Hillier v The Queen - [2008] ACTCA 3

STEVEN WAYNE HILLIER v THE QUEEN

[2008] ACTCA 3 ( 6 MARCH 2008)

CRIMINAL LAW — appeal against conviction — appellant convicted of murder — failure by prosecutor to put certain matters to appellant at trial — whether prosecutor complied with Browne v Dunn (1893) 6 R 67 obligations — whether failure to comply amounted to a miscarriage of justice — certain DNA test results not tendered at trial — application to adduce those results as “further evidence” pursuant to Supreme Court Act 1933 (ACT) s 37N — whether DNA results in possession of defence at time of trial — defence expert would have given different evidence if he had had results at trial — whether in circumstances a miscarriage of justice had arisen — whether verdict otherwise unsafe or unsatisfactory

Supreme Court Act 1933 (ACT) s 37N

Browne v Dunn (1893) 6 R 67 applied
Browne v The Queen [2006] ACTCA 15 referred to
CDJ v VAJ (1998) 197 CLR 172 discussed
G v G [1985] 1 WLR 647 referred to
Gallagher v The Queen (1986) 160 CLR 392 discussed
Hillier v The Queen [2005] ACTCA 48 discussed
Lawless v The Queen (1979) 142 CLR 659 cited
Mallard v The Queen (2003) 28 WAR 1 cited
Maric v R (1978) 20 ALR 513 referred to
Mickelberg v The Queen (1989) 167 CLR 259 cited
Mraz v The Queen (1955) 93 CLR 493 discussed
R v Hillier (2007) 228 CLR 618 discussed
Tran v The Queen (2000) 105 FCR 182 cited

Ratten v The Queen (1974) 131 CLR 510 discussed

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 42 of 2004
No. SCC 37 of 2004

Judges: Madgwick, Weinberg and Dowsett JJ
Court of Appeal of the Australian Capital Territory
Date: 6 March 2008

IN THE SUPREME COURT OF THE  )   No. ACTCA 42 of 2004
  )  No. SCC 37 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN WAYNE HILLIER
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Madgwick, Weinberg and Dowsett JJ
Date:  6 March 2008
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.
The conviction and sentence be set aside.
There be a new trial.

IN THE SUPREME COURT OF THE  )   No. ACTCA 42 of 2004
  )  No. SCC 37 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN WAYNE HILLIER
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Madgwick, Weinberg and Dowsett JJ
Date:  6 March 2008
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 26 November 2005 the appellant, Steven Hillier, was found guilty in the Supreme Court of the Australian Capital Territory of murdering his former de facto wife, Ana Louise Hardwick. Mr Hillier had lived with Ms Hardwick for about 12 years, from 1987 to 1999. They had two children together.
Mr Hillier subsequently appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory against his conviction. The first two appeal grounds alleged that the verdict was “unsafe and unsatisfactory” and that it was “against the evidence and the weight of the evidence”. The Court of Appeal, by majority (Higgins CJ and Crispin P; Spender J dissenting), held that the appeal should be allowed: Hillier v The Queen [2005] ACTCA 48. It ordered that the conviction and sentence be set aside.
The Director of Public Prosecutions then sought special leave in the High Court to appeal against those orders. The Director contended that it “was an inappropriate case for the Court of Appeal to set aside the verdict of the jury” and that the majority of the Court of Appeal had “erred in combining a series of factual matters which each had little or no evidentiary foundation in order to find a real possibility” that Mr Hillier did not commit the murder. In accordance with s 35A of the Judiciary Act 1903 (Cth), the Director contended that the interests of the administration of justice in the particular case warranted the grant of special leave to appeal.
The High Court granted special leave to appeal, set aside the orders of the Court of Appeal, and remitted the matter to the Court of Appeal for rehearing: R v Hillier (2007) 228 CLR 618. This Court of Appeal was constituted for the purposes of that rehearing. The Court was originally constituted by Connolly, Madgwick and Weinberg JJ. With the untimely death of Connolly J, and pursuant to s 37L of the Supreme Court Act 1933 (ACT), the Court was reconstituted. Dowsett J replaced Connolly J.

Factual background

Before turning to the issues on this appeal, it is necessary to set out the evidence, and the prosecution case at trial, in some detail.
Ms Hardwick was found dead on the morning of Wednesday, 2 October 2002. The last communication anyone had with her was at approximately 9.00 pm on the previous Monday, 30 September 2002. She did not attend work on Tuesday, 1 October 2002. When she was again not at work on the Wednesday, her parents went to her house at approximately 10.00 am to investigate. It was then that they discovered Ms Hardwick dead in her bedroom.
There had been a fire in the bedroom, but the evidence demonstrated that Ms Hardwick had died before the fire. Dr Michael Burke, a senior forensic pathologist, had performed the autopsy. He noted that no soot had been found in Ms Hardwick’s major airways or her lungs. He also stated that no carbon monoxide had been identified in her blood stream. These, and other matters, led him to the conclusion that Ms Hardwick was dead before the onset of the fire. However, because of the body’s exposure to the fire Dr Burke was unable to determine the time of death with any precision. He agreed that when Ms Hardwick was found she could have been dead for days or only a matter of hours.
Ms Hardwick had sustained a number of injuries. She had a complex abraded injury predominantly to the left side of her neck, and additional abraded injuries at other locations on her neck. She had a skin abrasion on her nose, and bruises on the outer aspect of each of her wrists, one measuring two centimetres, the other measuring four centimetres. Dr Burke determined that the cause of her death was neck compression. However, he could not say whether the neck compression was caused by a cord, a rod or manual strangulation.
As can be seen from the joint judgment of Gummow, Hayne and Crennan JJ in the High Court (at [27]–[28]), there were essentially four components to the prosecution case. First, the prosecution submitted that Mr Hillier had the opportunity to kill Ms Hardwick. Second, it submitted that he had motive. Third, the prosecution alleged that chemical injuries to Mr Hillier’s fingertips, and his explanations of how he came by these injuries, suggested that Mr Hillier had tried to conceal his involvement in the offence. Finally, the prosecution alleged that there was evidence which demonstrated the presence of Mr Hillier’s DNA on the pyjama top Ms Hardwick was wearing at the time of her death.

Opportunity

The prosecution’s submissions regarding opportunity were essentially twofold. It submitted Mr Hillier:
·was alone at the relevant time; and
·would have been able to gain access to the house without force.
In relation to the first of these submissions, the prosecution alleged that Ms Hardwick was murdered on the night of Monday, 30 September 2002. Ms Hardwick’s movements were accounted for on the Monday: she had been at work that day and had finished her duties at approximately 6.30 or 7.00 pm. She had a conversation with her friend that evening, which appeared to have finished at approximately 9.08 pm. The prosecution submitted that “the evidence of her continued existence” finished at that point. The prosecution also noted that she had died whilst wearing her pyjamas, which suggested that she was murdered sometime during the evening. It contended that her absence from work on the Tuesday was “unexpected and unexplained”, and invited the jury to “deduce reasonably firmly” that Ms Hardwick was killed some time between 9.08 pm on the Monday and the following morning when she was due at work.
There was no dispute at trial that Mr Hillier had been alone on the night of Monday, 30 September 2002. He had picked his children up from school on Friday, 27 September 2002. The children were to reside with their father for the following week. Mr Hillier said that, due to an early morning business meeting on Tuesday, 1 October 2002, he organised for the children to stay with his father on the night of Monday, 30 September 2002.
There was no direct evidence suggesting how the person who killed Ms Hardwick had obtained entry. The prosecution submitted, however, that there was evidence from which it could be inferred that Mr Hillier had gained access to keys and therefore allowed himself to get into the premises. This was despite the fact that there was no evidence that Mr Hillier actually had possession of any key which would have given him access to the house. The prosecution’s case in that regard relied on inferences.
The evidence regarding access to Ms Hardwick’s house can be briefly summarised as follows. On the morning they discovered her body, Ms Hardwick’s parents gained access to the house by unlocking the back door using keys Ms Hardwick had previously given them. Ms Hardwick’s father described how his wife had called the ambulance and then they had both gone out to wait for the emergency services to arrive. In evidence he had said that “[a]t that stage” his wife had opened “the door”. Ms Hardwick’s mother gave evidence consistent with her having opened the front door of the house from the inside. The only keys, however, that Ms Hardwick’s parents had were to the back door of the house. There was no evidence that Ms Hardwick’s mother had used a key to open the front door for emergency services.
The expert evidence was to the effect that neither the locks to the front nor the back door showed any sign of forced entry or entry by manipulation.
There was photographic evidence which demonstrated the presence of chain locks on the doors. However, the evidence was unclear as to whether Ms Hardwick used the chain locks. Certainly, the prosecution invited the jury to infer that it would have been unlikely for the deceased to have used them given the number of people who had keys to the premises, and the difficulty they would have had in getting inside the house had the locks been used.
There was also some evidence to suggest that Ms Hardwick had been planning on getting the locks changed. Ms Van Der Toon, who had worked with Ms Hardwick, said that she had seen the deceased the Thursday before her death. Ms Hardwick had said that she thought she should have the locks to her house changed; she was concerned that her ex-partner might be able to get into the house, and she spoke of obtaining a locksmith. According to Ms Van Der Toon, Ms Hardwick had been concerned about escalating aggression from Mr Hillier. She was also worried that he might come and take the children from her. Ms Van Der Toon said that during their conversation Ms Hardwick took down the number of a locksmith from Ms Van Der Toon’s “Blue Books directory”.
Ms Hardwick’s partner at the time of her death, Michael Koppie, also gave evidence. He stated that on the weekend prior to her death Ms Hardwick had unsuccessfully tried to arrange for a locksmith to come and change the locks. When asked if Ms Hardwick had told him why she wanted to change the locks, Mr Koppie replied:
“Mostly based on [a] feeling that she found a drawer open in her room which she was convinced she didn’t open and just felt uncomfortable.”
Another friend of the deceased, Lesa Wells, testified that in the few weeks before her death Ms Hardwick had told her that she had a feeling that somebody may have been in the house. One of the drawers in Ms Hardwick’s bedroom had been open when she returned from a night out and Ms Hardwick said that she had not been to the drawer. Ms Wells said it had “spooked” Ms Hardwick who was “sure somebody had been in the house”.
Recordings of telephone conversations demonstrated that on 24 September 2002 Ms Hardwick had booked an appointment for a locksmith, but had cancelled it on 30 September 2002.
Ms Hardwick’s mother testified that her daughter had been “adamant” that her children were not to have keys. Other witnesses had also testified that the children were not supposed to have keys to the house.
In total, four sets of keys to the house were found. One set belonged to Ms Hardwick, and was found by police on her kitchen table. Ms Hardwick’s parents had the second set which they used at the time they found Ms Hardwick’s body. Ms Wells had a third set, which were spare keys to the front door. The fourth set was a spare set, which was found in Mr Hillier’s and Ms Hardwick’s son’s sock drawer. The expert evidence was that none of the four sets of keys showed any sign of having been copied.
The prosecution contended that Mr Hillier had gained entry to the house using the fourth set of keys, which he obtained from his son. It submitted that the location of the spare keys in the son’s drawer was curious, given that the deceased had been adamant that she did not want her children to have a set of keys. It further submitted that the son’s sworn denial of having given the keys to his father should not be accepted.
The prosecution summarised its case in relation to opportunity as follows:
“… first of all the accused was free on the Monday night to go to the home of the deceased. And secondly he was familiar with the premises. Thirdly, there was concern that the locks were about to be changed and fourthly there were the spare sets of keys floating around in inexplicable circumstances, and I suppose fifthly, in any event, you wouldn’t need keys to get into the premises.”
As the joint judgment of the High Court noted (at [33]) one inference available on the evidence was that Ms Hardwick had let her killer into the house.

