Director of Public Prosecutions v Barry

[2023] VCC 1908

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02600

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT BARRY

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JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023 - 11 August 2023
DATE OF RULING:	5 September 2023
CASE MAY BE CITED AS:	DPP v Barry
MEDIUM NEUTRAL CITATION:	[2023] VCC 1908

VERDICT
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Subject:Judge alone trial.

Catchwords:              Historical charges – burglary and rape x 3; DNA evidence; possibility of contamination; circumstantial evidence.

Legislation Cited:      

Cases Cited:

Ruling:  Not guilty on all charges. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Victoria Legal Aid

Introduction

1.The accused is charged on Indictment K12134653B with one count of burglary and three counts of rape. The real issue in dispute in this trial is the identity of the offender. 

2.The charges arise from alleged events on Saturday 27 October 1984.  The prosecution allege that between midnight and 5am, Rosalyn Wood[1], known then as Rosalyn Dietrich[2], was at home alone in her house at Traralgon.  She was 16 years of age at the time.  A man who was unknown to Ms Wood attended at the property.  After turning off the power, the man entered the house through the bathroom window and then went into her bedroom, where it was completely dark.  Ms Wood woke up and the man jumped onto her and threatened her.  He then raped her by forcing his penis into her vagina, before forcefully placing it into her mouth, and then raping her again by forcing his penis back into her vagina.  After ripping the phone cord from the wall and again threatening Ms Wood he left her home.  The prosecution allege that this man was the accused. The accused, known then as Robert Johnson, was born in May 1962 and was 22 years of age at the time of the alleged offending and lived in Traralgon.

[1] A pseudonym.

[2] A pseudonym.

3.The matter was investigated and clothing and a number of other exhibits were seized by police, including, most relevantly in this trial, Ms Wood’s bedsheets.  These items were later conveyed to the State Forensic Science Laboratory (SFSL), known now as the Victoria Police Forensic Services Centre (VPFSC). In the months after October 1984 the seized exhibits  were  examined and placed into a freezer for storage.  On 20 November 2012 a forensic officer retrieved the samples from the freezer for DNA analysis.  The item was examined by Kate Outteridge, an expert biologist at the VPFSC. The analysis revealed that the DNA profile of the sample swab taken from a piece of white fabric, from Ms Wood’s bedsheet (sample 9A-1), was a mixed DNA profile from two contributors. Analysis revealed that the accused could not be excluded as a contributor from the mixed DNA profile and that it was 5.5 billion times more likely that he was the source of the DNA. 

4.The DNA evidence is critical in this case.  Relying upon it, the prosecution allege that the evidence proves beyond reasonable doubt that the accused committed the offences and that all other reasonable explanations for the DNA results can be excluded. 

5.The defence submit that this trial is all about contamination and the possibilities, as they emerge on the evidence, of this having occurred.  As will become apparent shortly, there were other items, unrelated to this case, alleged to have contained the accused man’s DNA, that were stored at the same police station and then taken to the SFSL at a similar period in time. On 25 August 1984 offences were allegedly committed against Molly Furrow[3] in Traralgon.  On 27 August 1984 and 21 September 1984 items in this case were taken from the Morwell police station to SFSL for examination[4].   

[3] A pseudonym.

[4] It was accepted by the parties that the accused’s DNA was on items seized upon investigation of a rape involving complainant Molly Furrow.

6.The prosecution case closed on 10 August 2023.  The defence called no evidence.  Addresses of Counsel proceeded on 11 August 2023.  I reserved my decision indicating that I would deliver verdicts and give reasons as soon as possible.  These are my reasons for the verdict I will announce.  

7.The application for judge alone trial was granted on 29 November 2022.  In hearing this matter without a jury, I may make any decision that could have been made by a jury. My decision will have, for all purposes, the same effect as the verdict of a jury.

8.A judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied.[5]

[5] Criminal Procedure Act. See also Douglass v R (2012) 290 ALR 699, 702; AK v Western Australia (2008) 232 CLR 438 at [107] per Heydon J.

9.As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. I must then deliver my verdict according to the evidence.

Directions

10.In accordance with Part 7 of the Judy Directions Act and the High Court’s decisions supporting the approach to set out the directions,[6] I direct myself in accordance with the general directions, including those mentioned below.  Also, there were a number of directions that were sought by the parties pursuant to various provisions of the Act that relate to the particular circumstances of this case. 

[6] Douglass v R (2012) 290 ALR 699 and AK v Western Australia (2008) 232 CLR 438.

11.The prosecution bear the onus of proving the guilt of the accused at all times. The accused does not have to prove anything and it is not for him to demonstrate his innocence. He is presumed innocent, unless and until proven guilty.

12.The prosecution must prove the accused guilt of the charges beyond reasonable doubt.  It is not enough for the prosecution to prove that the accused is probably guilty, or very likely to be guilty.  I cannot be satisfied that the accused is guilty if I have a reasonable doubt about whether he is guilty.  In deciding whether the prosecution has proven its case to this standard, I am mindful that it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so.  A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility.    

13.I must decide the case solely on the evidence I have seen and heard in this trial; that is what the witnesses have said under oath or affirmation in answer to questions and the exhibits that have been produced (Exhibits A-M). I caution myself in respect of the importance of deciding the case solely on the evidence and not on any outside information. 

14.To decide what the facts are in this case, I will need to assess the witnesses who give evidence and assess their credibility and reliability. I may believe all, some or none of a witness’s evidence and it is for me to decide what weight should be attached to any particular evidence.

15.In this trial I have been aided by provision of the transcript of the hearing.  As to the transcript, I direct that it is an aide but does not constitute the evidence itself.  Also, alternative arrangements for the giving of evidence were made in relation to several witnesses, including Ms Wood.  I direct myself that this is a routine practice and I will not draw any inference because of the use of such arrangements.  

16.In this case, there are four charges.  Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, ‘am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?’

17.The accused did not give evidence in the trial. He has a right to silence and I cannot draw any adverse inference from the fact, nor use it as an admission or to fill in any gaps in the evidence. It proves nothing at all.  

18.The prosecution’s case against the accused is entirely circumstantial. As such, the prosecution relies on evidence of circumstances, not as proving a fact directly, but as pointing to the existence of a fact. The prosecution asks me to draw inferences from those facts.  I direct myself that I must take care when drawing conclusions from indirect evidence.  I should consider all of the evidence in the case, and only draw reasonable conclusions based on the evidence that I accept.  I must not guess.  In determining whether a conclusion is reasonable, I must look at all the evidence together. I must take care not to jump to conclusions. Inferences are logical deductions or conclusions from facts.

19.In this case, I cannot return a verdict of guilty unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. That is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence. An alternative hypothesis does not have to be ‘equally open’ or ‘equally compelling’ in order to give rise to a reasonable doubt as to guilt. Such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence. 

20.A hypothesis must be ‘reasonable.’  A ‘reasonable hypothesis’ must possess some degree of acceptability or credibility.  A hypothesis will not be reasonable if it is fanciful, impossible, incredible, not tenable or too remote or tenuous.  For an inference to be reasonable, it must rely upon something more than mere conjecture.[7] 

[7] The Queen v Baden-Clay (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [14]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18].

21.I can only convict the accused if satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect.

22.As already noted, Ms Outteridge gave evidence in this matter.  She is currently a senior case manager within the Biological Sciences Group at the VPFSC and has worked there for some 13 years. She is responsible for directing the examination of items for biological material and for interpreting the DNA results from the samples and providing a report of the results to the Courts. She conducted an analysis and produced results in relation to items associated with the cases of Rosalyn Wood (case number 2160/845) and Molly Furrow (case numbers 1029/845 and 1467/845).  In particular, she gave evidence of the results of sample 9A-1, the piece of fabric from Ms Wood’s bedsheet. It was a mixed DNA profile of at least two contributors and the statistical weighting was that the DNA evidence was 5.5 billion times more likely if the accused was a contributor.[8] She also gave evidence of her opinion as to the likelihood of contamination in a variety of circumstances. I will return to her evidence shortly.  I direct myself that, as the judge of the facts, I am not required to accept her opinion/s. In assessing her opinions I have considered, in particular, her qualifications and experience. I have also taken into account that her evidence itself was not challenged, nor was her expertise. 

