Australian medical expert gets case re-opened

Stomach ulcers were one believed to be caused by stress. We now know that they are caused by bacteria

CRUCIAL scientific evidence from WA Nobel prize winner Barry Marshall has reopened a 29-year-old murder case.

In 1983, Chris von Deutschburg, then a 19-year-old known as Christian Wilhelm Michael, received a life sentence after an elderly man with whom he scuffled during a house robbery died of a bleeding duodenal ulcer, seven days after the crime.

At the Supreme Court trial in December that year, state pathologist Donald Hainsworth said 86-year-old Stavros Kakulas's condition was brought on by stress caused by the incident.

But WA Attorney-General Christian Porter referred the case to the Court of Appeal two weeks ago, after Prof Marshall wrote to the State Solicitor's Office last month.

Prof Marshall - who won the Nobel in 2005 with co-researcher Robin Warren for proving bacteria not stress caused most ulcers - emphatically told the SSO that injuries suffered during the robbery would not have caused the ulcer or its bleeding.

"There is no likelihood that his (Mr Kakulas's) injuries either worsened or contributed to the duodenal ulcer in question," Prof Marshall wrote on April 4, 2012, as part of a petition for clemency first lodged in 2009 by law firm Mallesons Stephen Jaques, after it was settled by Malcolm McCusker QC who was acting for Mr von Deutschburg before he became Governor.

"My answers do not necessarily depend on my opinion that the duodenal ulcer already existed before the assault on 1st June 1983. The duodenal ulcer may have existed before then or may have developed after 1st June 1983.

"Obviously a duodenal ulcer is a recurring condition and in 1983 the aetiology of these recurrences was completely unknown.

"Therefore persons with duodenal ulcer disease have ulcers coming and going throughout their life.

"The injuries sustained by Mr Kakulas did not contribute to the development, or accelerate the development of his duodenal ulcer."

The 1983 trial's former jury foreman, who cannot be named for legal reasons, told PerthNow this week that he believed the jury would have acquitted Mr von Deutschburg if anyone at the trial had suggested the bleeding ulcer could have been caused by something other than stress from the assault which had resulted in Mr Kakulas having bruising and fractured ribs.

He would have welcomed another medical opinion but that did not happen. "I am relieved (about the latest decision), the conviction has bothered me for years and years, ever since the trial," he said.

Mr von Deutschburg, 47, who now lives in Victoria, thanked his lawyers and supporters, including Prof Marshall PerthNow and The Sunday Times, who have worked on his bid for an appeal since 2005.

This week Mr von Deutschburg relived the events that saw him serve seven years in WA's toughest jails .

"On June 1, 1983 I was aged 18 and was homeless for several months. I broke into and entered a house to steal money for food," he said. "During this crime I struggled with an old man. It was a crime without justification and I am deeply remorseful. The old man said 'goodbye son' as I left.

"But I was convicted of murder, a crime I did not commit. I served a life imprisonment with hard labour sentence before being paroled in 1990. "For the past 28 plus years I have experienced imprisonment, months of community service on parole, and years of work for the dole, as no one will employ a convicted murderer. For over 28 years I have been punished for a crime I did not commit."

A University of WA clinical professor of microbiology, Prof Marshall, who is currently abroad, could not be reached for comment this week. But he told PerthNow in 2005 that he stood by an affidavit 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 that document.

He also said in 2005 that if the case were run now with a good legal defence, the outcome would likely be different.

Mr Porter said this week of his decision to allow the appeal: "Given the advances in medical science surrounding the causes of gastric and duodenal ulcers furthered by Professor Barry Marshall and Dr Robin Warren, which are directly relevant to this case, in all the circumstances, it is appropriate that it be referred to the Court of Appeal for consideration."

Tom Percy QC is understood to be involved in the appeal which will be headed by Sam Vandongen SC and starts with a directions hearing tomorrow.

Original report here




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