Ross cleared of murder nearly 90 years ago
Melbourne Age May 27 2008
John Silvester
THE State Government will create legal history today when it announces a posthumous pardon for a man wrongly executed 86 years ago in the notorious Gun Alley murder case.
Colin Campbell Ross was hanged in 1922 after he was convicted of killing Alma Tirtschke, 12. He went to the gallows maintaining his innocence.
Governor David de Kretser has signed the pardon, and Attorney-General Rob Hulls will formally announce the decision today in Parliament during question time.
The pardon follows an unprecedented inquiry by Victorian Supreme Court judges Bernard Teague, Phil Cummins and John Coldrey, who found Ross was the victim of a miscarriage of justice.
After receiving the advice, Mr Hulls moved to have Ross posthumously pardoned. "This is a tragic case where a miscarriage of justice resulted in a man being hanged," he told The Age.
The formal re-examination of the case began three years ago when relatives of Alma Tirtschke and Colin Ross signed a petition of mercy after they learned that fresh evidence showed the executed man had been wrongly convicted.
Alma Tirtschke, a Hawthorn schoolgirl, was raped and strangled while in Melbourne shopping for her aunty. A bottle gatherer found her naked body in Gun Alley, off Little Collins Street, on December 31, 1921.
Ross, who ran a nearby wine bar, was arrested at his Maidstone home on January 12. Just 115 days after the murder, he was executed, following a short trial and two failed appeals.
The Crown case was that Ross, 28, persuaded the young girl to enter his wine saloon in the Eastern Arcade, in Bourke Street. He was then alleged to have given her alcohol before raping and strangling her.
A new investigation has ruled out any link between Ross and the only physical evidence said to connect him to the crime - hairs found on a blanket at the suspect's home, which the jury was told came from the scalp of the victim.
In 1995 researcher Kevin Morgan traced the exhibit to an archive and pushed for the hair to be re-examined using modern technology. In 1998 a test by the Victorian Institute of Forensic Medicine found the hairs were not from the same scalp.
A second test by Australian Federal Police confirmed that the key evidence was wrong.
Prosecutors used two witnesses who claimed Ross had confessed to the crime. But the jury was not told that one of the key prosecution witnesses was a convicted perjurer.
The defence team produced alibi witnesses who swore they saw him at work and on a tram heading home at the time of the murder.
Two years ago, Mr Hulls wrote to Chief Justice Marilyn Warren to ask for the court to re-examine the case to see whether the Ross conviction remained sound.
A specially convened panel of justices Teague, Cummins and Coldrey said the move to seek advice rather than a judicial determination appeared to be an Australian first. In their 30-page opinion the judges unanimously concluded that new evidence showed the case against Ross was flawed.
"There has been a miscarriage of justice," they concluded.
The judges found that the Attorney-General could send the case to the Court of Appeal to seek a quashing of the conviction or had the option "of granting a pardon independently of this statutory regime". Mr Hulls chose to seek a pardon, which was signed by the Governor on Friday.
Mr Morgan, who wrote a book on the case Gun Alley: Murder, Lies and Failure of Justice yesterday told The Age: "A big stain on the legal system has finally been expunged, and a shadow on two Australian families has also been lifted.
"That justice has finally been done for the Ross and Tirtschke families after 86 years is a tremendous outcome."
Alma Tirtschke's niece, Bettye Arthur, said: "It is a tragedy for everybody that the actual perpetrator was not caught, and an innocent man lost his life."
She said the tragedy deeply affected her mother, who had been two years younger than her sister, Alma.
The flawed prosecution case was that the 12-year-old chose to drink in Ross' wine bar instead of running messages for her aunty.
"The actual pardon has also helped restore the reputation of Alma, because it shows that she didn't enter the wine bar as was said in the trial," Mrs Arthur said. "She was a good girl."
Colin Ross' niece Betty Everett, said her parents had not told her of the family secret, but she read of the case in a magazine and realised the link when she saw the striking resemblance between her father and Colin Ross.
"I had lived with this fear and doubt for most of my life, the more so as I began to have children, that perhaps I carried the genes of a murderer," she said. "That shadow has gone."
Mr Hulls said: "The pardon is a tribute to the families of Colin Campbell Ross and Alma Tirtschke for their persistence.
"These families have come together to right a historical wrong.
"I trust the pardon will provide some relief from the suffering that this terrible human tragedy has caused the Ross and Tirtschke families, and allow these wounds to heal."