Murdoch v The Queen
[2007] NTCCA 1
•10 JANUARY 2007
Murdoch v The Queen [2007] NTCCA 1
PARTIES:MURDOCH, BRADLEY JOHN
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 2/06 (20215807)
DELIVERED: 10 JANUARY 2007
HEARING DATES: 12, 13, 14, 15 DECEMBER 2006
JUDGMENT OF: ANGEL ACJ, RILEY J & OLSSON AJ
APPEAL FROM: NORTHERN TERRITORY SUPREME COURT, 20215807, 15 December 2005
CATCHWORDS:
Appeal – Proviso – Application of proviso – Whether miscarriage of justice
Evidence – Identification – Whether spontaneous – Victim identifying appellant suspect as her assailant from photograph of appellant on internet
Evidence – Identification – Photoboard – Whether Trial Judge erred in permitting evidence of photoboard identification in circumstances where previous out of court identification admissible
Evidence – Identification - Dock identification – Whether Trial Judge erred in permitting evidence of dock identification in circumstances where previous out of court identification admissible
Evidence – By victim of similarities between dog at crime scene and accused’s dog in photograph – Whether admissible in the circumstances
Evidence – Possession, ownership and use of guns by accused – Circumstantial evidence adverse to him – Whether relevant or should have been excluded by Trial Judge as matter of discretion
Evidence – Accused denied that he was person in truckstop video – Edwards direction by Trial Judge – Whether appropriate in circumstances
Evidence – Expert evidence - Admissibility – Opinion evidence –– Facial Mapping and Body Mapping – Whether ‘specialised knowledge’
Evidence – Expert evidence – Qualifications of witness as expert – Whether Body Mapping proper subject matter for expert testimony
Evidence – Expert evidence – Opinion evidence – Truckstop video – Whether expert witness who did not know appellant could identify him as man in video – Evidence of identity wrongly admitted
Evidence – Opinion evidence – Non-expert opinion – Identity – Truckstop video – evidence of witnesses who knew appellant identifying him as man in video – Whether matter for jury – Evidence properly admitted – Jury to decide weight
Evidence – Identification – Truckstop video – Evidence of witnesses who knew appellant identifying him as man in video – Whether matter for jury – Evidence properly admitted – Jury to decide weight
Sentencing – Murder – Indeterminate sentence with non-parole period – Whether non-parole period manifestly excessive
Statutes Referred to:
Criminal Code (NT) s 411, 429(2)
Evidence Act 1995 (NSW) s 79
Sentencing Act s 53A
Cases Cited:
Alexander v The Queen (1981)145 CLR 395
Attorney-General’s Reference (No 2 of 2002) [2003] 1 Cr App R 321
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
Clare & Peach v R [1995] 2 Cr App R 333
Darkan v The Queen (2006) 163 A Crim R 80
Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
Davies and Cody v The King (1937) 57 CLR 170
Festa v The Queen (2001) 208 CLR 593
Hallam & Karger v R (1985) 42 SASR 126
Hontestroom (Owners) v Sagaporack (Owners) [1927] AC 37
Jamal v R (2000) 182 ALR 307
Lewis v R (1987) 88 FLR 104
Li v The Queen (2003) 139 A Crim R 281
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Murphy v The Queen (1994) 62 SASR 121Powell and Wife v Streatham Manor Nursing Home [1935] AC 243
R v Bonython (1984) 38 SASR 45
R v Britten (1988) 51 SASR 567
R v Clark and Others (1996) 91 A Crim R 46
R v Clarke [1995] 2 Cr App Rep 425
R v Gorham (1997) 68 SASR 505
R v Hookway [1999] Crim LR 750
R v Palaga (2001) 80 SASR 19
R v Paul Edward Gray [2003] EWCA Crim 1001
R v Tang (2006) 161 A Crim R 377 R v Trevor Elton Gardner [2004] EWCA Crim 1639
R v Williams [1983] 2 VR 579
Smith v R (2001) 206 CLR 650
Stockwell v R [1993] 97 Cr App Rep 260
The Queen v Murdoch [2005] NTSC 76
The Queen v Murdoch (No 1) [2005] NTSC 75
The Queen v Murdoch (No 4) [2005] NTSC 78
The Queen v Murdoch (No 5) [2005] NTSC 79
Warren v Coombs and Another (1979) 142 CLR 531
Weiss v R (2005) 224 CLR 300REPRESENTATION:
Counsel:
Appellant:I Barker QC, G Algie, I Read
Respondent: R Wild QC, J Down, A Barnett
Solicitors:
Appellant:NT Legal Aid Commission
Respondent: Office of Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Ang200701
Number of pages: 155
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINMurdoch v The Queen [2007] NTCCA 1
No. CA 2/06 (20215807)
BETWEEN:
BRADLEY JOHN MURDOCH
Appellant
AND:
THE QUEEN
Respondent
CORAM: ANGEL ACJ, RILEY J & OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 10 January 2007)
THE COURT:
Introduction
[1]The appellant appeals against his convictions, following verdicts of a jury, of the crimes of murder, deprivation of liberty and aggravated assault.
[2]The appellant also appeals, by leave, against a non parole period fixed by the learned trial judge in relation to sentences imposed on him consequent on the convictions.
