Adams v R

[2017] NSWCCA 215

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Adams v R [2017] NSWCCA 215
Hearing dates:	21 June 2017
Date of orders:	01 September 2017
Decision date:	01 September 2017
Before:	Hoeben CJ at CL at [1] R A Hulme J at [405] Wilson J at [406]
Decision:	Leave to appeal in relation to Grounds 1 and 3 refused. Remaining Grounds of Appeal dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – judge alone trial – offence of murder – victim’s body not found – acceptance of tendency evidence fundamental to conviction – whether tendency evidence of Ms Hyde and Ms Brown properly admitted – whether probative value substantially outweighed prejudicial effect – whether his Honour correctly directed himself as to the use to which the tendency evidence could be put – whether his Honour needed to be satisfied beyond reasonable doubt as to the occurrence of the conduct giving rise to the tendency found – whether his Honour erred in taking into account evidence in support of other tendency incidents when considering whether an asserted tendency existed – whether certain documents were properly admitted as “business records” – whether the verdict was unreasonable – whether his Honour failed to exclude reasonable alternative hypotheses inconsistent with guilt – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 18 Criminal Appeal Act 1912 (NSW) – s 6 Criminal Appeal Rules (NSW) – r 4 Criminal Procedure Act 1986 (NSW) – s 133 Evidence Act 1995 (NSW) – ss 55, 69, 70, 97, 101,137,192
Cases Cited:	Atai v R [2014] NSWCCA 210 Barca v The Queen [1975] HCA 42; 133 CLR 82 DJS v R [2010] NSWCCA 200 Doyle v R; R v Doyle [2014] NSWCCA 4 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Greenhalgh v R [2017] NSWCCA 94 Hughes v R [2015] NSWCCA 330 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14; 257 CLR 300 JWM v R [2014] NSWCCA 248 R v Adams (No 1) [2015] NSWSC 1960 R v Adams (No 2) [2016] NSWSC 1359 R v Adams (No 5) [2016] NSWSC 1563 R v Adams (No 6) [2016] NSWSC 1565 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 Thompson v The Queen [1989] HCA 30; 169 CLR 1 Thornton v R [2017] NSWCCA 86 White v Johnston [2015] NSWCA 18; 87 NSWLR 779
Category:	Principal judgment
Parties:	Robert John Adams – Appellant Regina – Respondent Crown
Representation:	Counsel: G James QC/P Lange/C Parkin – Appellant M Cinque SC – Respondent Crown   Solicitors: B Wrench – Appellant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2013/382738
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Adams (No 6) [2016] NSWSC 1565 R v Adams (No 7) [2017] NSWSC 179 Date of Decision: 4 November 2016 3 March 2017 Before: Button J File Number(s): 2013/382738

Judgment

1. HOEBEN CJ at CL:

Offence and sentence

On 27 September 2016, the appellant was arraigned before Button J in the Supreme Court of New South Wales on an indictment containing a single count: that on 24 September 1983, at Sydney in the State of New South Wales, he did murder Mary Louise Wallace.

2. The appellant pleaded not guilty and was tried by his Honour in a judge alone trial. On 4 November 2016 Button J returned a verdict of guilty of murder (R v Adams (No 6) [2016] NSWSC 1565).

3. On 3 March 2017 the appellant was sentenced to a term of imprisonment with a non-parole period of 15 years, commencing 11 June 2016 and expiring 10 June 2031 with a balance of term of 5 years expiring 10 June 2036 (R v Adams (No 7) [2017] NSWSC 179).

4. The appellant has appealed against that conviction on the following grounds:

Ground 1: His Honour erred in finding that the appellant had a tendency, which had not been contended for, or notified by, the Crown.

Ground 2: His Honour erred in admitting the evidence of Ellen Moon, Andrea Hyde, and Karen Brown as tendency evidence, because the evidence did not have significant probative value within the meaning of s 97 Evidence Act 1995 (NSW) and did not have sufficient probative value to substantially outweigh the prejudice.

Ground 3: His Honour erred in failing to direct himself about a) the use to which the tendency evidence could be put and b) the dangers inherent in such evidence, as required by s 133 Criminal Procedure Act 1986 (NSW).

Ground 4: His Honour erred in determining that he was not required, before finding that a tendency was established beyond reasonable doubt, to be satisfied of the underpinning conduct beyond reasonable doubt.

Ground 5: His Honour erred in determining that, when considering whether an asserted tendency incident occurred, he was able to consider the evidence led in support of other tendency incidents, rather than being confined to the evidence led in support of the tendency incident in question and the evidence led in relation to the count of murder.

Ground 6: His Honour erred in admitting the representation contained within Exhibit 4B on the basis that it fell within the business records exception to the hearsay rule, because

a.   The court could not be satisfied the document was a "business record";

b.   It could not reasonably be supposed that the representation was made on the basis of information, directly, or indirectly, supplied by a person, who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, as required by s 69(2) Evidence Act 1995.

c. It was not shown that the representation contained within the document was not made "in connection with litigation or an investigation", such that the carve out in s 69(3) Evidence Act 1995 did not apply.

Ground 7: The trial miscarried because the trial judge misconstrued an argument by counsel for the appellant and inappropriately reasoned from it as if it were an admission as to a fact.

Ground 8: The verdict was unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912.

Ground 9: His Honour failed to exclude reasonable alternative hypotheses inconsistent with the appellant's guilt and therefore did not comply with the requirements of s 133(2) Criminal Procedure Act 1986.

5. Although some of the grounds of appeal raise issues of fact, for ease of reference Robert John Adams is referred to throughout the judgment as “the appellant”.

The Crown case

6. The Crown case was based on constructive murder, contrary to s 18(1)(a) Crimes Act 1900 (NSW) as in force between 16 May 1983 and 13 December 1983 for which the maximum penalty was penal servitude for life. Section 18(1)(a) relevantly provided:

“18   Murder and manslaughter defined

(1)

(a)   Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by death or penal servitude for life.”

7. The Crown relied upon a foundational offence which required proof of a prior foundational offence. The first foundational offence (primary foundational offence) relied upon by the Crown was that contained in s 37 of the Crimes Act 1900 (as at 24 September 1983) which was in the following terms:

“37   Attempts to choke etc (garrotting)   

Whosoever:

by any means attempts to choke suffocate or strangle any person, or

by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance,

with intent in any such case to enable himself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence,

shall be liable to penal servitude for life.”

8. The second foundational offence, i.e., the ultimate, indictable offence, which the appellant intended to commit, was the offence found in s 61D of the Crimes Act (as at 24 September 1983) which provided, relevantly:

“61D    Sexual Assault category 3 – sexual intercourse without consent

(1)   Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 7 years or, if the other person is under the age of 16 years, to penal servitude for 10 years.”

9. It was not disputed that in the early hours of 24 September 1983 the appellant met the deceased at the Alpine Inn, Crows Nest. It was also not disputed that the appellant volunteered to take the deceased home to Drummoyne and left the Alpine Inn with her in his car.

10. The Crown contended that the appellant, after taking the deceased somewhere in his car, strangled her in order to force her to have sexual intercourse with him and that she died by his actions. The Crown further contended that he then put her body in the boot of the vehicle to dispose of later.

11. The only evidence capable of supporting the Crown case that death occurred in the context of intercourse and strangulation was evidence of the appellant's prior conduct said to evidence a number of tendencies possessed by him. Notice of those tendencies was given in a tendency notice of 17 March 2014.

12. The Crown, in closing submissions, summarised its case thus:

“The basis for this foundational crime is based on the fact that the accused had developed a tendency to meet women at bars, gain their confidence, buy them drinks, sometimes tell them he was a policeman to gain their trust, offer them a lift in his car, get them in his car, and when out of sight of others strangle or choke those women to a stage where they believed that he would kill them, forcing them to have sexual intercourse with the accused.” (T.1020.33-.38)

13. The Crown's need to prove that strangulation (the basis of the primary foundational offence) meant that it was accepted that the existence of some tendency to strangle was an indispensable intermediate fact of which the trial judge was required to be satisfied beyond reasonable doubt.

14. There were two further matters relied upon by the Crown:

• Evidence that the appellant was spraying water into and/or washing the boot of his car on Sunday 25 September 1983; and

• Evidence regarding the likelihood that a hair apparently found in the boot of the appellant's car came from the deceased.

The defence case

15. The appellant did not give evidence at trial, but spoke to police in connection with the investigation in 1983. A record of interview was prepared at that time.

16. In 2013 upon his arrest, the appellant voluntarily gave an interview (an ERISP) and did so without legal representatives present. In that ERISP, the appellant adopted the account he gave to police in 1983 and in particular, denied that he attempted to choke the deceased on the night in question.

17. The position of the appellant in relation to the police and at trial was:

1. He arrived at the Alpine Inn around 2.20am.

2. There, he met Mary Wallace and left with her.

3. A short time later he pulled over to the side of the road where they engaged in some form of sexual activity.

4. He went to sleep and woke up around 5.00am to find the deceased gone.

18. The appellant accepted at trial that he raped Ms Ellen Moon. The appellant asked Ms Moon to take him to the police station at the time. He pleaded guilty to raping her, and served a term of imprisonment.

19. With respect to Ms Andrea Hyde, the appellant's case was that he and Ms Hyde had sexual intercourse but that the intercourse was consensual.

20. With respect to Ms Karen Brown, the appellant denied ever having any involvement with her. The fact that Ms Brown was raped was not challenged at trial. What was challenged was her identification of the appellant.

21. A document was provided by the appellant to the trial judge identifying the following matters, which were not in dispute:

23 – 26 September 1983

1. The appellant owned a 1982 Holden Commodore with registration MAA 265 in September 1983.

2. The deceased was heavily intoxicated at the Alpine Inn.

3. The appellant offered to give the deceased a lift home.

4. The deceased left the Alpine Inn with the appellant.

5. Some kind of sexual activity took place in the appellant's car.

6. The appellant attended a champagne breakfast at the house of Michael Smith (Duke) in the early morning of Saturday, 24 September 1983.

7. The appellant went out with Barbara Pittman on the evening of Saturday, 24 September 2016, returning home before midnight. The appellant then had sex with Barbara Pittman.

8. On Sunday, 25 September 1983, the appellant was at home, drank some beer and watched the movie “Death on the Nile” before going to sleep.

9. The appellant at some point during the period 25 – 26 September 1983:

1. Washed the clothing he wore on the night of Friday, 23 September 1983; and

2. Washed the seats of his car.

Ellen Moon

10. This evidence is not in dispute.

Andrea Hyde

11. The appellant picked up Ms Hyde in a car and drove to his house.

12. The appellant had sexual intercourse with Ms Hyde.

13. Ms Hyde left the house with raised "welts" around her neck.

Karen Brown

14. Ms Brown was sexually assaulted by someone.

15. With tattoos "all over their body".

16. With a tattoo on their left arm.

17. In a house somewhere past Wahroonga.

Pre-trial proceedings

22. In a pre-trial hearing the appellant sought to have the tendency evidence to be adduced in the Crown case rejected. The first objection was on the basis that sexual assault evidence said by the Crown to show tendencies on the part of the appellant did not pass the test contained in s 101 of the Evidence Act (the Act). The second objection was that evidence about mitochondrial DNA analysis of a hair said to have been located by police in October 1983 in the boot of the vehicle owned by the appellant did not pass the test contained in s  137 of the Act.

