Macartney v The Queen - [2006] WASCA 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MACARTNEY -v- THE QUEEN [2006] WASCA 29

CORAM: STEYTLER P
WHEELER JA
ROBERTS-SMITH JA

HEARD: 3 MAY, 13 SEPTEMBER 2005 & 3 FEBRUARY 2006

DELIVERED : 2 MARCH 2006

FILE NO/S: CCA 121 of 2001

BETWEEN: ROBIN DAVID MACARTNEY
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :WALLWORK J
File No  :INS 16 of 2001

Catchwords:

Criminal law and procedure - Appeal - Trial by Judge alone - Application for leave to appeal against conviction - Murder - Selfrepresented appellant - New or fresh evidence on appeal - Whether DNA evidence at crime scene sufficient to identify appellant - Whether errors of fact made by Judge - Whether items placed at crime scene by police to incriminate appellant - Whether evidence insufficient to support conviction - Section 279(2) of the Criminal Code (WA) - Whether applicable when act causing death not able to be identified - Meaning of phrase "likely to endanger human life" - Whether defence of mistake under s 23 of the Code available in the case of an offence charged under s 279(2)

Words and phrases - Meaning of the word "likely" in s 279(2) of the Criminal Code (WA)

Legislation:

Criminal Code (WA), s 23, s 236, s 279(2)

Result:

Application for leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: In person & Mr P Urquhart
Respondent: Mr D Dempster & Ms E Abou-Merhi

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ali v The Queen (2005) 79 ALJR 662
Beamish v The Queen [2005] WASCA 62
Boughey v The Queen (1986) 161 CLR 10
Buckland v The Queen, unreported; CCA SCt of WA; Library No 970112; 21 March 1997
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
D v S (Rights of Audience) [1997] 1 Fam Law R 724
Damjanovic v Maley (2002) 55 NSWLR 149
Director of Public Prosecutions v Beard [1920] AC 479
D'Orta‑Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755
Ex parte Browne (1913) 13 SR (NSW) 593
R v Bow County Court
Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145
Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996
Jarmain [1946] 1 KB 74
La Fontaine v The Queen (1976) 136 CLR 62
Lumley (1911) 22 Cox CC 635
M v The Queen (1994) 181 CLR 487
McKenzie v McKenzie [1971] P 33
McSwan v The State of Western Australia [2005] WASCA 128
Mickelberg v The Queen (2004) 29 WAR 13
Murray v The Queen (2002) 211 CLR 193
R v Birks (1990) 19 NSWLR 677
R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807
R v Crabbe (1985) 156 CLR 464
R v Fitzgerald (1999) 106 A Crim R 215
R v Georgiou (2002) 131 A Crim R 150
R v Gould & Barnes [1960] Qd R 283
R v Hind & Harwood (1995) 80 A Crim R 105
R v Horry [1952] NZLR 111
R v Leicester City Justices; Ex parte Barrow [1991] 2 QB 260
R v Morgan [1999] QCA 348
R v Onufrejczyk [1955] 1 QB 388
R v Ryan and Walker [1966] VR 553
R v Taiters; Ex parte Attorney‑General [1997] 1 Qd R 333
R v Van Beelen (1973) 4 SASR 353
R v Van Den Bemd (1994) 179 CLR 137
Ryan v The Queen (1967) 121 CLR 205
Schagen v The Queen (1993) 8 WAR 410
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Stevens v The Queen (2005) 80 ALJR 91
Stuart v The Queen (1974) 134 CLR 426
TKWJ v The Queen (2002) 212 CLR 124
Ugle v The Queen (2002) 211 CLR 171
Weissensteiner v The Queen (1993) 178 CLR 217
Whitsed v The Queen [2005] WASCA 208

Case(s) also cited:

Giowkos v The Queen, unreported; CCA SCt of WA; Library No 980224; 5 May 1998

STEYTLER P: I have had the advantage of reading the judgments of Roberts‑Smith JA and Wheeler JA. It is consequently unnecessary for me to repeat all of the facts and circumstances which bear upon this appeal.

Representation by Mr Tennant

I propose, first, to make some comments on the issue of representation on the appeal. The appellant made an application that he be represented by a lay advocate, Mr Brian Tennant, who has taken a considerable interest in his case and assisted him in his investigation of a number of the issues which arise in it. Mr Tennant has also prepared the appellant's grounds of appeal and a series of written submissions and supporting documents which have been made available to the Court. Having heard the application that the appellant be represented by Mr Tennant, we dismissed it, saying that we would later provide our reasons for doing so.
It is established by the cases that the circumstances in which a court will permit a party to proceedings before it to be represented by a person who is not admitted to practice are exceptional: Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145 at 147, per Perry J; Schagen v The Queen (1993) 8 WAR 410 at 412, per Malcolm CJ; D v S (Rights of Audience) [1997] 1 Fam Law R 724 at 728, per Brooke LJ and Damjanovic v Maley (2002) 55 NSWLR 149 per Stein JA (with whom Mason P and Sheller JA agreed). There are good reasons for this which are neither grounded in the need to protect a lawyer's privilege or monopoly nor in technicalities: Damjanovic at 159, 164. Rather, courts must ensure that the safeguards which follow from legal representation are not eroded by allowing parties to be represented by unqualified persons who have neither the responsibilities nor the duties of counsel: Galladin at 147; Ex parte Browne (1913) 13 SR (NSW) 593 at 597 and Damjanovic at 159 - 160.
In this case the appellant has said that he had been unable to secure legal representation (Roberts‑Smith JA has traced the relevant history in that regard). In those circumstances, and given that the case is one of considerable importance, having regard to the seriousness of the appellant's conviction, it was necessary for the Court to look closely at the issue of representation. However, because it was obvious that the appellant was articulate, and had a good understanding and grasp of the factual issues which he wanted to raise in support of the appeal, and because he was able to make use of the services of Mr Tennant (who, being unqualified, could add nothing to any legal issues arising in the case) as a "McKenzie friend" (as to which see McKenzie v McKenzie [1971] P 33 and R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807), it seemed to me that this was not one of those exceptional cases in which representation by a lay person should be permitted.

The prosecution case

That brings me to the appeal itself. In order to place the various grounds into context, it is necessary to understand the prosecution and defence cases and also the logic which was central to the trial Judge's finding that the appellant was guilty of murder.
I will deal first with the prosecution case.
The prosecutor contended, in a nutshell, that the appellant had murdered a young woman, Lalita Horsman, in the course of a sexual assault on her which took place at some time shortly after about 6 pm on 5 December 1999 at Greenough beach. Ms Horsman, her boyfriend, Justin Hancock, and a friend, Davin Greig, had arrived at the beach at about 5 pm with the intention of surfing. Because the sea was rough, Ms Horsman decided not to go in. However, the two men did so. The prosecution case was that Ms Horsman sat on the beach for a while and then went for a walk. The appellant, who had driven his Landrover to the beach, was said to have taken the opportunity to sexually assault her and, in that process or immediately following it, to have murdered her.
The prosecution case was circumstantial. A search of the beach on the evening upon which Ms Horsman was killed, found her hat and sun glasses at a place ("scene A") some 800 metres from the beach's car park. On the following day, at a second location ("scene B"), the police found what was said to have been Ms Horsman's singlet, a number of pieces of duct tape, a piece of rope, a piece of fibre and two towels which had been buried in the sand, one being pink and one yellow. One of the pieces of duct tape was attached to the remnants of a plastic bag. Another had on it a piece of gum. The police also found tyre tracks. These were said to have led to, and stopped at, the top of a sand dune, at the foot of which Ms Horsman's body was found, partly covered in sand. The place at which it was found was described in the evidence as "scene C".
The duct tape was the same kind and colour as that which had been used by the appellant for various purposes at his home. On some of it (including the piece to which a remnant of the plastic bag was attached), DNA said to have been a mix of that of the appellant and Ms Horsman was found. Traces of saliva containing Ms Horsman's DNA were found on the gum which had been attached to one of the pieces of duct tape (that piece did not contain any of the appellant's DNA). The towels were said to have belonged to the appellant. The piece of fibre was said to have come from a carpet in the applicant's Landrover. Semen containing the appellant's DNA was alleged to have been found on the singlet said to have belonged to Ms Horsman. The tyre tracks were said to have been consistent with those on the appellant's Landrover. The appellant's DNA was said to have been found on Ms Horsman's left breast and nipple. One of Ms Horsman's breasts was exposed and the black shorts worn by her were inside out, with one of the velcro straps unfastened. Her hair was trapped underneath the strap at the back of her bikini top. She had a small cut on the top of her head which had been bleeding onto her hair and she had minor injuries to her legs which were said to have been suggestive of a struggle.
There was evidence which established that the appellant had been at the beach in his Landrover at or about the time of Ms Horsman's disappearance and he was unable to account for his whereabouts between about 6 pm and 9.30 pm that evening.

The defence case

The appellant did not give evidence at the trial. However, several videotapes of interviews which had been conducted with him by police officers were tendered in evidence and played to the jury. These interviews, which were very lengthy (and which seem to me to have proceeded long after the appellant had made it plain that he did not wish them to continue), reveal that the appellant claimed to have had very little recollection of events between about 6 pm and 9.30 pm on the evening of the murder. He ascribed this to a combination of memory problems from which he had been suffering and the amount of alcohol which he had consumed on that evening. However, he was adamant that, even though he could not remember what he had done during this period, he would not have committed an offence of the kind charged.
The appellant's counsel raised a number of possibilities with the jury. One was that Ms Horsman had been murdered either by her boyfriend or by some other person. A second was that her death might have been the consequence of the ingestion of drugs, or poison, or even some natural cause. A third was that the police had planted evidence designed to incriminate the appellant.