[8] Exhibit F

23.Even if I accept Ms Outteridge’s evidence as to the DNA results, that does not necessarily mean that the accused must be guilty of the offences charged.  It is just one piece of circumstantial evidence and must be considered in light of the other evidence in the case.  DNA evidence itself does not prove who committed an offence.  In this trial, it is not in dispute that, given the statistic weighting, in all likelihood, the DNA found in the analysis of 2012 was the accused mans. The central issue in this case concerns the possibility of contamination. The defence has argued that even if it is accepted that the accused man’s DNA was on the bedsheet that does not prove that he committed the crimes.  Ms Outteridge could not give evidence as to how, when or in what circumstances the DNA was deposited.

24.The alleged offences were committed on 27 October 1984.  The informant, Detective Langan gave evidence that on 18 May 2016 the accused was nominated as a potential suspect.  A sample was taken from him and handed to Forensics VPFSC on 19 October 2016.  There has therefore been a delay between offending and charge of at least 32 years. 

25.I direct myself as to the significant consequence of this delay and as to the impact of this delay on Mr Barry’s ability to defend himself against the charges. 

26.In assessing the evidence in this case, I have had regard to the following significant considerations.  Because of this delay:

a)    Mr Barry has lost the opportunity to present a positive defence case, such as exploring if he’d had contact with Ms Wood, proximate in time to the offending, in the local area or whether he’d attended at the Morwell Police Station in the days leading up to Ms Wood’s exhibits being located at the station. 

b)    He has lost the opportunity, given the passage of decades, to run or explore an alibi, in circumstances where the offending is capable of being identified in time. 

c)    He has lost a proper opportunity to explore the circumstances around the investigation of this matter and the handling of various exhibits.  The majority of notes from the original investigation files no longer exist.  As the informant stated in evidence ‘sometimes there’s no record in relation to what happened to the records’. Also, a number of witnesses have since passed away, including detective sergeant Bruce Hirst, who conveyed both the Furrow and Wood exhibits to SFSL in 1984.

27.I take into account this significant forensic disadvantage in my evaluation of the evidence. I need to scrutinise the evidence with great care and I will take these disadvantages into consideration when determining whether the prosecution has proved Mr Barry’s guilt beyond reasonable doubt.

The elements of the charges

28.In this particular case there is little, if any, dispute as to the elements of the offences. The central issue in dispute is whether the prosecution can prove beyond reasonable doubt that it is the accused man who committed the offences.

29.In brief, the elements of rape for an offence committed in 1984, are that a person intentionally sexually penetrates another person, without their consent, while being aware that the person was not consenting or might not be consenting. A person commits a burglary if they enter a building (or part of) as a trespasser with the intention, as particularised in this case, to assault a person therein.  

The evidence in the trial

30.The evidence led in the trial by the prosecution can be seen to fall into the following categories: (i) evidence as to the alleged offending itself; (ii) the police investigation and processes in collecting and handling exhibits; (iii) the SFSL handling, collection and testing of the exhibits; and (iv) the DNA assessment and results.  I propose to deal with the evidence in these categories. 

The alleged offending

31.Ms Wood gave evidence that she was 16 years of age at the time, living with her mother.[9] She also worked full time at the Coles in Traralgon. On the night in question, her mother was at her friend’s house and her friend Jodie[10] had come over.  Ms Wood later went to bed and awoke upon hearing a noise.  She got up to find out what the noise was.  Her bed was against the wall and she was sitting on the side ‘where you get out’ when a man jumped on her, pushed her down and threatened her. She was positioned on her back. He then put his penis inside her vagina and then her mouth and then back into her vagina. She couldn’t remember what she was wearing but had underpants on and a sanitary pad, as she had her period.  The incident ended with him pulling her back up off the bed and asking where the telephone was.  The entire incident lasted about half an hour to an hour.  She did not recognise the person or his voice.  He had a horrible mechanic smell like petrol and he was taller than her and felt big and strong.

[9] Transcript, 8/08/23; see also Exhibit C – diagram of the house drawn by her on 31/5/2016

[10] A pseudonym.

32.After he left, she ran across the road to her friend Jodie’s house and yelled to be let in. Jodie’s parents called her mum and she told Jodie what had happened.  Her mum came and the police were called and she went to the hospital to have a medical examination. She went to the police station the next day and then returned to her mum’s friend’s house. 

33.In relation to her bedsheets, she gave evidence that she had sheets and a doona and that every Sunday her mother would change the sheets and wash them in the washing machine in the laundry.  She would then hang them out to dry on the clothesline which was in the middle of the backyard.  Around this time in 1984 a number of people used to visit her home including her friend Jodie, her brother, her sister and her dad. Nobody had been in her bed in the week leading up to the incident.  After the incident a few days passed before she returned home and when she did, she noticed that her bedsheets had been stripped from her bed. 

34.Ms Wood also gave evidence of an incident happening a couple of months after the rape when she opened the front door, the lights went out and she was punched and she started screaming.  She didn’t see the person involved in this incident. 

In considering Ms Wood’s evidence, I have borne in mind that experience shows that some people may show obvious signs of distress when giving evidence about an alleged sexual offence, while others may not.

35.Jodie Douglas confirmed that in 1984 she lived nearby to Rosalyn Wood in Traralgon and that at the time, she was good friends with Ms Wood[11]. Earlier on the night in question, she had been at her home.  Later that evening when she was at home she was woken by banging on the door.  It was Ms Wood and she was very upset, crying, quivering and shaking, and she said she had been raped.  She told her that she was in the bedroom, and she was awoken by a hand over her face and the smell was like petrol. They then waited for the police to come. 

[11] Transcript, 8/08/23.

36.In relation to this evidence, I direct myself that I can use the contents of Ms Wood’s complaint as evidence in the case and also to assess her credibility.  The fact that she made the complaint, and the content of the complaint, may show that her account of the events in question have been consistent. Ms Douglas recalled that Ms Wood and her mother didn’t return to the house for some time.  Subsequently Ms Douglas was helping Ms Wood and her mother clean their property, when they found some items, including a round mirror, underneath the ivy.  She also gave evidence of seeing Ms Wood, upset and frightened, after the second incident at her house, when she was punched.     

37.William and Elsie Schuman[12], who were Ms Wood’s neighbours at the time, also gave evidence[13].  On the night in question, they were woken by the sound of a ‘squealing’ type or ‘high pitched’ noise, that appeared to be coming from next door.  

Police investigation and processes 

[12] A pseudonym.

[13] Transcript, 8/08/23.

38.Denis SMITH was contacted by the informant, Detective Senior Constable Greg Langan, on 6 December 2016 about the case of Ms Wood[14].  He was recently retired from Victoria Police, having joined the force in 1973. In 1984 he was a detective senior constable at the Morwell Criminal Investigation Unit (CIB) and he was the informant in this matter.   

[14] Transcript 9/8/23.

39.In evidence, he stated that he had a recollection of being involved in the case, but ‘those memories had been prompted by canvassing contents of past diaries’.  He had retained some diary notes from October 1984.

40.By reference to his diary, he gave evidence that on 27 October 1984 at 5am he got a call about a reported rape involving Ms Wood.  He went to Traralgon Hospital, spoke with Ms Wood and her parents, Senior Constable Tatnell, Dr Young, nurse Smith and policewoman Senior Constable King.  He then returned to the Traralgon Police Station. He stayed at the hospital until 7.30am and then returned to the Traralgon Police Station. He then went to the scene, arriving sometime after 7.30am and staying there until 11.55am. At the scene he rendezvoused with other police and at that point the scene was secured. He couldn’t recall if any fingerprints were located and the notes referred to attending police taking photos but he believed these photos were no longer in existence.  He managed to recover one photo from his file which depicted the fuse box at the Traralgon home on the day of the report.  The photo depicts the meter box and Mr Smith’s ungloved hand pointing to the fuse.[15] He returned to the scene that day and it was noted that no person was home. 

[15] Exhibit J, 44.