[3]The appellant was refused leave by a single judge to appeal against the sentences imposed on him in respect of the convictions for deprivation of liberty and aggravated assault. However, pursuant to the provisions of s 429(2) of the Criminal Code, he requested that his application for leave in that regard be considered and determined by the Court of Criminal Appeal. On the hearing of the appeal he did not pursue that request.
[4]This Court also has before it applications for extension of time within which to make application for leave to appeal against his convictions on a variety of additional grounds.
[5]In the event, this Court determined that it would receive detailed submissions as to the substance of all matters sought to be advanced by the appellant and rule at a later date on whether necessary extensions of time and leave ought to be granted.
[6]
The grounds of appeal sought to be relied on have waxed and waned in number since the institution of the present appeal. On the hearing of the appeal, counsel for the appellant intimated that he only desired to rely on grounds or proposed grounds that had been numbered 1, 5, 6, 7, 11, 12, 14 and 15 respectively. Accordingly, these reasons are limited to a consideration of those grounds and proposed grounds, the numbers of which will be retained as a matter of convenient reference to the relevant documentation.
Relevant narrative background
[7]The Crown case, as presented, may be summarised as follows:
(1) As at July 2001 the witness Joanne Lees and the alleged murder victim Peter Falconio were aged 28 and 27 years respectively. They met in 1996 and had lived together since August 1997.
(2) Following Mr Falconio's graduation from university in 2000, he and Ms Lees embarked on a world trip together. In the course of the trip they came to Australia on a working holiday, arriving in Sydney in January 2001. They remained in that city for several months and, whilst there, purchased an orange coloured Kombi van.
(3) On 25 June 2001 the two of them departed Sydney in the van, with the intention of travelling a route that would take them through Canberra, Melbourne, Adelaide, Alice Springs and then to Darwin. They intended, thereafter, to go to Cairns, Brisbane and New Zealand, although, at some point, Mr Falconio planned to go to New Guinea on an adventure trip, whilst Ms Lees remained in Sydney.
(4) The couple duly arrived in Alice Springs on 11 July 2001. The jury was told that, on 14 July 2001 at some time after attending the Camel Cup, they departed Alice Springs in the Kombi van. They proceeded north on the Stuart Highway, travelling towards Barrow Creek. They stopped at Ti Tree to watch the sunset. What follows is the substance of the narrative evidence given by Ms Lees.
(5) At some point shortly after passing through Barrow Creek and at about 8 pm when it was dark, the two of them became aware that another vehicle was following the Kombi van. That vehicle (which proved to be a white four-wheel drive utility fitted with a bull bar) pulled alongside the Kombi van. Its interior light was switched on.
(6)The utility was driven by a man wearing a black baseball cap with a motif on it and a long sleeve shirt with what appeared to be a T-shirt or something else under it. He had what Ms Lees described as a Mexican moustache that drooped down past the sides of his mouth. A dog was also seen to be sitting on the passenger seat of the utility.
(7)The driver of the other vehicle gestured to the occupants of the Kombi van to pull over and pointed to the back of the van. Mr Falconio stopped the Kombi, with its nearside wheels on the gravel verge and its offside wheels on the bitumen. The four-wheel drive utility pulled up somewhere behind it.
(8)Mr Falconio got out of the Kombi and went to the rear of it, whilst Ms Lees slid over into the driver's seat to get a better view of what was occurring. She noted that the other driver had got out of his vehicle and was speaking with Mr Falconio near the rear of the Kombi. Because the Kombi driver's door had not been fully closed when Mr Falconio exited the vehicle, its interior light had come on and it stayed on.
(9)Ms Lees heard some discussion between the two men concerning sparks coming from the exhaust, following which Mr Falconio came back to the driver's door of the Kombi, collected his cigarettes and asked Ms Lees to rev up the engine, which was still running.
(10)She did so a number of times following Mr Falconio’s return to the rear of the vehicle. As she did so, she heard a sound like a vehicle backfiring. A man, whom she later identified as the accused and the driver of the four-wheel drive utility then came to the driver's door of the Kombi holding a silver revolver in his right hand.
(11)The man instructed her to turn off the motor of the Kombi. She attempted to do so, but was shaking too much. He thereupon partly entered the vehicle as she backed away from him and he turned off the ignition. He told her twice to put her head down and her hands behind her back, pointing a gun at her right temple.
(12)She eventually complied and the man then tied her wrists together. He placed some sort of cuff quite tightly on each wrist with the two cuffs joined about 3 or 4 inches apart. It subsequently transpired that she had been manacled with handcuffs made of tape and cable ties.
(13)Although she could not remember precisely how it occurred, Ms Lees said that she was somehow taken out of the Kombi through the passenger side door and forced to the ground onto her knees. The man straddled her, facing her legs. He then lifted her legs and attempted to tie them together. Her head was facing the bush and her feet were towards the Kombi.
(14)Ms Lees struggled and the man was unable effectively to tie her legs, although there was some tape around them. He punched her on the right temple, partly stunning her. He next lifted her up, standing behind her and holding her at the base of the neck. She screamed out to Mr Falconio to help her, but there was no response.