The judgment of the trial Judge

Roberts‑Smith JA has summarised the judgment of the trial Judge. I will not repeat what he has said. However, there are some aspects of the judgment which are worth stressing.
First, the trial Judge accepted the evidence of Justin Hancock, saying that he was "sure" that he was a truthful witness. He also accepted the evidence of Davin Greig. He was consequently satisfied that the two men had paddled out into the surf at about 5.30 pm to 6 pm, leaving Ms Horsman to go for a walk along the beach. He accepted that she ordinarily walked in a northerly direction from the car park area.
Secondly, the trial Judge accepted evidence to the effect that, after being at the beach and returning home for a short while, the appellant had returned to the beach at about 6 pm. He also found that the appellant was unable to account for his movements between that time and about 9.20 pm, when the appellant's Landrover was seen with a flat tyre near a tomato stand at a place described as the South Gate turnoff on the Brand Highway between Geraldton and Dongara. The evidence established that the appellant had gone from there to the home of his brother‑in‑law, Wayne Tynan, where he arrived at about 9.30 pm. Tynan drove him home. The appellant told Tynan that he had had an argument with his wife and that he had gone out and been driving around. The appellant told his wife, when he got home at around 10 pm, that he had been "just driving" and that he had been at Tynan's home.
The trial Judge did not believe what had been said by the appellant to the police in the course of the videotaped interviews to the effect that he was unable to recall what he had done between about 6 pm and 9.20 pm. He pointed to the fact that the appellant had been able to remember a number of events, including what he referred to as "a patchy recollection" of having driven along the beach (in a northerly direction) to Geraldton, the fact that he stopped at the tomato stand, that smoke had come from his flat tyre, that he had urinated while at the tomato stand and that he had walked around to the passenger side of the vehicle as a car had been coming and he did not want anyone to see him.
Next, the trial Judge found that the singlet found at scene B had had the appellant's semen on it (the DNA profile of the semen matched that of the appellant) and that the singlet had been worn by Ms Horsman (this had been the evidence of Justin Hancock and Davin Greig). He also found that it was the appellant's DNA which had been found on Ms Horsman's breast and on some of the pieces of duct tape found at scene B.
The trial Judge appears also to have accepted that the towels found at scene B had belonged to the appellant. He referred, in that regard, to evidence which established that the towels were similar to others which had been at the appellant's house and to evidence which had been given by the appellant's mother‑in‑law, as regards the yellow towel, to the effect that she had bought two similar yellow towels as a present for the appellant's wife. He said that, while he did "not rely really too much on the tyre tracks", these, having been consistent with those on the appellant's Landrover, also pointed towards the appellant's guilt.
The trial Judge found that all of the evidence pointed to the appellant having caused Ms Horsman's death. He said that the whole of the evidence established that the appellant had abducted Ms Horsman from the place where her hat and sunglasses were found to scene B, that the tape had there been placed around her mouth, possibly to prevent her shouting for help, and that the appellant had sexually assaulted Ms Horsman at scene B and, in some way, suffocated her. He said that the evidence supported the proposition that, after sexually assaulting Ms Horsman, the appellant had re‑dressed her. He found that the appellant had then transported Ms Horsman, in his vehicle, from scene B to the place where her body was later found. He accepted evidence to the effect that Ms Horsman had died at scene B (the evidence had been to the effect that bleeding from the cut on her head had ceased before she was placed at scene C) and that the appellant had taken the body to scene C in order to hide it there.
The trial Judge totally rejected any suggestion that police officers had planted evidence in an attempt to buttress a case against the appellant. He said that there was "no indication to support such a proposition" and that the items with the appellant's DNA on them had been discovered before he was first suspected of having committed the crime. He also rejected the suggestion that the appellant's DNA could have been deposited by someone else. Finally, he rejected the suggestion that Justin Hancock had had anything to do with Ms Horsman's death or that it had been due to illness or drug‑taking.

Grounds of appeal

The grounds of appeal have been set out in the judgment of Roberts‑Smith JA and I need not repeat them. I will deal with each in turn.

Ground 1

As Roberts-Smith JA has pointed out, this ground, which does no more than assert that the verdict was unsafe and unsatisfactory, is merely a "catch‑all" designed to encapsulate the effect of one or more of the remaining grounds of appeal. Because of the conclusions at which I have arrived in respect of the subsequent grounds, it is unnecessary for me to give any further consideration to this ground.

Ground 2

Ground 2 raises two separate complaints.
The first relates to what the drafter of the ground understood to have been said by the trial Judge in respect of his reliance upon lies attributed to the appellant by the prosecution. As has been pointed out by Roberts‑Smith JA, this complaint rests upon a misconception of what was said by the trial Judge. I need say no more, in that regard, than that I agree with what has been said by Roberts‑Smith JA.
The second complaint raised under ground 2 relates to alleged inadequacies in the reasoning of the trial Judge as regards his use of circumstantial evidence. The relevant principles, and the approach which was adopted by the trial Judge, have been set out by Roberts‑Smith JA. Once again, I need say no more than that I agree, for the reasons given by him, that this ground has not been made out.

Ground 3

Ground 3 rests upon evidence which was given before us by a young woman, Candice Gill. Roberts‑Smith JA has concluded that her evidence was "new" rather than "fresh" (as to which see Beamish v The Queen [2005] WASCA 62 at [9] and Mickelberg v The Queen (2004) 29 WAR 13 at 129 ‑ 132). I agree with him. I also agree with him that her evidence adds little to that which was before the trial Judge.
The gravamen of Ms Gill's evidence was that, on the evening of 5 December 1999, at some time between 6 pm and 7 pm, she went to the appellant's home in order to give him a videotape. When she arrived, he was at the front of his house, playing with his daughter. He was spraying his daughter with a hose while he sprayed his car. Because Ms Gill (who was then 15 years old) was wearing roller blades, she did not go into the house. She handed the videotape to the appellant, "spoke for a few minutes" and went home. Ms Gill could not give any precise estimate of the time of her visit. The estimate which she made relied upon the fact that the sun "hadn't gone down" when she went to the appellant's house and that it had "just dropped below the hill" when she went home.
The appellant's contention is that this evidence "puts … [him] out of the time frame … that … [he] was supposed to have been down [at] the beach". I do not accept that it does. The evidence at the trial placed the appellant at the beach late in the afternoon of 5 December 1999. It came from three witnesses, a neighbour, Phillip Arlow, the appellant's wife, Kerry Macartney, and a man who had been fishing on the beach, Steven Brumpton.
Arlow's evidence was to the effect that, earlier that afternoon, he and the appellant had been at the beach in their respective Landrovers (the Landrover belonging to the appellant was green and had a "cut‑off roof"). He said that the two men left the beach and went home at about 5 pm. Then, at a time which, he said, could have been about 5.30 pm, he heard the appellant's raised voice and also the slamming of a door at the appellant's house. He saw the appellant drive off in his Landrover.
The appellant's wife's evidence was to the effect that the appellant had arrived home from the beach at about 6 pm. She said that he told her that he was going back to the beach because there was a car there with its bonnet raised and he intended to offer to tow or help the driver. He stayed in the house for a "couple of minutes" and then left. She did not see him again until about 10 pm or 10.30 pm that night.

Brumpton's evidence was that he had driven his four wheel drive vehicle to the beach in order to go fishing there. He saw a vehicle matching the description of the appellant's Landrover at the front of the car park to the main beach with people standing near it between about 5 pm and 5.30 pm. When he was ready to leave the beach at about 6 pm, he had trouble getting his vehicle started. He lifted the bonnet to give the starter motor a "whack". It took him about 10 minutes to get his vehicle started and he then left the beach. He said that the green Landrover was still there when he left the beach.
It was open to the trial Judge to find, as he did, that the appellant had returned to the beach at about 6 pm, or perhaps a little before that. Indeed, in the course of his videotaped interviews with the police, the appellant took no real issue with that proposition (although he also said that his memory of events was very limited). In my opinion, there is nothing in Ms Gill's evidence which should lead to any different conclusion. She was only at the appellant's house for a couple of minutes and, on her own evidence, that could have been as early as 6 pm, always assuming that her estimate was accurate. While her evidence that the appellant was then spraying his car is, on the face of it, inconsistent with what was said by the appellant's wife, the inconsistency seems to me not to be material, given the whole of the evidence concerning the appellant's movements at about the time in question.
There is, in any event, no satisfactory means of knowing precisely when Ms Horsman was assaulted. On the evidence of Justin Hancock and Davin Greig, Greig emerged from the water at about 6 pm and Hancock did so some 10 minutes later. It was only after that that Hancock started to look for Ms Horsman. Consequently, the prospect that the appellant was her attacker is not, in any way, negatived by anything which was said by Ms Gill.
There is consequently no substance to ground 3.