41.His notes indicate that he then attended an unrelated matter to 3.30pm and then prepared exhibits for the Wood matter until 5.10pm.  He gave the following evidence ‘I would have catalogued the exhibits through the property book, and then secured them in storage to later be transferred to the forensic science laboratory.’ In cross-examination, he was asked questions about seizing the exhibits from the hospital.  He didn’t have a memory of collecting these items from the hospital himself[16] and he couldn’t recall or say how some of the items had been placed in a hospital pillow slip. He agreed, with the proposition that ‘at its highest’ it may have been him who collected these items but it may not have.

[16] p192.

42.In respect of his assessment of the crime scene, he did not recall anything about forced entry.  He confirmed that the main fuse had been pulled.  He did not have any memory of police wearing protective clothing at the scene and while the general protocol was to wear gloves he agreed that he just ‘happened to take them off’ when looking at the fuse box, as captured in the photograph.[17]  In re-examination he gave evidence that he would wear gloves inside the crime scene to ‘inhibit contamination’.

[17] Ibid.

43.He was asked some general questions about processing exhibits at the relevant time.  If he received clothing from a victim with blood on it, he explained that each item would be bagged individually and the top of the bag was stapled and later a property book receipt would be attached to the individual exhibit bag.  The bags used were the large ‘common variety Coles or Woolworths paper shopping bags.’  When collecting exhibits such as items of clothing with blood on them, the practice was to ‘puncture the bag to allow air to circulate … and assist in drying the garment.’  Securing the bag with staples or the like occurred back at the office when the items were being put through the property book.

44.In relation to stained or wet items, such as sheets or clothing, he gave the following evidence as to general practice – ‘the bloodstained bedding … [would] be transferred back to the station.  Given … what was presumed to be bloodstains were wet, the garment … or the item of bedding would be … hung … in the open, in a secure area, to assist in the drying process.’  Further, ‘we used to use an interview room that could be secured if we were going to dry something like bedding that had whatever stain on it’. In cross-examination, he stated that they had two interview rooms at Morwell CI that were used for the purpose of interviewing suspects.

45.With recourse to his note of Saturday 27 October he stated that ‘potentially’ preparing the exhibits would have included securing them in a place where they could be dried.  In relation to the bedsheets he could not remember what actually happened once they were seized.

46.Further Mr Smith stated that swabs and the like would be stored in a refrigerator.  The fridge was dedicated for the use of storing exhibits and he couldn’t recall if it was in the property office or elsewhere.

47.Mr Smith did not transport these items to SFSL but was able to speak of the general process back then.  An officer would attend at reception and then speak to a liaison officer at the facility. They would fill out a document like that which appears in Exhibit A, H1, and the items were left at reception. He estimated that it would have taken approximately 2 hours to travel from Morwell to Spring Street FSL.

48.Mr Smith confirmed that he did not have any involvement in the case involving complainant, Ms Furrow and he was taken to various exhibits which indicated that officer HIRST conveyed both the Furrow and Wood exhibits to the SFSL. 

49.Jeffrey HUNT was contacted by officer Langan in February 2017 in relation to this case.[18] In around 1976 he was appointed to the Morwell Criminal Investigation Branch.  In around 1984 he was a detective sergeant stationed at that Branch and at times was upgraded and performed a supervisory role at the station, including in property and exhibit management. The officer in charge[19] and supervisor[20] of the Branch have since passed away. 

[18] Transcript, 9/08/23.

[19] Gordon Howard

[20] Bruce Hirst

50.He was shown a number of documents relating to the cases of Furrow and Wood.  He had no recollection of being involved in the case of Ms Wood and was unable to locate any notes he may have made when he was working at that time.

51.He gave some general evidence as to the processes at the time involving the property storeroom and the transportation of items to SFSL.    Any exhibits or property seized from an investigation were kept at that building on the first floor in the storeroom, which was securely locked and property books were maintained. In cross examination he explained that the storeroom was a ‘small room … with a series of shelves, and [items] were stored on those shelves, and … were labelled accordingly.’ It was difficult to quantify how items would be stored, he stated ‘if it was a radio, it’d be sitting there … if it was something material, it’d be sitting there.  If it was loose, it’d be packed in a plastic bag, or in a carton, secured and labelled according.’ In relation to any loose items, Mr Hunt gave the following evidence: ‘I remember we had a series of large paper bags similar to what you get in a supermarket, and they were put in there, folded over, stapled and labelled accordingly.’  In re-examination, Mr Hunt was asked about any procedures in place as to when items would be opened after they’d been bagged and stapled.  He stated, ‘the only thing I can recall is every month, our inspector would inspect the books, including the property and every item of property had to be checked off.  And it may have been opened just to make sure what the label was referred to was actually inside the bag.’

52.In respect of the delivery of items to SFSL, it was tasked to the person who ‘drew the short straw’ and who may have had several jobs that day.  They would grab the paper bag or cardboard box and then put them in the boot of the police car and drop them off at SFSL.  The property was taken out of the storeroom and a notation was made in the property book.  In his experience, he would go to SFSL reception and someone would take possession of the property.

The SFSL (VPFSC) handling, collection and testing of the exhibits

53.Between 1984 and 1989 Naomi Hackworth was employed as a scientific officer at the SFSL[21].  Before commencing employment she received thorough training at the forensic science laboratories around all the procedures, including cross contamination of evidence and maintaining their integrity.  At that time, there was no DNA and the biology science group focused on examining bodily fluids, such as blood, semen and saliva, and other objects that were found on items seized by police. 

[21] Transcript, 7/08/23.

54.She gave evidence as to general processes at the laboratory during the relevant time, which included the following:

a.They would receive items from the liaison office and there would be a sign over process. The items came in sealed bags, which may have contained a number of smaller bags, labelled as to their provenance, and the first step would be to open those bags and describe every item that was in them.

b.They examined the items on very large stainless steel benches.  There would be one person looking at things at a time.  The benches were cleaned before and after.

c.Generally they would open one bag at a time, lay the item down on paper, describe what was in it, put it back in, ensuring that everything was ‘secure’ and then do the next. 

d.When examining large articles or things that might have matter on them she’d put them on butcher’s paper so that if debris came off you’d see it. 

e.These processes help to guard against contamination.  She also gave evidence that she wore medical gowns and single gloves and changed gloves with each task. 

55.The work undertaken on an item would be fully recorded on index cards.  In relation to the notation at H10 of her notes, ‘possibly no offender at all’ she stated in cross-examination that she didn’t know who had written this.

56.With reference to her written case notes[22] Ms Hackworth gave evidence that on 17 December she received items related to the investigation of complainant WOOD.  She received the items in 3 sealed plastic bags from Sergeant Hall, the liaison officer.  She returned the items to another liaison officer on 9 July 1987.  

[22] Exhibit A.

57.In her handling of these items she believed that she followed the general procedure outlined as she ‘did that every single time.’  It is unlikely that she conducted all the testing on the same day.

58.The first bag she looked at contained items 1, 9 and 10.[23] Item 1 were underpants (1B) and sanitary napkin (1C),[24] wrapped up in a pillow case.[25] Blood was detected on the underpants and the sanitary napkin, which tested positive for human blood.[26] No semen was detected on these items. No blood was detected on the pillowcase and no further examination was carried out on it. Item 9 contained a bed sheet with a ‘reddish brown stain’ (9A),[27] and another matching sheet, with ‘no apparent staining’ (9B).[28]  Items 10 contained two pillow cases[29], (10A and 10B). 

[23] Ibid, H12.

[24] Exhibit B, statement, p2.

[25] Exhibit A, H15-18.

[26] Ibid, H18.

[27] Ibid, H29-31.

[28] Ibid, H32.

[29] Ibid, H33-34.

59.In terms of their packaging, Ms Hackworth gave evidence that the pillowcases were together and the sheets were together.

60.The second bag contained several items which were the medical samples from the rape kit (items 2 to 8).[30]  Ms Hackworth explained that it wasn’t clear if spermatozoa was detected on item 7.  She therefore had another scientist look at it, at the same time and place as her, for a second opinion. Ultimately they could not conclude that there was spermatozoa on the slide.[31]

[30] Ibid, H19-27.

[31] Ibid, H36.

61.In respect of the findings for these items, there was no semen detected and no spermatozoa.  

