The loss of crucial DNA evidence contributed to a failure in investigating the murder of a 27-year-old gay man in Sydney, an inquiry has been told.
Gerald Cuthbert died as the result of a “frenzied” knife attack at a Paddington unit in October 1981, the New South Wales special commission of inquiry into LGBTQ+ hate crimes heard on Wednesday.
His throat was cut and he’d sustained more than 60 stab wounds. His killer has never been found.
“Evidence suggesting receptive anal sexual intercourse with a male partner shortly before his death suggests that Mr Cuthbert was likely killed by a person he took back to the apartment for the purpose of sex,” Kathleen Heath, the counsel assisting the inquiry, told the commissioner, Justice John Sackar.
“The inquiry made substantial efforts to have these exhibits retested”, including two letters to police requesting the samples, she said.
But the systems for retaining and storing evidence in Cuthbert’s case “failed”, according to Heath.
“Critical exhibits, including a blood- and semen-stained handkerchief, and anal swabs and smears on which semen was detected, have been lost,” she said.
The samples – which Heath submitted were the responsibility of the original investigating police team – went missing in 1982.
“Their loss could be the cause of Mr Cuthbert’s murder going unsolved,” she said, adding that this was “unacceptable by both contemporary and historical policing standards”.
Sackar is this week hearing submissions about four deaths previously reviewed by NSW police’s Strike Force Parrabell in 2018. That review found insufficient evidence to establish a bias crime in Cuthbert’s case.
“There are obvious difficulties in assessing possible motives or biases of Mr Cuthbert’s killer in the absence of knowing that person’s identity,” Heath submitted.
According to Heath, there are factors indicating “the possibility, if not likelihood” of anti-LGBTQ+ bias in Cuthbert’s death, including the nature and extent of injuries exceeding what is necessary to kill a person, consistent with a “frenzied or panicked attack, or overkill”.
Michele Franco, of the Forensic and Analytical Science Service, explained in a statement that there were missed opportunities for forensic testing due to exhibits being lost, Heath told the inquiry.
“While noting that DNA does degrade over time, Franco stated that semen and blood samples … are ‘high yield DNA sources’ that are typically targeted for testing in reviews of historical crimes.”
Despite the absence of another clear motive for the crime, Heath submitted there was insufficient evidence for finding that Cuthbert’s murder was the result of gay hatred.
Heath also made submissions about the 1989 death of Samantha Raye, whose body was found at Sydney’s South Head after she left an ambiguous note in her Potts Point unit. Raye, an intersex woman, was assigned male at birth but identified as female.
Raye had an empty bottle of insulin, a needle and a syringe next to her body and Valium tablets on her person. There were no significant injuries or signs of violence.
The autopsy report was analysed by forensic pathologist Dr Linda Iles, who agreed with the original finding of bilateral bronchopneumonia as the cause of death.
On Iles’s advice, Heath submitted that the term “transexual depression” be removed from Raye’s death certificate.
“There is no physiological link between Ms Raye’s intersex biology, gender affirming surgery or hormonal therapy and her death. Likewise, depression cannot be assessed by a pathologist at autopsy,” Iles’s report stated.
Counsel assisting the NSW police declined an opportunity to cross-examine Iles and Franco.
The inquiry continues this week with reviews on the deaths of Carl Stockton and Mark Stewart. Sackar is due to report by the end of June.