Grounds, 4, 5 and 11

Grounds 4, 5 and 11, which are more fully set in the judgment of Roberts‑Smith JA, essentially challenge the trial Judge's reliance on the evidence concerning the DNA found on the pieces of duct tape and on the core roll from that tape, said to have been located at scene B, and also his reliance on the evidence of the police as regards the finding of other items which were said to incriminate the appellant. There are numerous challenges to this evidence which might conveniently be collected under this heading. They are that:
(a)there are grounds for suspecting that the duct tape and core roll were never found at scene B;
(b)if the tape and roll were found there, there are grounds for suspecting that the DNA which was found on them, and elsewhere at scenes B and C, was "engineered" by police;
(c)the DNA evidence was inconclusive; and
(d)the evidence concerning the tape fell short of establishing that it had been used in the manner contended for by the prosecution.
Evidence of the finding of the tape was given by Constable Christopher Campbell of the Western Australian Police Force. On Monday 6 December 1999, at about 2 pm, he and Constable Hall were conducting a search in the dune area of the beach between Cape Burney and Geraldton. He said that he rode his four wheel drive motor cycle into a large depression in the middle of which was a large bush. This is the area which has since been described as scene B. As he entered the depression he noticed that there was a quantity of grey tape underneath the front section of the bush. Parts of the tape were partly submerged under the sand. All of the tape had been used and Constable Campbell noticed that "parts of the grey tape had what looked to be a torn white plastic bag attached to it". He also saw a small piece of pink material protruding from the sand, reached down and lifted it out of the sand. He realised that it was a pink towel with a pattern on one end of it. There was a yellow towel underneath the pink towel. Inside the bush he noticed a brown singlet lying on the ground against a small shrub.
Constable Campbell rode his motor cycle down to a nearby police car and informed Detective Sergeant Bell of what he had found. He escorted Detective Sergeant Bell back to scene B. The area was then secured by Constables Longhorn and Morton.
Evidence in respect of the DNA found at scenes B and C was given by Mr Laurence Webb, a senior scientist in forensic biology at the PathCentre in Nedlands, Western Australia. Mr Webb was given, amongst other things, six pieces of tape, the core roll, two pieces of plastic bag, some chewing gum remnants, a singlet and a pair of shorts.
The singlet, Exhibit D, was light brown. It was a "Black Pepper" brand. It was slightly soiled, with some vegetation, soil and spider webs adhering to the fabric. It was otherwise undamaged. There were some grey‑white stains on the lower outside front of the singlet extending down to the bottom hem. These stains gave positive presumptive chemical reactions for semen. Spermatozoa were seen microscopically on the smears which Mr Webb prepared from the stained material. He took a sample from the largest of the stains, being that which was near the bottom hem, and submitted it for DNA analysis.
The appellant's DNA profile was ascertained from buccal swabs which had been taken from inside his mouth and also from a blood sample which had been provided by him. The DNA profile of the spermatozoa found on the singlet matched the appellant's DNA profile (a proposition with which the appellant takes no issue). Mr Webb's evidence was that the chances of the DNA profile found by him in the semen occurring, if the semen had come from someone other than the appellant, were less than one in ten billion, based on the Western Australian population data.
Mr Webb also tested swabs which had been taken from Ms Horsman's left breast and nipple area. While no semen was detected there (or on other swabs taken from Ms Horsman's body) this swab gave positive presumptive chemical reactions for saliva. The cellular material taken by the swab gave a mixed DNA profile from at least two individuals. Mr Webb concluded that two people had contributed to the mixture and, because the DNA had been taken from Ms Horsman's own breast, he would expect her to be "part of that mixture". He concluded that it was approximately 40,000 times more likely that this mixed DNA profile would be found if it came from the appellant and Ms Horsman than if it came from Ms Horsman and an unknown person.
Mr Webb also took samples from the armpit region of the singlet for submission for DNA analysis in order to identify the wearer of the garment. DNA testing of those samples revealed, once again, that there was more than one contributor. The results of the testing were such that, in Mr Webb's opinion, if it was assumed that there were two people contributing to the mixtures, it was 10 billion times more likely that the mixed profile came from the appellant and Ms Horsman than if it came from two unknowns.
DNA material obtained from the shorts was also analysed. Once again, the DNA was mixed and, if it was assumed that there were two people contributing to the mixture, than, in Mr Webb's opinion, it was 10 billion times more likely that the DNA profile which he identified came from the appellant and Ms Horsman than that it came from two unknowns.
That brings me back to the pieces of tape which were found. As to that to which there was part of a plastic bag attached (Exhibit B), Mr Webb said that, if, as he considered to be the case, two people contributed to the mixtures obtained, it was 10 billion times more likely that the mixed DNA profile found by him came from the appellant and Ms Horsman than if it came from two unknowns. He arrived at the same conclusion in respect of the tape core, Exhibit U6.
Mr Webb also examined a small, sticky substance, having an aromatic smell, which was found attached to a piece of the tape. This was similar to a chewing gum‑like material which had been found in Ms Horsman's mouth. The DNA profile recovered from a swab taken from this material matched that of Ms Horsman. Mr Webb's opinion was that the chance of that profile occurring if the cellular material on the swab had come from someone other than Ms Horsman was approximately one in a billion.
There was very limited cross-examination of Mr Webb by the appellant's counsel. After one or two perfunctory questions going to the testing of the chewing gum material (where there was a match at 9 out of 10 loci tested), the appellant's counsel turned to some testing which had been carried out in respect of DNA found on a cigarette butt which had seemingly been picked up by the police at the crime scene. The testing revealed that the DNA on the cigarette butt had come from a male person, but the appellant was excluded as having been that person. After a few additional questions designed to elicit an explanation of the likelihood ratios which had been referred to by Mr Webb, the appellant's counsel concluded his cross‑examination by asking Mr Webb whether or not "the transfer of DNA from a person to an object is fairly easy". Mr Webb's answer was as follows:
"In relative terms, yes. It has been documented and noted that people leave DNA behind at different rates. Not all people will leave the same amount of DNA behind on a given object. People will leave behind more cells in just touching an item than other people but certainly there is a transfer – there can be a transfer of DNA onto objects. That is, a primary transfer, yes."
The appellant contended in support of his appeal that, when the police searched his home on 9 December 1999, it would have been obvious to them that there were many pieces of grey duct tape lying around. The tape had been used for various purposes but primarily in the course of repair work which the appellant had done on his swimming pool. He suggested that it would have been a simple matter for the police to remove some of that duct tape, with his DNA on it. He also submits that the prospect that they did so is added to by an exchange which took place in the course of his videotaped interview with police officers on 21 December 1999. He had asked the interviewing officers where the used tape that had been lying around his swimming pool was. In response, Detective Jack Lee, one of the two interviewing officers, told him that the tape was "still there". Only when the appellant challenged him in that respect, did he acknowledge that a lot of the tape had been taken away.
In my opinion, the matters relied upon by the appellant are far too slender to support the inference which he seeks to draw from them. As I have said, tape was found at scene B before the appellant ever became a suspect and a number of police officers were involved in securing the area immediately after it was found. Also, it is significant that it was not only the appellant's DNA which was found on the duct tape. I have said that Ms Horsman's DNA was found on a piece attached to a piece of plastic bag and also on the gum attached to another piece.
That brings me to the appellant's contention that there are grounds for suspecting that the DNA which was found was "engineered" by police.
The appellant relied, in this respect, upon the fact that the duct tape had been taken from his home, upon the fact that buccal swabs had been taken from him by one of the investigating officers, Senior Detective Constable Craig Keals, in circumstances arousing suspicion and upon the fact that the items upon which DNA was found were sent for analysis only after the buccal swabs had been taken and the duct tape had been removed from his home. I should add, in this respect, that there was also evidence from the appellant's brother‑in‑law, Mr Tynan, that he had seen no plastic bags or duct tape in the appellant's vehicle on 5 December 1999.
Evidence was given at the trial by Keals. He was cross‑examined, at some length, by the then counsel for the appellant. It was put to him that, at one stage during one of the videotaped interviews with the appellant, he had asked the appellant to mark a map. When the appellant asked if he could borrow Keals' pen, and reached across for it, Keals had told him to use a different pen, and handed one to him. The appellant then sucked on the pen in the course of handling it. It was suggested that when, at one point in the interview thereafter, the appellant had put his hands over his eyes, Keals had immediately reached across to grab the pen. He was said to have done all of this in an attempt to get a "source of DNA" from the appellant. It was also put to Keals that, when someone had knocked on the door of the interview room, the video ceased for a period and, thereafter, the pen was gone. Keals denied that he had had any ulterior motive for the conduct attributed to him. He said that he had merely reached for the pen in order to put its cap back on as it was a felt marker and he was concerned that it would dry out.
It was also put to Keals that he had taken two buccal swabs from the appellant and that he had not mentioned these in any of his statements or in the course of his evidence. He acknowledged that this was so and acknowledged, also, that he had been aware that swabs would be taken, pursuant to the provisions of the Criminal Code (WA), when the appellant was later taken to a hospital. He said that he had not handed over the swabs which he had taken to anybody because he knew that they would not be used, as the provisions of s 236 of the Criminal Code had not been complied with. When asked why, then, he had taken the swabs, he said that it was normal, during the course of an investigation, to ask each person that was interviewed to give buccal swabs. He denied that he had taken them for the purpose of transferring the appellant's DNA to other items.
It was also put to Keals that, in the course of the videotaped search of the appellant's home which took place on 9 December 1999, items of clothing, including the appellant's underpants, were removed from the house for the purpose of transferring his DNA to other objects. Keals denied that this was so. Counsel for the appellant thereupon referred him to footage from the search video and asked him a question in the following terms:
"Exhibit N at 10.20 - … the camera comes into the main bedroom and at the side of the bed clearly seen is a Frisbee in the top left‑hand corner. In the top right‑hand corner, a red shirt covering a pair of grey underpants, which can just be seen, and below them a red shirt and … a pair of black underpants, and if I didn't mention it, near the Frisbee is a pair of black underpants. At 10.36, 16 minutes later, the Frisbee and the black underpants next to it are still there, … the top red shirt is still there, and the grey underpants have been drawn out, and the second shirt and the second pair of black underpants are missing. At 10.37 the camera returns to the scene, … the red shirt is back, there's no sign of the black underpants. The picture then cuts at 10.39 and you go elsewhere, and at 11.21 the camera comes back and everything is back as it was before. And then the next thing that happens to those items of clothing, or some of them, is that they are retrieved by Constable Morton who goes out as the Exhibits' Officer later in the night. Do you dispute what I've just said?"
Keals did not at first dispute what was put, subject to viewing the videotape. However, once he had viewed the videotape, he disputed that the underpants had been removed and then later returned, although he accepted that the clothing had been moved, at one stage.
All of this evidence, together with other matters raised by the appellant (particularly what he says was the deliberate overstatement by the police, during their interviews with him, of the evidence against him) is relied upon by the appellant as demonstrating that there was a preparedness, on the part of police officers and Keals in particular, to interfere with the evidence and to behave improperly.
In my opinion the evidence is insufficient to give rise to any reasonable doubt in respect of the veracity of the police as regards the evidence said to have been found by them at scenes B and C and as regards the forensic evidence. The mere fact that police officers had access to buccal swabs taken from the appellant in the circumstances admitted to by Keals is not enough to give rise to any inference that Keals, or anyone else, intended to make improper use of them. Nor is it reasonable to infer, in the face of Keals' denial and solely from the contents of the police videotape of the search of the appellant's home (from which it might be inferred that items of clothing had been moved and then replaced), that the police had somehow improperly obtained the appellant's DNA from those items in order to attach it to objects found at the crime scene, even assuming, in the case of the semen, that transfers could be made so as to create the stains found on the singlet.
Next, and as to the appellant's contention that the DNA evidence was anyway inconclusive, the appellant sought to rely upon additional evidence in the form of an affidavit from Professor John Wetherall sworn on 22 July 2005 and a letter from Professor Barry Boettcher dated 27 July 2005.
Professor Wetherall, who is the head of the School of Biomedical Sciences at Curtin University of Technology, has said, in his affidavit, that his opinion has been sought concerning "the validity of the DNA evidence in the conviction for murder and subsequent appeal of … [the appellant]". He goes on to say no more than that:
"In my opinion, based on my knowledge and experience of DNA profiling, DNA evidence cannot solely be relied upon to draw conclusions about the role of a suspect in a crime".
As Roberts‑Smith JA has pointed out, we declined to receive this evidence. As will be apparent from what has been said, the evidence was patently not "fresh" evidence, the DNA evidence always having been critical at the appellant's trial. Moreover, while it may be, and very probably is, true that, in the ordinary case at least, DNA evidence alone cannot be relied upon to draw conclusions about the role of a suspect in a crime, that was not what happened in this case. As will be apparent, the DNA evidence, important though it was, was relied on by the trial Judge in conjunction with all of the other evidence to which reference has been made.
Professor Boettcher, in his letter, records that he has no clear idea of the facts of the case but that he is able to make "some comments about the data recorded in a table of DNA groupings" which, it seems, he had obtained from Mr Webb's report. Professor Boettcher then goes on to deal only with the DNA results which had been obtained by Mr Webb from the sample obtained from Ms Horsman's left breast. His letter reads as follows, in that respect:
"My understanding is that the DNA results of a sample taken from the left breast is considered important in this case. In this letter I will comment only on the data recorded for this sample, plus the groupings for L. Horsman and R.J. Macartney.
In the transcript that you have sent me of proceedings on 26/7/01, pages 363 to 369 (and others) refer to the DNA results of the sample obtained from the left breast. The thrust of the evidence is:
•The DNA from the sample obtained from the left breast is a mixture of DNA from at least two people. In fact, the most appropriate scientific interpretation of the data in the table is that the DNA came from two, and only two, people. I will assume at this stage that the DNA came from two people.
•Macartney cannot be excluded from contributing to the DNA mixture obtained from the left breast.
The last point is a conclusion derived from the data recorded in the table.
Underlying the conclusion is the assumption that, in order to exclude Macartney's DNA from the mixture, there needs to be DNA alleles present that Macartney (or Horsman) do not possess.
While the presence of "foreign" DNA alleles might exclude Macartney's DNA from the mixture, the absence of some of the DNA alleles possessed by Macartney's DNA can also exclude Macartney's DNA from the mixture.
In other words, a person's DNA can be excluded from a DNA mixture if:
EITHER
1.A DNA allele is present in the mixture that the person does not possess
OR
2.A DNA allele that the person possesses is not present in the mixture.
In Macartney's case, only the first alternative has been considered.
Just taking the data that are presented in the table:

DNA locus	Horsman	Macartney	Mixture of Horsman & Macartney	Data in table for L breast	Macartney alleles missing
D3	14/15	16/16	14/15/16	14/15/16
vWA	16/18	15/17	15/16/17/18	NR*	(15/17)*
FGA	22/23	24/25	22/23/24/25	22/23/25	24
D8	14/15	11/13	11/13/14/15	11/13/14/15
D21	29/30	27/30	27/29/30	29/30	27
D18	14/20	12/12	12/14/20	12/14/20
D5	11/11	11/13	11/13	11/13
D13	12/12	8/14	8/12/14	8/12	14
D7	NR (8/12?)	10/10	10 (8/12?)	10/10
Amel	X/X	X/Y	X/Y	X/Y

* I might comment that it is uncommon not to obtain a result in the vWA grouping when a result is obtained in the FGA grouping.
Taking the data in the table at face value, Macartney can be ruled out as being a contributor to the DNA isolated from the sample taken from the left breast since there are alleles that Macartney possesses that are not present in the DNA mixture. These are listed in the table - FGA 24; D21 27; D13 14.
However, the data recorded in the table are not the original results, they are a record.
In order to assess the results appropriately, copies of the electropherograms and the associated results tables are essential. If you wish me to make further comment, I would need copies of these results."