62.The third bag contained one item, which was a blood sample.[32]

[32] Ibid, H14.

63.In relation to item 9A, that is the bedsheet Ms Hackworth noticed reddish brown statins which were hemastix positive showing blood near one of the selvedge edges.  She cut out the section of the bedsheet with the blood on it and labelled it as 9A-1, 2160/845/9A1.  At H31 of her notes she drew the sheet ‘so that you can orient it if you opened it up again and then I have drawn where the holes were in it … and on the left hand side towards the top that’s where I detected blood’.  She undertook testing that confirmed it was human blood.  She described in detail all the testing undertaken, which I will not repeat here.  She then ‘bagged the sample up and labelled it accordingly (9A-1).’  She also collected a fibre and apparent hair and bagged that into a second sample (9A-2). 

64.As Ms Hackworth collected the samples, she’d place them individually into plastic bags with labels and then seal each individual little plastic bag.  She’d then put it into bigger heat sealed plastic bags and then place them in the freezer; ‘saving them in case of further analysis.’  

65.Ms Hackworth was asked how much of the sheet she cut out in taking the sample.  With the aid of the ruler that appears at p8 of Ms Outteridge’s notes, she stated ‘I can’t really tell, but it looks like about half a centimetre’.

66.No DNA analysis was conducted on any of the items, including item 9A-1, as it was not being used in forensic assessment back then.

67.As for item 9A-1 she stated that it would have been put in the freezer when she did the blood analysis. The individual bags were sealed and they would have been bagged together but she couldn’t recall whether they were heat sealed or sealed by some other way.

68.Mr John Scheffer was recently retired from his position at the VPFSC, where he had commenced working in 1980[33]. The organisation moved from Spring Street on 1 December 1986. In around 1987 he was the head of the sexual assault unit and then became a branch manager in charge of all biological evidence.  In 1997 or 1998 he became the assistant director of biology, which later became biometric services. He has also held various teaching roles, including as an adjunct professor.  In 2013 he was awarded the public service medal for his contributions to forensic science in the biological sciences. He gave evidence that right from 1982 to when he retired, a very strong focus of the laboratory for all staff was to avoid contamination.   

[33] Transcript, 10/08/23.

69.Focusing on SFSL from the period October 1984 to early 1985, he gave evidence as to relevant processes. In respect of the receipt of items, the general process was that a police member would present to the front counter of forensic services in spring street where they would give a brief overview to the receiving officer, who was also a serving member. A scientist would be present for the conversation. Ledger books were opened and the case added as the next consecutive one by the sworn member in the liaison area.  At that point the exhibits were generally in some other type of container or package.  For example, clothing may have been in a paper bag. That would be handed over to the liaison member, who then opened up a larger plastic bag. That bag would then be heat sealed, labels signed and then taken to storage. All of this was done in the presence of the investigator. The storage room was a locked room directly opposite the liaison counter. Records were kept of items retrieved from the storage room. 

70.The examination areas at the time were accessed through some large key locked doors, and only members of the laboratory with appropriate passes could access these areas. 

71.There was a large steel bench in the examination room to the right, which was basically just a large room with desks in it and behind the desk was the large steel table. This was shared by the various scientists there at individual times. There was also a storage area for some exhibits.  They would clean the table and then examine their exhibits. As to process, his expectation was consistent with Ms Hackworth’s evidence, that is, that she would examine one item at a time.  Standard process was to clean the bench.  Scientists would wear lab coats and gloves, and they might doubt glove and between each exhibit they would change gloves.

72.Once the bench was cleaned  they would place fresh paper on the bench and then the item was placed on top of the piece of paper; operating as another layer ‘between anything that may have potentially been left on the stainless steel table and the exhibit’.

73.When samples were taken, similar to the liaison process they would remove the samples from the items, place them into a plastic bag, seal them, and then put them into a larger heat sealed plastic bag and label it. They would then put it in the freezer that was a minus 70 freezer, contained in the laboratory unit.

74.He gave evidence of the move to Spring Street and the steps taken to ensure that the freezers were moved quickly and safely.

75.In cross-examination, he was asked about the changes in relation to protection against contamination that have occurred from 1984 to 2012.  He stated ‘we became more vigorous in the way that we looked at contamination. In 1982 to about 1986 DNA testing was not on anyone’s radar.  We had no understanding of it … when we first changed to DNA testing in the last 80s to around about 1994, you needed a lot of samples to be able to get a DNA result. So again, contamination or potential contamination was not the high risk that it is today … so we continued to revise our processes. That involved, hypochlorite being introduced to wipe down benches. It included a lot more recording of what we did.’ He agreed that as you get more and more knowledge about transference of DNA you incrementally add to your arsenal of cross-contamination prevention. 

76.Mr Scheffer also gave evidence that if a piece of material had to be cut so as to remove a sample from it, the practice was to use sterile scissors, cut the piece of material off the clothing or sheet and put that into another bag and label that bag.  Then they’d put the exhibit aside, generally in the refrigerator waiting for any further analysis that might occur. When scissors were used, he explained that they were washed down in ethanol. They were then  wiped clean with tissue paper.  His practice was also to cut into the piece of clean, ethanol stained, tissue paper, to further ensure that nothing was left on the blade of the scissors and then those scissors were air dried. 

The DNA assessment and results

77.Ms Outteridge explained that cases 1029/845 and 1467/845 (Furrow) and 2160/845 (Wood) were part of the Cold Case Freezer Project which commenced at the VPFSC in 2012[34]. This project involved the DNA testing of samples, from historical cases, that had been stored in a freezer within the Biological Sciences Group. 

[34] Transcripts, 9/08/23 and 10/08/23. 

78.With reference to the notes, Ms Outteridge gave the following evidence concerning the handling and testing of the Furrow samples[35]:

a)Items 1-8 had been given to the forensic officer, Ms Forente, on 18 October 1984 in ‘2 heated sealed bags.  Items 1-3 were received by Ms Forente on 29 October 1984 in ‘1 sealed plastic bag.’ 

b)Items 1-5 were various swab sticks, item 5 and 6 microscope slides and items 7 and 8 blood samples. She also described how these items were contained. 

c)As for the testing of items 1-3, the first two items, namely the pair of underpants and jeans were tested.  Item 3 was described as a red and green windcheater (3I), a blouse (3II) and a bra (3III) – 3 items of clothing contained within an envelope.  On the windcheater and blouse apparent hairs and fibres were collected but no further testing was conducted on the items.

d)Ms Outteridge was taken to D5 and D6[36] from which she could infer that on 22 November 1984 Ms Forente sealed the samples she had taken and at some point they had been placed into the freezer.  Ms Outteridge gave evidence that plastic bags were used ‘because [plastic] prevents moisture getting into the samples to prevent any cross-contamination between the samples within a case and also between cases as well’ .  Amongst the items were the two swab heads, placed in containers and then put into the freezer. 

e)All the actual items for the Furrow case were then returned to the property liaison officer on 22 November 1984.

f)Further analysis was later done and the vulval swab (item 3-1) and vaginal swab (item 4) were tested.  On both swabs, the sperm fraction gave a single source DNA profile, matching the accused, in that the DNA was 100 billion times more likely if he was the source of the DNA.  He was also not excluded from the non-sperm fraction of both samples, which produced mixed DNA results. 

[35] See also Exhibit G.

[36] Exhibit I.