(15)The man forced Ms Lees over to the utility and tried to put tape across her mouth. She resisted, continuing to call for help. The man was unsuccessful in taping her mouth. He lifted up the corner of the canvas canopy to his vehicle behind the passenger's door and pulled out a sack, which he put over her head for a short time.
(16)She was pushed backwards into the passenger seat area of the utility and saw the dog then sitting on the driver's seat. She described the animal as being of medium build, chunky and a patchy black or dark brown and white colouring. At that point, the bag had been removed from her head, the interior light was on in the vehicle and she saw the man's face from a distance of only about 18 inches.
(17)Ms Lees said that she eventually found herself in the rear of the utility. Initially she thought that this might possibly have been by means of moving through a gap between the front two seats. Later, she said that it was possible that her assailant had pushed her through the side canvas canopy. She was clear that she did not walk around to the rear of the vehicle and get in from there. She was initially on her stomach, but turned over. She asked the man why he was doing this. "Did he want money?" "Did he want to rape her?"He told her to shut up or he would shoot her.
(18)The man went away for a short time and Ms Lees heard a noise like gravel scraping, as if something was being moved. She sat up with her hands still tied behind her back. She eased her body towards the rear of the vehicle, hung her legs over the back of the tray, got to the ground and then ran into the bush.
(19)She said that she ran slightly to the right from the near side of the vehicle and the bush got thicker as she went. It was rough going and she tended to stumble. It was pitch black. She could hear the man somewhere behind her. She hid in the scrub, crouching under some bushes. She heard the man moving about and, at one stage, saw some torchlight.
(20)After a time, Ms Lees heard vehicle doors opening and closing and an engine start up. She saw vehicle headlights turned on. She then heard a vehicle move off, she thought, in a southerly direction. She remained where she was and, after a time, once more heard a crunching noise of a person moving about.
(21)Ms Lees subsequently again became aware of a noise of vehicle doors and then of something being dragged. There was a noise of a vehicle door closing and an engine being started. A vehicle thereafter drove off to the south.
(22)She remained in the bush for what she thought was some hours. At the point when the second vehicle was being driven off, Ms Lees managed to pass her legs through between her hands and bring her still manacled hands to the front of her body.
(23)She tried to rid herself of the manacles by attempting to bite through the bonds joining them, but was unsuccessful in doing so.
(24)She then managed to get some lip balm out of a pocket of her board shorts. She bit the top off and spat it out and then rubbed the balm on the wrist bands. However, she was still unable to remove them. The lip balm tube fell to the ground.
(25)Ms Lees eventually moved back to the road. It was still pitch black. She crossed to the far side of the road and collapsed in some long grass. She decided to wait for a road train and first allowed a car to pass without moving. She feared that her assailant might return in such a vehicle.
(26)When she saw a road train approaching, she ran out on to the road in front of it with her hands in front and then off the road again when it looked as if the vehicle might not stop. It did, however, stop after it had passed her and she ran after it and made contact with the driver, showing him her manacled hands. The driver proved to be the witness Mr Millar, who had another person, the witness Mr Adams, with him.
(27)Ms Lees briefly told Mr Millar what had happened and asked for assistance in removing her manacles and finding her boyfriend. The men in the road train cut off her cable ties and placed them in a toolbox. Tape was also removed from her legs and from in her hair.
(28)Mr Millar and Mr Adams disconnected the trailers from the prime mover and then used the latter, with its headlights on, to search the general area. The Kombi van, the utility and Mr Falconio were not found. The trailers were again attached to the prime mover. Ms Lees was driven to Barrow Creek, arriving shortly prior to 2 am.
(29)There was a party in progress at the Barrow Creek Hotel and Mr Millar went inside to notify the police of the situation. Initially Mr Adams stayed in the cab with Ms Lees, attending to her injuries with a first-aid kit. She was then taken into the hotel and looked after, while the police were contacted. She eventually lay down on a bed in a bedroom.
(30)Mr Millar's report of the incident was received at the Alice Springs police complex at about 2 am. Police arrived at Barrow Creek at about 4:20 am and were subsequently taken by Mr Millar to the area where he had picked up Ms Lees. She was eventually conveyed to Alice Springs and received appropriate medical treatment.
(31)Ms Lees described her assailant to the police as being a tall man “45 +” years of age. She said that he had a “long and ovalish face – longish face. Narrow.”, with deep set eyes, sunken cheeks and scraggly hair coming out from under a black baseball cap. There was a lot of grey in his collar length hair and he had grey flecks in his eyebrows and moustache. The moustache was a Mexican style that drooped at the ends. His eyes were drooping and his face was very lined. He wore a check pattern shirt with a dark T-shirt under it, and heavy duty trousers, possibly jeans.
(32)After the police had arrived Ms Lees identified a standard white Toyota Land Cruiser utility with a green canvas cover as being somewhat similar to the vehicle driven by her assailant. However, she said that there were some differences. For example, in the vehicle looked at by her it was not possible to go through from cab to the tray at the rear. The canopy also seemed to be a different colour on the inside.
(33)She remained in Alice Springs for some weeks to assist the police.
Key circumstantial evidence
[8]The attention of the jury was invited to a substantial number of items of circumstantial evidence. A summary of some of that material follows, although it is unnecessary, for present purposes, to traverse all of the evidence called or tendered.