I should say, at the outset, that it is not clear from Mr Webb's evidence that there were "missing" alleles, as opposed to alleles which could not adequately be identified. It may be for that reason that Professor Boettcher required the electropherograms and tables of data printed from them. Whatever may be the position in that regard, we ruled that the letter from Professor Boettcher was inadmissible. It is plainly evidence of a kind which could, with reasonable diligence, have been obtained at the trial. Moreover, given the other DNA evidence which was relied upon at the trial, the evidence of Professor Boettcher, even if it could be said to cast doubt on the DNA evidence taken from the saliva, was not such as to raise a doubt as to the appellant's guilt such that the verdict should not be allowed to stand: Mickelberg v The Queen, above, at [130]. In particular, the appellant takes no issue with the proposition that the semen found on the singlet came from him. While he contends that the singlet was not that which had been worn by Ms Horsman at the time of her death and that his DNA was transferred, by police, onto the singlet, I have already said that that there is no substance to the latter contention and, as I shall later explain, there is similarly no substance to the former contention.
The appellant also pointed to newspaper reports and to other documentary material which, he said, cast doubt upon what he regarded as the limited DNA results which had been obtained by Mr Webb, particularly where there was not a match at every locus. However, none of this constituted admissible evidence and no account can be taken of it.
Next, the appellant pointed to the fact that his DNA was found only on some of the items found at scene B and said that it was significant that his DNA was not on the piece of tape which was apparently placed over Ms Horsman's mouth. He said that it was also significant that no dog hairs were found on Ms Horsman's body, notwithstanding that the appellant often took his dog with him in his vehicle. However, neither of these matters warrants any interference with the decision of the trial Judge. The fact that the appellant's DNA was not found on all of the items which, on the prosecution case, must have been touched by him is of no real assistance. There is nothing to indicate that DNA must always be found on anything which has been touched, regardless of what thereafter happened to it. Nor is it inevitable that, simply because there were dog hairs in the appellant's vehicle, a body which was placed inside it should have picked up one or more of those hairs.
Finally, and as to the contention that the evidence concerning the tape fell short of establishing that it had been used in the manner contended for by the prosecution, the appellant relies upon what was said by the trial Judge to the effect that he was not satisfied beyond a reasonable doubt that the appellant put a plastic bag over Ms Horsman's head. He refers, also, to the fact that there were no injuries on the deceased's body consistent with her having been bound, in some way, by the tape. Also, and as to the tape which was allegedly placed over Ms Horsman's mouth, he contends that the absence of any facial hair on that tape points against it having been used in the manner contended for.
It seems to me that, subject to one matter to which I shall return later in these reasons, these contentions do not assist the appellant in the appeal. The fact that the trial Judge could not be satisfied, beyond reasonable doubt, as to the use to which the plastic bag had been put does not mean that the appellant was not involved in an assault on Ms Horsman. The pieces of tape were plainly used in some way in the course of the assault, as the trial Judge found. The evidence of Dr Cooke established that an underlying injury would not be expected in the case of a person bound with broad tape. That tape was placed on Ms Horsman's mouth was proved by the correlation between the gum on the tape and that in her mouth and also by the evidence of her DNA on that material. There is no evidence that the placing of the tape over her mouth must have resulted in the removal of facial hair.
It follows that these grounds have not been made out.

Ground 6

As to ground 6, which challenges reliance upon the finding of the towels, both towels found at scene B were distinctive. The yellow towel has a border comprising a deeper yellow strip with blue edging. This strip is decorated with rabbits, each of which is coloured pink and blue. The pink towel has a yellow and blue border decorated with variously coloured dinosaurs.
The appellant's wife, in her evidence at the trial, said that, during the police search of her home on 9 December 1999, she was shown two towels which had been found there by police. One was "lemon" coloured with rabbits across the top and the other was pink. She said that the towels had been given to her. One set of towels was given to her when her first daughter was born and a second set was given to her when her second child was born. She said that the yellow towel found at scene B looked like the "lemon" coloured towel found at her home and shown to her by police. Her mother, Kay Thatcher, also gave evidence at the trial. She identified the yellow towel found at scene B and also that found at the appellant's home. She said that both had been given by her to her daughter. She had bought the two matching yellow towels as a set. She also said that she had bought two pink towels for her daughter (one larger than the other) and that the smaller of the two, a hand-towel, had been decorated with dinosaurs. However, she was unsure whether the pink towel shown to her was the one that she had bought.
As to the suggestion, raised by ground 6, that the towels found at scene B might have been stolen from the appellant's house in the course of a burglary on 6 December 1999, I agree with what has been said by Roberts‑Smith JA. I also agree with his comments concerning the fact that there was no evidence that the appellant's DNA was found on the towels.
The appellant also contended, during argument in the course of the appeal (but not in any ground of appeal), that there had been some form of police misconduct in respect of the towels. He pointed, in this respect, to the fact that the videotape of the search of his home, while showing the cot in which the towels shown to the appellant's wife were found, does not at first show either of the towels in the position in which both were later filmed. However, this does not assist the appellant. It is plain from the videotape that there were various items in the cot in which the towels were said to have been found. If the towels were found elsewhere in the cot (or even elsewhere in the house) and placed above other items in the cot, this is not evidence of misconduct. The importance of the towels rests in the fact, not disputed by the appellant's wife, that they were in the house, that they belonged to the appellant's family and that the yellow or "lemon" coloured towel, in particular, matched that found at scene B. It was of no significance where, in the house, they were found.
Finally, the appellant contended in argument (but not in any ground of appeal) that no dog hairs were found on the towels at scene B and that, if they were his towels, dog hairs should have been found on them because his German shepherd had always been in the back of the Landrover. However, that does not necessarily mean that dog hairs should have been found on the towels, even if the police had looked for hairs of that kind. There was no evidence as to where, in the Landrover, the towels had been, or for how long they had been in the Landrover.
Ground 6 consequently fails.

Ground 7

By ground 7, the appellant complains of what he refers to as the failure, by the prosecution, to call three witnesses at the trial, each of whom, he says, could have given relevant evidence.
The first of these was a kangaroo shooter, Phillip Bland, who had assisted police with their search of the beach area. In a statement which he made prior to the trial, Mr Bland mentioned that he had spoken to a jogger who had appeared from out of the bush close to the sand hills through which Mr Bland had been following vehicle tracks. He said that, when a policeman came up on a four wheel motor bike and tried to talk to the jogger, the jogger "took off".
The second witness was Joshua Jarvis, a friend of the appellant. The appellant said that, on the day after Ms Horsman was killed, he and Jarvis had been working on the appellant's vehicle. They were listening to a "police scanner". The appellant said that, by means of the scanner, the two men overheard events concerning the jogger who, he said, was named Michael Walton. Ground 7 reads, in part, as follows:
"What they heard on the scanner is that a chap was talking to a licensed roo shooter and as the police 4-wheel motor bike came around the dunes, the jogger whose name is Michael Walton, appeared to panic and ran off. On the police buggy was Constable S. J. Campbell who gave chase, he apprehended him three times and he broke away twice, the 3^rd time he was near the car park where his car was parked. This young man was just in shorts and bare feet obviously on his way from area scene B to the car park where his car was parked. No police report was made about this incident, when I say that I mean there's no statement from Constable Campbell given to the DPP or the defence in this case, to assist the Court.
The serious question that couldn't be asked is, why would a young man not allow the police officer to talk to him before he was apprehended near the car park. Surely, its reasonable to assume that he was up to something of serious [sic] nature and I suggest contributing the [sic] development of scene B".
The third witness who, according to this ground, should have been called, was the jogger himself.
As to Bland, as Roberts‑Smith JA has pointed out, he did in fact give evidence at the trial. He gave no evidence concerning the jogger and, notwithstanding that the appellant quite plainly knew of the jogger's existence, no questions were asked of Bland, in cross‑examination, concerning the jogger.
As to Jarvis, it seems that he, like the appellant, could have given evidence of what he had overheard on the police scanner (if this could not be elicited from Bland, or other prosecution witnesses). He was available to give evidence and was present and waiting to be called when, as the transcript reveals, the Crown Prosecutor informed the trial Judge that the defence had informed him that Mr Jarvis was "no longer required".
As to the jogger himself, no effort appears to have been made by the defence to locate him and call him as a witness. Nor is there anything to suggest that he could have provided any relevant assistance. The man who was said to have apprehended the jogger, Constable Campbell, gave evidence at the trial. He was not asked any questions concerning the jogger.
Finally, although this is not complained of in ground 7, the appellant mentioned, in the course of his submissions, that Bland (and a police constable, Constable Morton) should have been recalled in order to provide additional information in respect of "mud maps" to which reference had been made and which each had helped prepare. However, the decision not to recall the two witnesses appears to have been made by the appellant's counsel at the trial.
Ground 7 consequently fails.

Ground 8

As to ground 8, which relates to Mr Webb's description of one of the semen stains found on the singlet as "large", I agree with what has been said by Roberts‑Smith JA. I would add only the comment that, when Mr Webb referred, in the course of his evidence, to the stain in question as the "large stain", he described that stain in that way in comparison to other, smaller, stains which were found on the singlet.

Ground 9

I agree with what has been said by Roberts‑Smith JA in respect of this ground.

Grounds 10 and 13

By ground 10 the appellant challenges the trial Judge's finding that the singlet found by the police had belonged to Ms Horsman. By ground 13, the appellant contends that this, of itself, means that the finding of his semen on the singlet was of no significance. However, he also contends, by that ground, that the semen might have been placed on the singlet by a police officer or officers.
As to the question whether or not the singlet was proved to have been that of Ms Horsman, I agree with what has been said by Roberts‑Smith JA. However, I would add two comments. The first is that the existence of soil, vegetation and cobwebs on the singlet does not mean that the singlet had been at the place at which it was found for any length of time. No one suggested that the singlet was heavily soiled (it was described by Mr Webb as "slightly soiled" and my own observations of it, necessarily made long after the trial, bear this out) and it does not take long for a spider to weave a set of cobwebs (that which I observed on the singlet was very small). The second is that, as I have earlier mentioned, DNA tests conducted by Mr Webb from DNA taken from the inside of the singlet revealed a mixture of DNA which had been contributed to by two persons. After comparisons with the DNA of Ms Horsman and the appellant, Mr Webb concluded that it was 10 billion times more likely that the mixture came from the appellant and Ms Horsman than that it came from two unknown persons. Consequently, the fact that the appellant's semen was found on the singlet was highly incriminating of him.
As to the suggestion, in ground 13, that the semen may have been transferred to the singlet by police, the appellant relies solely upon the videotape of the police search of his home which, as has earlier been mentioned, shows underpants belonging to him lying on the floor which, together with some shirts which were also there, were moved at some stage during the search. As I have already said, that fact, of itself, seems to me to be of little assistance to the appellant. The contention that there was police misconduct in the respect contended for is purely speculative and has no foundation in evidence.
I would consequently dismiss grounds 10 and 13.