23. The parties were in agreement that it was appropriate for a determination of the issues by way of an advance ruling, pursuant to s 192A of the Act, to take place well before the appellant was to be tried. The proceedings were heard by Button J between 28 July 2015 and 30 July 2015 and on 27 August 2015.

24. In relation to the evidence to which the first objection was taken, the Crown sought to adduce evidence of four prior incidents of sexual assault alleged to have been committed by the appellant, or of which the appellant had been convicted. A tendency notice was served on 17 March 2014. Its relevant portions are as follows:

The tendencies sought to be proved are:

(1)   The person whose "tendency" is the subject of the evidence sought to be adduced is Robert John Adams.

(2)   The tendencies sought to be proved are:

1. His tendency to act in a particular way, namely to be sexually violent towards women.

2. His tendency to act in a particular way, namely to use choking as a method of violence against women.

3. His tendency to act in a particular way, namely:

1. To meet women either in public bars or cafes by approaching them;

2. To ingratiate himself with these women;

3. to entice them into getting into his vehicle,

4. To use violence, including to place his hands around their throats and apply considerable pressure, for the purpose of forcing them to have sexual intercourse with him; and

5. To only release this pressure if and when the women acquiesced to sexual activity with him.

4. His tendency to have a particular state of mind, namely to become violent including to the point of strangling a woman if his sexual advances were turned down.

25. In relation to the second challenge to evidence, the appellant argued that the movement or provenance of the hair could not be accounted for by the Crown, in any detailed way, between 10 November 1983 (when the exhibit was delivered to the Australian Atomic Energy Commission at Lucas Heights) and 17 January 2003 (when the sealed box containing the exhibit was located at Mosman Police Station by two detectives). The appellant argued that the evidence was therefore by no means conclusive that the hair exhibit, that was the subject of mitochondrial DNA analysis, was indeed the hair exhibit seized from the boot of the appellant's vehicle.

26. His Honour ruled on 18 December 2015 that (1) the evidence about the hair analysis was admissible and (2) the tendency evidence foreshadowed in the tendency notice of 17 March 2014 was also admissible: (R v Adams (No 1) [2015] NSWSC 1960).

27. In a second pre-trial hearing, the appellant applied to be tried by a judge alone. The application was opposed by the Crown, and heard by his Honour Button J on 22 September 2016.

28. On 26 September 2016, his Honour ordered that the appellant be tried by judge alone: R v Adams (No 2) [2016] NSWSC 1359.

THE EVIDENCE AT TRIAL

Disappearance of the deceased

29. On Sunday 25 September 1983, the deceased, who was born in 1950, was reported missing by her father at Chatswood Police Station. She was then aged 33. At the time of her disappearance, the deceased was living alone at an apartment in Drummoyne, and working as a theatre sister at Hunters Hill Hospital.

30. On the evening of Friday, 23 September 1983 after finishing work, the deceased and her friend, Leslie Kennedy drove together to the deceased's apartment. Ms Kennedy had brought along a change of clothes, so that she could go to the farewell dinner of their colleague Ms Helen Morrison. Each of them showered and changed and they had a glass of champagne together before leaving for the dinner.

31. The deceased and Ms Kennedy caught a taxi to the Malay Restaurant in North Sydney. On the way there they picked up Mary Williams, another nursing sister colleague.

32. Present at the dinner were approximately 40 guests. Service of the meal was delayed, and quite a bit of alcohol was consumed. Helen Morrison, the guest of honour, was presented with a farewell gift by the deceased. Ms Morrison noted at that stage that the deceased was quite affected by alcohol, in that she was repeating herself and slurring her words. At the end of the evening, Ms Morrison walked home directly from the restaurant.

33. Sometime before midnight on Friday, 23 September 1983, a doctor offered Ms Kennedy a lift home. The deceased playfully accused Ms Kennedy of being "a piker" and told her that she herself had had a lot to drink. Ms Kennedy left directly from the restaurant with the doctor.

34. The function at the restaurant concluded at about midnight. The deceased left the function with Mary Williams, Debbie Mullin and her husband and Vicki Taylor. They travelled to the Stoned Crow, a nearby wine bar on Willoughby Road, Crows Nest where they met Chris Liney and two young women who were in his company. Vicki Taylor described the deceased at that stage as being in good spirits, laughing and giggling but not falling down drunk.

35. Ms Taylor gave evidence that while at the Stoned Crow the deceased went missing and people went outside to look for her. The deceased then rushed past Ms Taylor into the women's toilets of the Stoned Crow. Ms Taylor followed her in and asked her what was wrong. The deceased told her that she had been assaulted. Ms Taylor could not see any injuries to the deceased but noted that she was crying and recalled mascara running down her face. Eventually, the deceased returned to socialising within the Stoned Crow. Ms Taylor went home from the Stoned Crow at about midnight or 1am with Ms Mullin and her husband. The deceased and Ms Williams were still at that wine bar when Ms Taylor left.

36. When the Stoned Crow closed at 2am, a group comprising the deceased, Ms Williams, Mr Liney and his female flatmate Sandra Coady walked to another nearby wine bar, the Alpine Inn situated on Willoughby Road, Crows Nest.

37. Mary Williams went to buy drinks from the bar and upon her return, saw two men sitting next to the deceased. The older man was Ullie Rabsch, the bar manager of another wine bar on the lower North Shore, who had known the deceased for some years. The younger man was the appellant. Ms Williams gave the drink to the deceased and went over to sit with Mr Liney.

29. Ullie Rabsch gave evidence that he saw the deceased sitting with a male person whom he did not know in the bar area. He sat down next to her, they embraced and he asked how she had been. She told him about having been assaulted by a man at the Stoned Crow because she did not wish to go out with him. Mr Rabsch could not see any injuries to the deceased. Mr Rabsch formed the opinion that the deceased was very intoxicated, drunker than he had seen her before.

30. Sandra Coady gave evidence of taking the deceased to the women's toilets on a number of occasions where the deceased was physically sick.

31. Later, the deceased asked Mr Rabsch whether he would give her and Ms Williams a lift home when he came to leave. He explained that he would be getting a lift himself and going in the other direction. Mr Rabsch left the Alpine Inn at about 3.15am. He farewelled the deceased, noting that she was still quite intoxicated. At that stage she was still talking to the appellant.

32. Before he left, Mr Rabsch was so concerned about the deceased’s state of intoxication that he offered her a lift – even though he had earlier told her he was not going her way. She declined.

33. At one stage Ms Williams saw the deceased walk towards the entrance of the bar. The women's toilets were in the same general direction. The deceased did not return for 15 minutes or so. Eventually, Ms Williams went to look for her friend. As she approached the women's toilets the appellant, who Ms Williams observed to have been one of the two men the deceased was sitting with, walked out of the men's toilet and said “Are you going to check Mary?” The appellant waited outside as Ms Williams went in to check on the deceased.

34. Ms Williams entered the women's toilets looking for the deceased. There were two cubicles, one of which was locked. Ms Williams banged on its door several times and asked “Are you alright?” There was no reply. She went back outside and told the appellant “She must be there, I can't get her to unlock the door, and she won't answer”. The appellant replied “I’d better come in and have a look”. Inside the women's toilets, the appellant unsuccessfully used a key to manipulate the locked cubicle door. He then tried to shoulder the door open three or so times, all of them unsuccessful. Ms Williams said “Don't do that, you’ll break your shoulder", to which the appellant replied “I should be used to it, I'm a policeman”.

35. The appellant succeeded in kicking open the door of the cubicle occupied by the deceased. The door flung open revealing the deceased sitting fully clothed on the toilet. Ms Williams asked if she was all right, the deceased replied something like “My head hurts”. Concerned that the door had hit the deceased when it flew open, Ms Williams examined her head for injuries, but saw none. Ms Williams said “We better get you up, and get you home”. The appellant said “I think she's left her bag inside” referring to the bar. Ms Williams re-entered the bar to retrieve the purse of the deceased and speak with Mr Liney.

36. Ms Williams, the deceased, Mr Liney and the appellant all walked out onto the footpath. Ms Williams said “We better get a cab” but there were no taxis around. The appellant said “I've got my car here” and pointed to a car parked out the front of the Alpine Inn. In her evidence Ms Williams recalled the car as a fairly new looking silver Commodore with unusual clear perspex bull bars on it.

37. Ms Williams asked the deceased “Do you want to go home with this fellow?” and she said “Yes”. Ms Williams asked the appellant where he lived, to which he replied "Drummoyne" and whether he was all right to drive, which he replied “I'm a policeman ... You don't have to worry”.

38. Ms Williams said that the deceased was so intoxicated that she required assistance to get into the appellant's car. The deceased was placed in the front passenger seat. Mr Liney asked the appellant if he would be driving near his home at River Road, Wollstonecraft (in order to obtain a lift himself), but the appellant said that he was not going in that direction. The appellant entered the driver's seat and drove off along Willoughby Road towards Willoughby.

Deceased reported missing

48. From about 8.30am on Saturday, 24 September 1983, friends and family of the deceased tried to contact her. The deceased had a family function organised for the Saturday afternoon or evening, but she neither attended nor telephoned anyone.

49. Ms Williams awoke and tried to call the deceased from about 11am with no answer. Worried for the deceased she called Ms Kennedy. Ms Kennedy had been calling the deceased from about 8.30am with the phone ringing out. Concerned for the deceased she called the deceased's parents.

50. On Sunday, 25 September 1983 Ms Williams, Ms Kennedy and the deceased's father attended the deceased's flat in Drummoyne. Ms Kennedy noticed the deceased's car still parked out front. The deceased's father broke into her flat. They entered and looked around. There was no sign of the deceased. Ms Kennedy who had been with the deceased in the flat on the Friday evening prior to going to the dinner, noticed that the flat was undisturbed. She noticed the champagne glasses they had been drinking from were in exactly the same place. At 10.30pm the deceased was reported missing by her father to Chatswood police.

Identification and arrest of appellant

51. On Tuesday, 27 September 1983 Ms Williams made a statement to police about the events of the evening of 23 September 1983. She prepared an identikit picture of the man who departed the Alpine Inn with the deceased. It was not disputed in the trial that the image approximated the appearance of the appellant that weekend.

52. On Thursday, 29 September 1983 information was provided to investigating police to suggest that the appellant may have been the man who departed the Alpine Inn with the deceased.

53. At 11.15pm on Thursday, 29 September 1983 Detective Sergeant Counsel and Detective Senior Constable Matthews observed the appellant driving his vehicle, a brown 1982 model Holden Commodore sedan registration number MAA 265 (NSW), in Willoughby Road, Crows Nest. At that time, the vehicle was registered in the name of the appellant. Police stopped the vehicle and spoke to the appellant. Police conducted a search of the vehicle during which they located a quantity of Indian hemp secreted under the driver's seat. The appellant was placed under arrest. Both the appellant and his motor vehicle were taken to North Sydney Police Station. The car was seized by police, and retained for a number of weeks.

Police interview with appellant on 29 September 1983

54. The appellant refused a formal interview but voluntarily discussed his movements with detectives on 29 September 1983. Later during an ERISP conducted on 20 December 2013, the substance of his version of events of 30 years before was put to the him and he accepted the police record of the September 1983 interview was correct.

55. At trial Detective Sergeant Counsel gave evidence of the version of events provided by the appellant in 1983, along with the typed interview notes. The following is a summation of the evidence.