Motive

Put simply, the prosecution contended that the appellant’s motive was “to eliminate Ana Hardwick as a competitor for the custodian of the children”.
Mr Hillier and the deceased had been actively involved in litigation regarding the custody of their children for some time. As noted above Mr Hillier and Ms Hardwick had lived together until February 1999. Upon their separation, it was agreed that the children would live with Mr Hillier, and Ms Hardwick would have access to them as arranged between them. That agreement was formalised by terms of settlement in June 2000. However, in October 2000 Ms Hardwick filed an application in the Family Court of Australia for interim and permanent orders requiring the children to reside with her. The application for interim orders in those terms was dismissed in April 2001.
Nevertheless, in June 2002 the Family Court made an order that the children reside with the deceased and that Mr Hillier have access to them. These orders were subsequently stayed upon Mr Hillier’s application and the children continued a regime that involved them spending alternate weeks living with each of their parents. Mr Hillier filed his notice of appeal with the Family Court on 6 September 2002, but an order effectively lifting the earlier stay was made on 20 September 2002. See generally R v Hillier [2005] ACTCA 48 at [23]–[24].

There was evidence that after the separation Mr Hillier had sometimes displayed anger towards the deceased or otherwise behaved unreasonably.
There was also evidence that the legal proceedings had been taking a financial and physical toll on Mr Hillier. In particular, Judith Vaughan, who was a close friend of both the deceased and Mr Hillier, stated that in July 2000 Mr Hillier had come to collect his son from her house. During a conversation, Mr Hillier had said that he would need to find more money to fight Ms Hardwick in the courts. He had also said that there was no way he was going to let her change the custody orders.
Ms Vaughan also stated that on 26 November 2000, approximately two years before Ms Hardwick’s death, Mr Hillier had told her that he had a stomach ulcer which “cost a fortune” in medication. He had said that the ulcer was the result of the legal proceedings. He had also said that the legal proceedings were getting very expensive, and he would need to find more money.
Ms Vaughan further said that she had attended a school assembly on 22 June 2001, and had observed Mr Hillier staring at Ms Hardwick. After the assembly, Mr Hillier came up to Ms Vaughan and Ms Hardwick and said “You two should stop spying on me or you’ll regret it”. When Ms Vaughan asked him what he meant, he leant in and said “You know what I mean bitch.” The verbal exchange continued; Ms Vaughan said she was very frightened.
Debra Chase, the principal of the children’s school, also gave evidence. On the morning of 20 September 2002 Ms Hardwick had telephoned her to inform her that she had regained custody of the children and that she would be picking them up that day. Ms Chase obtained copies of the orders and advised the front office.
After she had spoken with Ms Hardwick, Ms Chase said that she had walked out of her office and found Mr Hillier sitting with his son. They both appeared “very distressed”. Mr Hillier, in particular, was “extremely distressed” and was crying. His son was fighting back tears. Ms Chase said that she approached the two of them and asked Mr Hillier what he was doing there. Mr Hillier replied that he had come to tell his son “what that woman had done to them”. When Ms Chase advised him that he should not be there, Mr Hillier continued to reiterate “what that woman had done to them”. He asked Ms Chase to look at his son whom he said was upset. Ms Chase said that at that point the son did start to cry, and she asked Mr Hillier if he wanted to see a counsellor. He said that he did, and she left him with another teacher while she went to make a telephone call to try and locate a counsellor.
When asked why she had made the offer of seeking a counsellor, Ms Chase stated that Mr Hillier had looked like he was barely in control. He was crying, but he was also very angry. She described his appearance as being red faced, and said that he had been clutching his fists. She also stated that he was “sort of spitting out” his words.
Ms Chase stated that she returned a short time later and offered Mr Hillier the name of a place that he could go and obtain counselling. He said that he would go, but then got up and started to walk towards the door with his son. When Ms Chase told him that his son was not to go with him, Mr Hillier stated that his son needed to see a counsellor. Ms Chase informed Mr Hillier that “We’ll handle that here. This counsellor’s for you”. She said that she thought she then physically turned Mr Hillier’s son around. Mr Hillier then said to her that he would walk his son back to class. Ms Chase said that she tried to follow them, and that the class teacher then took control of the son. Mr Hillier then went to his daughter’s class and spoke with her. Ms Chase, who had followed Mr Hillier up the corridor, asked him to leave, and he subsequently did so.
Mr Hillier’s stepmother, Daphne Hillier, also gave evidence to the effect that Mr Hillier had told her that he had been obliged to tell his son that he could not afford to take proceedings in the Family Court “any further” because he had no money. Ms Hillier said that that conversation had occurred “probably weeks” before the death of the accused.
Mr Hillier was questioned about this conversation in cross-examination. He denied making any such comment. In addition, bank records were tendered which

demonstrated that Mr Hillier had access to a line of credit and that more than $40,000 had been available to him.

The prosecution contended that all of this evidence went towards Mr Hillier’s mental state at the relevant time, and demonstrated that he had a motive to kill the deceased.

Damage to Mr Hillier’s fingertips

The third component of the prosecution’s case related to damage to Mr Hillier’s fingertips. As indicated above, the prosecution contended that the damage, and inconsistencies in Mr Hillier’s accounts of how that damage was caused, revealed a consciousness of guilt.
On 14 October 2002 the police had written to Mr Hillier’s solicitors asking that he provide fingerprints and DNA samples. A court order was subsequently obtained requiring Mr Hillier to do so, and on 1 November 2002 he attended the police station to have his fingerprints taken. The tips of his fingers had been damaged, and he told the officer taking the prints that the damage had been caused by chemicals he had been using while cleaning. See generally R v Hillier [2005] ACTCA 48 at [76]–[77].
On 3 November 2002 Janice Mundy, who was supervising a contact visit, observed Mr Hillier telling his daughter that he had hurt his hands. Ms Mundy said that his hands had a very bleached appearance, they looked sore and swollen. In particular, she said that the fingernails appeared to be lifting from the flesh because the fingers were so swollen. When Ms Mundy asked Mr Hillier how he had hurt them, he replied that he “was cleaning something and burnt them and they are very sore”, or words to that effect. He had also said that he had been unable to use any gloves because the police had taken all of his gloves. Ms Mundy then asked Mr Hillier whether he had been using caustic soda. When he said that it could have been that, Ms Mundy showed him a jar of caustic soda that was kept at the contact house. Mr Hillier said that “yes that was it”.

When asked by his son what he had been cleaning, Mr Hillier said that he had been cleaning some equipment. Earlier in that contact visit he had told his son that he could not remember what he had been cleaning.
Another witness, Belinda Falkingham, gave evidence about how Mr Hillier had shown her the damage to his fingertips “a week or so before 14 November 2002”. When she asked him how it happened he said that he had been cleaning with caustic soda, but had not realised how dangerous caustic soda was and had not used gloves. He said that it was not until 15 minutes or half an hour after he had finished cleaning that he started feeling a burning, tingling sensation on his hands.
Dr Anthony Meyer examined Mr Hillier’s fingertips on 18 November 2002. Mr Hillier had asked for the doctor’s opinion as to how they had reached the stage that they had reached. Dr Meyer said that he observed that the nail bed was retracted from the nail for a distance of seven to eight millimetres behind the end of the nail on all of the fingers and thumbs. He said he had found it difficult to determine what the cause might have been. He made a number of suggestions to Mr Hillier and asked him some questions as to how he thought this might have happened. When the doctor asked him if his hands had been exposed to any chemicals or solvents, Mr Hillier replied “no”. Mr Hillier also told him that he had not interfered with the nails. Mr Hillier then asked the doctor for a certificate because the police had been suggesting to him that he had interfered with his nails and that he needed a certificate from the doctor stating that this was not the case. Dr Meyer gave Mr Hillier a certificate on the basis that he was not sure what the cause of the problem was.
On 22 November 2002 Dr Mark Healsmith, a dermatologist retained by the police, inspected Mr Hillier’s fingertips. He gave evidence that he observed redness to the tips of all of the fingers, and on the back of the tips of the fingers up to the last knuckle. All of the fingernails were abnormal to some degree. Dr Healsmith said that the injuries were consistent with significant trauma to the fingertips without any associated trauma to the rest of the hands. This tended to suggest that the damage had not been caused by “splashing from normal usage”. In his opinion, immersion in some acid or alkali was “the most likely explanation” for the damage. When asked his opinion about the timing of the trauma, the doctor estimated that it would have been between three to five weeks earlier.
On 26 November 2002 Mr Hillier visited a dermatologist, Dr Paul Freeman, on referral from Dr Meyer. Dr Freeman testified that during this consultation Mr Hillier told him that he had been cleaning some pavers, presumably in his driveway, on 29 October 2002. He had said that he used some type of caustic mixed with water and a small bristle scrubbing brush. Mr Hillier said that immediately afterwards his nails appeared yellow and he felt burning beside the nails but not elsewhere. He told the doctor that he had his fingerprints taken three days after this occurred. Dr Freeman said that the damage he observed would have been consistent with the immersion of Mr Hillier’s hands, one hand at a time, in an ice-cream bucket with the caustic mix.
Mr Hillier’s evidence in relation to the damage to his hands was that it had happened whilst he was trying to clean up some leaked oil from the driveway at his father’s house. He said that he was anxious about cleaning it up quickly because he felt like he was “walking on eggshells” with his stepmother. His evidence continued:
“Do you recall what you got to clean up the oil spill?---I raced down to the supermarket at Chisholm. My range was limited and knowing that caustic is a cleaner of that sort of thing I purchased some caustic.
What did you do with the caustic when you got it?---Well, I made up a mixture to try and clean up the - - -
How did you make up the mixture?---In an ice-cream container with water.
And did you have any item to clean?---I had the ice-cream container and a scrubbing brush.
How big was the scrubbing brush?---It just fitted inside the container.
All right. What sort of a scrubbing brush was it, can you recall?---Just your normal type of wooden top. Short bristled.
And what did you then do with the brush in relation to the ice-cream container and the mixture?---I’d dip it in and put some onto a patch of oil and scrub it. And I had to keep repeating that process to keep the brush damp.
Did you use one hand?---No. No I got tired so I had to swap hands.
How long were you cleaning for?---Probably around 15-20 minutes.
And were you wearing anything on your hands?---No.
You’d had a previous experience with caustic and your nails?---Yes.
Why didn’t you use gloves on this occasion?---When I returned home to get my overalls and brush, I’d forgot that I hadn’t had any gloves left after they were all seized. I didn’t have time to go back to the supermarket. I couldn’t find any suitable or anything at Dad’s that I could use to do it so I just persevered.
And did you notice something sometime after you’d finished the cleaning operation in relation to your nails?---Yes quite a bit later.
What did you notice?---Well, about 20 minutes later they started to get a little bit tingly and I became concerned because I’d already washed up, but I went back trying to wash again. I hadn’t realised that the solution had soaked in under the nail.”

