31 March, 2010

"I'm going to be your nightmare" - Part III

Time of Death
John’s defence called evidence to refute the Crown’s conclusion that Frances died late on the 29th March. The post-mortem was conducted by Dr Botterill, who saw the body in situ at the Wakehurst Parkway and observed large wounds and other smaller injuries caused by animals. His later examination revealed damage to the right eye which could have been an petechial haemorrhage, caused by asphyxiation or being choked/suffocated, but could also have been caused by animals.

He saw a bruise on her neck which he believed was caused within an hour of her death, and was consistent with a broad ligature or strap being applied. He identified a fingernail scratch on her cheek, and another bruise on the left side of her neck that matched those seen when someone is defending themselves from strangulation. There were also defensive injuries on her fingers.

He concluded the cause of death was consistent with strangulation. Based on decomposition he considered the most likely dates of death were 29-30 March. He agreed in cross-examination that determining time of death was notoriously difficult, but believed it was unlikely she was still alive on 31 March, and “extraordinarily unlikely” that she was alive on 1 April. The level of decomposition suggested she had been dead for 4-5 days, and given she was seen alive 5 days before (28 March) he concluded the date of death was the 29th. Dr Botterill was unshaken in his evidence.

The defence called Dr Ellis, a forensic pathologist, who based his opinion on photographs, Dr Botterill’s report and weather reports from that period. He believed that death more likely took place on 31 March, and that any earlier was very unlikely. He could not say what the cause of death was, but disagreed that the right eye injury was indicative of strangulation. However, he was not able to rule out strangulation or suffocation. Under cross-examination he conceded death could in fact have occurred on the 29th. He also had to concede that Dr Botterill was in a far better position to make any conclusions, having been at the scene, rather than relying on photos.

There was also entomological evidence about the lack of significant fly larvae, or maggots, on the body. This suggested the body had not been there more than 40 hours, i.e. since 31 March. Dr Ellis in particular relied on this factor when coming to his conclusion. However much of this evidence was based on optimal breeding conditions, which according to weather reports, were not present during the time period.

Two people gave evidence of possible sightings of Frances after she disappeared. Marie Wiltshire said that about 4:15pm on Friday 31st she saw a girl in a car travelling north on the freeway near Berowra who appeared to be gagged and distressed, looking out the rear window. She said the girl was in tears, and had brown eyes and curly shoulder-length dark brown hair. She rang ‘000’ almost immediately. On 2 April her husband told her about a body being found on the Wakehurst Parkway at Narrabeen, so she went to Gosford Police station where she was shown photos of Frances. Marie said she was “one hundred percent sure” it was her. The car was an older model “faded red” Ford.

However under cross-examination several difficulties in her evidence were exposed, namely that she was travelling in the opposite direction, and the person she was in the back of a car parked at the side of the road, looking through the rear windscreen. Yet she was able to describe her in great detail, including the colour of her eyes, and the fact she had tears in them. Also, at the police station she was only shows photos of Frances Tizzone, and no-one else of similar appearance.

Interestingly, off-duty policeman John Gardiner was at his home in Umina at about 9:30pm on Friday 31st listening to the radio, when he heard a female voice screaming out from some distance away. He also heard a male voice arguing with her, and both voices were becoming louder. He went to his window and saw a red Ford Falcon sedan approaching a roundabout outside, and the male driver was swearing at the female passenger. The female was crying and looked distressed, calling out to him to let her go. The Falcon had a “patchy faded red roof”. He said the female looked about 20-years-old with wavy shoulder length hair, wearing a dark top, and looked to be Mediterranean or Middle Eastern in appearance, with an Australian accent. He said the next morning he saw a picture of Frances Tizzone in the paper and it was the same person.

Again, this evidence was challenged given it was a fleeting view of a moving vehicle at night. (If it was not Frances, it is nonetheless worrying that some poor girl was clearly in some trouble in a red Falcon that night - hopefully she didn’t end up like Frances.)

Fibres from the carpet in John's Honda CRX were matched to fibres found on Frances's boots when her body was found. The Crime Scene Examiner sampled several at the scene (as well as photographing and preserving the boots), then took samples at all the sites at the Uni where Frances had been on the 29th, and of the Tizzone‘s home and car. They were all sent to an analyst, who also took samples from the carpet in John’s Honda CRX and Toyota Corolla. Microscopic examination led him to conclude that the fibres matched. He also concluded that the fibres on the shoes did not match any from the Uni, or the Tizzone’s home or car. He conducted further test that showed the fibres from the carpet in the Honda were easily transferred to various shoes, and were easily lost when the shoes were worn on a hard surface.

The particular carpet was manufactured in Japan exclusively for use in 1990 and 1991 Honda CRX vehicles. Only 296 of these cars were distributed in Australia, and 291 owners were contacted and stated that they were not in the Frenchs Forest area between 29 March and 2 April 1995.

The analyst was extensively cross-examined but did not alter his conclusions. These were also supported by Dr James Robertson, the Director of Forensic Services of the Australian Federal Police. Dr Robertson also stated that in his experience, he found fibres did not stay on the soles of shoes for long, five to ten paces at the most. The defence suggested fibres might be caught in striations, or roughened parts of the soles, however after examination of the boots he could not find “any convincing example” of such fibres being caught.

