Underbelly 4 Read online

  For seventy-eight years, the Brennan family has believed that the Melbourne legal and political establishment – to which they belong, ironically – effectively turned a blind eye to a monstrous injustice created by corrupt police, a cynical press and a gullible jury. In the year 2000, just as time has almost erased the once-notorious case from living memory, a Melbourne researcher revived interest in a hanging as famous, in its era, as Ned Kelly’s and Ronald Ryan’s were in theirs.

  After seven years’ work, he uncovered overwhelming forensic proof to confirm Brennan’s belief that an innocent man went to the gallows. His name is Kevin Morgan, and he is calling for Colin Ross’s conviction to be quashed and his name cleared. This is his story.

  KEVIN MORGAN had always wanted to be a writer. But he could hardly have invented a story as extraordinary as the one that grew from a chance event in 1993.

  In July that year Morgan, then thirty-seven, a former teacher and a keen photographer, started a three-week training placement as a student librarian at the library of the National Gallery of Victoria. That month the gallery was setting up a retrospective exhibition of Charles Blackman’s work, Schoolgirls and Angels, and, as Morgan came and went, he studied the pictures, which had the recurring motif of a girl in a school tunic and straw hat.

  The exhibition catalogue intrigued Morgan. In it, Blackman referred to the murder of a schoolgirl in a lane at Melbourne’s old Eastern Market, on the site where the derelict Southern Cross Hotel now stands. The murder had happened shortly before the artist was born but in the 1950s his dormant fascination with it was awoken by the unsolved sex killing of a university friend of his wife’s.

  So, thirty years after Alma Tirtschke was killed, the crime moved one of Australia’s greatest artists to create a haunting series of images.

  And, another forty years later, the case struck a chord with Morgan, a neat, earnest man as meticulous in his work as he is in dress and speech. He went to the State Library and found two ‘pamphlets’ on the case. One was Brennan the barrister’s. The other was by a so-called fortune teller, Julia Gibson, who used the name Madam Gurkha and was a dubious character who disliked Ross and shared the reward money after his conviction, leading Brennan to suspect she orchestrated false evidence against Ross.

  Morgan wanted to know more. For two years he haunted libraries and the Public Records Office, poring over old newspapers and searching a growing list of primary documents, looking for clues in a case that fired his imagination.

  ‘I began to recognise,’ he wrote later, ‘that what I was uncovering was a trail of conspiracy unprecedented in Australian history. I realised that this had not previously been gathered, documented or placed on the public record.’

  He found public documents previously thought lost or destroyed. With hard work, lateral thinking and a bloodhound instinct, he traced relatives of all the main players – Ross, Alma Tirtschke, the police and legal counsel – and found private letters, documents and photographs. All of it not only supported Brennan’s belief that Ross should never have been found guilty but that he was, in fact, innocent.

  Morgan checked every detail of the picture Brennan had outlined, leading to the irresistible conclusion that detectives had assembled an ensemble of liars from the street and the prison yard willing to perjure themselves (for money and favors) and so shore up a convoluted theory that Ross was the killer. For no other reason, it would seem, than that the police had no other suspect and were desperate to appease political and public pressure with an arrest.

  The key ‘evidence’ was given by Ivy Matthews, a street walker, and Sydney John Harding, an habitual thief and proven liar on remand for theft and under threat of being jailed at the Governor’s pleasure. Both claimed Ross had independently ‘confessed’ the murder, but their stories matched only on those points the police had been able to give them – and otherwise wildly contradicted each other.

  Morgan’s most important find was still ahead. And it was to come by chance – adding another eerie twist to a story that has several of them. But that comes later.

  Everything Morgan found until 1995 supported Brennan’s carefully argued case that the supposed circumstantial and confessional evidence against Ross was so obviously fabricated that it was preposterous. But ‘scientific’ evidence suggesting that Alma Tirtschke’s hair had been found on a blanket belonging to Ross, though open to doubt, wasn’t so easy to dismiss. For a start, evidence about the hair did not come from such obviously tainted sources – the prostitutes, pimps and jailbirds who had concocted testimony against Ross, probably with police connivance. It had come from the State Government analyst, one Charles Price.

