually assaulted and murdered a nine-year-old girl in almost identical circumstances to that of the first murder.

Rodney Francis Cameron, aka ‘the Lonely Hearts Killer’, served just 16 years in New South Wales and Victorian prisons after being sentenced ‘for the term of his natural life’ for the 1974 serial murders of a man and a woman. In 1990, just three months after he had been released on parole, Cameron murdered a 44-year-old woman he had met through a matchmaking show on radio 3AW in Melbourne a month earlier.

Cameron has since confessed to another 1974 murder, two unsolved murders in Victoria in 1990, another in South Australia and another in New South Wales.

Though it is of little consolation to the families of his victims, this time Cameron will stay in prison until he dies.

Then there is the case of Leonard Keith Lawson, the talented portrait artist who was sentenced to death by hanging in Sydney in 1954 for the rape of two young models. After heavy lobbying by the anti–death penalty movement, Lawson’s sentence was commuted to 14 years and he was released after seven years; he murdered two schoolgirls within six months of being set free.

This brings us to the age-old debate: should we execute our worst criminals or should we let them rot in jails around the country at the taxpayer’s expense?

A recent estimate in New South Wales put the cost of keeping the prisoners who are sentenced to ‘never to be released’ at $65,280 per year. It seems that a lot of people would rather have them strung up and the money put to better use. Shortly after the horrific abduction, rape and murder of nursing sister Anita Cobby by five men in New South Wales in 1986, a Sydney TV station conducted a phone-in survey on capital punishment. Of the thousands of callers, more than 90 per cent agreed with the reintroduction of the death penalty.

In the New South Wales Parliament in May 1994, Tony Windsor, independent MP for Tamworth and an advocate of capital punishment since the murder of Ebony Simpson, the nine-year-old schoolgirl who was sexually assaulted and thrown in a dam to drown at Bargo in New South Wales in 1992, lodged a petition of 400,000 signatures requesting a referendum on the reintroduction of the death penalty ‘in extreme cases of murder where there is absolutely no doubt that the offender committed the crime’.

Admittedly, emotions run high when the general public is confronted with atrocities such as the murders of Ebony Simpson and Anita Cobby, but opinions appear to be evenly divided as to whether or not the individual Australian states should reintroduce capital punishment.

Martha Jabour, executive director of the NSW Homicide Victims Support Group, which has counselled hundreds of families who have lost relatives to homicide, said in an interview:

I won’t give an opinion on the reintroduction of the death penalty but I believe that it would make the task of a jury all that much harder to convict a person knowing that they would be put to death. For this reason alone I fear that a killer could be set free on the conscience vote of a jury rather than on the evidence if the death penalty was allowed back in.

Carol Barnes, the daughter of George Hodson, the warder that Ronald Ryan, the last man to be hung in Australia, shot dead as he escaped from Pentridge, is opposed to the death penalty. ‘I got the life sentence,’ says Carol, who was 13 at the time of her father’s murder. ‘Ronald Ryan got the easy way out. I believe that he didn’t pay his dues for killing my father. Hanging was too good for him. A life behind bars would have been a much worse penalty than hanging him.’

Sandy MacGregor, whose three teenaged daughters and their girlfriend were blasted to death by a male acquaintance in their home in 1987 at the Sydney suburb of Pymble, doesn’t believe that anyone has the right to take another person’s life. MacGregor, whose daughters’ killer was found to be insane at the time of the murders, said:

Obviously the cheapest way out is to kill them. But a swift death in front of a firing squad or by hanging is too good for them. The prison environment is far worse than any death sentence. And as they grow old, say 20 years down the track, they have to live with what they’ve done and the mental trauma of that is far worse than taking the easy way out and killing them.

Gary Lynch, whose daughter Anita Cobby, 26, was abducted, raped and murdered by five men in Sydney’s western suburbs in 1986, wouldn’t give an opinion of the death penalty, only to say that if we did execute offenders then it would take us back to primitive times, to a level beyond humanity. ‘Let us hope that in time social attitudes will change and the would-be perpetrators of horrific crimes will say to themselves, “This is not good, let’s not do it”. And some day maybe the world will change its attitude to revenge. Let us hope so.’

Gwen Hanns, whose five-year-old daughter Nicole was stabbed to death in her bed in 1974 in Sydney’s western suburbs, says that she didn’t believe in the death penalty until her daughter’s murder. Now her opinion has changed. ‘All child murderers should be hung,’ she says. ‘If capital punishment was in at the time of Nicole’s murder, I would have gladly seen John Lewthwaite [her daughter’s killer] hang.’

Mrs Hanns concluded, ‘I believe that in conclusive cases like child slaying, violent murders, pack rape and murder and serial killings, where there is absolutely no doubt, they should be put to death.’

Beverley Balding, mother of Janine Balding, a young woman who was abducted, raped and murdered by three men in Sydney’s western suburbs in 1988, strongly believes in the death penalty. She says:

I agreed with the death penalty before Janine’s murder, and I most definitely agree with it now. I also believe that if there was a referendum held in New South Wales tomorrow that the death penalty would overwhelmingly be voted back in. Even though two of the three men who murdered my daughter were teenagers at the time, I believe that they still should have been put to death. Every case should be judged on its merits. In the case of my daughter, her killers should have been executed.

Christine Simpson, mother of nine-year-old Ebony Simpson, who was sexually assaulted and murdered at Bargo in New South Wales in 1992, and whose portrait depicting Ebony’s death and the events surrounding it was hung in NSW Parliament House in January this year, is strongly in favour of the death penalty in cases such as hers, where a child is murdered and the verdict is beyond doubt. Her daughter’s killer, Andrew Peter Garforth, 29, confessed to the crime and took police to Ebony’s body.

‘The death penalty is not a deterrent,’ Christine says. ‘And so it shouldn’t be expected to be. It should be used so that the punishment fits the crime. Garforth should have been made an example of and executed and so should all child killers.’

Many fair-minded Australians would agree with her.