Ground 12

Roberts‑Smith JA, in dealing with ground 12 (which deals primarily with the place where Ms Horsman died), has set out what was Dr Cooke's evidence in respect of the likely place of death. He has explained why it is that Dr Cooke considered that the presence of blood in the sand at scene C was not indicative of the fact that Ms Horsman died there. I agree with what Roberts‑Smith JA has said in that respect.
The appellant referred, under this ground, also to the fact that no blood was found in the appellant's Landrover, or on his clothes, and, again, to the fact that there were no dog hairs on Ms Horsman's body. He submitted that this indicated that she could not have been moved by him from scene B to scene C. As to the absence of blood on the appellant or in his vehicle, there was no evidence to suggest that, if Ms Horsman was transported from scene B to scene C by the appellant, there would have been blood on his clothing or in his vehicle, or both. Much presumably depends upon the manner in which she was transported from the one scene to the other. Similarly, as I have mentioned, there was nothing in the evidence to suggest that, if she was transported in any part of the appellant's vehicle, she would necessarily have had dog hairs on her clothing.

Ground 14

By ground 14, the appellant challenges the trial Judge's reliance upon the DNA evidence derived from the cellular material obtained from Ms Horsman's left breast. I have earlier mentioned that swabs taken from the left breast and nipple area gave a positive presumptive chemical reaction for saliva and that cellular material taken by the swab gave a mixed DNA profile of at least two individuals. I have also said that Mr Webb concluded, based upon his testing of the DNA and of DNA taken from Ms Horsman and from the appellant, that it was approximately 40,000 times more likely that the mixed DNA profile came from the appellant and Ms Horsman than that it came from Ms Horsman and an unknown person.
I have also mentioned, and rejected, the appellant's contentions to the effect that the evidence demonstrated a preparedness on the part of police officers, and an opportunity, to interfere with the evidence. I will not repeat what I have already said in that regard. It is enough to say that there is insufficient evidence to give rise to any reasonable doubt as to the reliability of the evidence as to the finding of the appellant's DNA on Ms Horsman's breast or to give rise to any rational inference that the DNA was placed there by the police.
As to the possibility, dealt with at some length in the judgment of Roberts‑Smith JA, that the saliva found on Ms Horsman's left breast might have originated from Dr Cooke or from one of the police officers, as a result of accidentally spitting on her while talking, this appears to me to be entirely speculative. As Roberts‑Smith JA has pointed out, the possibility was not raised at the trial. Moreover, it must be considered in the light of the conclusion reached by Mr Webb that the mixed DNA profile obtained from the saliva was approximately 40,000 times more likely to have come from the appellant and Ms Horsman than to have come from Ms Horsman and an unknown person.

Ground 15

By this ground, the appellant contends that Ms Horsman's body was released for cremation before adequate steps were taken in order to determine the cause of death. It is enough for me to say, in this respect, that I agree with what has been said by Roberts‑Smith JA in this regard. In particular, I agree with him that nothing has been advanced by the appellant which is sufficient to demonstrate that any useful additional medical examination of the body might have been made. There was nothing in Dr Cooke's evidence to suggest that any further examination was warranted, even though he considered that the cause of death was undetermined, save that it was consistent with asphyxiation. There had been nothing on examination to indicate any ingestion of drugs and there was no obvious tablet residue. There was, on the available evidence, nothing to suggest any alternative cause of death than asphyxiation. In these circumstances it was open to the trial Judge to reject, as he did, the suggestion that Ms Horsman's death was due to some illness or drug‑taking and there is no basis for the suggestion that his finding in that respect was based upon inadequate post‑mortem investigations.

Other matters

A number of other matters were raised by the appellant, or on his behalf, but not specifically covered by any ground of appeal. While it is strictly unnecessary to do so, I will deal with each in turn.

Identification of tyre tracks

Roberts‑Smith JA has dealt with the appellant's challenge to the evidence of Senior Constable Graham Foote as regards his conclusion that the tyre tracks found by him close to scene C appeared to be very similar to the tyres on the appellant's vehicle. I agree with all that he has said in that respect.
Mr Tennant has lodged with the Court a document in which he suggests that it was most unlikely that the police would be able to get reasonable tyre impressions, given that the video evidence demonstrates that the wind was blowing in a manner sufficient to obliterate vehicle tracks. I am not at all persuaded, from my viewing of the video footage, that there is anything in that footage which should lead to the inference that reasonable impressions of the tyre tracks could not have been photographed. There is nothing to suggest that the police evidence in that regard should not be accepted.
The appellant also relied upon the series of "mud maps" which had been prepared by police officers in respect of the vehicle tracks. He said that these reveal that the tracks did not stop near the body. Instead, he said, they stopped some metres south of where the body was found. The maps are also said to reveal that the footprints which were referred to by the police officers did not go in the direction in which the body was found but, instead, went down to a gully and into some bushes. Whatever may be the position in those respects, the fact remains that the body was found at a place close to where vehicle tracks, similar to those created by the appellant's tyres, were found and it was open to the trial Judge to conclude, on the whole of the evidence, including evidence which was given by Senior Constable Churchman (he compared photographs of the tyre impressions found near scene C with photographs of tyre impressions formed by the appellant's vehicle), that it was the tyre tracks of the appellant's vehicle which travelled from scene B to scene C.
In any event, the trial Judge did not place much significance on the evidence of the tyre tracks (and did not need to do so, given the strength of the other evidence placing the appellant at the scene). I have mentioned that his Honour said that he did "not rely really too much on the tyre tracks".

The carpet fibre and the "silastic"

I have earlier mentioned that the police found a carpet fibre and a piece of rope at scene B. The piece of rope, or cord, had black "Silastic" brand sealant attached to it. The evidence revealed that these items were sent away for analysis by a research chemist, Dr John Challinor. He compared the carpet fibre with pieces of carpet said to have been taken from the appellant's Landrover and concluded that the fibre matched those pieces of carpet and that it had originated from one of the carpets from the Landrover. He also compared the piece of cord with some cord which had been found in a second vehicle, a Ford, owned by the appellant. He concluded that the cord from scene B corresponded in physical and chemical properties with that found in the Ford. Finally, he compared the "Silastic" brand sealant found on the cord taken from scene B with "Silastic" sealant taken from the appellant's home. The two sealants corresponded in the physical and chemical properties examined. There was no cross‑examination of Dr Challinor by counsel for the appellant.
In the course of his oral submissions the appellant said that he had since discovered a note on a copy of one of the forensic reports to the effect that the fibre found at scene B matched the carpet found in his Ford and not in his Landrover. He said that this fact, and the alleged finding of the piece of cord, demonstrated that the police had "contaminated" evidence, as his Ford was not a four‑wheel drive vehicle and had never been on the beach. The appellant also said that, if Jarvis had been called, he would have given evidence to the effect that the "Silastic" sealant had been purchased by him two days after Ms Horsman went missing. He submitted that this is further evidence of a willingness, on the part of the police, to place evidence at the scene of the crime.
As will be apparent from what I have said, the evidence at the trial was always that the cord found at scene B matched that found in the appellant's Ford. The importance of the match was obviously considered to rest in the fact that the cord belonged to the appellant. The place of its finding was of less significance, as it could easily have been moved from one vehicle to the other. If the carpet fibre also matched pieces of carpet found in the Ford, rather than the Landrover, the match is still of some significance, given that the fibre came from carpet owned by the appellant. Once again, the pieces of carpet which matched the fibre might have been moved from one vehicle to the other, or the fibre might have attached itself, at some point, to the appellant or his clothing, and even from there to his Landrover, before being transferred to the beach. There are various possibilities which might be speculated about but these do not point to the conclusion that police placed the fibre or the cord (neither of which seems to have played a part in the trial Judge's reasoning) at the scene of the crime. While evidence of the purchase of the sealant two days after 5 December 1999 would have been of greater significance, no such evidence was led at the trial and, as I have said, the decision not to call Jarvis (and we have only the appellant's hearsay comments as to what he would have said) was made by the defence and not by the prosecutor.

The question whether Ms Horsman's shorts were inside out when her body was found

Roberts‑Smith JA has dealt with the appellant's contention that Dr Cooke was mistaken in saying that Ms Horsman's shorts were on inside out when her body was found. I agree with what Roberts Smith JA has said in that respect. I would add that it is obvious from the photograph which was taken of the body, when compared with the shorts themselves, that the inside of the logo on the shorts is facing outwards, making it plain that the shorts were inside out.

The appellant's representation at the trial

During the course of argument on the appeal, the appellant raised a number of complaints concerning his representation at the trial. However, he has chosen not to make these a ground of appeal. He raised them only to explain his conduct at the trial in respects which he considered to be material to his grounds of appeal. That being so, and the respondent having consequently had no opportunity, or occasion, to investigate and respond to these complaints, it is neither necessary nor appropriate to give further consideration to them.

The trial Judge's findings concerning s 279(2) of the Code ‑ the newly added ground 16