  Price was a chemist by training, with no expert knowledge of hair identification nor of the then fledgling forensic sciences, which in Australia had barely gone beyond fingerprinting. But, as an educated man in a position of authority, his opinion – presented as irrefutable by the prosecution – undoubtedly carried weight with a jury that the trial judge had neglected to warn about the unsafe nature of the alleged circumstantial and confessional evidence put to it by Ivy Matthews, Sydney Harding and other obvious liars.

  Even without a judge’s guidance, it was possible the jury might have been divided about the truthfulness of the rogue’s gallery of witnesses recruited by the police.

  If Ross’s life hung in the balance with the jury, Price’s opinion about the hair samples would be enough to hang him.

  ALMA TIRTSCHKE, known as a well-behaved child, was running an errand for her aunt when she disappeared on that last Friday of 1921. She was last seen (by credible witnesses) between 2.30pm and 3pm on the corner of Little Collins Street and Alfred Place, standing near a lodging house known to be used by prostitutes. She was carrying a parcel of meat she was supposed to deliver to a Collins Street address from the butcher’s shop where her uncle worked in Swanston Street. It was only a ten minute walk, but she had dawdled for an hour, presumably window shopping.

  Although there were several conflicting statements later, no one except the guilty knew what the girl’s movements were after 3pm that day. Early next morning her naked body was found in a tiny cobbled lane running off Gun Alley, where Nauru House now stands.

  She had been raped and strangled.

  Colin Ross was only one of dozens of people detectives spoke to that day and in the following two weeks. Ross was known to police because he ran a ‘wine saloon’ in the Eastern Arcade opposite Alfred Place. He was a rough character and, weeks earlier, might have angered police by beating charges laid over producing a revolver at his saloon. But, at twenty eight, he had never been charged with a sexual offence, nor ever questioned about one.

  Ross readily told detectives he had seen a child walking past the previous afternoon who matched the description of the murdered girl. This was likely, as reliable witnesses had seen Alma going through the arcade, past Ross’s saloon. Then, as later, he firmly denied any knowledge of the crime.

  Three days later, the girl’s body was released to the family. Just before the burial at Brighton Cemetery on 3 January, a policeman came to where Alma’s coffin was lying at her aunt’s house in Burwood Road, Hawthorn, and cut a lock of her dark auburn hair, ‘about six inches’ from the scalp.

  Two days later, on 5 January, detectives went to the house in Maidstone where Ross lived with his mother and brothers, and took him in for questioning for eight hours. He consistently denied any knowledge of the crime, and offered a plausible alibi for his movements, which was perfectly corroborated not just by his brothers and his girlfriend but by neutral witnesses who had, between them, seen him at the busy saloon and travelling home on the tram in the time when he was supposedly raping, killing, and stripping the girl.

  On 12 January, after a week in which daily newspapers, led by The Herald, put both the State Government and the police force under pressure by clamoring for an arrest, Melbourne’s most renowned detectives, Frederick Piggott and John Brophy, arrested Ross at his Maidstone home.

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bsp; There, while Ross was in another room getting dressed to go with the police, Piggott picked up blankets in the vestibule and asked if they were the same ones he’d kept on a couch at the saloon, which he’d vacated on New Year’s Day after losing the liquor licence. Ross called out that he ‘supposed they were’, without seeing which blanket Piggott was referring to. Piggott later claimed he was attracted to the blanket by the ‘sheen’ of golden hairs attached to it.

  Ross was locked in the remand yard of the Melbourne Jail in Russell Street. He could hardly have imagined then that he would never be free again, much less destined to die three months later on the scaffold at the end of the tier of cells.

  Meanwhile, police and the Crown moved with desperate speed, goaded by the public hysteria and political pressure whipped up by The Herald, which had accused the Lawson Government of being miserly and inept, forcing it to push up its reward to 1000 pounds, to which the newspaper added 250 pounds. The total was like a lottery win, enough to buy several houses.