56. The appellant told police that he was working as a carpenter at Lane Cove National Park. He said he was working on an observation deck area at a location within the park known as Jenkins Hill. On Friday, 23 September 1983 he finished work at 4.30pm and attended a number of bars in the Crows Nest area. He attended the Alpine Hotel at around 2.20am on Saturday, 24 September 1983 where he met a female, during which time they talked and consumed a number of drinks. At this stage of the interview, the appellant was shown a photograph of the deceased and told them that she was the female whom he had met.

57. A short time later, the deceased left the bar area and went to the toilet. Later he went to the male toilets and as he came out he saw the deceased's friend standing outside the female toilets. He inquired as to the whereabouts of the deceased and was informed by the friend that she was still in the toilet and that the cubicle door was locked. They both entered the female toilets and he knocked on the door and attempted to open the lock with his keys. This proved unsuccessful so he forced the door and when the door was opened, he observed the deceased sitting on the toilet and she appeared to be fully clothed.

58. Both women had a short conversation and then all three of them left the toilet and walked to the front of the wine bar as he believed they were going somewhere for coffee as had previously been arranged. The deceased got in the front passenger seat of his car and he had a short conversation with Ms Williams. He then entered his motor vehicle and drove off on Willoughby Road. He travelled about 90m on Willoughby Road, turned left and stopped the car. They kissed for a while and then he took his pants down to his knees and they began playing with each other. He then got on top of her while she was still seated in the passenger seat of the vehicle and attempted to have intercourse with her. He was unable to say if in fact he had full intercourse with her. He then got back into the driver's seat and a short time later fell asleep.

59. He awoke around 5am to find the deceased missing from the vehicle. He then drove to his home, drank two twist-top bottles of beer, changed clothing and did some washing. The washing he did consisted of sheets, pillow cases and work clothing.

60. Shortly afterwards, he left his home and went to a champagne breakfast at St Leonards where a friend of his named Duke was having a 31st birthday party. He arrived at the party around 7am and he took with him a case of beer. When he got to the party he drank for a couple of hours and then went to sleep on the grass in the backyard, waking about midday. After waking, he returned home, slept for about two hours, woke up and had a shower and then went back to the party where he remained until around 6.30pm and then returned to his home.

61. On Sunday, 25 September 1983 he stayed at home and on the afternoon of Monday, 26 September 1983 he washed both front seat covers of his car because the passenger seat “had cum on it and it smelled”. When further questioned regarding his motor vehicle, he stated that apart from washing his seat covers, he washed the car and vacuumed the front section. He later sprayed water on the boot as it previously had leaks in it and the back window had been replaced and the boot lid had been resealed. He just wanted to see that it did not leak.

62. After the interview was completed, the appellant was charged with possessing a prohibited drug (the cannabis located in the vehicle) and impersonating a police officer (based on the things that he had said at the Alpine Inn).

63. On the same evening, Robin Fletcher, an associate of the appellant, was telephoned by him. The appellant asked Mr Fletcher to bail him out on his two pending charges. The appellant also said “Tell the sergeant what I was wearing” referring to the attendance of the appellant at the champagne breakfast on the Saturday morning. Mr Fletcher told the detectives that the appellant was wearing a T-shirt, black shorts and a pair of thongs. The appellant was released to bail.

Events of the weekend of 24 and 25 September 1983

64. Evidence was given by a number of witnesses as to the movements of the appellant for the weekend of the 24 and 25 September 1983.

65. On Saturday, 24 September 1983 a champagne breakfast was held at the home of Michael "Duke" Smith in the Sydney suburb of Naremburn. The appellant arrived early, possibly around 6.30am. Many of the guests confirmed that he was present. One guest, Robin Fletcher, observed the appellant to produce a case of beer from boot of his vehicle on arrival. Mr Fletcher recalled discussion at the party about the boot being wet when the beer was taken from the car.

66. A number of guests recalled the appellant being at the breakfast in casual clothing featuring a T-shirt, shorts, and thongs as opposed to his smarter outfit of the evening before. More than one guest saw the appellant fall asleep at the social event later on the Saturday morning, perhaps at around 10am.

67. At some stage on Saturday, 24 September 1983 Barbara Andrews (nee Pittman) saw the appellant out the front of his flat. He invited her to a party that evening. She neither accepted nor declined. He asked her to call him later that afternoon with an answer. She did so at about 2pm, and accepted the invitation.

68. At about 6pm, the appellant picked up Ms Andrews at her home, but informed her that they should go to the bar of a hotel instead of a party. They returned briefly to his flat and the appellant changed his clothes. They walked to a hotel in Chatswood and had some drinks there. At about 9 or 9.30pm, they returned to his home, watched television and had sex. Ms Andrews arrived back at her own home at about 11.45pm on the Saturday.

69. On Sunday, 25 September 1983, at 3pm Ms Andrews went for a drive with her sister and daughter. The car broke down and had to be towed to a service station. The three of them walked home. On returning to her unit, she saw the appellant sitting in the driver's seat of his car. The car was parked on the pavement in front of his flat, and all the doors and the boot lid were open. She then entered her unit. She later saw the appellant hosing out the boot of his car.

70. In cross-examination Ms Andrews could not be certain whether she had informed anyone, before giving evidence in the trial, that she had seen the appellant cleaning his boot on Sunday, 25 September 1983.

71. In December 1982, Suzanne Newhouse (nee Beckingham) began sharing a flat with the appellant in McIntosh Street, Chatswood. Also residing at the flat at that stage was Mr Ross Adams whom she understood to have been renting the flat for some years.

72. At about 10.30pm on Friday, 23 September 1983 Ms Newhouse attended a friend's house in Willoughby for a period of time. Upon her return home, there was no other person in the flat. Ms Newhouse retired to bed at 11.30pm and left her bedroom door open.

73. She awoke to the sound of the phone ringing about 8.30am on Saturday, 24 September 1983. The male caller asked where "the bastard” was, referring to the appellant. She told the caller he was not home. He told her to tell the appellant that “PJ” rang and that he was calling from the Big House Hotel in the centre of Sydney. After the call ended, she went back to bed for a short period. Thereafter, she got up and went to the newsagent to collect the newspapers and then returned to the flat.

74. At about 10.30 or 11am Ms Newhouse saw the appellant return to the flat. She asked how his night had been and he replied “Just the normal”. The appellant obtained a beer from the fridge, went to the lounge-room of the flat and watched television. He was wearing dark trousers and a cream shirt. Ms Newhouse told the appellant about the telephone call from “PJ”. The appellant left the house for a short time and returned after about half an hour.

75. At about 11.45am Ms Newhouse left the flat. At that time, the appellant was in his room with the bedroom door shut. Ms Newhouse returned at about 2pm and the appellant's bedroom door was still shut. After about an hour, the appellant came out of his room. He was wearing a T-shirt, shorts and thongs. He told Ms Newhouse that he was going to a party. At about 4pm, Ms Newhouse left the flat to help a friend to move house. When she left, she saw the appellant's car parked in the street. At about 2 to 2.30am on Sunday, 25 September 1983 Ms Newhouse returned to the flat and saw that nobody was home. She watched TV in the lounge room and then went to sleep at 3.30am. Nobody was home at the time she went to bed.

76. Ms Newhouse woke up at about 8am and started to watch television. At about 9.30 or 10.30am the appellant had come home. He went to the fridge, obtained a beer and then went to the lounge room to watch television. Ms Newhouse went out for groceries, and returned 15 minutes later. When she came back to the flat, the washing machine (which was located in the kitchen) was operating. Later that day, Ms Newhouse did her own load of washing. Once the washing cycle stopped, she went downstairs to hang her washing on the clothesline of the block of units.

77. Ms Newhouse noticed two car seat covers, which were brown with black and red stripes on them, hanging on the clothesline. She knew they were the appellant's as she had driven with him in his car before. She described the appellant's vehicle as an SL Commodore, beige or tan, four door sedan with bull-bars on the front. She also saw brown sheets hanging on the line. They were the same sheets that she had given to the appellant to be given to one of his friends.

78. Later Ms Newhouse washed her father's car which she was using at the time. She returned upstairs to the flat and saw that the appellant was present. He left the flat and she wondered where he had gone. Ms Newhouse entered the appellant's bedroom. From his bedroom window, Ms Newhouse looked down to the parking area in front of the block of flats and saw that the appellant had the floor mats out of his car and that its boot was open. The car was parked on the paved area at the front of the block of flats. She saw the appellant walk back up to the flat, take the vacuum cleaner downstairs and vacuum out his car. Ms Newhouse then saw the appellant with a hose in his hand and saw him scrubbing the interior of the boot using a rag. She also saw that he had removed a number of items from the boot including a bag of tools, some clothes, some tools, a piece of carpet and an orange towel.

79. Ms Newhouse stated that in the approximately ten months she had lived with the appellant she had only observed him clean his car on two or three occasions and had never seen him wash the boot of the car before.

80. At approximately 6pm, Ms Newhouse went to her parents' house to return her father's car and to have dinner with her family. At about 9.30pm, Ms Newhouse returned to the flat. She saw that the appellant was watching a movie on television. Later he went to his bedroom and she retired to bed.

81. On Monday, 26 September 1983 Ms Newhouse got up at about 6.45am. Whilst she was getting ready for work, she saw the appellant come out of his bedroom wearing his work clothes. She was aware that the appellant was working at Lane Cove National Park. At about 5.45pm Ms Newhouse arrived home from work. She saw the appellant sitting on the lounge and the washing machine was operating. After it had finished the appellant removed from it the clothes that he had been wearing on the morning of Saturday, 24 September 1983.

82. In cross-examination Ms Newhouse agreed that she first provided information to police about the events of the weekend when they came to the flat before her first formal statement of 2 October 1983. She did not recall, however, what she had said on that first occasion or the questions that they had asked.

83. She accepted in cross-examination that she did not tell police during that initial questioning that she had observed the appellant washing out his boot but provided this information in a subsequent undated letter to police before providing her first statement.

84. On Friday, 30 September 1983 the appellant (after his arrest and interview with police) telephoned Ms Newhouse. He asked her why she had let the police into the flat they shared and told her that she had no right to do so. The appellant also asked her what she had told police. Ms Newhouse said that she had no familiarity with police and asked "What am I supposed to do?" She refused to tell the appellant what she had told the police. After that phone call Ms Newhouse moved out of the shared flat in Chatswood.

85. Ross Adams met the appellant through the rugby club and it was during the 1983 season that the appellant offered him a room in his flat in McIntosh Street, Chatswood. When Ross Adams moved into the flat, one bedroom remained vacant and it was shortly afterwards that Ms Newhouse moved in.

64. About 10 or 10.30am on Saturday, 24 September 1983 Ross Adams was returning to his home. He stayed for only a brief time before departing. As he was driving away from the block of flats, he passed the appellant in the street as the appellant was driving towards him.

65. Around the time that the deceased disappeared (but not necessarily on the weekend in question) Ross Adams saw the appellant washing his car. He also saw the appellant leaning over the boot and from his bodily movements, he believed the appellant was scrubbing the interior of the boot. He saw a carpet on the ground next to the boot. He saw all of this from his bedroom window within the flat.

66. Shortly afterwards, Ross Adams asked the appellant why he had been cleaning his boot. The appellant told him that he had killed some ducks at Lane Cove.

67. Sometime in 1988 or 1989, Ross Adams was drinking with the appellant at Gladesville RSL Club. He asked the appellant “What happened to that nurse?” The appellant leant over, put his face quite close to that of Ross Adams, and said in a serious tone “What's that to you?”.