79.With reference to the notes, Ms Outteridge gave the following evidence concerning the testing of the Wood samples[37]:

a)Item 1 – contained underpants. There was blood detected in the underpants which was sample number 1B and also on the sanitary napkin, IC.  No semen was detected.  There was no blood detected and no further examination was carried out on the pillowcase.

b)Item 2 contained medical swabs.  In broad terms, no semen was detected and no spermatozoa observed on the microscope slides.  Items 9 and 10 were a package containing two double bedsheets and two pillowcases.  These were then further itemised as 9A and 9B – bedsheets and 10A and 10B – pillowcases.  For item 9A, there was blood detected, sample 9A-1, and fibre and an apparent hair were collected, which is 9A-2.  The other floral bedsheet, 9B, there was some matter and a fibre collected – 9B1.  The pillowcase, 10A – some fibre was collected, and pillowcase 10B, was not examined in detail.

c)On 20 November 2012 the freezer samples relating to WOOD were examined.  The photos in Exhibit F, D8, 9 depict the bags inside the larger bag and the individual bags, as they came out of the freezer.  The items tested were the blood stain from panties (1B), the blood stain from sanitary napkin (1C) and the blood stain from the sheet (9A-1).  

d)Item 1B was analysed, blood confirmed and a single source DNA profile was obtained matching Ms WOOD.  Item 1C tested positive for blood on a screening test but no further testing, or DNA testing, was done. 

e)In respect of the sheet, item 9A-1, the piece of fabric was depicted at Exhibit F, D13.  Ms Outteridge considered that it looked like it was approximately half a centimetre by half a centimetre.  The piece of fabric tested positive for human blood and a sample was taken and submitted for DNA testing. She confirmed that no other aspect or part of the sheet was tested. The DNA results indicated a mixture of DNA from at least two contributors. This was compared to the DNA profiles from Rosalyn Wood and Robert Barry. The DNA evidence was 100 billion times more likely if Ms Wood was a contributor to the DNA and 5.5 billion times more likely if Robert Barry was a contributor.  Ms Outterdige explained that there were at least two contributors to the sample.  The major contributor aligned to Ms WOOD’s profile and the minor contributor to Mr BARRY’s profile.  She also gave evidence that there was ‘quite a lot of DNA’ within the sample. 

[37] See also Exhibit F.

80.In respect of the major contributor, Ms Outteridge gave evidence that in her opinion the source, or at least a component of it, was from blood, which is a ‘rich source of DNA’. Other ‘rich sources’ of DNA, which contain ‘a lot’ of DNA, are semen and saliva. It is expected that a successful DNA profile would be obtained from those sources. ‘For items where they’ve just potentially been touched, or has contacted someone’s skin, there is less certainty about whether a DNA profile would be obtained which is usable’. 

81.In terms of the DNA that was attributed to the accused, she gave the following evidence:

a)    She could not rule out there being more than two sources of DNA that contribute to the profile that was seen on testing the fabric.

b)    She could not give an opinion as to what the source of Mr Barry’s DNA was within the sample. 

c)    Where there is a rich source of DNA in a sample, it tends to overwhelm  DNA if it is in a smaller amount within that sample. Therefore, ‘in order for a DNA profile to be seen in this particular sample where there is a major and a minor, and there’s a large amount of DNA, plus also blood confirmed, in my opinion, the biological source of the minor component could be from a blood, saliva or semen as an example, and potentially less likely from touching the surface.  She stated ‘I’m not excluding the possibility of it being from trace materials, however in my opinion that’s from another rich source of DNA.’  She stated the DNA could be from skin cells and/or touch DNA but it was ‘possibly less likely than another biological fluid which has more DNA in it.’

d)    She could not make any determination as to how the DNA came to be on the piece of fabric or whether the two contributors deposited DNA at the same time or separately. 

e)    She was unable to offer a timeframe as to when the DNA was put on the material. 

82.With reference to the records, Ms Outteridge was also asked questions as to the packaging and labelling of various exhibits.  She agreed that it was impossible to say when the items, examined by the forensic officers, were put in heat-sealed bags or labelled.

83.In both cross-examination and re-examination Ms Outteridge was invited to offer her opinion as to various contamination hypothesis.  In broad terms, her evidence was that transfer is possible in a range of circumstances - including if Ms Wood and the accused made a connection, or if Mr Barry touched person A who touched person B who then touched the sheet.  She gave evidence that ‘with each step of the DNA transfer, there is DNA lost’ and it all depends on a range of factors, including, the source of the DNA, the type of transfer or contact and any intervening steps between potential transfer and deposit, such as the washing of hands or touching of other items. 

84.As to more specific matters, her evidence can be summarised as follows –

a.If a sheet is washed, that has the potential for any DNA to be removed from it.  Also, fabric is an absorbent surface, so if it is a wet stain it is less likely to then transfer DNA.  If its dry then the DNA sits on the surface of the fabric fibres and there is a possibility of transfer.

b.If items, such as the Wood clothing taken from the hospital, were wrapped in a pillowcase which seemed to be taken from the hospital and placed in a pillowslip and then possibly a fridge, that carried the potential for transference.

c.An officer potentially handling items without gloves could transfer DNA, ‘but that would be from the person who potentially is not wearing gloves or handling the item.  Also, any transferred DNA on hands would diminish through touching other surfaces or washing hands. 

d.As to the likelihood of the policeman delivering the Furrow items in August and September 1984 transferring DNA onto the Wood sheet sometime after 27 October 1984,  she’d expect the Furrow DNA to have gone within the intervening period, unless the officer didn’t wash their hands or touch any other surfaces.   

e.She considered there was no chance of transfer between the Wood items, taken by officer Hirst to the FSL reception on 29 October 1984 and the Furrow items received by Anna Forente in heat sealed bags on the same day, because the plastic creates a barrier.

f.As for the potential for contamination arising from Ms Forente examining the Furrow items on 22 November and then approximately one month later Ms Hackworth examining the Wood items on the same steel table in the laboratory, while possible, if the laboratory had in their method to clean tables before and after an examination, any DNA from the Furrow items would be lost by the time the sheet was examined. 

85.She was also asked to comment on the potential for contamination occurring at the police station and her evidence included the following -

a.If an item had blood on it and was dried in an interview room where police and suspects have been coming and going, that could be a high point of transference.  As for secondary transfer from either a person or a surface, such as the desk in the interview room, the DNA could potentially stay on a surface until it was disturbed by washing or cleaning or another person contacting the area. However, that particular area of the desk with the DNA on it would have to come into contact with the corresponding area of the sheet and also any DNA on that desk that is not from the accused would also potentially be transferred onto the sheet as well. 

b.As to the potential for transference of DNA from the Wood and Furrow items if they were both in the same property room at the police station., she stated: ‘ ... if there is any kind of barrier between those items for eg. a brown paper bag, being placed in separate locations, then that prevents the possibility of contamination.[38]

c.She also stated, ‘if there’s no barrier between those two items which can prevent the DNA being transferred, and they’re both contacting a surface which has not been cleaned in the interim between one item being moved and the other being placed onto it, then yes, there is the potential for DNA transfer.[39]

d.If items were stored in the property room, in paper bags with holes punched in them to assist in drying the items, she stated ‘there is a possibility any kind of breach of the paper bag, is giving the potential of DNA to go through the hole into the item.  However, it depends on the size of the hole and the source of the DNA’s to get in that particular area. 

e.The possibility of transfer would increase if another person was opening bags and looking in them but that ‘would be more from the person that’s actually opening the bag and looking into it.’

Other evidence

[38] See also p276, ‘if it’s a dry item, the DNA can’t pass through the bag.’

[39] See also p285. 

86.The informant, Detective  Langan, also gave evidence. His involvement in the case commenced in April 2015[40]. He gave evidence that the incident relating to Molly Furrow occurred on 24 August 1984 and the informant was Senior Constable Neville Taylor who was, at the time, stationed at Morwell CIB. He gave evidence that on 18 May 2016 a potential suspect in the Wood matter was nominated, that is, the accused.  The informant then took a statement from Ms Wood and also attended the old address at Traralgon,  on 20 July 2016.  He took photos of the exterior but didn’t go inside the premises because he understood that it been subject to a range of modifications over time. He took a statement from Marie Robertson[41], Ms Wood’s mother, who passed away in August 2022.  In September 2016 he travelled to Western Australia to obtain a sample from Mr Barry and arranged for it to be delivered to McLeod.  In cross-examination, he confirmed that Neville Taylor, the informant in the Furrow matter, had his notes.  In his statement, officer Taylor stated that from his notes he could see that he was called out just after midnight on 26 August 1984.  Ms Furrow was taken to Central Gippsland Hospital.  There would have been a number of exhibits produced as a result of this examination.  He couldn’t recall if he was present at the hospital.  Further, he stated ‘As the lead investigator of the matter, I would have seized any relevant exhibits relating to the investigation.  I would have secured these exhibits as per operating procedures for that time.’  Further, ‘my diary indicates that Senior Constable Jennifer Gannon would have obtained the statement from the complainant.’  Detective Langon spoke to officer Gannon, and also Senior Constable Kate King (the officer referred to by Mr Smith in relation to the Wood matter) and neither had diary notes or an independent memory of their respective involvement. He also confirmed that the records in relation to the transportation of the respective items by officer Hirst to FSL, such as what vehicle was used, have not been retained.  Detective Langan also gave evidence that Mr Barry may have attended at the Traralgon Police Station in 1984 but he was not sure whether or not he had attended at the Morwell Police Station.  