In dealing with grounds 4, 5 and 11, I mentioned that there was an issue to which I would return arising out of the appellant's contentions concerning the trial Judge's inability to be satisfied beyond reasonable doubt that the appellant had placed a plastic bag over Ms Horsman's head. The issue is that of whether, given that conclusion, and others arrived at by the trial Judge, it was open to him to find that the appellant had caused Ms Horsman's death "by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life", that being the only basis upon which his Honour found that the definition of murder contained in s 279 of the Criminal Code (WA) had been satisfied. Because this issue was one that was raised by the Court itself only after submissions had been completed in respect of the appeal, the parties were recalled for the purpose of making further submissions in that regard.
At the resumed hearing, the appellant, who was then represented by counsel, foreshadowed an amendment to the grounds of appeal. That amendment, which has since been formally made, is by way of the addition of ground 16 to the grounds of appeal, as follows:
"The learned trial Judge made an error of mixed fact and law in that no finding of fact was made which was sufficient to justify the conclusion reached that, in the prosecution of the stated unlawful purpose, the appellant committed an act of such a nature as to be likely to endanger human life, pursuant to s.279(2) of the Criminal Code."
Before dealing with the substance of this newly added ground, I should make some general comments concerning s 279(2) of the Code. That section is one of a number in the Code which deals with unlawful homicide. Section 268 provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. Section 270 provides that any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Section 277 provides that any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be wilful murder, murder, manslaughter, or infanticide. Those crimes are effectively defined in the provisions of s 278 to s 281A of the Code. Wilful murder, being the unlawful killing of another, intending to cause that person's death or that of some other person, is dealt with by s 278. "Murder" is then defined in s 279. That section reads as follows:
"Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say ‑
(1)If the offender intends to do to the person killed or to some other person some grievous bodily harm;
(2)If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(3)If the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(4)If death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;
(5)If death is caused by wilfully stopping the breath of any person for either of such purposes;
is guilty of murder.
In the first case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the second case it is immaterial that the offender did not intend to hurt any person.
In the 3 last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result."
Manslaughter is defined in s 280 as the unlawful killing by a person of another "under such circumstances as not to constitute wilful murder or murder".
The section with which we are immediately concerned in this case, s 279(2), is far‑reaching. Subject to the operation of s 23, to which I shall later return, it requires a verdict of murder simply because an act which caused death was of such a nature as to be likely to endanger human life and was done in the prosecution of an unlawful purpose, regardless of whether or not the actor intended to hurt anyone. Moreover, the courts have held, in respect of the then identical provisions of s 302(2) of the CriminalCode (Qld), that it does not matter, for the purposes of the section, whether or not the offender knew that his or her act was one which was likely to endanger human life: R v Gould & Barnes [1960] Qd R 283 at 292, 298; and Stuart v The Queen (1974) 134 CLR 426 at 438.
The section has its origins in the common law notion of felony murder, the essential feature of which was, and remains, that an unintentional and non‑reckless killing is treated as murder: see Professor David Lanham "Felony Murder ‑ Ancient and Modern" (1983) 7 Crim LJ 90. While the development of the law in this respect has not been without its ambiguities (see John Willis "Felony Murder at Common Law in Australia ‑ The Present and the Future" (1977) 1 Crim LJ 231), there seem, still, to be the three distinct requirements approved by the House of Lords in Director of Public Prosecutions v Beard [1920] AC 479 at 493, where the proposition was held to be sound that the killing of a person by an act of violence done in the course or in the furtherance of a felony involving violence (there rape) amounted to murder. Because the doctrine enabled a person to be convicted of murder even in the case of an unintentional and non‑reckless killing, it has often been criticised. Lanham, at 101, describes it as being "infected not only with … moral and penological weakness but also with the congenital deficiencies of its spurious birth" and Willis, at 246, describes it as a "barbarous relic", quoting C Howard Criminal Law 3rd ed (1977) at 62.
The Australian States have taken different legislative approaches when dealing with this concept of felony murder. The material provision in this State is, as I have said, s 279 of the Code, which is largely mirrored by the provisions of s 302 of the Criminal Code (Qld). As will be apparent from the terms of s 279(2) (which now finds an equivalent in s 302(1)(b) of the Queensland Code) the offence provided for by that section has three elements; there must be an act causing death, the act must have been done in the prosecution of an unlawful purpose and the act must have been of such a nature as to be likely to endanger human life.
As to the first of those elements, the act must have been a willed or voluntary act. In Ryan v The Queen (1967) 121 CLR 205, the High Court was required to consider the provisions of s 18(1)(a) of the Crimes Act 1900 (NSW) (described by Lanham, above, at 101, as "an extraordinarily wide form" of the felony murder rule) which, at the time, read as follows:
"Murder shall be taken to have been committed when the act of the accused … causing the death charged, was … done in an attempt to commit, or during or immediately after the commission, by the accused … of an act obviously dangerous to life … "
Barwick CJ, at 213, said (as, effectively, did Windeyer J at 244) that it was "basic" that it must be a "willed" or "voluntary" act which caused the death charged, even though its consequences may not have been intended (see also at 216 ‑ 217). In Western Australia this requirement is expressly imposed by the first limb of the first paragraph of s 23 of the Code, which provides that, subject to the express provisions of the Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will (see, in this respect, R v Fitzgerald (1999) 106 A Crim R 215 at 219).
Ordinarily, the identification of the act causing death gives rise to no difficulty but, as was pointed out by Barwick CJ in Ryan, above, at 217 ‑ 218, this circumstance has tended "to obscure the logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s.18 are to be satisfied".
The second element, that the act be done "in" the prosecution of an unlawful purpose, seemingly picks up the old common law requirement that it be "in the course of or in the furtherance of" that purpose: Beard, above, at 493. The prosecutor can consequently not rely upon an act done after the unlawful purpose has already been achieved. That said, the words "unlawful purpose" are very wide, even wider than the old common law requirement that the act of violence occur in the course of or in furtherance of a felony involving violence. As was pointed out in R v Georgiou (2002) 131 A Crim R 150 at 160, the framers of the section have chosen the words "unlawful purpose" rather than the word "offence" and the unlawful purpose is not limited to the strict elements of an offence, with the consequence, for example, that an act done in the course of attempting to get away after the commission of an offence would be an act done for an unlawful purpose.
As to the third element, the test whether an act is of such a nature as to be likely to endanger human life has been held to be objective in the sense that the act must "in fact" have been of such a nature as to be likely to endanger human life: Gould & Barnes, above, at 298; Stuart, above, at 438; R v Hind & Harwood (1995) 80 A Crim R 105 at 112; and Fitzgerald, above, at 220. As I have said, it does not matter whether or not the accused person knew that his or her act was likely to endanger human life: Gould & Barnes at 292, 298; and Stuart at 438.
The meaning of the word "likely" has been given close attention in Boughey v The Queen (1986) 161 CLR 10. In that case the High Court was called upon to consider the provisions of s 157(1) of the Criminal Code (Tas), which provided that "culpable homicide" was murder if committed, inter alia " … (c) by means of an unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person".
Gibbs CJ, at 14, considered that the word "likely", in that section, meant "probable" and not "possible". He went on to say, at 14 ‑ 15:
"That is its natural meaning. It is the meaning which a draftsman, familiar with the common law rules regarding malice aforethought, might be expected to attribute to it. In any case, if the expression were thought to be ambiguous, the doubt should be resolved in favour of the liberty of the subject. If 'likely' in s 157(1)(c) were regarded as meaning 'possible', that provision would have a very drastic operation, since it would treat as murder a culpable homicide caused by any unlawful act which the offender knew would possibly cause death. A death in those circumstances might understandably be regarded as manslaughter, but it would be Draconian to call it murder."
Brennan J reached a similar conclusion at 42 - 45. He referred, first, at 42, to the common law concerning murder, quoting the following extract from the judgment of the High Court in R v Crabbe (1985) 156 CLR 464 at 469:
"The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur … If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm. There is a difference between the case in which a person acts knowing that death or serious injury is only a possible consequence, and where he knows that it is a likely result."
Brennan J said that, in that passage and in other passages in the judgment in Crabbe, "likely" was equated with "probable" and both terms were contrasted with "possible". He mentioned that the equation of "likely" with "probable" in reference to the mental element in unintended murder was of long standing. He went on, at 42 - 43, to say (albeit in a somewhat different context to that which arises under s 279(2)):
"There are compelling considerations of principle why 'likely', when used in reference to knowledge of the prospect of death as an element in murder, should be understood as meaning probable, not possible. If it be murder to do an unlawful and fatal act with knowledge that it is possible that death will result, the mental element which stamps the truly heinous character on the crime of murder is relaxed. If that element of the crime of murder is relaxed so that knowledge of the possibility of death suffices to establish it, the distinction between murder and manslaughter by unlawful act would be hard to preserve. Absent an actual intention to kill or to do grievous bodily harm, the distinction would turn on mere epithets to describe the kind of possibility which is to be apprehended (subjectively for murder, objectively for manslaughter) in order to define one crime or the other – eg, a substantial possibility for murder, a real possibility (or real risk) for manslaughter. Such a distinction is, in my opinion, too fine to grasp."

His Honour went on to note that in appropriate cases an appellate court will intervene.
The threshold difficulty the appellant has in this case is that his complaints against counsel were, as he acknowledged, never a ground of appeal. Had they been so, the respondent would have had an opportunity to respond to them. Importantly too, trial counsel (who is not a party to this application) could have been given the opportunity to file an affidavit as was done in TKWJ (see [5]) and McSwan v The State of Western Australia [2005] WASCA 128 at [14]. This Court has therefore not had the benefit of either any explanation of, or response to, the appellant's allegations by trial counsel, or any submission by the respondent in respect of them. Those considerations lead me to the conclusion that even if leave were now sought to add this complaint as a ground of appeal (which it has not), such leave ought not be granted. The appellant's complaints about his trial counsel not being a ground of appeal, they do not fall for determination by us.
Other matters - Various other matters were raised by the appellant or Mr Tennant in documents forwarded to the Court from time to time, both before and after the hearing. I have dealt with those which related to a ground of appeal. The remainder were disputations, assertions or arguments about the evidence, with which it is not necessary to deal. I instance one, by way of example. It is asserted that, contrary to Dr Cooke's evidence that Ms Horsman's shorts were on her inside out, photographs show two studs at the top, which indicate that was not so. In fact, examination of the shorts shows the (outside) front of the studs is a dark dull colour; the back of the studs, inside the shorts, is shiny metal. It is the inside studs which can be seen in the photograph, confirming Dr Cooke's evidence that the shorts were inside out.

Whether findings sufficient for verdict of murder

In the course of exhaustive scrutiny of the transcript, the exhibits and the other materials before the Court, it became apparent that there may have been a serious difficulty with one aspect of the trial Judge's reasons.
His Honour found that the appellant unlawfully killed Ms Horsman by means of an act or acts done in the prosecution of a sexual assault upon her, which act or acts were of such a nature as to be likely to endanger human life (trial t/s 672). That was, of course, a reference to s 279(2) of the Criminal Code.
However, at no point in his reasons does his Honour identify the act which caused death. If the evidence was such that there could possibly only be one act, then it could readily be seen whether or not that act was one "likely to endanger human life". The question arises whether, where there are several possible acts which could have caused death, some of which are not of the character likely to endanger human life, or where the act which caused death is unknown, it is possible to make a finding beyond reasonable doubt that the act which caused death was one "likely" to endanger life: if that finding could not be made then the verdict of murder could not stand.
There was no ground of appeal going to this point. Consequently, neither the appellant nor counsel for the respondent had addressed it in submissions. In those circumstances, the appellant being self‑represented and the point being potentially fundamental, the President's Associate wrote to the parties on 15 December 2005, raising it with them, and inviting further submissions. By note dated 21 December 2005, the appellant responded that he had written to Legal Aid requesting a lawyer for the purpose of advancing submissions on the point. It was not possible to reconvene the Court until 3 February 2006. On that day the appellant was represented by Mr P Urquhart as counsel. On his application we granted the appellant leave to amend, to add a new ground 16, although he had not at that stage formulated it.
Oral submissions directed to the issue were then made by the parties. I turn now to the ground itself, subsequently formulated by counsel for the appellant as follows:
"The learned trial judge made an error of mixed fact and law in that no finding of fact was made which was sufficient to justify the conclusion reached that, in the prosecution of the stated unlawful purpose, the appellant committed an act of such a nature as to be likely to endanger human life, pursuant to s.279(2) of the Criminal Code."