[9]The witness Mr Millar testified that, shortly prior to 1 am on 15 July 2001, he was driving a road train along the Stuart Highway in a southerly direction towards Barrow Creek. He confirmed that a young woman, who proved to be Ms Lees, suddenly jumped out from the left side of the road in front of the prime mover, holding her hands up near her head. This caused him to swerve to his right.
[10]Mr Millar told the jury that he then straightened up again and applied his brakes, thinking that the young woman may have actually gone under one of the trailers. It took nearly a kilometre to pull up.
[11]When he eventually dismounted and walked back to examine the trailers, he heard the sound of Ms Lees running down the other side of the trailers. She called out for help and came to his side of the road train by moving, crablike, under one of the trailers. She asked him to look at her hands.
[12]Because the light was not good, he took her to the front of the vehicle and saw that her hands were manacled. He tried to undo the ties, but could not. He thereupon awakened the witness Mr Adams who was sleeping in the vehicle and asked him to go to a toolbox to get some cutters.
[13]Mr Adams did so and then cut the ties, whilst Mr Millar held Ms Lees' hands. The two men also assisted her to remove duct tape from around her legs and where it adhered in her hair. The cut ties and removed duct tape were kept and placed in the toolbox. At some point Ms Lees gave a brief account to the two men of what had happened to her.
[14]Mr Millar confirmed that, having placed Ms Lees in the cab of the prime mover, she requested that they look for her boyfriend and her vehicle. He told the jury that he and Mr Adams drove the road train off the road, unhitched the prime mover and then drove back up the road to a point near where Mr Millar had first seen Ms Lees.
[15]He said that, in that area, he saw what he described as a small pyramid of dirt on the road, although he could not recall precisely where it was on the road surface. When asked, Ms Lees did not know what it was.
[16]Further searches failed to reveal the presence of either Mr Falconio or the Kombi, although some fresh vehicle marks were seen on a track leading to a gate. After a time, the trailers were re-hitched to the prime mover and Ms Lees was conveyed to Barrow Creek, just over 10 kms distant.
[17]After the police had arrived Mr Millar went to the scene and indicated relevant locations to police officers, including the position of the so-called “dirt pyramid”.
[18]Mr Millar told the jury that, at the time at which he and Mr Adams picked up Ms Lees she had lost a lot of skin from her elbows and knees.
[19]The witness Mr Adams essentially confirmed his part in the sequence of events, as had been narrated by Mr Millar. He said that, when he initially saw Ms Lees, she was shaking and shivering and appeared in shock.
[20]Ms Lees was examined by Dr Wright at about 6:40 pm that day. He noted the presence of multiple abrasions on both elbows and knees, some scratches around one ankle, a small laceration over the front surface of her left knee and a scratch on the lower back. Many of the abrasions were dirty and required cleaning.
[21]Mr Pilton, the proprietor of the Barrow Creek Hotel, said that Mr Millar's road train arrived at the hotel at about 1:30 am on 15 July 2001. He assisted Mr Millar to make contact with the police in Alice Springs, as the Ti Tree police station was not manned at that hour.
[22]This witness then went out to the road train and there saw Ms Lees in the cab in the foetal position. He and the two drivers coaxed her to leave the cab and then took her into the hotel. When she was in the hotel he saw severe red wrist marks on both of her wrists, lacerations on both elbows and knees and a swelling mark on her ankle. Her face appeared swollen and she said "Where's Pete?" "I can't find Pete", "I need Pete". Mr Pilton made a bed available to her.
[23]Ms Pamela Brown related that she had been in a car with her partner and other family members on an unspecified Saturday night preceding a Sunday on which she had heard of an incident near Barrow Creek. Their vehicle was heading south on the Stuart Highway, having attended a football match at Ali Curung.
[24]After stopping at Taylors Crossing to change a flat tyre, the vehicle in which Ms Brown was a passenger then proceeded south on the Highway. By then it was a dark, moonless night. At one point Ms Brown saw vehicle headlights come from the verge onto the road and then a white vehicle that looked like a Toyota Land Cruiser wagon came past heading north. She subsequently saw an orange Kombi van on the side of the road facing north. Its lights were not on.
[25]This witness marked relevant locations of the vehicles observed on a photograph exhibit P 52.
[26]Ms Brown's partner, Mr Jasper Haines, gave evidence somewhat to the same effect as hers. He confirmed that he knew the area where the vehicles were seen quite well because he went hunting there. A so-called bore road in the vicinity led into the hunting area. He said that he went hunting the following day after seeing the vehicles and observed police cars in the area. He later heard of the events near Barrow Creek and went to the police and made a statement.
[27]At trial, it was Mr Haines' memory that the white vehicle seen was a 4 wheel drive Land Cruiser utility with a green canopy. However, such professed observation was not consistent with what he initially told the police or the magistrate at the committal. His earlier statements were to the effect that he thought that the 4 wheel drive vehicle might have been either a Troop Carrier or a Ford Courier.
[28]The bore road referred to by Mr Haines was later traversed by a police officer. It ran off the Stuart Highway to the West just north of the crime scene. It was found to extend for about 12 kilometres, terminating at an old bore and cattle yards.