DNA evidence

DNA evidence at trial

The presiding judge, correctly in our view, directed the jury that they had to be satisfied beyond reasonable doubt that Mr Hillier’s DNA was found on the deceased’s pyjamas and was not there as a result of indirect transference via either of the children.
The evidence given at trial relating to the DNA found on the pyjamas that Ms Hardwick was wearing at the time of her death can be summarised as follows.
Several tape lifts were taken from Ms Hardwick’s pyjamas and subjected to DNA analysis. The results in relation to two of the tape lifts assumed particular importance at trial. The first was taken from the right-side flap of the collar of the pyjama top (labelled 15C7 “front right inside”), and the second was taken from another area of the collar (labelled 15C1 “right outside flap”).
At the trial, three experts gave evidence. Two were called by the prosecution (Ms Slazana Ristevska and Dr Henry Roberts), and the third (Dr Brian McDonald) was called by the defence. In relation to tape lift 15C7, Ms Ristevska testified that she had obtained a mixed DNA profile that could have come from at least two individuals. She said that that mixed profile contained a major and a minor component. With respect to the major component Ms Hardwick could not be excluded as the contributor and with respect to the minor component Mr Hillier could not be excluded.
At trial, four documents were shown to Ms Ristevska and then tendered as evidence with respect to sample 15C7 and marked Exhibit J. The first was a DNA profile taken from sample 15C7 which had a run date of 19 May 2003. The second was a DNA profile for Ms Hardwick obtained from a sample taken from the sexual assault kit. The third was from Mr Hillier’s reference sample. The fourth was a DNA profile obtained from a reference sample taken from Ms Hardwick’s muscle tissue. Notably however, a second DNA profile which Ms Ristevska obtained from sample 15C7, labelled 15C7+, was neither mentioned to the jury nor tendered.
Ms Ristevska said that she had prepared the profiles from the samples. Dr Roberts and Dr McDonald were provided with copies of Ms Ristevska’s results, including the four documents tendered, and asked to examine those results. At trial, none of the experts made reference to the result for sample 15C7+. This Court has subsequently been informed that Dr McDonald had not at that stage seen the profile obtained from that sample. However, as will be seen, 15C7+ had previously been provided to Mr Hillier’s legal representatives.
Dr McDonald raised questions about the validity of the 15C7 result. However, at trial, all three experts agreed that the mixed profile obtained from sample 15C7 was consistent with the profiles of the deceased and Mr Hillier. The two prosecution experts estimated that the likelihood that the contributors were the deceased and Mr Hillier, rather than the deceased and another person, as very high. In Ms Ristevska’s opinion, the chances were one in 93 million. In Dr Roberts’ opinion it was approximately one in 7.6 million.
However, Dr McDonald suggested that these calculations had been predicated upon two assumptions: first that there had only been two contributors to the DNA on the tape lift; and, second, that Mr Hillier had been one of those contributors. He said that the basis for the first assumption was not adequate and that the second required an “act of faith”. He also said that either of Mr Hillier’s children could have been contributors. He said that he regarded it as a real possibility that Mr Hillier’s DNA had been transferred to the pyjama top without him ever touching the pyjamas, it having been transferred innocently by the children.
Dr McDonald had not calculated any probabilities in relation to the mixed profile. However, when pressed in cross-examination he stated that the chances of two contributors to the DNA on the tape lift being the deceased and Mr Hillier, compared to the deceased and an unknown person selected at random from the Australian population, “could be anything from half a million to five million”.
In cross-examination Dr Roberts was asked if he had formed a view as to whether sample 15C7 had been “overloaded” because there were some peak heights above 7000 relative fluorescence units (“RFUs”). We interpolate that the term “overloaded” appears to mean that too much sample was used in the analysis. Dr Roberts said he did not know what the limit of the machine used by Ms Ristevska was but said that some of the peaks were above 7000 RFUs, which “is towards the top of the range” with which the machine could cope. When asked to assume that 7000 was the limit of the machine used by Ms Ristevska, Dr Roberts accepted that a height above 7000 would not be within the optimal range for looking at DNA. He said that it could cause problems if one was trying to work out how much of the DNA came from the different contributors. This was because the peak heights above 7000 may be underestimated and therefore the true height of the peak might be even greater than 7000. He then stated:
“This sort of profile could be useful for looking at minor components because by loading a large amount of DNA onto the machine, the minor components which might otherwise be undetectable then can become visible. But it’s not ideal for working out how much of the DNA came from the major components.”
The following exchange is then recorded:
“Would you agree with this proposition, that smaller peaks can disappear if it’s not overloaded?---Yes that’s right. If you’ve got DNA from say two contributors and one of them contributed far more DNA than the other one and you don’t overload the machine such that the peaks from the major contributor are not off scale, then you may miss the peaks that are attributable to the minor component. You may miss them or they may be totally undetectable. And some of them may be present and some may be absent.”
Dr McDonald testified that in the 15C7 sample there were two peaks at the D5 locus above 7400, the X peak was on 6600 and at the D3 locus the peak was 6200 RFUs. He explained the significance of this as follows:
“Well as I indicated before, this is pushing the, you know, the limits of this machine. So that this has loaded the DNA up, you know, right up to the point of its maximum level the machine will tolerate. In order to be able to identify smaller peaks down the bottom. And you know, that starts to compromise the accuracy of the machine in terms of quantitating those peaks. It doesn’t necessarily influence the location of the peaks but the particular quantitation of the peaks can be compromised.”
In relation to the second tape lift, 15C1, all three experts gave evidence that there was an unidentified contributor to the DNA found at that point. However, they did not agree as to whether Mr Hillier could be excluded as a possible contributor. Ms Ristevska concluded that he could not be excluded; Dr Roberts concluded that there was no clear evidence either way; and Dr McDonald concluded that there was evidence to exclude Mr Hillier.

DNA evidence on appeal

When the appeal resumed on 4 December 2007, Mr Hillier (at this point self-represented) indicated that he had found some additional papers concerning the DNA evidence which he said he had discovered on 17 September 2007. He said that the additional material comprised two DNA charts which were attached to an email from Ms Ristevska. One of those charts was said to be a later test on the item 15C7. It was labelled “15C7+” and had a run date of 28 May 2003. Mr Hillier stated that these results were not in any of Ms Ristevska’s reports, and did not form part of her evidence at either the committal or the trial.
When asked whether his solicitor had had the material available to him at trial, Mr Hillier said that he had made inquiries and the only information he had received was that the solicitor could not recall the additional DNA material. Mr Hillier said his solicitor had informed him that at the committal his lawyers had been “running on” what was in Ms Ristevska’s report. After the committal, they had been “running on” her report and on the evidence she had given at committal.
Mr Hillier said that the additional chart labelled 15C7+ was significant because the results were either unreportable or insufficient. He submitted that the 15C7+ test was at odds with the chart that Ms Ristevska had worked on and given evidence about at trial.
Mr Hillier sought to explain the significance of the 15C7+ result himself, however, he also indicated that Dr McDonald was available to give evidence by telephone link. He believed that Dr McDonald would say that the 15C7+ result was a later test performed because of the over amplification of the first test.
When asked about the significance of the 15C7+ result, Mr Temby QC, counsel for the prosecution, stated that he had not understood its significance. He stated, however, that the document had been included in the forensic material which was provided to the defence prior to the committal.
After hearing submissions from both sides as to what was the proper course to adopt in the circumstances, the Court agreed to allow Mr Hillier to contact Dr McDonald and have him fax through a statement of the evidence that he would give in relation to the 15C7+ result. The Court specifically requested that Dr McDonald address the question of whether, in the light of the new chart, he would have given different evidence from that which he gave at the trial. And, if so, in what way would that evidence have differed.

Dr McDonald’s report dated 4 December 2007

Dr McDonald said that, in preparing his report dated 4 December 2007, he had had access to some, but not all, of the laboratory data. In particular, he said that he had had access to a profile of a second, “non overloaded”, sample run from sample 15C7 called 15C7+.
Dr McDonald said that the most obvious feature of the original 15C7 result was that it was overloaded in terms of DNA which was evidenced by peak heights of above 7000 RFUs and “a split X peak at the Amelogenin locus”. He said that overloading had the effect that the software used to analyse the data would not produce accurate results. It also affected the accuracy of the figures printed out under the peaks and the quantities of DNA sourced from each contributor. This meant that they could not be used for interpretation purposes. He said that as a consequence Ms Ristevska had used flawed data to asses alleles (characteristics of an individual’s DNA) relied on for her opinions.
Dr McDonald said that if an overloaded result was obtained the manufacturer’s and procedures manuals in any accredited laboratory using this type of technology would state that the sample had to be rerun with less DNA in order to produce peaks in the optimal mid range to ensure accurate sizing and relative quantitation of DNA peaks. He said that Ms Ristevska had followed that procedure when she obtained the results for 15C7+, using a 1 in 10 dilution of DNA.
Dr McDonald said that in “stark contrast to the overloaded 15C7 result” which Ms Ristevska had relied upon in her evidence, the 15C7+ result was not overloaded and only demonstrated two alleles attributable to Mr Hillier that were not also shared with his wife. Three other peaks were in the location of “stutter peaks” and were not reportable and various others were not detectable at any level.
Dr McDonald concluded that it was probable that the majority of the DNA in sample 15C7 came from Ms Hardwick, however, the minor contributors were less than clear. He said that a possible contribution from the children could not be ruled out. He said that Dr Roberts’ and Ms Ristevska’s conclusions that the children could be ruled out as contributors was dependent on accurate relative amounts of DNA in 15C7 to determine “insufficient” additive effects of shared alleles with the children and their mother or Mr Hillier. In Dr McDonald’s view this could not be done accurately with the overloaded result obtained by Ms Ristevska for sample 15C7.
In Dr McDonald’s view the statistical weight of the 15C7+ result was effectively reduced to the presence of a reportable allele 12 at the D5 locus. He said that approximately 34% of the population, including both of the children and Ms Hardwick’s father, possessed that allele. According to Dr McDonald this was the only allele found in sample 15C7+ which was not found in Ms Hardwick’s profile. Dr McDonald said it was also possible that the unknown male contributor to item 64E could possess the same allele because that partial profile did not reveal alleles at the D18 locus. He said that, in addition, Ms Hardwick’s father and the attending ambulance officer could not be excluded as they both possessed allele 14 at the D18 locus.

Following receipt of Dr McDonald’s statement, the Court agreed that there was sufficient justification for an adjournment of the appeal to enable a more formal report to be obtained from Dr McDonald. The Crown would in turn be given an opportunity to cross-examine Dr McDonald, and if necessary obtain further expert evidence itself. The Court also asked that it be formally proved that the DNA material, including 15C7+, had in fact been provided to Mr Hillier’s solicitors at an earlier time.