The Manager of the Testing Services Division of the Melbourne Institute of Textiles gave evidence that apart from the Honda’s carpet, there were virtually no polyester carpets used in Australia in the commercial or residential field. John Cauce, a chartered textile technologist, stated that the carpet in the Honda CRX 1990/91 models never appeared in any carpet installed in any Australian-made car, such carpet has never been manufactured in Australia, and that it was a very unusual blend of fibres.

The defence called Dr Ross Griffith, a textile technologist, to dispute this evidence. He said the Crown’s evidence was questionable on a number of highly technical reasons. However under cross-examination he was forced to back down somewhat from his position, and agreed that Dr Robertson was a leading world expert in relation to fibre transference. The suggestion that the fibres might have stuck there longer due to some unknown sticky substance was unconvincing. Ultimately he said “I have not said that this is open and shut and there was not transfer from this carpet to that boot”.

The Crown submitted that there was no question that the fibres came from the Honda, and that meant Frances had been in his car, after which she almost certainly never walked again.

After a long trial in 1998 John Serratore was convicted for murder and sentenced to 20 years in prison, with a non-parole period of 13 years. He immediately appealed his conviction on numerous grounds.

In particular, he relied on the fact that the Trial Judge had directed the jury that, because the Crown case was a circumstantial one, they had to be satisfied of four elements beyond reasonable doubt, before they could convict:
(a) that on the evening of 28 March 1995, John and Frances arranged to meet the following evening; and
(b) that John left work between 3:45 and 4pm on 29 March 1995; and
(c) that Frances was killed on 29 March 1995; and
(d) that Frances was in John’s Honda CRX shortly before her death.

The Appeal Court felt that on the evidence, the jury could not be satisfied beyond reasonable doubt of elements (a) and (b). On element (a) the Court found it “incredible” that Frances’ mother did not tell police (or her husband) about the proposed meeting between the two, and “incomprehensible” that she didn’t ask John about it when she phoned him later that evening. One Appeal Judge stated “Her explanations for not doing so I find totally unconvincing” and coupled with Antonella’s (Frances' sister) sketchy evidence about the phone call from John, the Court said the jury could not be satisfied that the family knew about any arranged meeting.

On element (b) the Court said that given the conflicting evidence about which day John left work early, they could also not be satisfied beyond reasonable doubt that the 29th was the definitely the day.

Therefore to convict John, the jury must have ‘misunderstood’ the judge’s directions, leading to a miscarriage of justice, requiring the Court to quash the conviction, even if on the remaining evidence it was still reasonable for the jury to convict. (Another wonderful legal technicality, arising out of the Hilton Bomber case.)

Notably, one Appeal Judge rejected John’s appeal, stating that on the facts the jury was entitled to enter a guilty verdict. His Honour pointed to the answers John gave Constable Hall when first questioned about Frances, saying he got home that day “about 5pm”, suggesting he had infact left work early, plus the call from his friend Luke at 6:30, who was told he wasn’t home. His Honour also felt Mrs Tizzone’s reluctance to mention the arranged meeting, particularly to her husband, was because she had not yet told him the fact that the couple were seeing each other again. The Judge did not find Antonella’s inconsistencies particularly relevant, in that it wasn’t overly important who Frances was talking to, rather it was the fact that she was arranging a meeting for the next evening, and sounded stressed. Coupled with the evidence of the fibres from the car, this made a compelling case. However, this Judge was in the minority.

The saving grace for the Crown was the fact that the majority of the Appeal Court decided that the Trial Judge’s direction to the jury (that they must be satisfied about the four elements listed above) was actually wrong in itself. So they ordered a new trial, saying all the evidence could be used again, but this time the jury should be told that they need to be unanimous on the basic elements of guilt, but not necessarily on the bases for coming to that conclusion. (Again, very technical - essentially they need to be satisfied that John caused Frances’ death, but not specifically on the four points listed by the first Judge.)

So in 1999 John’s appeal was allowed, his conviction was quashed, and a new trial was ordered. But before a new trial could start, the Crown appealed that decision to the High Court of Australia. The Crown wanted the jury’s original conviction to stand, and relied heavily on the arguments of the minority Judge above. The High Court refused the Crown’s appeal, and a new trial began in the NSW Supreme Court in 2000.

The new jury heard the same evidence. This time, they were told they had to be satisfied beyond reasonable doubt that:
(a) Frances Tizzone was dead; and
(b) her death was caused by a deliberate act, done with intent to kill (or cause really serious injury); and
(c) John Serratore was responsible for her death in one of the following ways:
(i) he did it himself; or
(ii) he was present, helping someone else do it; or
(iii) he arranged someone else to do it.

The jury came back with a guilty verdict.

At sentence, the Judge found that the killing was premeditated, and John had shown no remorse. “This was a brutal and awful crime. A young woman, of considerable promise, was lured into a trap and slain … Although on one view, a crime of passion, it was smouldering, vindictive passion, which had more to do with revenge than love.”

He was re-sentenced to 20 years imprisonment, with a non-parole period of 14 years (increased by one year from the last time). John again appealed his conviction and sentence, but this time it was rejected by all three judges. He then appealed to the High Court, but he was rejected once more.

John Serratore will be eligible for release on 17 May 2012.

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