[29]The witness Ms Laracy, an accountant, gave evidence to the effect that she had an appointment with Peter Falconio in Alice Springs at 10 am on 14 July 2001. At that time she gave him certain advice concerning his taxation affairs.
[30]Evidence was led before the jury that the Camel Cup race meeting was held in Alice Springs on 14 July 2001 and that the Camel Cup race itself was held commencing at about 2:30 pm.
[31]Several witnesses gave evidence that two persons answering the general description of Peter Falconio and Joanne Lees came to the Aileron roadhouse about 132 kilometres north of Alice Springs and were served with toasted sandwiches between 3:30 and 4:30 pm on 14 July 2001. An orange coloured Kombi van was seen to be parked outside. At trial an issue arose as to whether the persons seen were in fact Peter Falconio and Joanne Lees or whether they had ever stopped at Aileron.
[32]Mr Millar had accompanied the police back to the crime scene. Shortly after 7 am on 15 July 2001 police officers walked south along the Stuart Highway from about the location where Ms Lees had been picked up by Mr Millar. About a kilometre south of that location one of the officers walking on the west side of the Highway observed the top of a van in the tree line about 104 metres, or a little further, off the road. On examination this was found to be an orange Kombi van that appeared to be unoccupied.
[33]When the police officers returned to the Highway in that general location they observed a stain on the road with dirt and rubble near it. This appears to have been the site of the dirt pyramid previously referred to. The area was cordoned off. The Kombi van was forensically examined in situ and subsequently removed by tow truck that evening and taken to Alice Springs, where it was secured in the forensic building.
[34]Police crime scene examiners observed and recorded vehicle track marks leading from the general area of the stain on the road to the location of the Kombi van where it was found in the scrub. No keys were found in the ignition of the Kombi or on searching the area, even using a metal detector. Some keys were later found in the Kombi under other items.
[35]On 16 July 2001 a lip balm container lid was found in the scrub near a tree or bush about 63 metres south of the bloodstained area. There was an area of flattened grass near it. On 15 October 2001 a lip balm tube and two pieces of black tape were located under the tree or bush in question. Subsequent chemical analysis indicated that the residue of the contents of the tube and cap were identical with a greasy residue found on the cable ties removed from Ms Lees.
[36]Forensic examination revealed that the segments of tape recovered from the person of Ms Lees, in the area where the lip balm container was found and on the manacles were of various types and configurations. These were all products readily available at retail outlets and similar to rolls of tape later found in various locations said to have been occupied by the appellant.
[37]Forensic pathology evidence indicated that it could well be the situation that, dependent on the nature of the wound inflicted and its location, there might not be a sound made by the victim of a small calibre gunshot after receiving a fatal wound. It was also possible that there would be no external extrusion of brain or other tissue and relatively limited blood loss.
[38]A substantial volume of expert evidence was led before the jury concerning forensic examinations made of the Kombi van and the crime scene and, in particular, of the presence of blood and other material from which DNA could be extracted and profiled. In summary, this evidence was to the following effect:
(a)No evidence of human blood was found on or in the Kombi van;
(b)a Ventolin inhaler said to have been used by Mr Falconio to relieve asthma symptoms was retrieved from the van and a DNA profile obtained from it;
(c)the validity of such profile, as being that of Mr Falconio, was verified by reference to DNA profiles obtained from specimens taken from his father and brother;
(d)DNA profiles were also obtained from specimens taken from Ms Lees, and the witnesses Messrs Adams and Millar;
(e)when sprayed with luminol at night, a number of locations on the road and ground at the crime scene gave a positive presumptive result suggesting the presence of blood;
(f)these included a large pool of apparent blood staining on the bitumen near the edge of the road that had been covered with dirt and loose stones and measured about 60 centimetres by 40 centimetres, two smaller areas to the south of the main stain (that could, possibly, have been comprised of material scattered from the main area of staining) and some "dotting" to the west of the main stain;
(g)there was no presumptive evidence of blood staining in the location in which the Kombi van was eventually found;
(h)swabs or other samples were taken from the steering wheel, gear stick and front seats of the Kombi van, as well as other items found in that vehicle;
(i)forensic tests were carried out on clothing worn by Ms Lees on the night in question and on the manacles cut from her hands;
(j)the main stain on the bitumen and several other samples taken from areas adjacent to it were found to be human blood, the DNA of which was identical in profile to that of Mr Falconio;
(k)initial testing by a forensic scientist based in the Northern Territory revealed the presence of material bearing DNA profiles identical with those of Ms Lees and the witness Mr Millar on the ties and wrist bands of the manacles and the presence of material bearing a DNA profile identical to that of Ms Lees on samples of tape ties;
(l)tests of what appeared to be a series of blood stains in locations on the back of the T-shirt that had been worn by Ms Lees yielded positive DNA profiles identical with that of the appellant;
(m)a forensic examination of the swab from the gear knob of the Kombi van produced a partial DNA profile that, inter alia, did not exclude the appellant. This material was sent to an expert scientist in the United Kingdom and subjected to a specialised technique known as Low Copy Number technique with a view to obtaining additional results. The evidence concerning that technique was the subject of a significant amount of debate and contention at trial. However, it was the firm evidence of the United Kingdom expert that the swab of the gear knob revealed a mixed DNA profile that did not exclude the appellant as a major donor. The effect of the expert evidence was that the chance of a second unrelated person producing the partial DNA profile obtained from the swab that matched that of the appellant was less than one in 13,000;
(n)the use of a similar technique in relation to the swab of the steering wheel of the Kombi van indicated the presence of DNA that had originated from at least three people. Individual major or minor components could not be identified, but Mr Falconio, Ms Lees and the appellant could not be excluded as contributors;
(o)the United Kingdom expert witness further examined the cable tie restraints that had been applied to Ms Lees and in particular a specific individual loop of them. He took a sample from the adhesive surface of the innermost layer of tape that had been applied around the inside of the loop in question. This was an adhesive surface that was actually against the inside of the cable tie. The sample gave mixed DNA profile results that indicated that there had been two contributors. The expert evidence was to the effect that the minor bands in the profile also exist in the profiles of both Ms Lees and Mr Falconio. However, the major component was a substantial profile that was not entirely complete. That profile matched the relevant segments of the appellant's DNA profile.