[40] Transcript, 10/08/23.

[41] A pseudonym.

87.There is also Exhibit M, which is the signed admission of facts.  It includes an admission as to the accused man’s date of birth and that during 1984 he lived at Murphy Crescent at his mother in law’s house for a period of time.  He moved with his partner to Western Australia but can’t recall exactly when, but it was not long before his son was born in February 1986 (Exhibit M). 

Further Directions

88.I have heard some evidence relating to the Molly Furrow matter and that it was 100 billion times more likely that it was Mr Barry’s DNA on the single source DNA profile extracted from the vaginal and vulval swabs taken from her. I have not heard anything more about the circumstances of this incident and, as requested by the parties, I will not speculate about those matters. The evidence has been led in this trial as it is relevant to the contamination hypotheses. It has not been led as any type of propensity or tendency or coincidence evidence and I caution myself to not use it in this manner and to keep it in perspective. I will use it, and only have regard to it, for the sole purpose for which it has been admitted. 

Assessment

89.I found Ms Wood to be an honest, credible and compelling witness.  I consider that she was trying her best to provide all the details that she could recall.  I accept her evidence as to what happened to her in October 1984.  I also accept the evidence of Ms Douglas and of Mr and Mrs Schuman, which is supportive of her account.  Putting aside the issue of identification, I am satisfied beyond reasonable doubt of the elements of the rape charges.  Also, again putting aside the issue of identification, I accept that the offender entered the house through the bathroom window, as a trespasser and with an intention to assault therein.  

90.The DNA evidence is critical to the issue of identification, that is, in establishing that the accused committed the crimes. There is no other evidence implicating him.  It is an agreed fact that the accused lived in the same proximity as Ms Wood in 1984 and possibly at the time of the offending.  While this might suggest opportunity on his part – or rather, not positively exclude him as the offender - it does little more as a piece of circumstantial evidence. 

91.The DNA evidence is the centrepiece of this trial and, on the face of it, it is a compelling piece of evidence.  The defence do not dispute that, in all likelihood, it is the accused man’s DNA on the sheet (piece of fabric, 9A-1).  Given the examination results and the statistical weighting, I am satisfied that it is the accused man’s DNA.  Therefore, absent a reasonable hypothesis consistent with innocence in relation to how it was deposited on the sheet, it points compellingly to the accused man’s guilt of the charges.

92.There is no direct evidence as to how the DNA was deposited on the sheet.  Ms Outteridge could not make any determination about how the DNA came to be on the piece of fabric.  In re-examination she was again asked –

Does the fact that there was a relatively large amount of DNA from the secondary source, Mr Barry, to use a shortcut, allow you to give an opinion about whether or not it’s likely or unlikely that the DNA on the sheet was as a result of a secondary transfer of the type that we’ve been describing, where someone else is involved, touching Mr Barry and then touching the sheet or so forth? 

No I'm unable to say the type of mode of transfer of the DNA onto the sheet.

93.The prosecutor submitted that it could be inferred that the DNA was deposited during the offending because of where the DNA was located on the sheet.  The evidence of Ms Wood was that her bed was up against the wall.  She therefore got out of bed on the other side, that was facing the doorway, before she was pushed back down by the offender.  It was submitted that the area on the sheet where the DNA had been deposited was consistent with where Ms Wood describes the offence as occurring.  The blood stain is also consistent with her account of being penetrated while she was menstruating.  I accept that this is all consistent however in circumstances where only a small portion of the bedsheet was examined, and further where it’s unclear how the bedsheet itself was actually positioned on the bed, I find it difficult to draw any confident conclusions based on the precise location of the DNA on the bedsheet.  As submitted by the defence, it is simply unknown if the accused man’s DNA was on other areas of the sheet. 

94.Next, it was submitted by the prosecution that the type of DNA deposited fits ‘well with the description of the events that took place.’  Ms Outteridge’s evidence was that the DNA was likely to be a bodily fluid rather than touch DNA.  It was submitted that someone engaging in the type of activity and for the period of time, as described by Ms Wood, would likely leave their DNA in the form of bodily fluid, such as sweat, semen or saliva.  Ms Outteridge’s evidence was that blood was a rich source of DNA which tends to overwhelm DNA if it’s in a smaller amount within that sample.  For this reason, the DNA of the minor contributor was less likely to be trace or touch DNA compared to other rich sources of DNA.  The prosecution also submit that based on this evidence I should exclude alternative hypotheses which are based on trace or touch DNA. 

95.As I have already summarised, Ms Outteridge’s opinion is that the DNA was ‘possibly less likely’ – as opposed to unlikely – to have come from touch or trace DNA, for the reasons that I’ve already referred to.  On my assessment of the evidence, while it may be more likely that the DNA came from a rich source, and it is consistent with Ms Wood’s account, on the basis of the sample itself I am unable to exclude as a reasonable possibility that it may not have.  The sample is not itself inconsistent with touch or trace DNA.  Beyond the opinion that Mr Barry’s sample was more likely to be from a rich source of DNA, it was not possible to identify the precise nature of the biological source.  Ms Outteridge could not rule out there being more than two sources of DNA in the sample. As I’ve already noted, Ms Outteridge was unable to say the type of mode of transfer of the DNA onto the sheet.  While Ms Outteridge gave evidence that there is a loss of DNA with each step of any transfer, which may make the results here less likely, this also depends on a range of factors, including the amount of DNA initially deposited, the source of it and the relevant surrounding circumstances.

96.The starting point is that for Mr Barry’s DNA to be on the sheet, it had to come into contact with Mr Barry’s DNA in some way.  The prosecution submit that the only reasonable explanation for the presence of Mr Barry’s DNA in the profile is that it was deposited by him when he was on the bed, committing the offences against Ms Wood.  It was submitted that there really wasn’t any opportunity, on the evidence, for transfer or contamination to have occurred.  The critical question in this trial therefore is whether the prosecution can exclude beyond reasonable doubt any other alternative reasonable explanation as to how Mr Barry’s DNA came to be located on the bedsheet.

97.The Furrow case is relevant to this issue, in particular the clothing items 1-3, which were stored at the Morwell police station from approximately 25 August 1984 to 21 September 1984.  While these items were not analysed, I accept as a realistic possibility that Mr Barry’s DNA, biological source unknown, may have been on these items, given the results of the vulval and vaginal swabs from Ms Furrow.    

98.Both prosecution and defence canvassed a number of possibilities as to how Mr Barry’s DNA may otherwise have been deposited onto the bedsheet, covering the period prior to the alleged offending, up until its delivery and handling at the SFSL.

99.On the basis of Ms Wood’s evidence, I can confidently exclude the possibility that the accused man innocently touched the sheet himself at some time proximate to the rape.  Ms Wood gave clear evidence that she did not know the accused.  Also, while there were various visitors to her home, she gave evidence that nobody else was in her room the week before the offence. 

1. There was also evidence, which I accept, that Ms Wood’s mother washed the sheets every Sunday.  This means that when the offending occurred on the Saturday, the sheets had most likely been washed on the previous Sunday.   Ms Outteridge gave evidence that washing would likely remove DNA.  It was suggested that within this week period, the accused man may have connected with Ms Wood, given he was likely to have been living within proximity of her and she worked at the local Coles. It may be theoretically possible that within this context the two of them had some contact and Mr Barry’s DNA was transferred onto Ms Wood.  However, I consider this to be largely speculative and further I don’t accept that that type of contact is likely to have produced the resulting DNA profile.  As explained by Ms Outteridge the possibility of this scenario would depend on the amount of DNA deposited, the nature of the interaction and any intervening steps of Ms Wood between transfer and deposit – such as washing her hands or touching other items, or conceivably within this context, serving other customers. 