Police investigation 1983

90. On 30 September 1983, Detective Sergeant Counsel attended the apartment of the deceased in the company of Detective Sergeant Butcher and Dr Simon Baxter. Fingerprints were collected from the scene, along with a hairbrush that contained a number of hairs.

91. The same day police conducted a search of the appellant's unit in McIntosh Street, Chatswood. They seized a number of items including the vacuum cleaner used by the appellant to clean his motor vehicle. Police located two invoices in his bedroom relating to the pouring of 26 concrete piers at the recreation area, Lane Cove National Park in vicinity of Lady Game Drive. The invoices indicated that the concrete piers were poured on Monday, 26 September 1983 (two days after the deceased was last seen).

92. Detective Sergeant Walsh of the Police Scientific Section and members of the Police Rescue Squad used metal probing rods and a mechanical auger to examine the soil under the concrete piers with no result.

93. Dr Baxter was involved in the process of examining the motor vehicle of the appellant. A fingerprint was found on the interior of the boot but it was the fingerprint of neither the deceased nor the appellant.

94. On 5 October 1983 the appellant attended Chatswood police station and supplied a sample of his blood.

95. On 6 October 1983, Detective Sergeant Walsh vacuumed the boot of the appellant's car. He placed the contents in a brown paper bag. He labelled it "83/1363, Re missing person Mary Louise Wallace, Matter vacuumed from boot of Holden Commodore Sed. No. MAA-265, B.J.W D/Sgt 2/C Chatswood, 6/10/83”. He handed the paper bag to Detective Milroy.

96. Pauline Margaret Biddle-Broadfoot had trained with the deceased as a nursing sister in 1969 and had remained friends. They socialised together, had travelled overseas and had worked together. Ms Biddle-Broadfoot was shown a photograph of the boot of a car with the NSW registration number plate MAA 265. She gave evidence that the clog depicted in the photograph was similar to a clog that would have been worn by the deceased.

97. Lesley Kennedy gave evidence the deceased often wore clogs in the operating theatre, they were black in colour and kept in the operating area. She also had leather bound clogs she would wear socially. Ms Kennedy was also shown the photograph of the boot of the car which had the NSW registration number MAA 265 depicting the clog. Ms Kennedy said she could identify it as the same kind of clog that the deceased used to wear and that it was the clog that the deceased wore on the evening of Friday, 23 September 1983.

98. During the week of 20 October 1983, Susan Holman (nee West) started work at a kiosk at Lane Cove National Park. At about 1pm one day that week, the appellant came to the counter of the kiosk and spoke to her.

99. He said that he had just gone up the road “to get rid of $10,000”. When she asked him why he said he had given it to his solicitor. He said that he was the “prime suspect” in the murder of “the nurse from Crows Nest”. The appellant said that he was not the boyfriend of the deceased, but had just met her that night. He said that he had driven the deceased around the corner and had passed out with his pants around his ankles. He told Ms Holman that he did not remember anything. He also said “Do I look like I have a murderer's face?”.

100. He told Ms Holman that he was subject to “holding charges” and could not go anywhere. He also said that his financial situation was being investigated.

101. The appellant also said to Ms Holman “You better watch out, or I might hit you over the head and rape you as well”. Ms Holman responded “If you do that, you might find yourself with a knife in your guts”. The appellant laughed and walked off.

102. At some stage during that conversation, Ms Holman told the appellant that the kiosk had a problem with mice. One or two days later, the appellant returned to the kiosk and told Ms Holman that he had a solution to the mouse problem. He produced an upturned coffee cup. Underneath it was what Ms Holman believed was a live funnel web spider. She felt frightened by the actions of the appellant.

103. A few days later, Ms Holman was about to close up the kiosk when the appellant appeared. He asked her for a Cornetto ice-cream, which she gave him. He also spoke of setting up a mouse trap. Whilst she was locking up, the appellant placed his arm around her waist, and rubbed his body up and down against her. She removed his hand from her person, locked the door of the kiosk and walked straight to her car. Later she told her boyfriend what had happened and shortly afterwards made a statement to the police.

104. On 10 November 1983 police received an anonymous handwritten letter which claimed that the body of the deceased was buried in a crevice in bushland. The envelope also enclosed a portion of a page from a street directory with an area marked as a suggested location for a search. It bore a postmark that showed the place of mailing as Katoomba and the date of the postmark as 7 November 1983. A fingerprint detected on the letter was not that of the appellant.

105. On 10 November 1983 police took the material vacuumed from the boot of the car of the appellant, along with hairs obtained from the hairbrush, to the Australian Atomic Energy Commission Laboratory at Lucas Heights for the purpose of an examination that featured irradiation. Chief Inspector John Goulding conducted that examination. No meaningful results could be obtained. A couple of weeks after 10 November 1983 detectives retrieved the samples from Lucas Heights that had not been destroyed, and placed them at the Chatswood Crime Scene Office.

106. In early 1984 police received a letter relating to the disappearance of the deceased. It bore a postmark that showed the place of mailing as Dee Why and the date of the postmark as 20 February 1984. The letter stated “From Alpine came RA with MW in Tow Into MMA to see what’s the go Not To Drummoyne, but Willoby we go Sex with MW, then death + Bury Low Never FIND MW, GONE From BOOT, GONE to DARKNESS Fuck you coppers, BIG JOKE EH, Help me please".

107. Police made a number of searches for the deceased in the subsequent months and years but they all proved unsuccessful. Police also made enquiries with taxi companies and hospitals in an attempt to locate the deceased without success. The investigation wound down without anyone being charged with an offence relating to the disappearance of the deceased.

Investigation re-opened in 2002

108. In October 2002, police re-activated their enquiry into the deceased's disappearance. Detective Sergeant Puffet became the officer in charge of the investigation. Efforts were made to locate all of the items seized as exhibits in the original investigation, all of the statements taken, and all of the documents otherwise created. Detective Puffet and Detective Senior Constable McKillop located the cardboard box at the Mosman Police Station storage unit that was labelled to the effect that it contained the exhibits from the original investigation. The exhibits were extracted, examined, and photographed.

109. On 17 January 2003 Detective Sergeant Puffett and Detective Senior Constable McKillop attended Mosman Police Station. They searched the exhibit room and located a sealed box of exhibits. Attached to the top of the box was a piece of paper, on which the following words were:

“ALLEGED MURDER

WILLOUGHBY ROAD

CROWS NEST

Victim: Mary Louise WALLACE

OIC:

FSG: D/Sgt WALSH, Chatswood

Job: 83/446

Date: 29.09.83

Exhibits: (listing the exhibits contained)”

110. The box was immediately transferred to Manly Police Station. Detective McKillop entered the box into a system of records at that location with exhibit number C-783410.

111. On 21 January 2003 Detective Ure collected all of the exhibits attached to C-783410 from the exhibit room at Manly Police Station. He transported them to the Chatswood Police Station, which had been re-opened. They were signed into the Chatswood Crime Scene Specimen/Item Register (CSSIR) as 25/B48877 at 3.45pm by Detective Colver. The exhibits (including the bags in which they were contained) were all individually photographed, bagged and sealed in clear plastic evidence bags by Detective Colver.

112. At some stage, Detective Puffet and other police inspected the original search sites, including the area around the Lane Cove National Park observation deck (which had been demolished since 1983) and Ku-ring-gai Chase National Park but nothing was found.

113. There was also physical surveillance of the appellant at certain stages.

114. On 29 January 2003, Crime Scene Officer Flippence transferred the exhibit items from the box to the Department of Analytical Laboratories (DAL) at Lidcombe. They included the hairs vacuumed from the boot of the vehicle of the appellant and the hairs from the hairbrush inferred as belonging to the deceased. An examination of some of the hairs at the time found that they were unsuitable for nuclear DNA testing.

Investigation re-opened in 2008

115. The case was then again re-opened by investigators attached to the Unsolved Homicide Team, Homicide Squad in 2008. Detective Nicole Jones became the officer in charge of the investigation and gave evidence.

116. Enquiries were conducted with all police services in Australia, Centrelink, the Department of Immigration, the Registry of Births, Deaths and Marriages, all major financial institutions in Australia, the Health Insurance Commission and the Australian Taxation Office. There was also a process of checking unidentified bodies found in New South Wales since the disappearance of the deceased. No sign of the deceased was detected.

117. On 24 June 2009 police attended the area known as Jenkins Hill situated within the Lane Cove National Park and identified the area believed to be where the appellant had constructed an observation deck in 1983. The observation deck no longer existed but it was confirmed that the concrete footings of the observation deck were still in the ground. Between 5 and 7 October 2010, a further excavation of Jenkins Hill took place but nothing of relevance was found.

118. Johan Duflou, forensic pathologist, gave evidence as to the possible mechanisms of death as a result of manual strangulation.

119. Professor Duflou gave evidence that there were three major mechanisms proposed in relation to death due to manual strangulation. The first was compression of the blood vessels supplying oxygen to the brain. The second was compression of the airway, i.e., the air passages or throat. The third mechanism was as a result of stimulation of various nerves in the neck and, potentially, other parts of the body which cause the heart to slow down or stop.

120. Professor Duflou gave the following evidence:

“Q. Now, if you have a scenario and take this scenario into account, thanks, of someone who is forcefully having sex with another against their will and is holding them around the neck during that whole period and, at the conclusion of that, the person dies who's been strangled, if that fits within the airway compression in the neck blood vessel occlusion in terms of time, that would be a reasonable scenario in terms of killing someone by these methods, would it not?

A. Yes, it would be, if the length of sexual intercourse was that long and the neck compression was maintained for that long.” (T.480-481).

121. Professor Duflou also agreed that the scenario given in relation to forced sexual intercourse and holding the person around the neck could also result in vasovagal arrest, as well as the neck blood vessel occlusion and airway compression.

122. In late 2013, a swab was taken from the inside cheek of the sister of the deceased for mitochondrial DNA (mtDNA) comparison purposes.

123. The swab from the sister of the deceased, the hairs said to be from the hairbrush, and the hairs said to be from the vacuuming of the boot were sent to Dr Dadna Hartman at the Victorian Institute of Forensic Medicine in Victoria for mtDNA testing.

124. Hairs said to be from the vacuuming of the boot of the appellant, and hairs said to be from the hairbrush were also sent to Elizabeth Brooks, expert hair analyst, within the Australian Federal Police in Canberra.

125. Ms Brooks gave a Power Point presentation on “An Introduction to Forensic Hair Examination”. Her report of 15 January 2014 and supplementary report of 10 June 2014 made clear that all of the hairs located had been naturally shed. There was nothing to suggest that they had been pulled out. She also expressed the opinion that the hairs vacuumed from the boot were “visually” identical to the hairs taken from the hairbrush. While accepting that there was no statistic that expressed the rarity of that occurrence, Ms Brooks expressed the opinion that such a match was "incredibly rare".

126. Dr Dadna Hartman gave a Power Point presentation on “Mitochondrial DNA Analysis”. Dr Hartman expressed the opinion that the hairs vacuumed from the boot had the same mtDNA profile as the hairs taken from the hairbrush. The buccal swab from the sister of the deceased revealed a slightly different mtDNA profile but Dr Hartman expressed the opinion that that variation was not exclusionary, and could be explained as a natural variation between siblings.

127. Dr Hartman provided calculations seeking to reflect the rarity of such a match. Her final position, encapsulated in a Power Point presentation that became exhibit 4E, was that adopting a conservative approach, 1 in 518 persons in the Australian community would be expected to possess that mtDNA profile.