[39]Widespread searches of relevant areas of country at and about the crime scene and even further afield failed to reveal any trace of Mr Falconio or his body and nothing has been heard of him since, save for one possible sighting of him subsequent to the events in question - the validity of which was not verified. Similarly, those searching failed to find any weapon or other relevant metal object.
[40]A very considerable volume of additional circumstantial evidence was placed before the jury including, but not limited to, evidence as to the movements or asserted movements of the accused at relevant times, a Land Cruiser utility with canopy owned and driven by him, his dog, his asserted ownership of and practice of carrying firearms (and particularly hand guns) in his vehicle and various other aspects. It is unnecessary to traverse this in detail, save to the extent that it specifically arises in the context of the grounds of appeal relied upon.
A consideration of the grounds of appeal
Ground 1 – Identification evidence
(appeal as of right)
[41]The first ground of appeal asserts that the learned trial Judge erred in admitting evidence of Ms Lees purporting to identify the appellant and his dog because, it is said, in neither case was the evidence spontaneous or reliable and it was tainted in all the circumstances or, alternatively, its probative value was outweighed by its unfair prejudice to the appellant. What is in issue is the refusal of the learned trial Judge to exercise his discretion to exclude the evidence of the Internet, photo board and dock identification of the accused by Ms Lees and certain of her evidence concerning his dog. In essence, this ground seeks to impugn the validity of the reasoning of the learned trial Judge as expressed in written reasons for decision ultimately published by him on 15 December 2005 (The Queen v Murdoch (No 1) [2005] NTSC 75).
[42]This Court was informed by counsel for the respondent that the learned trial Judge gave a series of rulings on these and a number of other topics prior to trial on the express footing that they were liable to review as the trial proceeded, dependent on how the relevant evidence actually developed. The various written reasons for the rulings were published in terms that reflect such a situation.
[43]Evidence was given at trial by Ms Lees, over the objection of counsel for the accused, concerning four important aspects going to the identification of the appellant as her assailant on the night in question. These have been referred to as the internet identification, the photo board identification, the dock identification, and the dog identification respectively. It is convenient to consider the relevant issues under those titles.
[44]In addressing these matters it is to be noted that the Crown case against the appellant by no means rested entirely or substantially upon the impugned evidence of Ms Lees. That evidence was but some of the evidence going to the identity of the offender, which included a substantial body of material of a circumstantial nature including, for example, the DNA evidence said to link the appellant to the scene of the events at Barrow Creek.
[45]By way of introduction to the topics above referred to, it should be noted that, commencing at some time on 15 July 2001, Ms Lees worked with a police artist to produce a so-called "Comfit" representation of the facial appearance of her assailant, whilst her memory was still fresh. The police were anxious to circulate such a likeness as soon as possible.
[46]Such a representation was produced, although Ms Lees said in evidence that she was not entirely happy with the final result because, in particular, "the hair wasn't quite right". She stated that she could not find a hair configuration in the Comfit book that was entirely accurate. She also gave an oral description of her assailant to the police. That description is recorded in Exhibit P 274.
The Internet identification
[47]Ms Lees returned home to the United Kingdom at about the end of 2001.
[48]In October 2002 she was working in Sicily. She had become aware that, at some point, a suspect was in police custody in Australia.
[49]A friend drew her attention to the existence of a BBC news site on the Internet. As the learned trial Judge expressed the situation in his reasons:
"In her evidence she said she was receiving lots of messages from the media and her friends and she decided to have a look on the Internet to see what people were writing. In her statement of 18 November 2002, Ms Lees stated that a friend of hers had told her that a really nice article about her had been written".
Later in his reasons the learned trial Judge went on to say:
"The decision to admit the evidence of the identification of the Internet photograph was made before Ms Lees gave evidence in the trial and on the basis of the material and circumstances discussed earlier in these reasons. At trial, Ms Lees said that she looked at the website because a friend had said that the media were writing positive things about her. She was in Sicily and wanted to know what she could expect when she returned to the United Kingdom. She accessed the particular web site looking for information about herself. She was not looking for information about a suspect or the accused. Ms Lees said that she did not expect to see a photograph of a suspect or a man who might be the person who attacked her".
