The WA Court of Appeal today set aside the 30-year-old second degree murder conviction of Chris von Deutschburg, with this morning’s judgement saying a “miscarriage of justice occurred at the (1983) trial”.
The acquittal was heavily dependant on evidence from WA microbiology Professor Marshall, which was submitted in the appeal run by Malcolm McCusker QC, before he became WA Governor.
On June 1 1983, Mr von Deutschburg, then a homeless 18-year-old known as Christian Wilhelm Michael scuffled with an elderly man during a house robbery.
The man died of a bleeding duodenal ulcer seven days later, and the teen was then jailed for life with hard labour in December and served seven years before being paroled in 1990.
In the December 1983 Supreme Court trial, then state pathologist Donald Hainsworth insisted 86-year-old Stavros Kakulas’s condition was brought on by stress caused by the incident.
But in October 2005, The Sunday Times started investigating the case and interviewed Prof Marshall, who said he stood by an affidavit refuting the evidence that convicted Mr von Deutschburg which he he wrote in 1986 when Mr von Deutschburg had previously considered appealing.
“As a result of my own research and findings . . . I strongly believe that all statements to the effect that the ulcer which caused Mr Kakulas’s death was caused by stress are medically incorrect,” he said in the 1986 document.
A petition for clemency by law firm Mallesons Stephen Jaques, settled by Mr McCusker, led to then WA attorney-general Christian Porter referring the case to the Court of Appeal in May 2012.
This was after Prof Marshall — who won the Nobel in 2005 with co-researcher Robin Warren for proving bacteria not stress caused most ulcers — emphatically told the State Solicitor’s Office the injuries did not cause the ulcer or its bleeding.
Prof Marshall wrote to the SSO in April 4, 2012, saying: “There is no likelihood that his (Mr Kakulas’s) injuries either worsened or contributed to the duodenal ulcer in question.”
In the Supreme Court this morning Justice Michael Buss said Mr von Deutschburg’s appeal had been allowed, there was a “judgement of acquittal” and that the “conviction for murder has been set aside”.
“The medical evidence before this court is incapable of proving beyond reasonable doubt that the appellant’s assault upon Mr Kakulas caused or materially contributed to his death,” the judgement said. “A miscarriage of justice occurred at the trial.”
Mr von Deutschburg, 48, who now lives in Victoria, said: “Today I welcome the Court of Appeal making a decision in this matter … in 1983 it took just three days to find me guilty, but some 30 years to finally accept my innocence.
“I served a life imprisonment with hard labour sentence, including years within Fremantle Prison, all based upon DPP trial evidence that simply never existed. This injustice spanning almost three decades has devastated my life.
“Thank you to Professor Marshall for his medical work of healing the sick, and saving the life of an innocent person persecuted by the State for some 30 years.
“Thank you to my current legal team Sam Vandongan SC and Legal Aid Natalie Sinton. Thank you to my previous legal team including now Governor Malcolm McCusker QC, Judith Fordham, and law firm Mallesons. Thank you to News Ltd journalist Paul Lampathakis who has been working tirelessly for the past some seven years.”
Mr von Deutschburg also thanked the foreman of the 1983 jury for support “all these decades and for visiting me while I was in Fremantle Prison, (and) RP and all those who have variously helped over these past 30 years.”
The former jury foreman, who cannot be named for legal reasons, told PerthNow the decision was “a great weight off my shoulders” because he always knew Mr von Deutschburg was “wrongly convicted”.
He said the jury wanted questions about whether anti-inflammatory drugs had been given to Mr Kakulas, which potentially could have caused the ulcer to bleed, and whether there was a differing medical opinion on the cause of ulcers. But he said the jury was told it could only deal with the evidence at the trial and therefore was compelled to convict him.