128. David Bruce performed DNA testing on a reference sample from the appellant for comparison to exhibits gathered in the 1983 investigation: cigarette butts, five hairs from the vacuum cleaner, carpet fibres, khaki overalls, a fibre from vice grips, tapelift of concrete receipt invoice, swab of vice grip and swab of bristles of blue hair brush and stored samples of an envelope. There was no match to the appellant.

129. Matthias Zierholz, a handwriting expert, was asked to examine the letter and extract from a street directory that were sent to police on 7 November 1983 and the subsequent letter sent to police on 20 February 1984 and its envelope and to compare those documents with letters sent by the appellant from prison in 1986.

130. Mr Zierholz came to the conclusion that the samples of writing were different. There could be three explanations for that difference. The first was that the samples of writing were created by different persons. The second was that they were created by the same person, who deliberately disguised his or her handwriting. The third was that they came from the same person, but his or her handwriting had changed over time.

131. Mr Zierholz ruled out the second possibility of disguise. He did not rule out the third possibility because he felt that he had insufficient material upon which he could do so.

Arrest and re-interview (ERISP) of appellant on 20 December 2013

132. On the morning of 20 December 2013, the appellant was arrested at his home on a charge of murder. He accompanied Detective Jones and other police to a police station. There he participated in an ERISP.

133. The recorded interview was played in the trial on 4 October 2016. The following is a summation of the evidence on the ERISP.

134. The appellant agreed that he owned a brown Holden Commodore in 1983.

135. He agreed that in 1983, he was a carpenter at Lane Cove River Park. He also agreed that on Friday, 23 September 1983 he finished work at about 4.30pm, went home, drank a few beers and watched television. From 7pm until midnight on Friday, 23 September 1983 he was at the Crows Nest Hotel drinking with friends.

136. He recalled going to the Alpine Inn at approximately 2.20am on Saturday, 24 September 1983. He had driven there and believed that he might have parked out the front of the wine bar. He estimated that he had consumed 20 to 30 schooners of beer before arriving at the Alpine Inn. He recalled talking to the deceased at the Alpine Inn and attempting to "pick her up".

137. He recalled the incident in which he had kicked open the door of the cubicle in the women's toilets and seeing the deceased inside. He recalled having described himself as a police officer or an airline pilot. He explained that he was in the habit of telling lies about his occupation in order to impress women.

138. He recalled the deceased telling him that she lived in Drummoyne and the fact that he had offered her a lift. His intention had been to take the deceased to his house and to have consensual sex with her.

139. When he drove away from the Alpine Inn he was drunk. After he drove the car around the corner, he pulled over and he and the deceased "fooled around". He could not recall whether they had had sexual intercourse. When he woke up in his car, the deceased was gone. Although he accepted that he had told police in 1983 that he had woken at approximately 5am, at the time of the ERISP he was not sure of the time.

140. After that, he drove to his flat in Chatswood, drank two beers and changed his clothes. He did not see either Ms Newhouse or Ross Adams when he returned home, which he thought was at about 5.10am.

141. He did not remember the time at which he arrived at the champagne breakfast but agreed with his 1983 statement that it would have been at about 7am. There he consumed a few beers and then went to sleep on the grass in the backyard. He agreed that he had woken up at about midday.

142. He recalled meeting Ms Andrews and having sexual intercourse with her on the Saturday evening.

143. On Monday, 26 September 1983 he went to work at Lane Cove River Park between 7.30am and 4.30pm. He washed the seat covers of his car that afternoon.

144. He agreed that he was arrested whilst driving his car on 29 September 1983. He recalled the police seizing his vehicle for a time and his vacuum cleaner. He also recalled giving a sample of his blood.

145. He could not recall how long Ms Newhouse lived with him. He denied that he would have washed the boot of his vehicle with water and rags.

146. He could not provide any explanation of why a hair of the deceased might have been in the boot of his car.

147. The interview concluded with the appellant informing the independent officer that he had no complaints about any aspect of it.

Tendency evidence

Andrea Hyde

148. As at early August 1975 Ms Hyde was a 28 year old single woman. She had been sharing a house with a Ms Peters for six months after having been divorced. She had also had an abortion in late July 1975 and was experiencing bleeding and pain as a result.

149. On a day which was close to the end of the week in the winter of 1975, and soon after the abortion had been performed, Ms Hyde met the appellant at a café near Circular Quay. The appellant told her that he was the foreman on a building site at Circular Quay and was a “Kiwi”.

150. Ms Hyde described the appellant as “A big bloke, probably six foot at least, he was about 28 years of age, he had sort of blondie/brown coloured hair, medium length and straight". She thought he had blue eyes, he appeared solid with a medium build and no distinguishing features or tattoos (T.598). After the two of them chatted for a period at the cafe, the appellant drove Ms Hyde back to her workplace. The car which he drove was an old Holden station wagon (T.598).

148. The next day as agreed, the appellant came by the workplace of Ms Hyde in his car. She finished work at 6pm. The general plan was that they would go out to dinner, perhaps to a Chinese restaurant on the north side of Sydney. The appellant arrived dressed in his work clothes and told Ms Hyde that he needed to change before they went out for a meal. He drove Ms Hyde to a suburb with very large houses and parked the car. He invited Ms Hyde inside his home – a small worker's cottage – for a cup of coffee.

149. When she entered the home, Ms Hyde had with her a leather handbag, a purse containing details of her identification and a pay envelope. She was wearing a T-shirt, a brown skirt, brown tights and brown leather shoes with small heels. She was also wearing Moroccan beads as a necklace and "baubly" earrings to match. She was wearing a pad because of the bleeding which she was experiencing due to her recent medical procedure.

150. While the appellant was getting a drink, he said something about sex, like "How about it?" She told him that she was bleeding. Shortly thereafter, the two of them were sitting on a lounge. The appellant groped her both inside and outside her clothing. She physically tried to stop him.

151. The appellant then picked her up and threw her onto his bed. She made it clear to him that she did not want to have sex with him by saying something like, "I don’t want to do this, you know, I'm not up for this".

152. The appellant placed both of his hands around her neck, and began strangling her, squeezing his hands to the extent that her ability to breathe was affected. Because she was being strangled, Ms Hyde said "OK, do it”. Her tights, underpants, pad and shoes were removed. She was forced to perform oral sex on the appellant. He placed his penis in the vicinity of her anus, but did not penetrate her in that way. At the time she was saying "No, please don’t" and the appellant stopped.

153. After that, the appellant had penile/vaginal intercourse with her. She said that he ejaculated inside her. After that came to an end, the appellant told her to go into the bathroom and wash herself. He unlocked the main front door of the cottage so she could do this. He went to the kitchen and got a face washer and gave it to her. Ms Hyde took the washer, went outside and ran from the house, leaving behind many of her personal items. After Ms Hyde fled she waved down a passing vehicle and the driver assisted her to notify the police.

154. In cross-examination Ms Hyde disagreed with the suggestion that she had consensual intercourse with the appellant that night. She disagreed with the proposition that he had not choked her.

155. The following additional evidence was given in relation to Ms Hyde.

156. At about 6.45pm on 4 August 1975 Antonia De Boer was driving from her home in Wollstonecraft with two children whom she was taking to a scout meeting at the Lavender Bay Scout Hall in McMahons Point. As she was about to turn left into Munro Street, she saw a woman she did not know (Ms Hyde) running towards her car. She was waving her arms and screaming.

157. Ms De Boer stopped the car and Ms Hyde opened one of the back doors and got in. Ms Hyde was distressed, crying and appeared to be in a state of shock. She spoke of a man having attacked and raped her and said “He tried to murder me”. Ms De Boer drove the four of them to the Scout Hall and introduced Ms Hyde to the Scout Master, Graeme Keed.

158. Mr Keed saw that Ms Hyde was not wearing her shoes, was shaking, half crying, very much distressed and appeared very frightened. She was not actually crying but trembling or physically shaking. He did not see any physical injury to her.

159. Shortly after that, Scout Group Leader, Henry Ball, arrived. Mr Ball saw that Ms Hyde was sobbing. Although her clothing appeared generally normal, he noticed that she was carrying her shoes. Mr Ball walked to a telephone box, but found that it was engaged. While waiting, he saw a Holden station wagon of a greyish colour with roof racks drive by; there was no dispute that it was the appellant’s car.

160. While walking back to the Scout Hall after telephoning the police, Mr Ball saw a man on the street. That man turned around and started to walk back down Mitchell Street in the direction of Munro Street. That man was the appellant. Mr Ball described him as being about six foot tall, slim build, with dark hair and a beard, dressed in shorts, what appeared to be a T-shirt and short socks and desert boots. Mr Ball then saw the appellant walk away.

161. When he came back to the Scout Hall, Mr Ball spoke to Ms Hyde. She said that her attacker had “raped and strangled” her and that he still had all her personal belongings: her diary, and her handbag. She asked him to go and attempt to get them back. She said three or four times that she had been “raped and strangled”.

162. Uniformed police, Constable Wayne Hill and Senior Constable Andrews arrived at the Scout Hall at about 7.20pm. They first spoke to Mr Ball and thereafter to Ms Hyde, who by that time was sitting in the back of a car. Constable Hill noticed that Ms Hyde was upset and sobbing. Senior Constable Andrews pointed out to Constable Hill the area of Ms Hyde's neck. Constable Hill noticed red marks on it. He described what he saw as a “general reddening of the area” (T.705-708; T.729-730).

163. The two uniformed officers went to the home of the appellant in Munro Street and knocked on the door but there was no answer.

164. At approximately 11.15pm Ms Hyde was in the company of Constable Diane Waring. Ms Hyde was crying off and on. She appeared upset and distressed. Constable Waring did not notice any injuries to her throat.

165. At about 8.30pm police forced entry into the appellant's home. He was not there. They took possession of two blankets. They also found an earring, which was in two pieces, in the fold of one of the blankets. The earring was shown to Ms Hyde at North Sydney Police Station and she said it was hers. Ms Hyde was then taken to Royal North Shore Hospital.

166. Detectives returned to the appellant's home and saw a station wagon with registration EFM 336 parked outside. The appellant was home. He asked them “What's the trouble?” Police informed him that they had received a complaint of rape. His response to that allegation was “I fucked her, but I didn’t rape her”. The appellant was informed of his rights. He told police that Ms Hyde had left a number of items in his home and that they were in his car. He removed a bag containing the items from the rear of his vehicle and provided them to the police.

167. At about 10.45pm Dr Jurgis Grudzinskas examined Ms Hyde at the hospital. He noted “No abnormalities on head or neck”, although he did note that the entrances of her vagina and anus were slightly excoriated. He also noted that Ms Hyde had an IUD contraceptive device in place. She told him that she had had a termination 10 days earlier. Swabs were taken from her vagina, her panties, her pantihose, the clothing of the appellant, the two blankets, and some other items of women's clothing.

168. Later that evening, Ms Hyde arrived home. Her flatmate, Ms Peters, was in the living room. Ms Peters noted that Ms Hyde's face was grey. Ms Hyde told her that she had been raped and that she had thought that she would be killed.

169. In a record of interview with police conducted at 3.20am on 5 August 1975 (Exhibit BBB), the appellant said that he and Ms Hyde had indeed engaged in sexual intercourse, but she had done so completely freely. There had been no complaint on her part at any stage, and she had said nothing then about having recently had an abortion. He said he had not picked her up or thrown her onto the bed. It was she who had removed her underpants before they had sex. After they had sex she said she had just had an abortion and she became “uptight”. She asked if she could have a shower. The appellant showed her where to go, to the outdoor bathroom. After 10 minutes or so he realised that she had disappeared. He agreed that she left behind at his home two bags, her coat, her pantihose, her underpants, and the (sanitary) pad.