Dr McDonald’s subsequent report

On 31 December 2007 Dr McDonald produced a further, more detailed report. In that later report he restated the opinions he expressed in his 4 December 2007 report. He also set out details of the procedures, manuals and software used to analyse the DNA evidence in this matter. He said that the reference material supplied by the manufacturer of the DNA analysing equipment clearly identified a need for data to exist in the peak height range of between 150 and 4500 RFUs. However, as the Australian Federal Police (“AFP”) laboratory had overridden the minimum level of RFUs, the acceptable range was 100 to 4500 RFUs. He said that if the data showed evidence of overloading then it should be rerun with less input DNA. He said that that could be managed by a number of methods but the requirement was to reduce the heights of the DNA peaks down to a level to enable optimal analysis by the software as per all recommendations.
Dr McDonald restated his view that the most obvious feature of the 15C7 result was that it was overloaded in terms of DNA. He said that that was evidenced by:
·peak heights above 7000 RFUs;
·a split X peak at the Amelogenin locus; and
·“pullup” of at least the X peak at the Amelogenin locus.
Dr McDonald said that once Ms Ristevska had observed her results she would have been able to determine that the sample was overloaded, and as such required diluting and rerunning in order to obtain optimal results so that she could move to the next phase of reporting her results and performing the calculation. He said that Ms Ristevska had followed the correct procedure by rerunning the sample, approximately one week after the 15C7 sample had been run, using sample diluted at 1 in 10, as suggested by the manufacturer. He said that that rerun, 15C7+, “produced optimal, non loaded peaks with the X peak measuring 992 rfu’s”. He continued:
“Having produced a result for 15C7+ which, by all references cited, was an optimal result she should have used that optimal result for her report and evidence not the overloaded result.
Ms Ristevska required accurate quantitative data for a number of conclusions she drew from the overloaded result before she moved to perform the statistical calculation. Firstly, the characterization of a peak 1 repeat less than and in front [of] a larger peak as contribution from a second contributor or merely a stutter peak involves calculation of the relative height of the small peak compared to the larger peak.
Below a particular threshold the peak is deemed a stutter and cannot be interpreted as a real peak from ‘another’ contributor. This calculation cannot be performed with reliability with overloaded data.”

Dr McDonald reiterated his view that the 15C7+ result reliably demonstrated only one allele attributable to Mr Hillier and not shared with his wife. He also restated his view that in the circumstances the evidence of Dr Roberts and Ms Ristevska ruling out the possibility of the children being contributors could not be relied upon.
Dr McDonald concluded:
“The statistical weight of the evidence in favour of … Mr Hillier compared to an unrelated person in the population is less than 1 in 3 but does not distinguish Mr Hillier from his children or their paternal grandfather. As a consequence it may have been judged at trial that evidence regarding this item carried more prejudicial value than probative value in terms of identifying the source of the DNA, had this evidence been available.”

Ms Ristevska’s statement

On 29 January 2008 the Crown filed statements from both Ms Ristevska and Dr Roberts.
Ms Ristevska’s statement essentially outlined the procedures she had adopted when preparing the results for both 15C7 and 15C7+. In particular, she explained the steps involved in analysing DNA, namely extraction, quantitation, amplification and analysis.
With respect to the results she obtained for sample 15C7, Ms Ristevska restated her conclusion that Ms Hardwick could not be excluded as the contributor of the major component and Mr Hillier could not be excluded with respect to the minor component. She said that the attending ambulance officer, Ms Hardwick’s father and the unknown male contributor identified on item 64E could not have contributed to the minor component.
Ms Ristevska said that the off-scale/split X peak allele in sample 15C7 could be explained by the cumulative effect of multiple X alleles. She said that all other peaks had “sound morphology, are within the laboratories [sic] reporting thresholds and are above a conservative stutter percentage (20%) for each locus”.
Ms Ristevska stated that on 28 May 2003 samples 15C1 to 15C7 inclusive were re-amplified at a 1 in 10 dilution. The re-amplified sample for 15C7 was labelled 15C7+. The same notation was used for other re-amplified samples.
Ms Ristevska said that the samples were diluted in order to rule out the possibility that the amplification process had been inhibited. She said that the dilution could also assist in determining whether a third contributor was present.
With respect to the results for sample 15C7+, Ms Ristevska said that she identified a DNA mixture that could have come from at least two individuals. That mixed profile had both a major and a partial minor component. She said that Ms Hardwick could not be excluded as the contributor to the major component and Mr Hillier could not be excluded with respect to the partial minor component. She also said that the attending ambulance officer, Ms Hardwick’s father and the unknown male contributor identified on item 64E could not have contributed to the partial minor component in sample 15C7+. She said that she had not identified a third contributor in sample 15C7+.
Ms Ristevska stated that she had not referred to the results from the re-amplification of these samples in her statement of 21 August 2003 because no additional information had been observed in those results.

Dr Roberts’ statement

In his statement, Dr Roberts said that he had been provided with a copy of the DNA profiling result that related to sample 15C7+. He said that that document appeared to be a further copy of page 60 of the AFP Forensic Services Laboratory case file in relation to Ms Hardwick’s death. He said a complete copy of that file had been provided to him in October 2003.
Dr Roberts said that the principal effect of the reduction of DNA concentration in sample 15C7+ was to reduce the heights of the peaks in comparison to the results obtained for sample 15C7. He said that it would be expected that the minor

component of a mixture of DNA that is diluted ten-fold might fall below the limits of detection of the DNA typing system.
Dr Roberts said that a secondary effect of the dilution was to provide a more typical shape of the Amelogenin peak labelled “X”. He said that the greater height of the “X” peak on the 15C7+ result, compared to the other peaks on the same chart, demonstrated that the height of the “X” peak in the 15C7 chart had been seriously underestimated. He said that as a consequence the 15C7+ result could reliably be used as a measure of the proportions of female to male DNA in the sample.
With respect to the ratios of the heights of the other peaks in 15C7+, he said that these were quite similar to the corresponding peak height ratios in 15C7. He said that that suggested that the relative peak heights in 15C7 were probably reliable as indicators of the relative amounts of DNA from each contributor.
Dr Roberts had also been provided with a copy of each of Dr McDonald’s reports. Dr Roberts explained in some detail why he disagreed with many of the specific conclusions expressed by Dr McDonald in those reports. In particular Dr Roberts stated:
“Taking the results of samples 15C7 and 15C7+ into account, the peaks of both the major and the minor components of the mixture can all be interpreted. There is no requirement for all of the peaks in such a mixture to be visible and satisfactorily displayed in a single experiment. For mixtures with a major and a minor component, it is, in my opinion, appropriate, and often essential, to analyse the sample at two different dilutions, as Ms Ristevska has done in this case.”
Dr Roberts rejected Dr McDonald’s conclusion that overloading a sample had the effect of making an entire result inaccurate. Dr Roberts said that that was only true of the peaks that were off-scale. In that regard, he referred to the manufacturer’s manual attached to Dr McDonald’s report.
Dr Roberts also rejected Dr McDonald’s assertion that the results in 15C7+ were optimal. In Dr Roberts’ view they were only optimal with respect to the major component and not the minor component of the mixture.
Dr Roberts concluded:
“Dilution of sample 15C7, to produce sub-sample 15C7+, … enabled the reliability of the measured heights of the larger peaks in sample 15C7 … to be assessed. The dilution has not affected the interpretation of the minor peaks in sample 15C7.
The deceased and Mr HILLIER are not excluded as being the major and minor contributors, respectively, to the mixture of DNA in sample 15C7. Although it cannot be excluded that there is DNA present from other sources that is below the detection limit of the procedure used, there is no convincing evidence to support the proposition that DNA from a third person is present.
My opinion, expressed on page 7 of my previous statement, has not altered.”

Supplementary report from Dr McDonald

On 4 February 2008, Mr Hillier’s solicitors filed a supplementary report dated 3 February 2008 which had been prepared by Dr McDonald.
In response to specific questions raised by this Court Dr McDonald stated that at no time in 2003 or 2004 was he aware of item 15C7+ or given any report in relation to item 15C7+. He said it was not mentioned in any report provided to him by the defence team or the prosecution. He also said that the item had not been mentioned at the trial, and he believed that his request for material would have included all laboratory data regarding testing of samples referred to in the reports. He said that seeing the results of all tests enables assessment of the most important findings in forensic DNA testing which in turn helps to assess the reliability and reproducibility of results.
When asked whether he would have excluded or have had reason not to include Mr Hillier in item 15C7+, Dr McDonald said that on the strictest of criteria he would not have excluded him as a contributor. However, he said that that statement could not be valued because no Y chromosome material was reportable, and the only reportable allele attributable to Mr Hillier was the D5 12 allele. He said that approximately 35% of the pooled Australian Caucasian data has such an allele, including many of the persons tested or identified in this matter.
When asked if his evidence would have been different at trial if he had been aware of item 15C7+, Dr McDonald responded “Yes”. He continued:
“The result from 15C7+ confirmed the unreliability and irreproducibility of the minor peaks in the profile of the overloaded result of 15C7 which in turn compromised the interpretation of those peaks. The correct procedure in a situation of a clear case of overloading as exists for 15C7 is to rerun the sample with less DNA as for 15C7+ and interpret the results accordingly. The nature of the testing is that the SAMPLE is overloaded NOT individual peaks as ALL are amplified together as the same sample. As such the entire SAMPLE has to be treated to rectify the problem. The only result confirmed by the re testing was the profile of the deceased and the existence of a minor contribution of ‘other’ DNA. No meaningful assessment of a minor profile is possible.”
Dr McDonald’s report went on to detail, in strong terms, why he disagreed with many of the conclusions reached by Ms Ristevska and Dr Roberts in their most recent statements. In short, the opinions Dr McDonald expressed in his reports of 4 and 31 December 2007 were not altered by their reports.