  Ross was committed on 26 January, and went to trial on 20 February. By that time Price, the Government analyst, had compared hair samples under a microscope: taking a total of twenty seven hairs from two blankets brought from Ross’s house, and comparing them with a dozen hairs taken from the lock cut from Alma’s head.

  It was to be the first time in Australia or New Zealand legal history that hair analysis had been used to secure a conviction, but few might have predicted that from Price’s rambling conclusions. His evidence was strangely contradictory, given that it was to be manipulated to such deadly effect by the prosecution.

  The hairs from the blanket ‘were not identical in color’ with the hairs taken from Alma ‘but a light auburn color’ compared with the darker red of Alma’s hair, Price testified, showing why ‘expert’ witnesses are viewed with caution by experienced jurists.

  The blanket hairs were a different diameter from Alma’s hair and did not appear to have been ‘dragged direct from the scalp’ but were probably ‘cast off in the ordinary process of nature’ he said – implying they were more likely shed by someone who’d slept on the blanket, and not torn out by a murderer.

  As Brennan noted tellingly: ‘Mr Price might, on the facts he deposed to, have been called as a powerful witness for the defence.’ Yet, in the lynch-party atmosphere, Price’s admission under questioning that he knew little about analysing hair was apparently ignored by both judge and jury. All that counted, it seemed, was Price’s strange assertion, contradicting the thrust of his other evidence, that the two hair samples ‘were derived from the scalp of one and the same person’. If one sentence condemned Ross, that was it.

  In different circumstances, Price’s muddled testimony would have been laughable. But it would take most of the 20th century, and Kevin Morgan’s dogged curiosity, to finally prove Price wrong. And Colin Ross right.

  By mid-1994 Morgan knew he had gone almost as far as he could with available public records. He had applied to study the trial brief of evidence kept by the Office of Public Prosecutions, but had been rebuffed: firstly, he was told the box of documents he wanted no longer existed; secondly, that even if it were found, he would be denied access because the law stated it be closed for seventy five years. It was, in 1994, only seventy two years since the trial.

  He persisted, and was told the ‘missing’ box had been found, but that he couldn’t see it. He then had to make what he calls ‘a labyrinthine application’, including testimonials from referees, an explanation of how his work was in the public interest, and an argument that the act’s purpose of protecting ‘data subjects’ – the people involved in the case – no longer applied because they were all dead. ‘Especially the main people,’ he adds, ‘because they were Colin Ross and Alma Tirtschke.’

  The application was submitted in March 1995. It was not approved until late July.

  Finally, on a Monday morning that August, he was allowed into the Office of Public Prosecutions library in Lonsdale Street armed with pencil, paper and a tape recorder. No photocopying was allowed.

  He undid the tape around the cardboard archive box, gently lifted out the frail documents and started looking through them. Almost immediately, he found an Octavo envelope, the words On His Majesty’s Service printed on one corner.

  Inside it were three cards with three hair samples: Alma Tirtschke’s, the blanket hairs, and a sample of Ross’s girlfriend’s hair submitted by the defence, which had been caught in a Kafkaesque nightmare of being forbidden to call another analyst to conduct an independent comparison of the hairs, on the grounds it might damage the exhibits. This effectively meant the hair could be used to hang Ross – on the word of a confused chemist – but not to save him.

  Finding the hair, Morgan felt as if a hand had reached from the grave. After a trial all physical evidence was normally destroyed. But, by a fluke, someone had saved the hair by slipping the envelope into the brief.

  It was to take him five days to dictate the contents of the brief on to tape ready to transcribe it, but all that time he was thinking what to do about his discovery. It was one thing to find the hair, another to get around the legal and bureaucratic obstacles to uncovering the truth.

  When he finished with the file, it was locked away again – with the hair included. Meanwhile, Morgan gave up his librarian job and, supported by his wife Linda, a teacher, he devoted himself to the case full-time. The couple decided that if he was going to write one book that mattered, then this was it.