170. The appellant said he walked and then drove around the neighbourhood looking for Ms Hyde but did not find her. He then went to his wife's home to pick up a sewing machine and then to his girlfriend's home to have a meal. On returning home, he found that someone had forced entry to his home, however, because nothing had been taken or damaged, he did not report that break-in to the police.

171. Ms Hyde gave evidence at the committal, at the end of which the appellant was committed to the Supreme Court for trial on a charge of rape. Subsequently, Ms Hyde left Sydney and travelled to Darwin in order to avoid giving evidence in the trial.

Ellen Moon

175. As at 30 May 1976, Ellen Moon was living on the Lower North Shore of Sydney. At about 8.15pm that day, she left an earlier social event to go to the Mosman Skiff Club at the Spit. She drank no alcohol while there. She danced with a man who introduced himself to her as Bob and who told her that he was from New Zealand and was a carpenter. She described him as being about 5 feet 11 inches tall, of medium build, olive complexion, with long straight hair that was brushed to one side, wearing a brown body shirt and dark pants with a light blue stripe. It was not disputed that it was the appellant.

176. The appellant spoke of the possibility of dinner and a cup of tea. Ms Moon declined the invitation and announced that she was leaving. The appellant offered to walk her to her car. Ms Moon said goodbye to her friends and the two of them left the club together. As they walked towards her car the appellant said that he wanted to get a jumper from his vehicle. They walked together to his car. Once there, the appellant asked Ms Moon more than once to sit in his car with him which she ultimately did.

177. The appellant asked Ms Moon whether she wanted to drive to a location where they could see a better view. She replied that there would not be much of a view at night. The appellant drove the car around to the other end of the car park.

178. The two of them sat in the car together for a period and kissed. When the appellant tried to undo the top of her jacket, she resisted. The appellant became aggressive. He said (referring to his penis) “If you don't touch me by the time I count to five, I will choke you and kill you”. Ms Moon did not comply. As a result the appellant placed his hand around her neck and pressed hard on her windpipe, with the result that Ms Moon was struggling to breathe. She became terrified that she would be murdered. She said "OK, OK” (T.720).

179. The appellant then took her hand and placed it on his penis on the outside of his pants. After that, he removed her shoes and jeans. Ms Moon resisted again. The appellant tightened his hold on her throat and said “Either fuck me now or I will fuck you when I kill you, and you won't be able to talk when you are dead, I will strangle you and throw you in the river”. Ms Moon, fearing death, did not struggle further. Thereafter they had intercourse, including ejaculation, without her consent.

180. Afterwards, the appellant said "I've done a terrible thing. Take me to the police station". He dressed and then slowly drove the two of them to Ms Moon's car. He let her leave in her own car and she drove home.

181. Ms Moon was living in a group house. Her flatmate, Ms Harridge, had been home for about 45 minutes when she saw Ms Moon walking toward the door. Ms Moon ran to Ms Harridge in tears. Ms Harridge noted that Ms Moon was “suffering from redness to the front of her throat. It extended from about the bottom of her throat to the top of her throat and all the front”. Ms Moon told Ms Harridge and another flatmate what had happened to her, and the police were contacted. Police later arrived at the house.

182. At 12.10am the next day, Constable Miller spoke to Ms Moon at her home. She was upset and he noted red marks around her neck. She was taken to Mosman Police Station.

183. At 12.30am, two female police officers met Ms Moon at Mosman Police Station. She was taken home again, where she changed out of the clothes she had been wearing and was thereafter conveyed to Royal North Shore Hospital for a medical examination. One of the police officers noticed red marks around Ms Moon's neck.

184. The examining doctor observed no injuries to Ms Moon's genitals but saw signs of recent intercourse. The doctor also noted reddening of the skin of her neck and lower jaw.

185. At 2.15am police went to the home of the appellant at Munro Street, North Sydney. There they saw a 1967 Holden Station Sedan, registration EFM 366, parked outside. The appellant identified himself to police and admitted that the car out the front of the house belonged to him. He was told an allegation of rape had been made against him and that he was going to be taken to the police station. He replied "Yes, but I want to get dressed first". After being cautioned that he was not obliged to say anything, the appellant identified the clothes and underwear that he had been wearing that night (which were in his bedroom). He agreed to accompany the police and handed his car keys to one of the officers, who drove his car to the police station.

186. Later, detectives asked the appellant whether he would show them where the offence had allegedly taken place. He agreed and told them it was “down at the Spit”. While at The Spit with detectives, he said "I must have been mad", "I need psychiatric help. I must be mad to do these things", "If I was of two minds, when I did these things, what do you think I would get?", and "I do need help".

187. The appellant pleaded guilty to the offence of rape, was convicted of that offence and was sentenced to a period of imprisonment.

Karen Brown

188. Karen Brown had moved to Sydney in 1977 or 1978 and was employed as a clerk at an office in North Sydney. She was sharing a home in Lane Cove with her friend Vicki Panton (nee Robinson).

189. One evening in late July or early August 1978, shortly after her twenty-first birthday, Ms Brown and a female friend went to a wine bar which was on the corner of the Pacific Highway and Miller Street in North Sydney. The venue was dark and crowded and a band was playing.

190. Shortly before closing time, Ms Brown was approached by a man who introduced himself as Bob. He had blue eyes, a moustache, his hair came just below his ears, he possessed a heavy-set build and was about six feet tall. She described him as wearing either a short-sleeved shirt or a long-sleeved shirt that was rolled up and blue jeans. He had a tattoo on his left arm.

191. Bob offered her a lift home and she accepted. His car, a white Holden 4-door sedan was parked about 50 metres down a side street from the bar. They walked to the car and got in.

192. He immediately drove off and took Ms Brown to a nature reserve located some 15 minutes from the bar. A single road led into the reserve. Ms Brown thought she could see the harbour from where the car stopped, but she could not see the Sydney Harbour Bridge. Bob parked the car on a strange angle on the grassed area of the reserve whereby the exit of Ms Brown from the car was blocked by a cliff or rocky outcrop. Ms Brown believed that she and Bob would have a “kiss and a cuddle” and thereafter he would drive her home and ask her out. Once he had parked the car at the reserve, he manually engaged all of the internal locks in the car. Then he suddenly reached over, forced himself on top of Ms Brown, removed her wrap-around skirt, pulled her underwear down, and had penile/vaginal intercourse with her without her consent.

193. Ms Brown was crying. The appellant had both of his hands around her neck and was squeezing her throat whilst he was having sexual intercourse with her. Although her airway was not sufficiently blocked for her to pass out, she was terrified.

194. Eventually, he ejaculated and the intercourse came to an end. The two of them sat in the car. Ms Brown wanted to flee, but felt that there was “nowhere to run”. They sat there silently for a time.

195. Eventually Bob drove out of the park. The car travelled somewhere near the Pacific Highway. Ms Brown recalls seeing yellow and green signs displaying the names of suburbs including Chatswood and Wahroonga. She saw the buildings of Knox Grammar and a hotel built of stone. Although the car stopped at various traffic lights, all of the internal doors were locked and Ms Brown was too terrified to try to escape.

196. They arrived at an older house that may have had a veranda. There were motorbikes near the house. Bob led Ms Brown into the house. They walked down a hallway and she had a vague recollection of seeing an unclean kitchen at the end of it. Bob took her to a bedroom, closed the door and locked it with a key. There was a dirty mattress on the floor.

197. Bob ordered Ms Brown to take her clothes off. She complied through terror. She laid down on the mattress, he got on top of her and they had penile/vaginal intercourse again without her consent. Ms Brown was crying and telling him to take her home as well as experiencing pain.

198. While she was being sexually assaulted, Ms Brown noted that Bob had coloured tattoos – one on his left arm and some on his back.

199. The sexual intercourse came to an end and Ms Brown lay very still. Thinking that he was asleep, she got up in an effort to escape. As soon as she did so, Bob got up, pushed her back onto the mattress and started to sexually assault her violently again. She pleaded with him to stop and to take her home. She was hysterical, crying and making a lot of noise. Bob refused to stop and was repeatedly yelling at her to “shut up” and “be quiet”.

200. Eventually the sexual assault came to an end. At some stage during the night, Ms Brown asked the man to let her out of the room so that she could use the toilet. He told her to “piss on the mattress” instead. Having no other option Ms Brown urinated on the mattress.

201. The next day, after daybreak, Bob's demeanour changed. He offered Ms Brown a lift home. She dressed and he drove her along the Pacific Highway. He told her not to tell anyone what he had done and specifically told her not to go to the police. Ms Brown asked him to drop her at a location near Chatswood that was in fact some distance from her home so that he would not know where she lived.

202. After she got out of the car Ms Brown walked behind it and noted its number plate. She then walked into a block of units and waited for the man to drive away. She then walked the rest of the way home.

203. When Ms Brown arrived home, her friend Ms Panton came into the room and Ms Brown told her what had happened. Vicki Panton gave evidence that Ms Brown appeared upset and told her that she had been raped. Ms Panton took Ms Brown to a friend, Jennifer Goss (nee Greenwood). Ms Goss noted that Ms Brown was “Distressed, teary, and traumatised”. Ms Goss gave evidence that Ms Brown told her that she had been raped. When Ms Goss suggested that the police be called, Ms Brown strongly rejected the idea and appeared to be frightened.

204. However, someone called the police and two officers arrived. Ms Brown told them some but not all of what had happened. They seemed to her to be uncaring and to blame her for what had occurred. She told the police that she did not wish to assist in an investigation.

205. On 21 November 2012, after reading a document that recounted something of the events involving the man Bob and Ms Brown in 1978, Detective Senior Constable Jones contacted Ms Brown. Ms Brown said that she was willing to provide a statement and did so on 15 January 2013. She also made a sketch of Bob's bedroom and a sketch of the nature reserve where they had parked.

206. On 15 January 2013, Ms Brown took part in a photo identification parade. She was shown 20 photographs of young men, each of whom had a full head of dark hair and a moustache. She chose two photographs as being “similar to” the man who had raped her. Of the two, she said that photograph number 7, which was the appellant, was more similar to the man than photograph 14.

350. The appellant submitted that his Honour’s approach to this question elevated the "primary position” i.e. innocent transfer to an admission of fact that the hair in the boot was the hair of the deceased.

351. The appellant submitted that this misunderstanding by his Honour led to a miscarriage of justice because his Honour proceeded to draw the inference of guilt from that supposedly admitted fact.

352. The appellant submitted that by resorting to this erroneous understanding of the submission by the appellant, his Honour sidestepped the consideration of four essential matters:

1. Whether the Crown had negatived the possibility of innocent transfer;

2. Whether the evidence of Ms Brooks should be accepted at all;

3. Whether the evidence of Ms Brooks was capable of giving rise to a conclusion that the hair belonged to the deceased; and

4. Whether the evidence of Dr Hartman was capable of giving rise to a conclusion that the hair belonged to the deceased.

Consideration

355. The appellant’s written submissions at trial were dated 26 October 2016. In that document, this issue was dealt with as follows:

“III. The scientific evidence

A.   The unresolved issue of transfer

60.   The Crown contends that the hair of Ms Wallace was found in the boot of the accused's vehicle. Presumably, the Crown asks the Court to draw the inference that the deceased's body was placed in the boot at some stage. However, it is submitted that the evidence suffers from a number of defects.