Evidence relating to 15C7+ result being supplied to defence

Also on 4 February 2008 the Crown filed an affidavit sworn by James Lawton who is a prosecutor employed by the Office of the Australian Capital Territory Director of Public Prosecutions (“ODPP”). Mr Lawton stated that in 2003 and 2004 he was the instructing solicitor for the committal proceedings relating to Mr Hillier’s matters.
Mr Lawton said that on 22 September 2003 Mr Hillier’s solicitor, Bill Redpath of Pamela Coward & Associates, wrote to the ODPP, among other things seeking copies of the original testing data. The letter continued:
“The documents required will be all those materials produced and used in preparation of the report by Slazana Ristevska dated 21 August 2003, with specific reference to the case file and the working notes of the lab technicians doing the DNA testing.”
Mr Lawton arranged for two folders of materials prepared by the AFP Forensic Biology team to be photocopied by AFP staff. On 23 September 2003 he advised Mr Redpath that the requested material would be available before close of business on 24 September 2003.
Mr Lawton said that he was not clear in his recollection, but believed that he provided those two folders of materials to Andrew Fleming, an employee of Pamela Coward & Associates, on or about 24 or 25 September 2003. He said that he believed Mr Fleming came to the ODPP and collected it from him.
Mr Lawton said that he had perused the ODPP files and consulted with ODPP staff involved with the matter and it was his understanding and belief that no further material relevant to DNA sample 15C7+ had been provided to Mr Hillier, his defence team or Dr McDonald since the delivery of the material on or about 24 or 25 September 2003. Mr Lawton said that that material included the 15C7+ result.
In an affidavit dated 5 February 2008, Ms Bianca Francis, a Forensic Assistant with the AFP Forensic Biology team, stated that on 23 September 2003 she paginated, signed and dated each page of AFP Forensic Biology file, Part 1, for Forensic Case FC022074 which related to the death of Ms Hardwick. She said that it was 501 pages long and that she numbered each page consecutively from 1 to 501.
Ms Francis said that on 24 September 2003 she photocopied the AFP Forensic Biology file Parts 1 and 2. She had noted as much in the AFP Forensic Services log sheet (which documents activity on the Forensic Biology files) for Ms Hardwick’s case. A copy of the log sheet was attached to Ms Francis’ affidavit.
On 14 July 2004 Ms Francis again photocopied Parts 1 and 2 of the file and provided a copy to her co-worker, Noela Vaughan. She said that to the best of her knowledge that second copy was produced at the request of Mr Lawton.
On 6 February 2008 Allan Nelson, who has been Mr Hillier’s solicitor at various stages of this appeal, filed an affidavit exhibiting correspondence from Mr Hillier’s former counsel and solicitor. In effect, they had no specific recollection of what material had been forwarded to Dr McDonald in order to enable him to prepare his

expert report in 2003. They were unable to say whether Dr McDonald had a copy of 15C7+ prior to Mr Hillier’s trial.

Oral evidence of the experts

Each of Dr McDonald, Dr Roberts and Ms Ristevska gave oral evidence before the Court. Dr McDonald adhered to the views expressed in his three reports. He was adamant that 15C7 was a flawed result, which ought not to have been given any credence in determining whether Mr Hillier’s DNA had been located on the deceased’s pyjamas. He insisted that the machine into which sample 15C7 had been inserted had been “overloaded”, well beyond the optimum conditions required for accurate analysis. The effect of introducing too much DNA into the machine had been to distort the various readings, including the peaks which had been located, and had resulted in an unreliable series of conclusions by the Crown experts.
Dr McDonald swore that he had not been aware that sample 15C7 had been reanalysed when he gave his evidence at the trial. He said that he regarded the document as being of fundamental importance. He said that had he known of its existence his evidence at the trial would have been quite different from that which he gave. He said that he would not have engaged with the prosecutor’s assumptions about the possible use that could be made of 15C7 because he would have known that there was a reliable indicator, namely 15C7+. Tellingly, he would have told the jury that no conclusion adverse to Mr Hillier could be drawn from 15C7+. That is because approximately one in three individuals within the Australian Capital Territory community would have the same profile as that disclosed in 15C7+. His “concession” that 15C7 could form the basis of a conclusion that Mr Hillier was between 500,000 and 5 million times more likely to be the source of the DNA found at that location than a person chosen at random had been made only because the prosecutor had insisted upon focusing on 15C7, and implicitly assumed that it was of some reliability. Although Dr McDonald had mentioned the dangers of overloading, he had not been armed with clear proof of the distortion that this was likely to have brought about. It was only 15C7+ which graphically brought home the need to disregard 15C7 and focus solely upon the later test.
Dr McDonald rejected the notion that “bits of” 15C7 and 15C7+ could be combined. He said that it could not be assumed that individual peaks within the optimal range had not suffered an adverse influence by being in a sample that was overloaded. If a sample was overloaded it had to be rerun until an optimal result was obtained.
It must be said that Dr McDonald appeared to have shifted the emphasis of his position somewhat from the evidence that he gave at trial. Although he then mentioned “overloading” as a factor which might detract from reliability, he did not state, as he now does, that 15C7 is effectively worthless for forensic purposes. His explanation for having strengthened his opposition to the use of 15C7 was that he had failed to communicate adequately what he really intended to say, and that he had been led by the prosecutor to answer questions that were based upon assumptions that he ought to have challenged. It must be said that that explanation may not be altogether convincing.
Nonetheless, we consider that Dr McDonald was and is a truthful witness, who was genuinely endeavouring to assist the Court. His expertise is unquestionable. Were he to give the evidence that he now says he would be able to give, in the light of 15C7+, a jury would have to give it serious consideration.
The evidence of Dr Roberts was also impressive. He accepted that the machine had been overloaded. He agreed that this could produce some distortion. He also agreed that it would be prudent to run a second test based on a diluted sample (as had in fact been done). However, he disagreed profoundly with Dr McDonald’s opinion that it was impermissible, in such circumstances, to have any regard to 15C7. Dr Roberts insisted that there was nothing wrong with utilising those aspects of 15C7 that did not appear to be unreliable, based upon a visual examination of the nature of the peaks revealed, together with those aspects of 15C7+ that were reportable. By combining 15C7 and 15C7+, a conclusion could be reached regarding Mr Hillier’s DNA.

Ms Ristevska stated that the reason she had run a second test on 15C7 was because she had been asked to consider the possibility that there may have been DNA from a third person on the deceased’s pyjamas. Accordingly, she had retested all of the tape lifts from those pyjamas at a diluted level. She said that the samples were also run at the diluted level in order to determine whether there were any inhibitory factors within the solution.
As previously indicated, in her statement filed on 29 January 2008, Ms Ristevska stated that the primary reason for the samples being diluted was “to rule out the possibility of PCR inhibition”, as the presence of dark dirt like matter was evident on all samples. She added that the dilution might also assist in determining whether a third contributor was present.
Dr McDonald challenged the notion that 15C7 had been retested because of a concern about inhibition. He said that there were no signs of inhibition in 15C7. Dr Roberts agreed. So too did Ms Ristevska in cross-examination. Plainly, there is an issue to be determined as to why the retesting took place. Ms Ristevska maintained that it was merely coincidental that she had retested a sample that was arguably overloaded, which happened to be precisely what the various manuals and guidelines suggested should be done. She was not challenged by counsel for Mr Hillier regarding the truth of her evidence, and the Court will accordingly treat her as an honest witness.
At the end of the day therefore, the issue remains firmly joined between the Crown experts, on the one hand, who insist that 15C7 can be used in conjunction with 15C7+ as the basis for their conclusions, and Dr McDonald who now says this cannot be done. He insists that had he known of 15C7+, he would have confronted the Crown experts directly, rather than embarking upon statistical calculations based on wholly unreliable material.

Issues on appeal

Although numerous matters were raised by Mr Hillier during his oral submissions on 4 December 2007, they were largely rejected by the Court during the course of that hearing. Accordingly, the outstanding issues to be determined in this appeal are as follows:

1.whether the Crown’s failure to put to Mr Hillier in cross-examination that he had ceased to make telephone calls to persons connected with his Family Court appeal on 30 September 2002 because he had, at that point, decided to kill Ms Hardwick amounted to a breach of the rule in Browne v Dunn (1893) 6 R 67, and thereby led to a miscarriage of justice;
2.whether the failure to lead evidence of the further DNA testing of sample 15C7, and the chart labelled 15C7+, led to a miscarriage of justice; and
3.whether the verdict is otherwise unsafe or unsatisfactory.