[50]The learned trial Judge concluded that Ms Lees accessed the Internet on 10 or 11 October 2002, at a time not long after she had been advised by the police by telephone that they had a suspect. He accepted that, at the time, she did not know that there would be any images with the article. In the course of his reasons the learned trial Judge commented:
"In that context Ms Lees stated:
‘I saw an article and a square picture of a male I recognised immediately as the same male who'd attacked me. The male was completely clean shaven in the picture and he had very short hair. I could tell that it was the same male even though he’d completely changed his appearance. I didn't know there was going to be a picture there to look at’."
[51]The learned trial Judge also said in his reasons:
"The picture of the accused in the article is approximately four centimetres in width by four and a half centimetres in height. It depicts a slightly angled frontal view of the accused’s clean shaven face. The accused’s hair is very short.
In the description given on 15 July 2001 to the police, Ms Lees described the offender's hair as ‘grey, scruffy, straggly hair sticking out from under his cap’. She said he had a grey moustache.
The Internet article also contained a photograph of the brothers of the deceased and of the deceased together with Ms Lees. The article included the following statements:
‘The family of murdered backpacker Peter Falconio say they are hopeful a DNA breakthrough in the case will bring them justice.
Peter's brothers, Nicholas and Paul Falconio, say they were ‘very positive’ about Australian police's decision to name Bradley John Murdoch as a prime suspect in the case.
DNA tests linked Mr Murdoch, 44, to the crime through a blood sample taken from the scene.
……
Arrest warrant
Bradley Murdoch has so far used his right to silence and refused to answer police questions at the Adelaide gaol where he is being held on separate rape and abduction charges.
Police are also examining items taken from the engineer’s home.
Assistant Commissioner John Daulby said police were ‘unable to exclude him’ from their investigations and will be seeking a warrant for his arrest over the murder.
… …
Mr Daulby said police would not rely on DNA evidence and that they still wanted to know more about the activities of Mr Murdoch around the time of Mr Falconio's disappearance [under the same photograph of the accused appeared the words ‘Police will not rely on DNA to prosecute Mr Murdoch’].
… …
Mr Murdoch is currently being held in the state of South Australia in connection with the abduction and rape of a 12-year-old girl and her mother.
Officials there are still to decide whether to allow a murder trial in the Northern Territory jurisdiction to go ahead’.
Ms Lees was subsequently shown a hard copy of the particular Internet article. In a statement of 29 November 2002 Ms Lees said she was "pretty sure" that it was the same article and also "pretty sure" it was the same photograph, although she could not be one hundred per cent certain. She added:
‘What I am sure of is that this is the same person who attacked me and Peter on 14 July 2001.
As I said in my statement from yesterday, I would recognise this man no matter what changes he might make to his appearance.
I didn't access the Internet with the intention of looking at a picture of the offender, I simply wished to read an article that a friend of mine has said was positive about me (for a change for the media!)’.”
[52]The learned trial Judge noted in his reasons that, on 22 October 2002, the accused had declined to participate in an identification parade.
[53]Having referred to various relevant authorities on the topic and recognised the fact that these emphasised the dangers associated with confronting a victim with a person unknown to the victim in circumstances which convey to the victim the fact that the person is a suspect, the learned trial Judge expressed the view that the circumstances before him were significantly different from those that existed in Hallam & Karger v R (1985) 42 SASR 126 and like cases.
He said:
"…… Although Ms Lees was aware that the police had a suspect who had been arrested in South Australia on other matters, when she accessed the Internet Ms Lees was not expecting to see an article about the person who had been arrested. She thought she was about to read an article which was complimentary about her. She was unaware that there would be any images with the article. Upon seeing the picture, Ms Lees immediately recognised the person depicted as the person who had attacked her.
Notwithstanding the content of the article accompanying the image of the accused, the identification by Ms Lees was more in the nature of a spontaneous recognition of the person depicted in the photograph in circumstances where Ms Lees was not expecting to see an image of the suspect".
[54]Having noted the decision of the Full Court of Victoria in R v Williams [1983] 2 VR 579 and the judgment of Kirby J in Festa v The Queen (2001) 208 CLR 593, the learned trial Judge said:
"Although the area was dark and the events traumatic, Ms Lees saw the offender from a very close position under light and for ample time to gain a clear impression of the offender's features. While the circumstances of identification of the Internet photograph were less than ideal, the evidence is capable of significant probative value. It was a spontaneous recognition of the person in the photograph. Whether that spontaneous recognition was reliable or whether the reliability was adversely affected by the circumstances, including the content of the article, are questions of weight for the jury".
[55]The learned trial Judge was of the opinion that, accepting the situation to be as described by him, the potential for unfair prejudice did not outweigh the probative value of the evidence. He considered that it was not unfair to admit the evidence and declined to exclude it in the exercise of his discretion.
[56]He emphasised that his initial view in that regard had not changed after having heard the evidence of Ms Lees at trial. He recalled that, having been asked what she thought when she saw the picture, Ms Lees had replied "That, that’s the man". He drew attention to the fact that, during cross-examination when it had been put to Ms Lees that she was mistaken in her identification of the image of the accused on the Internet as the person who attacked her at Barrow Creek, she gave the following evidence:
His Honour:
"Q. Do you agree with that proposition, you were wrong when you picked the man on the Internet?