Ground 16 - Error of law - No finding of what act caused death

It is necessary to begin with the evidence to which his Honour particularly referred going to this issue and the findings made by him with respect to it.
At trial (t/s 669) his Honour referred to the white lolly material or chewing gum, similar to that which had been found in Ms Horsman's mouth, being found on a piece of tape at scene B. He continued:
"The obvious inference is that the tape had been placed over her mouth. If her nose had somehow then been blocked with the plastic or something else, which was found at the scene, Ms Horsman could have suffocated to death during the assault on her".
He noted that Ms Horsman's death was consistent with dying from asphyxiation.
In the above passage, his Honour appears to be postulating the physical mechanism by which death was caused. Qualified, however, as it is by the word "if", it is clearly not a finding of fact. I take it to be an acceptance by his Honour that this is one reasonably possible way in which death may have been caused.
The Judge referred to this again at t/s 671, when explaining why he could not be satisfied beyond reasonable doubt that the appellant intended to kill Ms Horsman. There he said:
"… as her death was due perhaps to her breathing having been stopped in some way by tape and perhaps a plastic bag ..."
and that in his opinion there were other reasonable inferences open besides that the appellant intended to kill her.
Said in the context of a discussion on proof of intent to kill (as it was), I would not take the way in which his Honour expressed himself here as a conclusion that the proposition that death was caused by Ms Horsman's breathing being stopped in some way by tape and a plastic bag, was conjectural and would necessarily be inconsistent with a subsequent finding that it may possibly in fact have been the mechanism of death. Nor though is it on any view a finding of what the mechanism of death actually was.
The critical passages are at t/s 672 and 674.
At t/s 672 his Honour said:
"The pathologist did not know why she died until the possibility of her having been smothered with a plastic bag was suggested by the presence of the tape and plastic at scene B, and I emphasise it is only a possibility; it might even be a probability but that is not sufficient. It is my opinion that Ms Horsman could have died when she was immobilised by the tape and perhaps plastic was somehow put over her head during the course of a sexual attack on her by the accused when he was in an intoxicated or semi intoxicated state. He may have unintentionally fatally impeded her breathing. That is a rational inference.
However, the only rational inference to draw is that the accused man unlawfully killed Ms Horsman by means of an act or acts done in the prosecution of a sexual assault on her which act or acts were of such a nature as to be likely to endanger human life. In his alcohol affected condition the accused may not have appreciated that Ms Horsman could not breathe properly. That, again, is only speculation. However, I am satisfied beyond a reasonable doubt that Ms Horsman had tape over her mouth, possibly to stop her calling out for help. The chewing gum in her mouth and on the tape found at scene B indicates that that was so.
I am further satisfied beyond a reasonable doubt that however he caused Ms Horsman's death, the accused's acts in causing her death were acts of such a nature as to be likely to endanger human life. He had put tape over her mouth. Whatever else he did which impeded her breathing was then likely to endanger her life and did, I am satisfied, cause her death.
Mr Macartney is therefore guilty of murder but he is not guilty of wilful murder because it has not been proved beyond a reasonable doubt that he intended to kill Ms Horsman at the relevant time. …" (My emphasis)
In these passages his Honour seems focused on whether or not the appellant had an intent to kill. There is an obvious problem with the word "perhaps" in the first paragraph. It might be thought that what his Honour was trying to say was that Ms Horsman did die when she was immobilised by the tape, and the appellant did something whereby plastic came to be over her head in the course of a sexual assault by him, thus causing her death, although in his state of intoxication the appellant had no intention to cause her death. That view of what his Honour was trying to say gains support from the first sentence of the subsequent paragraph in the transcript.
The findings made by his Honour on this issue are critical to the verdict. A statement that Ms Horsman "could have" died when she was immobilised by tape "and perhaps" plastic was somehow put over head, simply cannot be read as findings beyond reasonable doubt by his Honour.
The reference by his Honour in the next paragraph to "an act or acts" show he was unable to make a finding what the act which caused death actually was. That is reinforced by his subsequent reference to "However he caused Ms Horsman's death …" and "whatever else he did which impeded her breathing …".
A further specific conclusion made by his Honour which bears critically upon this is that at t/s 674, where he says:
"I'm not satisfied beyond a reasonable doubt that the accused man put a plastic bag over Ms Horsman's head or that he ever intended to kill her."
That conclusion precludes a finding beyond reasonable doubt that the appellant did put a plastic bag over Ms Horsman's head while her mouth was covered by tape. There would have been no difficulty categorising that act as one "likely to endanger human life" in the circumstances. His Honour's conclusion necessarily means that is only one of a number of reasonable possibilities.
The respondent submits that, fundamentally, it was unnecessary for his Honour to be satisfied as to the cause of death. It is submitted that rather, there required to be, as indeed there was, satisfaction that the appellant caused the death. Equally, it is said, the same body of circumstantial evidence justified the conclusion that, having applied tape to the mouth of the deceased, the appellant in the course of his sexual assault upon her following her abduction, committed "… an act which was self‑evidently life‑threatening and caused her asphyxiation", a conclusion consistent with the evidence of the pathologist. The respondent submits that the evidence did not justify any further finding, and nor was it necessary that there be any further finding. The correctness of that last submission is said to be demonstrated by analogy with Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996; Buckland v The Queen, unreported; CCA SCt of WA; Library No 970112; 21 March 1997 and Whitsed v The Queen [2005] WASCA 208.
I would accept the proposition that the act which caused death was a life‑threatening act. That must be so because it did in fact cause death. To assert, however, that it was "self‑evidently" life‑threatening is to beg the question.
The authorities upon which the respondent relies do not assist the State.
In Greer (supra), the appellant had been convicted in November 1994 of the murder of Sharon Mason at Mosman Park on 19 February 1983. The body was found some years after the death and had decomposed to such an extent that it was not possible to determine the cause of death.
Greer was a jury trial, and of course, no reasons for the jury's decision were given. Unlike the present case, it was not possible to scrutinise reasons given, for specific error.
Pidgeon J (with whom Wallwork and Scott JJ agreed) held that even though the remains disclosed no evidence of violence or cause of death, it was still open to the jury to find the appellant caused the victim's death. That was clearly so.
With respect to specific intent, Pidgeon J said (at 49):
"Ground 4(1)(a) states that the Crown failed to establish the cause of death or any bodily injury to the deceased. If the arguments suggested by these grounds were taken further, then it could be argued, at law, that if the proven facts were that the accused person did an act to cause a person's death; successfully disposed of the body so no trace was found and elected to make no statement to the police or give evidence at the trial, then he could not be convicted of an offence other than manslaughter. This is not the law. As I see the law, it is open to conclude that if it were proved that a person did the act to cause the death followed by disposing of the body so it is not recovered and with nothing else being known, he can be convicted of murder."
The specific intent necessary for a conviction of wilful murder is that at the time the accused did the act which caused death, they had an intent to cause death (s 278 Criminal Code).
In Greer, Pidgeon J relied upon R v Horry [1952] NZLR 111, in which the appellant had been convicted of murder, even though no body had been found. Pidgeon J set out a lengthy passage from 123 of that judgment, part of which was:
"In this case, there is neither the body nor traces of the body, nor anything in the form of a confession, but, in our opinion, that does not exhaust the possibilities. There may be other facts so incriminating and so incapable of any reasonable explanation as to be incompatible with any hypothesis other than murder. It is in accord both with principle and with authority that the fact of death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypotheses other than murder can the facts be accounted for." (Emphasis added)
His Honour concluded that the Court there acted on the basis that in the circumstances of the case, where the circumstantial evidence established that the appellant did the killing, "he would have" the necessary mental element to establish murder.
There was abundant circumstantial evidence in Horry from which the jury could have been satisfied beyond reasonable doubt that the victim was dead, that she was killed by the appellant and that the killing was premeditated and done for financial gain. The Court held (at 125) that a jury viewing the evidence as a whole was entitled to regard the concurrence of so many separate facts and circumstances - themselves established beyond all doubt and all pointing to the fact of death at or about the time charged - as excluding any reasonable hypothesis other than the victim's death. Further, if the evidence were sufficient to establish her death, as the Court held it was, there was ample evidence pointing to the appellant having murdered her. That evidence included false statements made by the appellant both before and after their marriage, the sudden sale of the victim's house and the provision of the money to the appellant, efforts made by the appellant to persuade the victim's family that she was deceased and much more. The Court held that once the appellant's story was rejected as incredible, he was left in a network of facts not explicable upon any hypothesis other than that he murdered the victim.
Pidgeon J next referred to R v Onufrejczyk [1955] 1 QB 388, noting that there Oliver J quoted to the jury the headnote from Horry. I do not repeat that here. It concludes with the words:
"… the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."
Later, his Honour quoted a further passage from the summing‑up of Oliver J:
" If he did not die by natural causes, he was killed. Members of the jury, if he was killed his body was concealed or destroyed and has not been found. If he is dead and was killed and the body was destroyed or concealed, he was murdered, was he not? That is the point. I want you to apply your minds to that set of circumstances, and decide for yourselves whether, the [sic] in the light of those facts, and many more to which I shall have to draw your attention, you can say that you are satisfied that no rational hypothesis except that he is dead, dead by violence, is open. If you are driven to that conclusion, that would be a verdict of murder; but if you think that that would be going too far, and that you could not safely say that no rational explanation of his death except murder could be conceived, why then it will mean that you have a doubt about it, and you will acquit him."
His Honour noted that direction was approved by the English Court of Appeal.
Like Horry, in Onufrejczyk there was extensive circumstantial evidence, including of the relationship between the parties, the financial need of the appellant, threats by the appellant to kill the victim, false accounts by him of what had transpired and various efforts to profit from the victim's death and to mislead the authorities.
One thing Horry and Onufrejczyk showed to be not in doubt, his Honour said, was that if an accused was proved to have killed the deceased and destroyed the body, the verdict of murder is open. Acknowledging that at common law the crime of murder is committed when a person kills with intent to kill or cause grievous bodily harm, Horry and Onufrejczyk would indicate that it was assumed that if a person killed for a motive and disposed of the body (my emphasis), the verdict of murder was open without the jury being asked to consider as a separate question, whether he may have killed without intent.
It is obvious that given those assumptions, namely that the accused killed the deceased, that the accused had a motive to do so, and that the accused disposed of the body, then in the absence of evidence suggesting otherwise, a jury could be satisfied beyond reasonable doubt the killing was deliberate. That is a very different situation to the present, not least of all because at the trial, being before a Judge alone, the Judge gave reasons stating his findings and the conclusions he drew from them. Neither Greer itself, nor the cases referred to by Pidgeon J say anything about this situation.
Nor does Buckland v The Queen (supra). That was another case where the body of the deceased had not been found prior to trial and the cause of death was unknown. There, though, it was a ground of appeal that there was no evidence upon which a properly instructed jury could find an intent to kill.
The trial was held in March 1995. In September of that year the appellant disclosed to the police that he had buried the deceased's body, although he continued to maintain he had not killed her. He took police to where the body had been buried in bushland. It was exhumed and a post‑mortem subsequently conducted. There was evidence that the deceased had suffered a knife wound above the heart. However, none of that bears upon the question of present concern.
Once again, Buckland demonstrates that in the absence of a body, or physical proof of cause of death, an accused may yet be convicted of an homicide involving a particular specific intent. That is to say, wilful murder or murder. What is required is other evidence, be it direct or circumstantial, from which the fact that the accused killed the victim and that they did so, for example, with an intent to kill or to cause grievous bodily harm, can be found beyond reasonable doubt. In that regard, Owen J succinctly outlined the salient features in Buckland, at 5 of his reasons. He referred:
"… to the deteriorating relationship, the prior assault, the earlier threat to 'see [the deceased] dead' if she took the baby away, the disposal of the body, the attempts to deflect attention from the disappearance and the statement to the deceased's mother about giving part of a life for a life. Much of this evidence is circumstantial but to describe evidence as circumstantial does not mean that it is less reliable than other evidence. However, the process of reasoning necessary to sustain a finding of guilt includes the requirement to exclude every reasonable hypothesis which is consistent with the person's innocence. In my opinion it was open to the jury to conclude that the inference of an intent to kill was 'the only inference open to reasonable [people] upon a consideration of all the facts in evidence': Peacock v R (1911) 13 CLR 619 per O'Connor J at 661.
If, as I believe to be the case, it was open to the jury to be satisfied that the applicant caused the deceased's death and that he did so unlawfully, then in the circumstances of this case the jury would have been entitled to discard the possibility that it should acquit the applicant or return a verdict of guilty of manslaughter. The choice was then narrowed to wilful murder or murder. It was for the jury to decide whether it was satisfied beyond reasonable doubt that the intent with which the applicant acted was to kill or to cause grievous bodily harm. It is apparent from the trial Judge's directions and from a question asked during its deliberations that the jury was aware of these choices and of the bases on which they were to be made. The jury must have been satisfied of an intention to kill."