  The obvious task was to find out if DNA tests could be done.

  The Victorian Institute of Forensic Medicine was one of few laboratories in the world that could attempt a specific type of DNA test on such an old, dry sample. First, he had to get permission to have the hair tested.

  In 1998, three years after discovering the hair, and with the access closure expired, Morgan applied to the Office of Public Prosecutions. The public servants refused to believe the hair was in the brief because, they insisted, all physical evidence was destroyed. They eventually agreed that the hair existed and Morgan, by arguing that the case represented the ‘very beginning of forensic science in this country’, won permission to remove one strand from each sample for testing. The old hair was unsuitable for DNA testing, but a microscopic examination by Dr Bentley Atchison of the Victorian Institute of Forensic Medicine showed that Price was wrong: the hairs did not come from the same scalp.

  Dr James Robertson, a world authority on hair identification with the Federal Police forensic staff, agreed to do further tests – but it meant getting larger samples. After much diplomacy with the Victorian authorities, Robertson conferred the status of Federal Police exhibits on the hair specimens, and they were released and taken to Canberra by police courier.

  Robertson’s tests confirmed beyond doubt that Price and the police were wrong and Brennan was right. As Ross had said fiercely from the dock after being condemned to death, his life had been sworn away by desperate people.

  KEVIN MORGAN is a painstaking man. With footnotes and appendices, he has written 300,000 words on the case that has consumed him for seven years.

  Along the way he has made some fascinating discoveries, none more so than the Bible Colin Ross had in the condemned cell.

  The Bible, which a Ross relative uncovered in a box in a shed, holds proof that Ross had not just died still staunchly protesting his innocence – but hinting that those he blamed for his unjust execution would be punished.

  He underlined verse after verse, marking lines pregnant with meaning and writing notes in the margin, referring to Piggott and Brophy, the detectives who built the case against him.

  At Psalm 26, Verse 10, he underlined the words ‘full of bribes’ and scrawled beside it: ‘This is our police force which our people think so much of.’ At Psalm 31, verse 13, he underlined the words ‘Slander of many …’ and ‘… take away my life’.

  At Psalm 35, verse 11, he underlined the words ‘false witness’ and wrote ‘against Colin’ besid
e it. Then he wrote the phrase, ‘Time will tell’.

  Both Piggott and Brophy were to become superintendents, but they didn’t die happy men. Within months of Ross’s hanging, Piggott’s wife died suddenly.

  Then, almost on the first anniversary of the Gun Alley murder, his only son was killed in a motorcycle accident at Craigieburn. He wrote sadly under his son’s photograph: ‘It is God’s will.’

  Brophy was to become chief of the CIB but on the night of 22 May 1936 he was mysteriously shot three times while parked in a car in Royal Park with two women. Despite the seriousness of the wounds – to one arm, cheek and the chest – there was no real search for the attempted murderer of the state’s most senior detective, a clear signal that the shooting was a domestic scandal probably linked to the husband of one of the women in the car.

  In the ensuing cover-up, senior police – including the chief commissioner Sir Thomas Blarney – at first claimed that Brophy had accidentally shot himself with his own revolver. This was clearly ludicrous, and another official lie was soon invented: that he had been shot ‘by bandits’ while meeting an informer about hold-ups. The scandal resulted in a royal commission, Blarney’s dismissal and Brophy’s disgrace.

  So much for Piggott and Brophy. But if Ross didn’t murder the schoolgirl, who did?

  Thomas Brennan raised two facts that still fascinate.

  ‘It seems doubtful,’ he wrote, ‘whether sufficient attention has been paid to the evidence tendered by Joseph Thomas Graham. He is a cab-driver by occupation, middle-aged, respectable, intelligent and thoroughly level-headed. On Friday afternoon 30 December, at about half-past three, he was in Little Collins Street, nearly opposite the Adam and Eve lodging house, when his attention was arrested by a series of heart-rending screams coming apparently from a young girl … They were so noticeable that Graham and a man on the opposite side of the street both stopped and listened, but as the screams faded out each man went about his business.’