2. Also, I don’t accept as a reasonable possibility that the accused man’s DNA was somehow deposited on the sheet during the attendance by police at Ms Wood’s home.  Mr Smith confirmed, with reference to his notes, that the scene was secured.  While there’s no evidence as to exactly when the sheets were taken, its likely to have been after Mr Smith’s attendance at the home on 27 October 1984, consistent with his later note ‘office Re; prep of exhibits (Wood) to 5.10pm’. At this point in time, the Furrow exhibits had already been seized and conveyed to SFSL.   The last items, that is the clothes, numbers 1-3, were transported to SFSL around a month earlier, on 18 October 1984. I consider it unlikely that any officer who had previously touched the Furrow clothing, or the shelf where the clothing had been stored – or on another postulated scenario, the accused man himself - has then attended the Wood home and somehow transferred the accused man’s DNA onto the sheet.  I consider that intervening events within the relevant period of time, such as the officer washing his or her hands, would make it unlikely that the accused man’s DNA would be retained and capable of producing the results found. 

3. Moving forward to the possibility of contamination occurring at the laboratory, the defence effectively conceded that it was an unlikely scenario that any contamination occurred at the point when the forensic officer was doing the analysis.

4. Ms Hackworth gave evidence as to the processes employed at SFSL at the time and her practices, and she was not challenged in this regard.  She maintained records that comprehensively documented her examination of the items.  She gave evidence, which I accept, that she handled the Wood items according to general procedure, as she ‘did that every single time.’  She gave evidence as to the processes in place to avoid or minimise contamination.   She received the items in sealed plastic bags from the liaison officer and while they were in her possession she kept them in a locked room within the applied biology division, sealed in bags.  

1. Mr Scheffer gave general evidence as to processes used at the time at the laboratory, as I’ve already summarised.   While the ‘no offender’ notation in the cards of Ms Hackworth remains largely unexplained, I accept that there were processes and efforts in place designed to avoid, or minimise, the risk of contamination.  Over time these have obviously developed and improved.  As Mr Scheffer stated ‘we became more vigorous in the way that we looked at contamination.  In 1982 to about 1986 DNA testing was not on anyone’s radar.  We had no understanding of it …’

2. In this trial both witnesses gave detailed and credible evidence and with the assistance of the records that do exist, along with the evidence of Ms Outteridge, it appears that there was little, if any, opportunity for contamination to have occurred between the Furrow and Wood items.

3. The defence submit that the rigorous measures that were in place at the SFSL and the evidence of Ms Outteridge and Mr Scheffer as to the importance of such measures and processes only services to highlight the possibilities, if not the likelihood, of contamination in the earlier stages of the investigation into Ms Wood’s case. 

1. On my assessment, the critical issue in this case concerns the possibility of contamination occurring from the point that the sheet was at the Morwell police station to when it was transported to SFSL. The Furrow clothing was at the station between approximately 25 August 1984 and 21 September 1984.  The Wood sheet was there between approximately 27 October 1984 to 29 October 1984. 

2. For completeness I note that items 1-8 of the Furrow items were medical swabs, transported to SFSL on 27 August 1984.  These swabs were in containers and otherwise, on the evidence, I accept that they would have been stored in the fridge at the police station before they were transported to SFSL.  Given their likely packaging and storage, I do not accept that they could have been the source of any possible transfer. 

1. In relation to the bedsheet, there is no direct evidence or record as to when it was seized or who seized it.  I accept that it’s likely to have been Mr Smith given he attended the scene and his notes which indicated that he ‘‘prepped’ exhibits at the station.  However, given the passage of time, he couldn’t recall what he actually did with the bedsheet.  His usual practice was to catalogue items and secure them in the storage area for later transfer to SFSL.  He would place items in large paper bags, fold them, staple and label accordingly.  This is consistent with Mr Hunt’s evidence as to procedure and with Ms Hackworth’s records which indicate that the bedsheets and pillow case were in a ‘brown package’ which was labelled.[42]  On the basis of the evidence, I accept that the bedsheet was in a brown bag though it is unclear when this occurred or the precise condition of the bag. 

   [42] See Exhibit A, H29.

2. In relation to the Furrow items, in particular the clothing, the continuity and handling of these items is unclear. Detective Langan gave evidence of what the informant, officer Taylor said in his statement, namely that he would have seized and secured exhibits as per the operating procedures at the time.  While this was not challenged, there is no other evidence as to the seizure, storage or handling of these items.  There is evidence that on 21 September 1984 officer Hirst took the items to SFSL.  There is evidence in the notes of forensic officer Forente that the items were in a yellow envelope marked ‘Morwell CIB Furrow /Molly Rape 25/8/84.’  On the basis of the evidence, I infer that the clothing was in a marked police envelope, though it is unclear when this occurred. 

3. On the evidence, the usual practice at the police station was to hang out wet items in the interview rooms.  The evidence of Mr Smith allows for the possibility that the bedsheet was dried in the interview rooms at some point in time.  Mr Smith stated at 184 of the transcript ‘… if they weren’t locked in our property office within the CI, I’ve got the sheets in bedding in mind, we used to use an interview room that could be secured if we were going to dry something like bedding that had whatever stain on it.’ 

4. The prosecution submit the Court should not infer that the bedsheet was hung out to dry.  The diagram of the bedsheet in Ms Hackworth’s notes indicates that there was a small drop of blood on the sheet[43] and, it was submitted, it was ‘highly unlikely’ that this sheet, was the type of item contemplated by Mr Smith for drying.  While there is a diagram of the sheet there are no photographs that might have assisted in making a further assessment as to its condition.  As Ms Outteridge pointed out at p267 of the transcript, the drying of blood on fabric may depend on a range of factors.  In all the circumstances, while it may not have been hung out to dry, I cannot exclude this as a reasonable possibility.  Nor can I exclude the possibility that, at some point while at the Morwell police station, the clothing of Ms Furrow’s may have been hung out to dry.  The notes of forensic officer Forente indicate that some parts of the clothing appeared stained and/or soiled.[44]  While there is no positive evidence that this occurred with the clothing, it was the usual practice with wet or stained items and the circumstances raise it as a reasonable possibility.      

   [43] See Exhibit A,  H30 and H31.

   [44] See Exhibit G, H45.

5. Evidence was also given that a usual practice when collecting exhibits such as items of clothing with blood on them, was to ‘puncture the bag to allow air to circulate to assist in drying them.   On the evidence before me, I cannot exclude as a reasonable possibility that the bags or packaging in which these items were placed, at some point in time, were punctured to assist in the drying process.

6. There are no photographs of the property or storage room at the Morwell police station as it existed in 1984.  Mr Hunt described it as a ‘small room’ with a series of shelves, ‘probably three or four shelves.’ Items were stored on the shelves and labelled accordingly.  He was unable to say categorically how items were stored, as it would depend on what the item was.  The practice was to store loose items in bags, folded over, stapled and labelled. Mr Hunt also gave evidence of the routine practice at the time for the inspector, on a monthly basis, to conduct effectively an audit of the property room, where he may have opened bags to ensure that the labels matched.   

7. In 1984 while it is clear that protocols were in place to secure and maintain the integrity of exhibits, DNA transference or contamination simply wasn’t known or considered at the time.  This may account for why, inexplicably in this case, some items including Ms Wood’s underpants were wrapped in a hospital pillowcase. 

8. There is obviously a need to rigorously protect against the risks of cross-contamination.  Evidence was given as to the importance of wearing gloves, cleaning surfaces, isolating items and dealing with one item at a time.  Ms Outteridge gave evidence also as to the current practices in the laboratory.  She explained that there are now rooms dedicated to item examination and that each room has a person in it examining one item at a time.  Those rooms are all cleaned prior to the item being examined and any pens or tools that are used for that examination are all also cleaned before the examination starts as well.  The person doing the analysis wears protective equipment including disposable gowns, gloves, masks and hair nets and they’ve all been trained in preventing possible DNA contamination.  There are also logs that the laboratory has regarding when items were examined and in which room to assist with determining whether there might be a possibility of contamination.   Ms Outteridge also stated that because of the possibility of transference ‘packaging is very important in terms of item storage.’

