Miscarriages of Justice


Andrew Fitzherbert has now served fifteen years for the 1998 murder of Kathleen Marshall, the then President of the Queensland Cat Protection Society, at her residence at 66 Main Avenue, Wilston. Fitzherbert has always denied killing Kathleen Marshall or being involved in her death in any way, and the only evidence produced at his trial in 1999 was DNA evidence from ‘five drops of blood’ found at the crime scene. No murder weapon was ever found, there were no witnesses, Fitzherbert had no motive, and Fitzherbert has always denied ever being at her residence. At Fitzherbert’s trial there was always doubt over the exact time of death. Neither the police nor the prosecution expressed any certainty over the time of death, although the trial was conducted on the basis that the time of death was either sometime on the night of Thursday 26 February 1998, or early on Friday 27 February 1998 before 3pm.This estimate of the time of death was based on the evidence of entomologist Russell Luke, who arrived at this prediction of the most likely time of death from his analysis of the maggots found on Kathleen Marshall’s body when her body was discovered at around 2.30 pm on Sunday 1 March 1998. In contrast, the evidence from six witnesses, all of whom knew Kathleen Marshall well, was that Marshall was alive and well on Friday 27 February as she went about her normal daily routine. She was sighted on several occasions by these witnesses both in the morning of Friday 27 February as well as in the afternoon. The last reliable sighting was by neighbor, Warren Smith, at 4.45 pm on that afternoon. If the evidence of these witnesses is accepted, it seems that Kathleen Marshall was killed sometime between 4.45 pm and about 7 pm on Friday 27 February 1998. Marshall had a dinner appointment at 7.30 pm that Friday evening which she would not have voluntarily have sacrificed, hence the time period between 4.45 pm and about 7 pm seems to be the most likely time of her death. When you add to this that a single scream was heard at 6 pm by a total of three people who had been standing just 50 metres from Marshall’s house you have strong evidence of her time of death. Andrew Fitzherbert had a very good alibi for this latter time period of Friday afternoon and evening, since he was with friends at a meditation session and seance. In contrast, he did not a good alibi for the earlier time period of Thursday night or Friday before 3 pm.

Fitzherbert’s conducted his own appeal against his sentence in May 2000. He declined the assistance of a barrister offered by legal aid on the grounds that it was a complex case and a barrister would need more time to acquaint himself with all the detail than was available. Needless to say, hFitzherbert’s lack of knowledge of the law and legal procedure worked against him at his appeal. The Appeal Court judges summarized his argument as follows:

(Fitzherbert’s) contention is that he was convicted by deliberate fraud on the part of the staff of the laboratory, by whom the profiling was done, and in particular by fraud on the part of the scientist in charge of the case, K J Cox.

These claims were rejected by Mr Cox, the DNA scientist, and since Fitzherbert was unable to back up his claims with any evidence at all, the Appeal Court judges unanimously rejected his appeal.

Fitzherbert has now served fifteen years in prison. He was a model prisoner and In May 2013 Fitzherbert was transferred from Wolston Correctional Centre, at Wacol, to the prison farm at Palen Creek, near Rathdowney, not far from the NSW border.

Despite the fact that Fitzherbert still maintains his innocence of the murder of Kathleen Marshall, he expects to be released on parole in the not too distant future. His legal team is presently endeavouring to show that the entomologist made a mistake in calculating the most likely time of death of Thursday night or Friday before 3 pm. They believe that if they can show this it may be possible to get his case back into court.

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