Cessation of telephone calls

This issue was flagged by Callinan J in his reasons for judgment when the High Court remitted this matter for further hearing and determination by this Court. His Honour would have granted Mr Hillier a retrial, irrespective of the outcome of the other grounds of appeal, on the basis that the Crown had failed to comply with its obligations under Browne v Dunn (1893) 6 R 67 in relation to the cessation of telephone calls after 30 September 2002.
The matter arose in this way. In his closing address, counsel for the prosecution made the following statements:
“… And some time over that weekend he decided to take the law into his own hands and that night kill the competitor for the custody of his children.
And the fact which I suggest very compelling[ly] demonstrates that is if you go [to] the phone records on the Monday, all the calls of the previous week to the psychiatrist, the doctors and the lawyers suddenly stop. And if you go to the Tuesday, 1 October, he doesn’t make one single call to any lawyer or any doctor or anybody else. There’s one incoming call which is unsuccessful from a person he can’t remember, but it’s quite marked, we suggest, when you look at the week of 23 September, and he’s making up to a dozen calls a day to various people including doctors and psychiatrists and lawyers, but then in the week commencing 30 September there are no such calls apart from a couple incoming and then when you get to 1 October, the day after the probable death of the deceased, he makes absolutely no calls at all.”
After breaking for an adjournment, the prosecution continued:
“Before we adjourned I was making the point that the climax I suppose of the evidence of events which identify the motive of the accused, being the deterioration in his position in the Family Court culminating in the orders which took effect on 20 September and his subsequent activities after that where he during the next week actively pursued doctors and lawyers and so forth in order to advance his cause, but then significantly, following the weekend of 28 and 29 September, during which he had the children, that seems to come an end and we say that’s quite marked by an examination of the chart.
Because on the 30th, he had a couple of incoming calls from Silk Chambers Pty Ltd and then some other solicitors but made no calls himself to any doctors or lawyers and in fact only had five calls which is odd because if you look back up the chart nearly every day there’s at least ten sometimes 12 or more.
And then the yellow line you’ll remember which identifies 1 October 2002 there’s absolutely no telephone traffic whatsoever and certainly no indications of any contact with doctors or lawyers, and indeed similarly on the morning of the 2nd, the only call was an incoming call from Christine Paynter and then late in the morning a call to Mr Lardner so we would say that there’s quite a marked change in the pattern of the activities of the accused following that weekend and in and around the night when Ana Hardwick was killed.
1 October is quite remarkable in the sense that nearly every other day before and after then he’s made 10 to 12 phone calls, but on 1 October, the day after her death, he makes none and clearly isn’t home when the unknown Mr Coogan rang and couldn’t get a connection.
And whilst it’s his evidence that he was at work and one can accept that or had worked for some of the time but it also seems that he was out and about talking to people as well, presumably that wouldn’t stop him using his mobile phone and nor would it stop him ringing people from the time that he got home in the afternoon after 4 o’clock when he picked up the children from his father.
So it just seems, we submit however, that when you look at the pattern of phone calls, it’s just quite consistent with the prosecution case that over the weekend of the 28th and 29th he suddenly realised that he was in real trouble in the Family Court and at that point decided to take the law into his own hands and on the night of 30 September, went to the home of the deceased and strangled her.
And 1 October’s significant as well because of the evidence, he didn’t know of the death of Ana until after the police contacted him and you can pick up that call which is at 2 o’clock on 2 October whereupon he went to Tuggeranong Police Station for the first time and learned of her death so that otherwise of course he would have no reason for taking no further action in his appeal if he knew she was deceased because he didn’t find out that she was dead until, on the police evidence anyway, he was told at Tuggeranong Police Station sometime after 2 o’clock.
So all of that we suggest provides a very neat and concise and logical motive which fits very squarely with the prosecution’s circumstantial case in the broad terms that I have outlined.”
Mr Tehan QC, who was counsel for Mr Hillier at the commencement of this appeal, contended that these statements urged the jury to find that the cessation of telephone calls from Mr Hillier to persons connected with his Family Court appeal on Monday, 30 September 2002 demonstrated that he had, at that point, decided to kill Ms Hardwick. Mr Tehan submitted, however, that counsel for the prosecution had not put this to Mr Hillier in cross-examination. He submitted that there had been a material irregularity in the conduct of the prosecution case which had given rise to a miscarriage of justice.
Mr Tehan noted that counsel for the prosecution had not made any mention of the issue of cessation of telephone calls in his opening address.
At trial, telephone records for both Ms Hardwick and Mr Hillier were tendered. Exhibit Z was a document setting out calls made to and from Ms Hardwick’s home and mobile telephones in the period from 13 September 2002 to 2 October 2002. Exhibit AA was a record of calls made to and from Mr Hillier’s home and mobile telephones in the period from 14 September 2002 to 6 October 2002.
Exhibit AA showed that from Monday 23 September 2002 through to Friday 27 September 2002, Mr Hillier made numerous calls to lawyers and psychologists in relation to his Family Court appeal. However, by 30 September 2002 that pattern appeared to have changed. On 30 September 2002 Mr Hillier made no calls to lawyers or doctors, although he received two calls from lawyers, one from Silk Chambers and the other from Capon & Hubert, Solicitors. On the evening of that day, which was the time the prosecution alleged the deceased was killed, Mr Hillier made only one telephone call which was to his father’s and stepmother’s number. On 1 October 2002 no telephone calls were made or received by Mr Hillier on either his landline or his mobile telephone. On 2 October 2002 there was an incoming call at 11.50 am from a psychologist, Christine Paynter and an outgoing call at 12.22 pm to David Lardner, Mr Hillier’s solicitor.
Exhibits Z and AA were tendered through Detective Constable Toby Seppings who had obtained the telephone records. In examination-in-chief, counsel for the prosecution asked Detective Constable Seppings to identify telephone calls made to and by Ms Hardwick in the period leading up to her death. With respect to Mr Hillier’s telephone records Detective Constable Seppings was asked to identify phone calls between Ms Hardwick and Mr Hillier and calls made in the period between 30 September 2002 and 2 October 2002. Cross-examination of Detective Constable Seppings elicited that there were some unknown telephone numbers rung from both Mr Hillier’s and Ms Hardwick’s telephones.
Mr Tehan submitted that prior to the prosecution’s closing address no issue was raised at trial, or on the prosecution case, as to what inferences might be drawn from such evidence. It should be noted that the defence did not object to the tender of the records, though it is difficult to see any basis upon which such an objection could have been taken.
In his evidence-in-chief, Mr Hillier identified several calls in the telephone records that he had made to persons in connection with his appeal. He was cross-examined by counsel for the prosecution with respect to these telephone calls. As indicated above, he was also asked about the evidence given by his stepmother and his ability to continue to fund a Family Court appeal. The relevant extract of the transcript is as follows:
“But the next week you were fired up in relation to the appeal, weren’t you?---No.
All right. Well, the term's probably a bit extravagant but what you did during that week was to make a number of phone calls to various doctors, psychologists, lawyers and so forth for the purposes of strapping up your appeal?---Well, there was a process I had to go through to - to get through the appeal and I needed the assistance of these professional people and I had to search for who was the most appropriate.
I won't take you through them again because Mr Purnell drew your attention to them on the chart, but you rang a number of doctors during that week?---Yes.
Starting from The Royal College of Australia New Zealand Psychiatrists, I think it was?---Yes.
Looking for names of psychiatrists in the field, were you?---Looking for - yes, I suppose, yes.
And in ringing some psychiatrists?---Yes.
Dr Nielsen was a psychiatrist, is he?---I believe so.
Was he from the Paddington Practice?---I believe that's where he practised from, yes.
Were you generally aware of the need to produce some evidence of that type if your appeal was to have any prospects of success?---I'm sorry, the type of?
Psychiatrists?---Well, I was looking for something so that could possibly support us if the fresh evidence was allowed.
Well, you'd need to negative the effects of Antoinette Harmer's report, would you not?---Yes, probably a fair comment.
Had you also looked for new solicitors that week?---No.
One of the calls on the 23rd is to Ray Swift and Associates, Solicitors, do you remember ringing them?---Yes.
Are they your current lawyers?---No.
Lawyers who'd been representing you in the Family Court?---No, they previously were the ones who arranged Deed of Agreement [sic].
Sorry, what?---They arranged the deed of agreement for me.
And is Ms Moutrage … from that firm?---Yes, she's the lawyer that actually handles my matter, or handled my matter.
But not the lawyers who acted for you at the hearing in the Family Court?---No, she started off in the Family Court.
You also spoke to Christine Paynter during that week, did you not?---Yes.
And discussed with her the prospects of her being able to provide some sort of report which would assist your appeal?---There was two things there, one to see how she could help me, and the second was to see - reading the documentation of Antoinette Harmer and her - Antoinette's handwritten notes to see if she could help in any way with the appeal.
When you say help you, do you mean help you with some counselling?---Yes.
Did you feel that you needed that?---Well, maybe. She probably thought it - well, that's why she suggested - she thought it would be a good thing.
And what did you think?---I agreed. That's why we made a further appointment.
And why did you think you needed some counselling?---Just to help me think things through and just get around things, help me be comfortable with things.
What sort of things?---Just the way I was feeling that, you know, this had happened and what was my next step, and do I take the stay matter back, and so we discussed a range of things.
Well, she wasn't a lawyer, was she? So she wasn't there to give you legal advice?---No, no, no.
How were you feeling?---Upset.
Angry?---I suppose at times, yes.
Is that why you wanted some assistance from her to help you with your anger?---Well, initially I hadn't thought about myself, I was thinking about the children, but it was her suggestion that she does it, I don't know, may be she was - maybe she thought that would help me, and maybe she thought that was good for her practice.
Did she give you some counselling?---Yes.
What day was that?---I think it was around the 26th or thereabouts we had a session.
I think those names were drawn to your attention this morning, but the Canberra Psychiatry Group. Is that somebody who you contacted for assistance?---Yes.
Lee Leonard, a psychiatrist from Elizabeth Street in the city, Sydney, presumably?---Yes, that was one of the names I'd received from the association.
And the others, I think, Mr Purnell mentioned this morning, Dr Waters, Dr Potter, Dr Dureck?---Yes, they're all people that I'd received from the societies to contact.
Silk Chambers was somebody who contacted you - Silk Chambers Pty Ltd, was there a lawyer from there?---They're - that's a chambers for counsel.
Right. Had you been looking for counsel?---No, no, they were doing some work for me with the appeal.
Is it fair to say that you spent a fair bit of your time that week, that is the week after you received the news on 20 September, exploring options for the appeal - or an appeal?---No, I hadn't explored options for the appeal. I was exploring the next stages of the appeal.
And did that include the sort of evidence and other assistance that you might need to run an appeal?---Yes.
Did it become clear to you that money was going to be a major issue in relation to mounting an appeal of the type that was necessary?---No, my indications from my legal representative, Mr Lardner, was that I had more than sufficient funds to run an appeal.
Was it correct that Legal Aid was no longer available to you?---I never applied for an appeal.
So any appeal would be privately funded?---Yes.
Did Mr Lardner tell you how much money would be involved in mounting an appeal?---Yes.
How much was that?---He said somewhere between $8,000 to $20,000.
Before you abandoned the appeal, as you said, this afternoon, how much money had you spent?---On the appeal?
Yes?---Less than $2,000 at that stage.
Did you pay Mr Lardner for that?---Sorry, are you talking about prior to Ana's - - -
No, I'm talking about when you finally abandoned it?---Okay, sorry, no, I'd probably spent about $4,500 to $5,000.
You paid Mr Lardner that?---Well, it was not only to Mr Lardner, there was various parties and things that needed to be done along the way, such as acquiring the transcripts.
Have you paid Mr Lardner?---Yes, I did pay Mr Lardner for that, yes.
But you're in dispute with Mr Lardner over legal fees, aren't you?---Not for the issue of the appeal.
Was it the fact by the end of the week, when you'd made these various efforts in relation to the appeal, that you were beginning to despair of your prospects on appeal?---No.
Did you take the view that your chances of overturning the decision were becoming low?---No.
Did you realise that the findings of fact made by the judge, Purdy J, the chances of getting the decision overturned were going to be remote?---My advice was we had a better than not success [sic].
HIS HONOUR: Better than not?
MR PURNELL: Better than not.
MR HASTINGS: Did you tell Mr Polkinghorne that the proceedings had not gone well?---Well, Mr Polkinghorne on many occasions asked me how things were going, and that was possibly one of the discussions or questions he asked me.
Did you tell him that your wife had lied and got away with it?---Probably not in those words, but yes.
Did you tell Daphne Hillier that you'd had to tell Daniel that you couldn't take it any further because you'd run out of money?---No.
Did you hear her say that in evidence?---I did actually, yes.
I see. What was she mistaken was she?---Well I'm not - not exactly sure what she was talking about, or what she was going to, but - - -
Did you ever have a conversation with her about whether you'd be able to take the matter any further?---I rarely had conversations with Daphne.
Did you ever have a conversation with her when you told her something to the effect that you wouldn't be able to take it any further?---No, I would've been discussing it with my father.
Well, was there an occasion when she - did you discuss it with you[r] father and tell him that you'd had to tell Daniel that you couldn't take it any further because you'd run out of money?---No.
Had you run out of money?---No.
Was that the point at which you decided you should take the law into your own hands?---No.
The end of that week, had you decided that there was little prospect of you going through the Family Court in order to regain custody of your children?---No.
Had you decided that you'd have to take the law into your own hands?---No.
Did you go there on the Monday night and strangle Ana?---No.”
Although the cessation of telephone calls was clearly raised in the prosecution’s closing address, and relied upon to demonstrate that Mr Hillier had decided to kill Ms Hardwick, the suggested failure to put that matter to Mr Hillier in cross-examination was not the subject of any complaint by trial counsel. Nor was it the subject of a ground of appeal before the first Court of Appeal, although the matter was agitated before that Court. In that context it should be noted that written submissions prepared and filed by Mr Hillier in the first Court of Appeal had raised the point that at trial no telephone records were tendered in relation to his workplace, and the evidence had shown that he had been at work on both 30 September 2002 and 1 October 2002. The majority expressed reservations about the conduct of the prosecution, although it was unnecessary to deal with that matter given the overall finding that the verdict was unsafe and unsatisfactory. See Hillier v The Queen [2005] ACTCA 48 at [27]–[29].