9. The prosecution accept that on the evidence it is clear that the same sort of rigorous processes to avoid contamination or transfer of DNA were not undertaken back in 1984.  However, in this case, they submit it doesn’t make the DNA evidence any less compelling as these procedures are directed at avoiding contamination of trace amounts of DNA and in this sample there was ‘quite a bit’ of DNA.  In her evidence Ms Outteridge explained that the introduction of more sensitive DNA testing kits is what really prompted the laboratory to instigate further prophylactic measures.

10. In assessing these issues, the evidence in this case and the credibility of the alternative hypothesis, I keep firmly in mind the forensic disadvantage that is caused to the accused by virtue of the substantial delay in this case.  In respect of when and how exhibits were handled at the police station, the records largely no longer exist and there is an understandable lack of independent memory of witnesses. 

11. As for the potential for contamination to have occurred at the police station, and in particular in the storage room, the evidence raises a number of possibilities.  They may not be capable of precise or exhaustive definition. 

12. It was suggested that Mr Barry may have been in the interview room and could have had contact with the sheet, if it were hanging.  The informant gave evidence that he was ‘not sure’ if Mr Barry had attended the Morwell police station at the relevant time. There’s simply no evidence of this and I exclude as a reasonable possibility that Mr Barry was there at the station when the sheet was there.  

13. However, the circumstances – including, what is known as to usual practice and what is unknown as to the precise handling of these exhibits – leaves open the possibility that the Furrow clothing was, at some stage, in the interview room or alternatively handled by others who have been in that interview room.  In light of Ms Outteridge’s evidence and applying my own common sense I accept that it is unlikely that any officer who had dealt with the Furrow clothing would have retained any transferred DNA from those items more than a month later to then directly deposit it on the sheet. I infer that any such DNA would have been removed by the intervening acts of washing their hands and dealing with other materials.  

14. However, on Ms Outteridge’s evidence, DNA can potentially stay on a surface until it’s disturbed by washing or cleaning or another person contacting the area.  Mr Smith wasn’t asked any questions as to the precise steps involved in hanging an item out to dry and what, if any objects were used to do this, such as pegs.  Further, there is no evidence as to the practices or routines in place for the cleaning of surfaces in these rooms.  However, given the high touchpoint area of these rooms, as they were used by police to interview suspects, I infer that others would have come into regular contact with surfaces, such as desks, in the rooms thereby likely diminishing or removing any DNA of the accused that may have been deposited on any such surfaces approximately one month later.  In these circumstances, and after careful consideration, I consider that the likelihood of the sheet coming into contact with any such affected surface and then producing the resulting DNA profile is too remote.  This is not to say that the practice of drying out wet items in interview rooms does not raise the possibility of cross contamination and cause concern in respect of the potential handling of exhibits at the time.      

15. In respect of the storage room, on the evidence the Furrow clothing was in that storage room for over a month, which seems somewhat contrary to Mr Smiths’ evidence that ‘ideally’ you’d get items to SFSL as soon as you can.  It was removed from there on 21 September 1984 and then the sheets arrived anytime after 7.30am on 27 October 1984 and were removed from that room to be taken to SFSL at 9.50am on 29 October 1984. 

16. The storage room was small, with only a few shelves.  It is unclear on the evidence precisely where or when the respective items were placed in bags or envelopes and where they were positioned in that room, aside from perhaps in a high priority area within it.  As Ms Outteridge stated, if the items were in the same room without packaging at the relevant times, and they are adjacent and someone touches one item and then touches the other item, then there’s a possibility of DNA transfer that way; ‘it depends on how the items were prior to being put into the brown paper bags and whether there is a possibility that there is contamination that might have taken place’.  As I’ve already noted, there are no available records detailing the precise movement of these items or how they were prior to being put into any packaging. 

17. At some point in time, the Furrow clothing was placed in a police marked envelope.  It is not known if any packaging or envelope used to store the Furrow clothing had been opened, or breached in some way, for auditing purposes or to assist in the drying process. 

18. In all the circumstances, I cannot exclude as a possibility that any DNA of the accused on the Furrow clothing may have been directly or indirectly, that is by secondary transfer, deposited onto the shelving.   As to the likelihood of it, over a period of one month, being diminished or removed, there’s no evidence as to any cleaning practices or as to any other items that might have been stored there within that intervening period.  On the evidence, and in all the circumstances, I am unable to exclude as a reasonable possibility that any such potential DNA may have remained on the shelves when the sheet was stored there. 

19. On the evidence, there is a possibility that, in accordance with usual practice, the bag with the sheet was punctured to assist in the drying process.  As Ms Outteridge stated, ‘there is a possibility any kind of breach of the paper bag, is giving the potential of DNA to go through the hole into the item.’ She qualified this by stating that it would also depend on the size of the hole and the source of the DNA to get in that particular area; matters that in this case, cannot be ascertained.  She also agreed that puncturing holes in a bag and placing a wet item in them was ‘nowhere near best practice’.  It’s also possible that this bag was opened at some stage for auditing purposes.  It’s unknown precisely how this would have occurred, that is whether staples were taken out of the bag or if any instruments were used.  

20. In all the circumstances, I cannot exclude as a reasonable possibility that there may have been contact or cross-contamination between the sheet and the accused’s DNA that may have been deposited or transferred from the Furrow clothing.

21. The prosecution submit that while there may have been holes in the bag – and there’s no evidence that there definitely were – it would require ‘mathematically astronomical odds’ for any small hole in the bag to correspond on the sheet where the blood stain had been deposited.  While it may be more unlikely, I don’t consider that in all the circumstances it’s excluded as a reasonable possibility.  In assessing the odds, it should also be borne in mind that only a small portion of the sheet was tested and there may have also been DNA on other parts of the sheet.  Also, it’s open on the evidence that the possibility of contamination occurred at another point, that is prior to being placed in its bag and/or during any handling of the bag.

22. If the bag or the packaging of either the sheet or the clothing was punctured, it is unknown what instrument was used to do this and if there were any protocols in place for the maintenance, cleaning or auditing of such items.  The potential use of something like scissors in connection with these items and their packaging heightens the risk of cross-contamination, as is clear from the evidence of Mr Scheffer and his rigorous practice of cleaning equipment, such as scissors.  In all the circumstances, I do not regard this as unrealistic.  If this usual practice was employed in respect of both these items, then further, it’s quite possible that the same instrument was used. 

23. As for the transport of the Furrow and Wood items to the SFSL, this was done by the same police officer, who is now deceased.  Aside from some general evidence as to the usual practice at the time, there are no longer records documenting what was actually done, including the vehicle that was used and whether it was the same one for all the items.  For completeness, while I can confidently exclude that the officer would have transferred any DNA, given that during the intervening period he would have washed his hands or handled other items, the placement of the items, potentially in the same boot of the vehicle within a proximate period of time, also raises concerns as to the possibility of cross contamination. 

1. Given the state of the evidence I consider that serious questions arise in relation to the continuity and integrity of the Furrow clothing and the Wood sheet.  As I have already directed myself, for an inference to be reasonable it must not be fanciful and it must rely upon more than mere conjecture.  This does not mean that I need to find that the events, the subject of the hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event.   Nor does the alternative hypothesis need to be ‘equally open’ or ‘equally compelling’ in order to give rise to a reasonable doubt as to guilt.

2. After a careful consideration of the evidence I cannot exclude the possibility for transference or contamination to have occurred between items, as canvassed, while in the custody of the police.  While it may not be a hypothesis that is ‘equally open’ or as ‘equally compelling’ as the hypothesis pointing to guilt, and while I consider that it is  possible if not probable that  the accused man’s DNA is on the sheet because he committed the offences in question, I consider, in all the circumstances, that there are reasonable alternative possibilities and therefore it follows that I am not satisfied beyond reasonable doubt that the accused man committed the offences.  

Verdicts

1. Therefore, on all charges I find the accused not guilty.  The verdicts of the Court are as follows:

   Charge 1, burglary, not guilty.
   Charge 2, rape, not guilty.
   Charge 3, rape, not guilty.

   Charge 4, rape, not guilty.