61.   Firstly, even assuming that the hair supposedly located in the boot is that of Ms Wallace, the Crown cannot exclude the possibility of transfer, as it must (compare Fitzgerald v The Queen (2014 88 ALJR 779). There is no dispute that Ms Wallace had been in the accused's vehicle. Moreover, on Ms Newhouse's evidence, the accused had apparently cleaned the passenger area of the vehicle before cleaning that boot. Transfer of the hair could have occurred during that process, and certainly that possibility could not be excluded.”

356. That written submission then set out at (62) relevant evidence from the trial regarding possible transfer and concluded as follows:

“62   It is submitted that the prosecution cannot exclude the possibility of transfer, and therefore, the Court could not possibly conclude that the hair was deposited in the boot because Ms Wallace's body had been placed in the boot. Therefore, it is sin (sic, in) actual fact unnecessary for the Court to consider the further arguments advanced below".

357. That disclaimer was sufficient for his Honour to approach the matter in the way in which he did. However, the issue was discussed further. At T.1086.27 – 1087.13 the following exchange took place:

“LANGE: ... there is a fundamental difficulty which the Crown faces right at the outset before one turns to the expert evidence. That is the question of transfer.

Even if one were to assume the hair located in the boot was that of Ms Wallace, in my submission, the Crown has not excluded the possibility of transfer as it must. There is no doubt that Ms Wallace had been in the accused's vehicle. There seems to be no question that the accused washed the car or cleaned the car in some way which involved also the cleaning of the seat covers upon which presumably Ms Wallace sat at some stage. It was therefore a possibility, I submit, that her hair became transferred on to the seat covers. In the cleaning process, it may well have been that the hair transferred to the boot.

…

HIS HONOUR: Your criticisms of the DNA and the hair analysis are ancillary in that your starting position is to say it could be Ms Wallace's hair or hairs in the boot but there were also animal hairs in there, and there were other human hairs in there it seems, and because of the possibility of transfer from the front seat to the boot, it has no probative value. That is it in a nutshell?

LANGE: And your Honour does not need to proceed further with the strength of the scientific evidence, that is so. But, of course, I have still dealt with the other scientific evidence lest your Honour finds that possibility has been pursued by the Crown which, in my submission, it has not.”

358. Thereafter, the appellant’s submissions, both in writing and orally, addressed what he identified as the “many deficiencies in the scientific evidence”.

359. It should also be noted that his Honour was well aware of the deficiencies in the scientific evidence and specifically referred to those relating to Ms Brooks at [434] – [439] and concluded that they had “considerable force”. His Honour set out his conclusion as follows in R v Adams (No 6):

“443   As can be seen from the above, in short I accept some but not all of the criticisms that defence counsel has made of the examination of the hairs by Ms Brooks. But the primary position of defence counsel was that the hairs said to have been taken from the boot could indeed be hairs of the deceased. In other words, the primary position of defence counsel was not that the analyst was mistaken, or mixed up, or unconsciously biased, in expressing the opinion that the hairs from the boot were identical to the hairs from the hairbrush. I repeat: his primary position was that the hairs from the boot are indeed the hairs of the deceased.

444   The simple explanation for that was said to be entirely innocent secondary transfer. …

445   It is perfectly true that the fall back position of defence counsel was that the analysis of Ms Brooks (and indeed of the mtDNA analyst, Dr Hartman) should be discounted for a large number of reasons. But I think that, as the tribunal of fact, I am entitled to analyse the evidence on the primary position of defence counsel.

446   To summarise my discussion of the scientific evidence so far: it was not effectually disputed by defence counsel that the hairs analysed by Ms Brooks came from the boot of the vehicle of the accused; it was not disputed that the accused was using a hose on his boot within 48 hours after the deceased was last seen alive by any other person; and it was not disputed that the hairs analysed by Ms Brooks and Dr Hartman could be from the head of the deceased.”

360. His Honour analysed the evidence of Dr Hartman and the criticisms of it at [447] – [448]. His Honour set out his conclusion as follows:

“449   There is some force in that, as there is in his other criticisms of the mtDNA evidence. But, again, I understood them to be ancillary positions adopted by defence counsel. As I have said, the primary position was that the hairs taken from the boot could indeed be those of the deceased, but they ended up there by way of entirely innocent and commonplace secondary transfer.

450   Again, I believe that I am entitled to take the primary position of defence counsel at face value, and to factor it into my reasoning.”

361. What his Honour did was to accept the invitation of defence counsel and focus primarily on the primary position adopted by the defence, i.e. that the Crown had not excluded the possibility that the hair in the boot, if it belonged to the deceased, got there by way of innocent transfer.

362. This ground of appeal has not been made out.

Ground 8: The verdict was unreasonable within the meaning of s 6(1) Criminal Appeal Act.

Ground 9: His Honour failed to exclude reasonable alternative hypotheses inconsistent with the appellant's guilt and therefore did not comply with the requirements of s 133(2) Criminal Procedure Act.

363. The appellant submitted that the verdict of the trial judge was unreasonable within the meaning of s 6(1) Criminal Appeal Act having regard to the evidence on a number of bases. Alternatively, he submitted that his Honour failed to give reasons why other reasonable hypotheses inconsistent with the appellant’s guilt had been excluded by the evidence. The appellant submitted that his Honour was accordingly in breach of the requirements of s 133 of the Criminal Procedure Act.

364. In support of that overall submission, the appellant relied upon three categories which he described as “the elements category”, “the tendency incidents category” and “the tendency reasoning category”.

The Elements Category

365. In this category the appellant relied upon the evidence (or lack thereof) going to three elements of the charge, namely:

1. That the deceased did not consent, or would not have consented, to any sexual intercourse that occurred or was to occur between the deceased and the appellant;

2. That the appellant knew that the deceased was not consenting, or would not consent to, any sexual intercourse that occurred, or was to occur, between the deceased and the appellant; or

3. That the appellant did an act that caused the death of the deceased or that the appellant choked, suffocated or strangled the deceased.

366. The appellant submitted that his Honour’s verdict could not be supported because:

1. There was no evidence that any sexual intercourse between the appellant and the deceased which took place, or was to take place, was non-consensual. All of the evidence that could shed light upon that question pointed to the contrary.

2. There was no evidence that the appellant knew that any sexual intercourse was not being consented to, or would not be consented to.

3. The only evidence that the accused attempted to "choke, suffocate or strangle the deceased" was evidence of the tendency. There was no evidence to support any finding that the occasion arose in the appellant's dealings with the deceased for that tendency to manifest itself.

367. The appellant submitted that the unstated premise of the tendency was that it manifested itself when there was a need to compel a victim to engage in sexual intercourse. The appellant submitted that to find that the need for that tendency to manifest itself with the deceased on this night was unreasonable.

368. The appellant submitted that the fact that he had a particular tendency was of no significance unless the occasion arose for that tendency to manifest itself and had that occurred, it was more probable than not that he strangled the deceased and thereby killed her.

369. The appellant submitted that in order to establish that the tendency manifested itself, it was necessary for the Crown to show that there was a need to force sexual intercourse because the deceased did not acquiesce or that he went further than the evidence ever indicated that he had gone, i.e. to continue strangling the deceased notwithstanding her acquiescence. The appellant submitted that there was no evidence of a need to force sexual intercourse and there was no evidence of lack of consent.

370. The appellant submitted that it remained a reasonably available inference that the deceased did consent to a sexual interaction of some nature. Alternatively, the deceased may have been so intoxicated that she was simply incapable of resisting any sexual advances by the accused. The appellant submitted that in either circumstance, there was no need for the strangulation part of the tendency to manifest itself. The appellant submitted that absent proof of lack of consent the Crown could not establish that he acted upon any tendency which might be proved and therefore the case against him must fail.

371. The appellant submitted that the Crown did not lead any evidence sufficient to demonstrate that the deceased did not consent to any sexual intercourse with him. The appellant submitted that the only evidence from which any inference about consent could be drawn supported the suggestion that intercourse was consensual.

1. The appellant told the police that it was consensual.

2. The deceased told Ms Williams that she wanted to go home with the appellant.

3. The deceased opted to go home with the appellant rather than with her friend Mr Rabsch.

4. The deceased was looking for a relationship at that time.

5. The deceased was described variously by her friends as a “fun party girl” and a "wild child” (T.26.49 – 27.1).

6. When asked whether “It would be right to say that [the deceased] would meet men and have flings with them sometimes?” Ms Biddle-Broadfoot replied “Yes, that probably is right” (T69.30 – 32).

372. The appellant submitted that at no stage in the conviction judgment did his Honour address the arguments put on his behalf that the Crown could not prove beyond reasonable doubt that he had acted upon some tendency.

373. The appellant submitted that there was no evidence to support the suggestion that any strangulation led to the deceased’s death.

374. The appellant submitted that even assuming that a conclusion that the deceased was not consenting was available on the evidence, the final condition of the asserted tendency was that he would stop strangling a woman if she acquiesced to sexual intercourse. Accordingly, the Crown needed to show that the deceased either did not acquiesce to that sexual intercourse such that he choked her to death or, alternatively, that the deceased acquiesced but he continued to strangle her to death nonetheless.

375. The appellant submitted that there was no evidence in the trial which was capable of suggesting that he would have continued to strangle the deceased, notwithstanding her acquiescence. The only evidence on this point was that relating to Ms Moon, Ms Hyde and Ms Brown which was all indicative of him ceasing strangulation if the woman in question acquiesced (save for the evidence of Ms Brown).

376. The appellant submitted that on this issue, the evidence was all one way and that the trial judge could not, had he directed himself to the actual tendencies relied upon by the Crown, have been satisfied that the occasion for the tendencies to manifest arose in the course of his dealings with the deceased. The appellant submitted that his Honour made no finding of fact which supported his ultimate conclusion that he choked or strangled the deceased with the intention of having sexual intercourse with her without her consent.

377. The appellant submitted that as a result of the above analysis:

1. His Honour could not safely have concluded that any tendency to strangle manifested itself in his dealings with the deceased;

2. His Honour could not safely have concluded that any sexual intercourse between him and the deceased was, or would have been, non-consensual.

Tendency incidents category

378. The appellant’s submissions under this heading analysed in detail the factual matters relating to the evidence of Ms Hyde and Ms Brown to the effect that it was not open on the evidence for his Honour to accept their version of events and to find beyond reasonable doubt that their evidence supported the relevant tendencies.

379. In relation to Ms Hyde, the appellant set out a number of inconsistencies in her evidence, the effect of which was to render it unsafe so that his Honour could not accept it.

380. In relation to Ms Brown, the appellant referred to the “impermissible tendency reasoning” relied upon by his Honour which was the subject of earlier grounds of appeal and need not be repeated here. The appellant also relied upon an overall absence of evidence to establish that although the events as described by Ms Brown occurred, he was the perpetrator.

381. On that issue, the appellant listed the relevant evidence and offered reasons why, absent the “impermissible tendency reasoning”, it was insufficient to establish beyond reasonable doubt that he was the perpetrator. The appellant set out the available evidence as follows:

1. The man who approached Ms Brown in the bar generally fitted his description;

2. Her assertion in 2013 that the photograph of him shown to her in the array was “similar” to her assailant;

3. The man introduced himself as “Bob”.

4. The perpetrator drove to the northern suburbs of Sydney and in particular into the suburb of Wahroonga where he lived at about that time.