In the High Court, Gleeson CJ and Callinan J were the only members of the Court who addressed this issue. Their observations were plainly dicta, as the Court was concerned solely with the question whether the Court of Appeal had correctly applied the unsafe and unsatisfactory test. Broadly speaking, Gleeson CJ expressed the view that the prosecutor had adequately met his responsibilities under Browne v Dunn. As already indicated, Callinan J was of the opposite view. The point having now been raised as a ground of appeal, the issue falls to be determined by this Court.
On the appeal before this Court, Mr Tehan was asked why no affidavit material had been forthcoming in relation to:
·why trial counsel did not object to the prosecutor’s comments to the jury regarding the cessation of the telephone calls;
·what Mr Hillier’s work telephone records would have shown; and/or
·what Mr Hillier would have said at trial had the matter been put to him in cross-examination.
After some consideration Mr Tehan sought an adjournment so that further material could be placed before the Court. That adjournment was granted and the following affidavits were subsequently filed:
·an affidavit sworn by Ms Paynter on 23 August 2007;
·an affidavit affirmed by Teresa Warwick, Mr Hillier’s barrister in the Family Court proceedings, on 24 August 2007;
·an affidavit affirmed by Ray Livingston, Mr Hillier’s junior counsel at trial, on 27 August 2007;
·an affidavit sworn by Mr Nelson on 28 August 2007.
Ms Paynter gave evidence for the prosecution at the trial on 18 November 2004. However, she stated that she could not recall whether counsel for the prosecution had asked any questions of her regarding any contact she had with Mr Hillier in the days following 26 September 2002. The transcript of the trial reveals that no such questions were asked of her.
She said that Mr Hillier had met with her on 26 September 2002. During their appointment he had asked her to conduct a psychological assessment and prepare a report for the purposes of his Family Court appeal. She agreed to conduct the assessment provided that certain conditions were met. Those conditions included having Mr Hillier’s solicitor send her a letter with written instructions. She said that she did not hear from Mr Hillier’s solicitor in the days that followed. However, to the best of her recollection, she believed that Mr Hillier had left some telephone messages for her asking for a copy of her curriculum vitae.
By reference to a diary note that she made on Wednesday, 2 October 2002 (a copy of which was attached to her affidavit), Ms Paynter could also recall a conversation that she had with Mr Hillier on that day. She believed that he had rung her beforehand and that she was returning his call. She recalled reminding Mr Hillier that she needed to speak with his solicitor, Mr Lardner, before she would forward her curriculum vitae anywhere, or commence her assessment.
Ms Warwick stated that she had been instructed by Mr Lardner to appear for Mr Hillier in the Family Court before Faulks J. She said that she had conferred with Mr Hillier in person on Friday, 20 September 2002 which was the day on which his Honour refused to make any further order staying the orders dated 11 June 2002.
Ms Warwick said that she telephoned Mr Hillier at approximately 9.00 am on Monday, 30 September 2002. She attached to her affidavit a file note of her conversation with him on that day. She believed that Mr Hillier had told her that he had spoken to a psychologist who was prepared to do the report. He asked Ms Warwick to provide a number of affidavits and various other documents that had been prepared in relation to the Family Court proceedings.
Ms Warwick stated that she spoke with Mr Hillier again on Tuesday, 1 October 2002. She again produced a file note of that conversation. She said that Mr Hillier had told her that he had spoken to Ms Paynter and was seeking to obtain a curriculum vitae from her. Ms Warwick had recorded that Mr Hillier had told her that he was yet to be advised of the date that the appeal would be heard. She had also recorded that that same day she provided Mr Hillier with the documents that he had requested.
Mr Livingston confirmed that at trial he had been led by Mr Purnell SC. He said he had been informed by Mr Nelson that Mr Nelson had been unable to speak with Mr Purnell. Mr Livingston said that he was therefore making the affidavit on the basis that he was the only person available to speak about the events of Mr Hillier’s trial.
Mr Livingston said that he did not recall discussing with counsel for the prosecution the use that the Crown intended to make in its closing address of the evidence of the cessation of phone calls in regard to the formation of murderous intent by Mr Hillier. He said that at the time of the closing address of counsel for the prosecution he was focused on a range of matters, including a number that had been raised by Mr Hillier during the trial. He said that at the end of the address no application was made by Mr Purnell with respect to the comments made by the prosecutor regarding the cessation of phone calls. Mr Livingston could not recall speaking with Mr Purnell or Mr Hillier at that time about this issue.
Mr Nelson stated that he had been Mr Hillier’s solicitor since August 2006. He said that he had been attempting to obtain the telephone records of Mr Hillier’s former employer, AMAA Pty Limited Mortgage Brokers, since the Court adjourned on 7 August 2007. On 27 August 2007, after some difficulties, he obtained copies of telephone records for the period 26 August to 24 September 2002 relating to eight telephone lines that had been connected to AMAA’s business. He had been informed by Wayne Lucerne, a director of the company, that they were the only telephone records he had been able to locate. Mr Nelson said that he had not yet had time to issue a subpoena to Telstra.
Mr Nelson also said that he had had a telephone call with Mr Purnell who had said “I won’t be saying anything different to Ray Livingston”. Mr Nelson attached to his affidavit an extract of Exhibit AA which, as indicated above, detailed telephone calls made to and from Mr Hillier’s telephones in the period 20 September 2002 until 2 October 2002.
The Crown subsequently filed an affidavit sworn by Detective Sergeant John Dougan of the AFP. Detective Sergeant Dougan said that he had conducted various inquiries in relation to the telephone records of Mr Hillier’s workplace since 7 August 2007. With respect to one of the AMAA telephone lines, he was able to ascertain that at 3.07 pm on Tuesday, 1 October 2002 a call had been made from that number to a mobile number to which Ms Paynter subscribed.
Detective Sergeant Dougan also said that he had been in contact with Ms Warwick who confirmed that she had been working out of Silk Chambers in September and October 2002.
The evidence now available regarding Mr Hillier’s telephone calls in the period Monday, 30 September 2002 to Wednesday, 2 October 2002, can therefore be summarised as follows:
·On 30 September 2002 Mr Hillier received two calls from lawyers, one from Silk Chambers and the other from Capon & Hubert, Solicitors. The significance of the call from Ms Warwick on the morning of 30 September 2002 lies in the fact that on the very day that Mr Hillier is alleged to have killed Ms Hardwick, he is still actively discussing preparation for his appeal. That is at odds with the prosecutor’s comments to the jury regarding the cessation of telephone calls.
·On 1 October 2002 (after Ms Hardwick had been murdered, on the Crown theory) Mr Hillier telephoned Ms Paynter from his workplace, presumably in connection with his Family Court appeal.
·On 2 October 2002 (before Ms Hardwick’s body had been discovered) Mr Hillier spoke with Ms Paynter in connection with the preparation of her report for the purposes of the appeal. She said she needed to be contacted by his solicitor. Shortly thereafter, Mr Hillier telephoned his solicitor, Mr Lardner.
In summary, therefore, Mr Hillier engaged in a total of four telephone conversations with various individuals, all of whom were connected with his Family Court appeal, after the Crown alleged that he had formed the intent to murder Ms Hardwick. It is true that there was a significant reduction in the number of conversations that he had

regarding the appeal, but it is not correct to say that after the weekend in question there was a cessation of telephone calls concerning that matter.
Had the prosecutor put the issue of the cessation of telephone calls squarely to Mr Hillier, evidence could have been adduced to forestall, or at least take some of the sting out of, the prosecutor’s comment that there was a cessation of telephone calls as a result of a decision taken by Mr Hillier on the weekend to kill Ms Hardwick. It is no answer to submit, as Mr Temby did, that Mr Hillier would have been unlikely to remember what calls, if any, had been made from his work telephone, or what calls he had received at work, by the time he came to give evidence.
With great respect to Gleeson CJ, we doubt that the prosecutor, in the course of cross-examination, adequately flagged the point he ultimately made to the jury regarding the cessation of telephone calls. That is not to suggest any deliberate impropriety on the part of the Crown. There was extensive cross-examination regarding the plethora of phone calls made in the week preceding the death of Ms Hardwick, all of it essentially directed towards establishing motive. It is likely that the prosecutor’s failure to suggest that those telephone calls ceased after that week because Mr Hillier had decided to kill her, a quite separate point, was brought about simply by a mistaken belief on his part that the matter had in fact been fairly put.
We note that experienced counsel made no complaint regarding the prosecutor’s comment concerning the cessation of calls. That is of some significance when considering whether there was, indeed, a miscarriage of justice. For reasons that will become apparent, it is unnecessary to express any final conclusion regarding that matter at this stage. This ground of appeal will be considered in conjunction with the other grounds when determining whether there should be a new trial.