Whitsed v The Queen (supra) was in the same category. The prosecution case was wholly circumstantial. The bodies of the two victims, who were mother and daughter, were not recovered and there was no direct evidence of how they had died. However, the circumstantial evidence was sufficient to enable the jury to be satisfied beyond reasonable doubt that the appellant had killed them and that he had done so deliberately. That case was very similar to Weissensteiner v The Queen (1993) 178 CLR 217.
The submission advanced by the respondent on the basis of these authorities is that purely circumstantial evidence established not merely the unlawful killing involved, but a relevant specific intent to kill or to do grievous bodily harm. The respondent submits that, as a matter of logic, if circumstantial evidence can establish unlawful killing and specific intent to kill in the absence of the body of the deceased and the cause of death, then circumstantial evidence, such as the considerable body of evidence in the present case, is equally available to justify the conviction of felony murder.
That submission does not grapple with the point at issue here.
Each of the cases relied upon was a jury trial. Unlike the present, the verdict of the jury was inscrutable. Here, the conclusion reached by his Honour turned on particular findings of fact which he articulated. Most importantly, his Honour was unable to identify the act which caused death.
The definition of "murder" is contained in s 279 of the Code:
"Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say ‑
(1)If the offender intends to do to the person killed or to some other person some grievous bodily harm;
(2)If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(3)If the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(4)If death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;
(5)If death is caused by wilfully stopping the breath of any person for either of such purposes;
is guilty of murder.
In the first case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the second case it is immaterial that the offender did not intend to hurt any person.
In the 3 last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result."
It is essential to have regard to the actual words of s 279(2). They require the relevant act to be "… of such a nature as to be likely to endanger human life". There is a distinction between that expression, and "… likely to cause death". In his reasons, the trial Judge very carefully (and correctly) repeatedly used the words "likely to endanger human life".
"Likely" means "probably or apparently going or destined; seeming like truth, fact, or certainty, or reasonably to believed or expected; probable ("Macquarie Dictionary", 2nd revised Ed, p 1004) or having an appearance of truth or fact; that looks as if it would happen …; probable, to be reasonably expected ("New Shorter Oxford English Dictionary" 1993, p 1588).
To "endanger" is to expose to danger; imperil ("Macquarie Dictionary" p 584) and "danger", is liability or exposure to harm or injury; risk, peril ("Macquarie Dictionary" p 462).
So the requisite act must be one which will probably or apparently expose the victim's life to risk, or put it in peril.
The common law distinguished between reckless murder and felony‑murder. Recklessness required satisfaction about the subjective state of mind of the offender. It was murder if a person did an act knowing it was probable that death or grievous bodily harm would result (La Fontaine v The Queen (1976) 136 CLR 62 at 76, per Gibbs J). There had long been some uncertainty whether, absent an intent to kill, the knowledge that an accused must possess in order to be guilty of murder, was a knowledge of the probability that his acts will cause death or grievous bodily harm or whether knowledge of that possibility was enough. The different views were discussed in the joint judgment of Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ in R v Crabbe (1985) 156 CLR 464 at 468. Following that discussion, their Honours concluded (at 469 ‑ 470) that:
"It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result." (My emphasis)
I have already adverted to the wording of s 279(2) of the Code.
The equivalent provision in the Tasmanian Criminal Code is s 157(1), although the wording is different:
"(1) Culpable homicide is murder if it is committed -
…
(c) by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person."
It was held in Boughey v The Queen (1986) 161 CLR 10 that in that section the word "likely" conveys a notion of substantial, real and not remote chance, regardless of whether it is more or less than 50 per cent; it should not be construed to mean more likely than not, or to assume a specific degree of mathematical probability not conveyed as a matter of ordinary language or by the statutory context. Mason, Wilson and Deane JJ pointed out (at 20) the importance of a trial Judge drawing to the attention of the jury the distinction between what is probable, or likely, on the one hand and what is only possible on the other.
For present purposes, the essential feature of the statutory provision in Boughey was that it referred to an unlawful act "… likely to cause death", so the issue which arises in the instant case did not arise there.
The point turns on the proper construction of s 279(2) of the Code.
In Stuart v The Queen (1974) 134 CLR 426 at 437, Gibbs CJ said that the correct approach to the interpretation of a section of the (Queensland) Criminal Code is:
"… that stated by Dixon and Evatt JJ in Brennan v The King (1936) 55 CLR 253, at p 263, as follows:
'… it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.'
This passage does not mean that it is never necessary to resort to the common law for the purpose of aiding in the construction of the Code - it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v Canadian Pacific Railway Co [1982] AC 481, at p 487, cited in R v Scarth [1945] St R Qd 38, at p 44. If the Code is to be thought of as 'written on a palimpsest, with the old writing still discernible behind' (to use the expressive metaphor of Windeyer J in Vallance v The Queen (1961) 108 CLR 56), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance."
Taking that approach, it can be seen that the statutory expression relates the "likelihood" not to the causing of death, but to the putting of life in danger. An act may be likely to be dangerous to life without being likely to cause death. Mr Urquhart accepted this was the proper construction of s 297(2). The danger may be real (and likely), simply because, objectively, death is a reasonable possibility, even though in itself not likely.
The felony‑murder rule at common law did not involve any notion that the relevant act be dangerous to life. Historically, the felony‑murder rule was always applied less strictly where death was caused by abortion (Lumley (1911) 22 Cox CC 635), but abortion aside, the rule was that any act of violence causing death, done in the course or furtherance of an offence involving violence, was murder (Director of Public Prosecutions v Beard [1920] AC 479; R v Ryan and Walker [1966] VR 553; R v Van Beelen (1973) 4 SASR 353). This formulation did not involve any consideration of the likelihood (or even possibility) of death resulting, nor the dangerousness of the act. There were some judicial attempts to incorporate the notion of a dangerous act (eg Jarmain [1946] 1 KB 74, 75, 80; Ryan v The Queen (1967) 121 CLR 205, per Windeyer J at 503, cf Taylor and Owen JJ at 499). However, as Willis points out (J Willis "Felony Murder at Common Law in Australia - The Present and the Future" [1977] 1 Crim L J 231, 235 ‑ 236) the weight of authority required "an act of violence" for felony‑murder and a "dangerous act" was not enough. In Van Beelen (supra) at 400, the South Australian Court of Criminal Appeal expressly rejected the requirement that the act causing death "be of such a nature as was likely to cause death or grievous bodily harm".
The terms of a Criminal Code, however, may of course involve a departure from the common law.
Section 279(2) of the Code clearly modifies what was the felony‑murder rule at common law, just as the Code modified murder at common law by requiring an intent to kill (s 278 - wilful murder) or to cause grievous bodily harm (s 279(1) - murder), and so abolished "reckless" murder.
The Code further departs from the common law in relation to the test. Whether the act is likely to endanger life is subjective (what the offender knows or believes) or objective. To constitute this element it is enough that the act which caused death was in fact likely to endanger human life, whether or not the offender knew it was dangerous (per Gibbs J in Stuart v The Queen (supra), at 438, citing with approval R v Gould & Barnes [1960] Qd R 283, 298; cf Crabbe (supra) at 469 ‑ 470).
There is no reason why s 297(2) should not be construed according to its terms, which make the likelihood of a risk of danger to life sufficient, as distinct from the likelihood of death.
His Honour was unable to say what the particular act which caused death was. On the evidence, there were various possibilities. The appellant could have prevented Ms Horsman breathing, while her mouth was taped, placing the plastic bag over her head (though, in his intoxicated condition, not intending to kill her); by lying or sitting on her chest whilst sexually assaulting her; by lying on her in such a way as to cause plastic to cover her nose; or by inadvertently placing some part of his body over her face while he assaulted her, to mention some. The question in the present case then is whether, on the evidence, there is any reasonable possibility that the act which caused Ms Horsman's death was one which was not an act likely to put her life in danger. It is necessarily implicit in his Honour's findings that he was satisfied beyond reasonable doubt there was no such possibility. I agree. As the trial Judge found, any act done to an immobilised person, in the course of a sexual assault upon her, which restricts, impedes or prevents her ability to breath, while her mouth is taped, and who therefore can breath only through her nose, and which did in fact cause death, would necessarily have to have been an act objectively likely to be dangerous to her life. No other reasonable possibility was open. In my opinion, expert evidence was not necessary to establish this likelihood. His Honour was satisfied of it as a matter of common‑sense and ordinary experience. That was sufficient and his conclusion was justified in the circumstances as he found them to be.
Only one possibility was suggested. That was that the appellant may simply have fallen on Ms Horsman while her mouth was taped and so compressed her chest and stopped her breathing. However, Dr Cooke had been cross‑examined about that possibility by reference to another case in which it was said a policeman was pursuing a man on foot. There was "quite a long bit" of running. They were both exhausted. The policeman fell on top of the man, handcuffed him and stood up. The man did not. He had been asphyxiated because of shortness of breath and the policeman lying on him. Later though, a subsequent post‑mortem revealed an injury. No such injury was found here. Dr Cooke said he would exclude that case from being under consideration at the present, although he accepted a person may be asphyxiated by having their chest and abdomen compressed, and there may be no, or minimal injuries, as a result of that.
There was a faint suggestion advanced in submissions that if his Honour could not identify the act which caused death, then the defence of accident under s 23 Code could not be excluded. This would result in a complete acquittal. There is no substance to that proposition. That is because there is nothing in the evidence to enliven the operation of the section. The appellant maintained throughout he had nothing to do with Ms Horsman's death, and there was no evidence which could give rise to a reasonable possibility that her death was an event which occurred by accident. There being no evidence raising the issue, it does not fall for further consideration.
There is no reasonable possibility that death was caused by an act not objectively (Stuart v The Queen (supra) at 438) likely to endanger Ms Horsman's life.
Accordingly, this ground too must fail.

Conclusion

None of the grounds of appeal have been made out. In my opinion, only ground 16 had a reasonable prospect of success. I would accordingly grant leave to appeal, but dismiss the appeal.