5. The man took Ms Brown originally to a waterside reserve in the lower northern suburbs (it not being disputed that at about this time the appellant was employed at the Lane Cove River Park).

6. Ms Brown spoke of there being tattoos to much, if not all, of the back of the perpetrator (it not being in dispute that he had a large tattoo of an eagle on his back which had been there for many years).

7. Ms Brown memorised two variants of a number plate that matched the number plate recorded as having been that of a car owned by him.

382. The appellant submitted that all of that evidence was significantly qualified. It lacked precision. It did not take into account that Ms Brown said that the perpetrator had a tattoo on his arm which he did not have. The appellant noted that there were problems with the admissibility of the number plate evidence in Exhibit 4B, which had already been alluded to in another ground of appeal. The appellant submitted that leaving aside the advantage which his Honour had in seeing the witnesses give their evidence, the absence of a tattoo on his left arm should have been decisive in causing his Honour to exclude the possibility that the appellant was Ms Brown’s assailant.

383. In conclusion, the appellant submitted that the evidence relating to the tendency incidents involving Ms Hyde and Ms Brown was so lacking in probative value that it could not have been safely concluded beyond reasonable doubt that the tendency incidents relied upon occurred and that he possessed any tendency as asserted by the Crown. The appellant submitted without both of those matters being established, he could not have been found guilty beyond reasonable doubt.

Tendency reasoning category

384. The appellant submitted that the evidence as to the events which followed the appellant's dealings with the deceased painted a picture which was bizarre and, having regard to one's understanding of ordinary human behaviour, wildly out of step with the norm. The appellant submitted that had he killed the deceased, his actions in relation to the car and other matters attributed to him were so brazen as to be highly improbable.

385. The appellant submitted that other than the inferences drawn from his demeanour in the ERISP, his Honour rejected his submissions solely by reference to the evidence led in support of the tendencies asserted by the Crown.

386. The appellant submitted that while it was permissible for the Crown to lead evidence of a tendency to have a particular state of mind under s 97(1) of the Act, the only tendency to have a particular state of mind notified to him in the tendency notice was:

“His tendency to have a particular state of mind, namely to become violent including to the point of strangling a women [sic] if his sexual advances were turned down.”

387. In the absence of notice being given about a different asserted tendency, his Honour was not permitted to use the tendency in such a way – notwithstanding the fact that it may have been admissible for another purpose (s  95 of the Act).

The failure to exclude alternative hypotheses inconsistent with the appellant’s guilt

388. The appellant submitted that to enable his Honour to be satisfied beyond reasonable doubt of his guilt, it was necessary not only that his guilt should be a rational inference but it should be “the only rational inference that the circumstances would enable him to draw” (Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104).

389. The appellant submitted that his position has always been clear. He left the Alpine Inn with the deceased, they had some form of sexual contact in his car, he fell asleep and when he awoke she was gone. He then went to a champagne breakfast where he was sighted by a number of people from as early as 6.30am. The appellant submitted that the rational alternative hypothesis available in this case was that the deceased did in fact leave the car and some misfortune befell her. He submitted that the Crown had not excluded this possibility as it was obliged to do.

390. The appellant submitted that there was nothing “fanciful” about this, nor was this a case where the available hypotheses consistent with innocence “may cease to be rational or reasonable in the absence of evidence to support them (because) that evidence if it existed at all must be within the knowledge of the accused (The Queen v Baden-Clay at [50]). Evidence of the appellant's account was before the Court and, as such, the availability of that alternative hypothesis was not based upon mere conjecture.

388. The appellant submitted that the reasoning of his Honour at [474] – [490] was erroneous. It evidenced no consideration of the version of events that had been maintained by him over 30 years and which was consistent with his innocence. The voluntary exodus of the deceased from the car and the meeting of her fate other than at his hands had not been excluded by the Crown. It was not for him to posit what may have happened to her in the early hours of 24 September 1983 or subsequently.

Consideration

392. The relevant principles in relation to an unreasonable verdict in a judge alone trial were recently restated in Thornton v R by Ward JA as follows:

“204   In Filippou v The Queen, the majority (French CJ, Bell, Keane and Nettle JJ) made clear (at [11]-[12]) that the finding of guilt in a judge alone trial is to be treated as if it were a jury’s finding of guilt. In the absence of a misdirection leading to a miscarriage of justice, such a finding is not to be disturbed unless, relevantly, there is no or insufficient evidence to support the finding, or the evidence is all one way or the finding is otherwise unreasonable. This Court has applied this principle recently in Parton v R [2016] NSWCCA 291.

205   In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, the High Court (going on to recognise (at 494) that a doubt experienced by an appellate court, making full allowance for the advantage enjoyed by the trial judge, will be a doubt which the trial judge ought to have experienced) said that:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted)

206   In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) said (at [113]):

It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt. (Footnotes omitted)

207   In Filippou, at [12], the plurality adopted and adapted the following from M v The Queen:

“It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may …conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

393. As R A Hulme J observed in Atai v R [2014] NSWCCA 210 at [134], the assessment of the credibility and reliability of the evidence of witnesses is quintessentially one for a jury (or in this case the trial judge) to determine. In a case such as this where the appellant attacked the credibility of witnesses, this Court must be acutely conscious of his Honour’s advantage.

394. In relation to Ground 9, his Honour was clearly aware of his obligation as the tribunal of fact in relation to rational hypotheses consistent with innocence. In that regard, his Honour gave himself the following direction in the principal judgment at [336]:

“336   Fifthly, bearing in mind that the Crown case is a circumstantial one, before I could return a verdict of guilty of murder, I would need to be satisfied beyond reasonable doubt that no rational hypothesis, other than guilt of the offence charged, is available on the facts that I find to be established (Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44; Peacock v The King (1911) 13 CLR 619; [1911] HCA 66).”

Moreover, his Honour dealt with each of the suggested rational hypotheses consistent with innocence and rejected them (see [243 – [247] hereof).

395. It is noteworthy that in his submissions, the hypothesis relied upon by the appellant was not one of those rejected by his Honour in the principal judgment but is the version of events which he gave in 1983 and repeated in his ERISP. The whole of the Crown case was in effect directed at establishing the guilt of the appellant and implicitly therefore negativing his version of events. The question raised by this ground of appeal is simply another way of asserting the issues raised by Ground 8, i.e. that the verdict was unreasonable. His Honour’s concluding summary at [491] – [492] of the principal judgment (see [249] hereof) is a sufficient answer to Ground 9, subject of course to those conclusions being available on the evidence.

396. In relation to the first of the appellant’s categories (the elements category), the submission is that there was insufficient evidence to prove lack of consent, knowledge of lack of consent and an act of the appellant causing death. When considering that issue, it needs to be kept in mind that in a circumstantial case inferences can be drawn regarding matters which are not the subject of direct evidence, and that one looks at the total effect of the evidence, not individual parts in isolation.

397. The difficulty with the appellant’s submissions under this heading are that they substantially disregard the effect of the tendency evidence. Moreover, they do not accurately describe the other evidence which was available. The evidence in support of the relevant tendencies included in the case of each of the tendency witnesses a sudden change in personality from being a caring person to one who was aggressive and dominating. Consistent with the tendencies identified by the Crown, that may well have occurred between the appellant and the deceased after they left the Alpine Inn. Moreover, the deceased’s apparent advanced state of intoxication may have caused her to behave in an irrational or violent manner. This is particularly so in circumstances where she said she had already been assaulted on that night. In any event, the only direct evidence on the issue is that of the appellant which was directly under challenge in the Crown case.

398. That there was no evidence to support a finding that the opportunity arose in the appellant’s dealing with the deceased for a tendency to choke or strangle to manifest itself is contrary to the weight of evidence once the relevant tendency is accepted. The totality of the circumstances leading up to the deceased leaving the Alpine Inn with the appellant in the early hours of the morning, and the fact that she was never seen again, was sufficient evidence upon which to draw inferences that an altercation involving sexual intercourse arose leading to the appellant attempting to choke, suffocate or strangle the deceased.

399. When considering the circumstances surrounding the departure of the appellant with the deceased from the Alpine Inn, it is not without significance that the appellant told a number of lies. He said he was a policeman and therefore safe to drive the deceased. He said he lived at Drummoyne, which was where the deceased lived, which was also a lie. He told Mr Liney that he was not able to give him a lift to River Road, Wollstonecraft which would have been on his way had he in fact been heading towards Drummoyne. In all the circumstances, it was well open to his Honour to find that the appellant was determined to get the deceased into his car and that he lied to her friends about his occupation and about where he was taking her, making out that he had her welfare in mind.

400. The appellant’s challenge to various factual elements in the evidence of Ms Hyde and Ms Brown disregards the position of advantage that his Honour held as the tribunal of fact. His Honour accepted that there were some problems with their evidence, but took into account that they were recounting events which had occurred some 40 years before. As his Honour appropriately observed, it would have been very odd if there had not been some inconsistencies or a lack of recollection of some aspects. It was open to his Honour to accept their evidence and to find beyond reasonable doubt that the incidents described by them occurred.

401. When setting out the evidence in relation to Ground 8, the appellant has undervalued, or entirely disregarded, the tendency evidence. Implicit in that approach was an assumption that the tendency evidence, particularly that of Ms Moon, could not be used when considering the evidence of Ms Hyde and Ms Brown and when determining whether the relevant tendencies had been established. That has already been dealt with in this judgment. When one has regard to the effect of that tendency evidence, it significantly undercuts the evidentiary challenge made by the appellant to his Honour’s fact finding, in particular, his Honour’s fact finding concerning Ms Hyde and Ms Brown. Accordingly, it was well open to his Honour to be satisfied as to those matters beyond reasonable doubt.

402. As has been set out earlier in this judgment, his Honour outlined clearly (at [361] – [423] of the principal judgment) his reasoning leading to a verdict of guilty, in particular, the inferences which he could draw. That reasoning did depend very much upon the tendency evidence. If his Honour’s use of the tendency evidence in this way was appropriate and open to him (as I have found in relation to Grounds 1 – 5) then nothing put in the appellant’s submissions in relation to Ground 8 has invalidated his Honour’s reasoning process.

403. His Honour dealt with the “irregularity” of the appellant’s conduct on the weekend of 24 – 25 September 1983 and the evidence in relation thereto was closely examined. Specifically, his Honour rejected a considerable portion of that evidence, in particular, that of Ms Newhouse, Ms Andrews and Mr Adams. Nevertheless, it was well open to his Honour to conclude, as he did at [468] of the principal judgment:

“468   Finally, it is true that, if the interaction between the accused, the hose, and the boot was done with consciousness of guilt, it was done with remarkable brazenness. The inevitable reply to that submission is that, throughout the 1970s, the accused has brazenly raped and strangled three separate women, using his own name, his own vehicle, his own home, and eschewing the use of any disguise.”

Conclusion

404. The orders which I propose are that leave to appeal in relation to Grounds 1 and 3 should be refused and that the remaining Grounds of Appeal be dismissed.

405. R A HULME J: None of the asserted errors raised by the various grounds of appeal have been made good and I am satisfied upon my own assessment of the evidence that it was open to Button J to return a verdict of guilty.  I respectfully agree with the reasons of Hoeben CJ at CL and have nothing to add.

406. WILSON J: I agree with Hoeben CJ at CL.

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Amendments

04 September 2017 - [272] - Typographical error in quote at [40].

Decision last updated: 04 September 2017