Impact of 15C7+

Mr Hillier now seeks to rely upon the “further” evidence of Dr McDonald contained in his three reports of 4 December 2007, 31 December 2007 and 3 February 2008, together with his oral evidence given on 7 February 2008.
We have already indicated that we find Dr McDonald to be a highly qualified expert in the field of DNA evidence. There is no reason to see him merely as an over-obliging, partisan expert. He appeared to us to be a truthful witness, prepared to put his reputation on the line by characterising the Crown’s DNA evidence as essentially worthless.
There is no doubt, in our minds, that Dr McDonald ought to have been much more forthright in expressing the views that he now says he always held regarding 15C7. There is equally no doubt that 15C7+ represents a powerful tool, in the hands of an expert, in attacking the conclusions reached by the Crown witnesses, and that it graphically demonstrates a number of the points that Dr McDonald says he would have made had he had it in his possession at the time of trial. The question is whether what he now says he would have done, and armed with 15C7+, would do in any future trial, provides a proper basis for setting aside Mr Hillier’s conviction.
At common law, a distinction is drawn between “fresh” evidence, that is to say evidence which was not known to the appellant at the time of his trial, and which could not have been discovered by him with reasonable diligence, and evidence which is merely “new”. See generally Ratten v The Queen (1974) 131 CLR 510 at 517; Lawless v The Queen (1979) 142 CLR 659 at 675–676; Gallagher v The Queen (1986) 160 CLR 392 at 402 and 410; and Mickelberg v The Queen (1989) 167 CLR 259 at 301. Evidence which was either available, or could with reasonable diligence have been discovered, before trial is not “fresh” evidence.
In Mallard v The Queen (2003) 28 WAR 1 the Court of Appeal discussed the application of this distinction in criminal cases. The Court observed (at [14]):
“... as was noted in Ratten, the accused person in the case of a criminal trial is afforded considerable latitude, because of the difficulty of the accused's position and the discrepancy between the resources perceived to be available to the Crown and to the accused. Evidence not actually available to an accused will often be treated as fresh evidence, notwithstanding that it could on a narrow view have been discovered by diligent inquiry. That is something which falls to be evaluated having regard to the circumstances of each case.”
Strictly speaking, if evidence is not “fresh” but merely “new” an appellate court will quash a guilty verdict only if that evidence either shows the appellant to be innocent, or raises such a doubt about his or her guilt in the mind of the court that the verdict should not be allowed to stand.
A less stringent threshold applies to “fresh” evidence. As Gallagher explains, where there is “fresh” evidence, an appellate court will conclude that the trial involved a miscarriage of justice if the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if that evidence had been before it at the trial: at 399 per Gibbs CJ and at 402 per Mason and Deane JJ.
The position in the Australian Capital Territory differs somewhat from the common law. Section 37N of the Supreme Court Act 1933 (ACT) provides:
“Evidence on appeal
(1) The Court of Appeal must have regard to the evidence given in the proceeding out of which the appeal arose.
(2) The Court of Appeal may draw inferences of fact from that evidence.
(3)The Court of Appeal may receive further evidence in any of the following ways:
(a) by oral examination before the court or a judge;
(b) on affidavit;
(c) by audiovisual link or audio link;
(d) any other way the court may receive evidence.
(4) In this section:
audio link––see the Evidence (Miscellaneous Provisions) Act 1991, section 16 (Definitions for pt 3).
audiovisual link––see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.”
The section speaks of “further evidence” rather than “fresh” or “new” evidence. It is similar, in that regard, to s 27 of the Federal Court of Australia Act 1976 (Cth) and s 93A(2) of the Family Law Act 1975 (Cth). In CDJ v VAJ (1998) 197 CLR 172 Gaudron J, in dealing with s 93A(2), observed that there was no reason for thinking that the common law rules which governed the admission of “fresh” evidence applied automatically to confine the discretion to receive “further evidence” conferred by the section. Of course, as a matter of construction, there were constraints upon the Family Court’s power to receive any such further evidence. In her Honour’s terms (at [55]):
“The fact that the power to admit further evidence is conferred on a court exercising appellate jurisdiction is of considerable relevance. More particularly, it is relevant that it is a power to be exercised after a hearing conducted in accordance with procedures that allow the parties to put their case and, also, to answer the case made against them. That consideration requires that, ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.”
However, her Honour went on to say (at [57]):
“Notwithstanding what has been said as to what should ordinarily be the case, different considerations may apply if the question is whether there has been some irregularity in the proceedings such that a party was unable to put his or her case effectively or effectively answer the case made by the other side. And that may be so even if the irregularity was not such as to constitute a denial of procedural fairness.”
In a joint judgment McHugh, Gummow and Callinan JJ agreed with Gaudron J that the circumstances in which the Full Court of the Family Court should exercise its discretion to receive further evidence in exercise of the power conferred by s 93A(2) was to be determined as a matter of statutory construction, and not approached as if governed by the common law. In arriving at that conclusion, their Honours added (at [105]):
“Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it. In McCann, Dixon CJ, Fullagar, Kitto and Taylor JJ said:
"The grounds upon which the court proceeds in granting the remedy ... have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end.””
(Footnote omitted.)
The joint judgment considered and rejected a test for the reception of further evidence on appeal propounded by Lord Fraser of Tullybelton in the context of a custody case G v G [1985] 1 WLR 647. There his Lordship referred to “usefulness” as an appropriate test for the reception of such evidence. Such a criterion was said by the joint judgment to be inconsistent both with the nature of the appellate jurisdiction exercised by the Full Court of the Family Court, and with the perceived purposes of s 93A(2). Put in pithy terms, their Honours said the discretion to receive further evidence was not so wide as to enable such evidence to be received merely because it was useful.
Plainly, a decision to withhold the evidence at trial will weigh heavily against its reception on appeal. In some cases the failure to call the evidence, even if it could have been discovered by the exercise of reasonable diligence, will be significant. In other cases that matter will not be decisive. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred upon the Court by the section: see CDJ v VAJ at [116].
Section 37N was considered by the ACT Court of Appeal in Browne v The Queen [2006] ACTCA 15. There, the principles laid down in CDJ v VAJ were applied, and the section construed accordingly.
In the present case we are satisfied that 15C7+ was provided to Mr Hillier’s legal representatives on or about 24 September 2003. It was included as part of the 501 page case file that was copied and provided by the AFP. The document appeared at page 60 of that file, within a few pages of the result obtained for sample 15C7 which was at page 53.

There is no direct evidence that the file as a whole, that is all 501 pages, was provided to Dr McDonald. As we have already indicated, he firmly maintained that he had not seen 15C7+. The Crown invited the Court to reject that evidence. It submitted that the likelihood was that he had, in fact, been provided with the document, but that he had failed to appreciate its possible significance.
On balance, it seems likely that someone within Mr Hillier’s former legal team went through the bundle of 501 pages, and selected those that appeared relevant to the task that Dr McDonald was being asked to carry out. Plainly, the test results for 15C1 and 15C7 were included in material sent to Dr McDonald for his consideration. These were the two results that were significant at trial.
It is difficult to imagine that Dr McDonald, who had been asked to focus upon these two test results, would have overlooked receiving a document so plainly critical as 15C7+. Such a document might, however, easily be overlooked by a lawyer. It would not be ignored by a DNA expert who had been retained to assist in the preparation of the defence to a charge of this nature.

Whether the fault lay with Mr Hillier’s former lawyers, or whether it lay with Dr McDonald, there is no doubt that 15C7+ could, with reasonable diligence, have been located prior to the trial. It was always readily available to the defence. It was no part of the Crown’s duty to highlight its possible significance, or its potential for use as an exculpatory document.
There is no suggestion, on the evidence, of any mala fides on the part of the Crown in failing to tender 15C7+ at the trial. Nor is there any suggestion that Ms Ristevska or Dr Roberts acted improperly in not referring to 15C7+ in their reports or their evidence at committal or trial. Certainly, if this matter were being dealt with under ordinary common law principles 15C7+ would be characterised as “new”, rather than “fresh”, evidence.
Although the additional flexibility inherent in s 37N may permit a somewhat different approach to be taken to “new” evidence, there are obviously some constraints implicit in that section. The discretion to permit such evidence to be received on appeal must be exercised with caution, but also with due regard to the need to ensure that there is no miscarriage of justice.
In the appeal before this Court, the starting point is to observe that the DNA evidence formed an essential part of the Crown’s case against Mr Hillier. That case was entirely circumstantial. It is highly likely that the jury would have regarded the fact that his DNA was on the collar of the deceased’s pyjamas as strongly probative of his guilt.
The evidence given by Dr McDonald at trial did little to assist Mr Hillier in meeting the Crown case. In substance, he agreed with Ms Ristevska and Dr Roberts that Mr Hillier could not be excluded as a contributor to the minor component identified in 15C7. Of course, his assessment of the probability that the DNA might have come from some other source differed from theirs. Nonetheless, he acknowledged that the chances of that being the case were remote. In effect, the issue between Dr McDonald and the Crown’s DNA experts, so far as the jury were concerned, was his opinion that Mr Hillier’s DNA could have been transferred to the pyjamas via the children, an opinion they obviously rejected.
The case takes on a completely different complexion when Dr McDonald says, as he now does, that in the light of 15C7+, the DNA evidence linking Mr Hillier with the deceased’s pyjamas is essentially worthless. If one in three members of the community would produce the same results as are shown in 15C7+, that evidence ceases to have any real probative value.
It may well be that a jury would find the views of Dr Roberts and Ms Ristevska regarding the utility, if any, of 15C7 to be more persuasive than those of Dr McDonald. It cannot, however, be assumed that they would do so. It is one thing to prefer the Crown experts on an issue such as transference of DNA by the children. It is altogether another to disregard a direct attack by a highly qualified expert upon findings based on what is now said to be a flawed test, particularly when that attack is supported by later test results obtained in what are said to be optimal conditions.
It is indeed unfortunate that this situation has arisen. The cases must be few where failures on the part of an accused’s legal representatives, or his witnesses, will lead to a new trial. Nonetheless, in an appropriate case, this Court will not shrink from its duty to ensure that the accused has that to which the law entitles him or her, namely a fair trial.
In Mraz v The Queen (1955) 93 CLR 493 Fullagar J stated (at 514) that the proviso (no substantial miscarriage of justice) did not mean that a convicted person:
“… on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.”
As Barwick CJ noted in Ratten¸ it is not necessary, in all cases, to show error on the part of the trial judge, or failure to comply with the rules of procedure and evidence, in order to establish a miscarriage of justice. There are several categories of miscarriage which do not involve any such error or failure. One such category is where because of something which had occurred or which had not occurred in the course of the trial the proceedings were rendered unfair. Within this category of cases a miscarriage of justice can be produced by such a variety of circumstances that it is unhelpful to seek to give an exhaustive description of them.
The cases say that, provided the circumstances are seen to be appropriate, an appellate court may “interfere to protect an accused man from his own counsel and from the result of bad management or misconduct of his case at the trial”: Re Knowles [1984] VR 751 at 767. The fundamental question must always be whether the conviction involves or has brought about a miscarriage of justice: Maric v R (1978) 20 ALR 513 at 520 per Gibbs J (as his Honour then was).
DNA evidence has undoubtedly made an enormous contribution to the criminal justice system. It has acquired a well deserved reputation for accuracy and scientific certainty. It is, however, challenging material for lawyers, judges and juries to understand and also to appreciate its proper limits. A jury is likely to give DNA evidence enormous weight. Accordingly, DNA evidence and the dangers of its possible misuse must be carefully and fully explained to juries. This case indicates a need for the urgent preparation of universally acceptable protocols so as to ensure, among other things, that there is full and unmistakeably explicit disclosure to the defence of all DNA testing steps and results, and pre-trial exchange of expert reports about DNA evidence. It must be rare that an expert such as Dr McDonald casts such a degree of doubt upon the opinions expressed by DNA experts called by the Crown.
The fact that Dr McDonald did not express himself as he should, and as he would have liked to have done, at the trial, is no basis for ordering a new trial. However, his evidence that he did not have knowledge of what he regards as a critical document, and his uncontroverted evidence that he would have given quite different evidence on the basis of that document is sufficient in our view to say that this verdict cannot be permitted to stand. It is, in a relevant sense, “unsafe and unsatisfactory”, though not so as to preclude a new trial if all relevant evidence is placed before the jury. See generally Tran v The Queen (2000) 105 FCR 182 at 209–210. There should, in our view, be a new trial.

Other matters

This brings us back to the ground of appeal relating to the cessation of telephone calls. It is unnecessary to determine whether that ground, which we have already found made good, would be sufficient of itself to warrant a new trial. When the matters complained of under that ground are combined with the new evidence relating to the DNA, the case for a new trial becomes still more compelling.
We have considered the more general “unsafe and unsatisfactory” ground which, if made good, would lead to a verdict of acquittal. We agree, with respect, with Spender J (who dissented when this matter was originally before this Court) that when the evidence led at the trial is considered as a whole, it cannot be said that the verdict was unsafe and unsatisfactory. His Honour’s conceptual approach, of considering the cumulative effect of the evidence rather than piecemeal criticisms of particular matters (especially in a circumstantial case such as this) appears to us to be correct. Indeed the High Court has mandated such an approach. Applying that approach, we also agree with the burden of Spender J’s analysis.
Accordingly, there is no substance in the appellant’s claim that he is entitled to an acquittal, rather than a new trial.

Conclusion

The appeal will be upheld, the conviction and sentence set aside, and the case remitted for re-trial.
I certify that the preceding one hundred and eighty six (186) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 6 March 2008

Counsel for the Appellant:	6, 7 August 2007 – Mr P F Tehan QC and Mr W P Lowe 4 December 2007 – Appellant was self represented 7 February 2007 – Mr A C Haesler SC and Mr W P Lowe
Solicitor for the Appellant:	Nelson & Co, Solicitors
Counsel for the Respondent:	Mr I Temby AO QC and Ms P De Veau
Solicitor for the Respondent:	Office of the Director of Public Prosecutions, Australian Capital Territory
Date of hearing:	6–7 August 2007, 4 December 2007, 7 February 2008
Date of judgment:	6 March 2008