A. I wasn't looking for the man on the Internet. I didn't - the picture just came up, I just glanced at it, I really - I recognised him as being my attacker.”
Mr Algie:
“Q. But the article at which you were looking on the Internet concerned the man who had been identified as a suspect for Barrow Creek, didn't it?
A. I can't really remember what the article said now. At the end of the day I was there, I know what happened, I don't need to read it from the press.
Q. Did the article and the person being identified as a suspect influence you at all in your identification of that person?
A. No, I'd recognise him anywhere".
[57]Additionally, in the course of Ms Lees’ cross-examination the following exchanges occurred:
"As you would appreciate I am here to represent Mr Murdoch. You obviously became aware through conversations with police that Mr Murdoch became a suspect, I think, late in 2002. And indeed you looked at the Internet you've told us. Is that right?---I didn't look through the Internet. I looked at one particular web site. I wasn't looking for the defendant. I was just looking for information about myself.
But the point I am simply making is that the reason you looked at that particular article or website on the Internet was because you'd been made aware, I think, by Northern Territory police that a suspect had been identified?---No, the reason why I looked at that web site at that time was because a friend had said, ‘The media are writing some positive things about you’, and the fact that I was in Sicily, away from the UK, I just wanted to know what I could expect when I returned to the UK."
[58]There was no evidence at trial as to the extent to which, if at all, Ms Lees had read the text of the Internet website prior to seeing the appellant’s photograph, although the obvious inference is that the viewing of the image occurred very rapidly after the website had been brought up on screen. Neither the Crown nor the defence pursued that aspect with her.
[59]Further, it was not established whether the photograph of the appellant appeared on the website on the same screen as the text reproduced in the hard copy material or whether it was on a second screen, as appears on the hard copy print out of the article. Nor was it ever established that the pagination of the print out necessarily followed corresponding screen sequences as they appeared on the website.
[60]These matters are not without significance. Mr Wild QC, for the respondent, was prepared to concede that it was a fair inference that, by the time that she viewed the appellant's image, Ms Lees would have been aware that the image in the article was that of a person described as being a suspect.
[61]The core complaint expressed by the appellant in his relevant ground of appeal was to the effect that the categorisation by the learned trial Judge of the identification by Ms Lees as being spontaneous was not open on the evidence.
[62]It was asserted that there was a real risk that the conversation with the police concerning a suspect and the material set out on the Internet with the photograph detracted from the likelihood that the identification in fact was spontaneous and, accordingly, the evidence of it should have been excluded in the exercise by the learned trial Judge of his discretion.
[63]Mr Barker QC, for the appellant, invited attention to a series of authorities touching on the admissibility of identification evidence. It is unnecessary to retrace all that ground in detail.
[64]A convenient commencement point is the judgment of King CJ in Hallam and Karger (1985) 42 SASR 126. The learned Chief Justice said that, if a trial Judge admits identification evidence and the accused is convicted, the true question for the Court of Criminal Appeal is whether, having regard to the whole of the evidence, it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice.
[65]The courts have long adopted the attitude that, in cases in which a witness has not become familiar with the appearance of an accused person by reason of previous knowledge or association and has not seen the accused since the events in question, evidence of identification will not normally be admitted where the purported identification has occurred in circumstances in which the accused is specifically presented to the witness as a person who is suspected of having committed the relevant crime.
[66]As was said in Davies and Cody v The King (1937) 57 CLR 170 and by Gibbs CJ in Alexander v The Queen (1981)145 CLR 395, there is the danger that the witness will too readily come to believe, without any true recollection, that the person charged is the person whom the witness had previously seen, particularly if the memory of the witness has become dim and there is some resemblance between the offender and the person identified.
[67]It was for that reason that evidence of identification in Hallam and Karger was held wrongly admitted where the victim of a robbery was called by police to a shopping centre where they had detained two men as suspects and the victim was presented with them and merely asked whether they were his assailants.
[68]It is for the same reason that dock identifications are not usually permitted, other than as confirmatory of an acceptable prior out-of-court identification: Jamal v R (2000) 182 ALR 307, R v Gorham (1997) 68 SASR 505).
[69]Nevertheless, each case must be examined in light of its own circumstances. There may well be situations in which the context will indicate that the person identified is suspected of some offence but nevertheless it is proper to admit the identification evidence, for example if it is apparent that the problem referred to in Davies and Cody v The King and Alexander v The Queen does not exist.
[70]The decision of the Full Court of Victoria in R v Williams [1983] 2 VR 579 focused on just such a situation. The accused in that case had been charged with a bank robbery. The witness gave evidence that, whilst waiting alone and outside the Court to give her evidence, she saw the accused taken into Court in handcuffs. She had not been asked to watch out for him or anyone else. She instantly recognised him as a person who had been sitting in a vehicle outside the bank shortly prior to the robbery and wearing a Collingwood beanie of the type that had been worn by the bank robber.
[71]That evidence was objected to as being of no greater value than an impermissible ab initio dock identification.
[72]The Full Court held that the evidence was of a quite different qualitative nature to the type of evidence criticised in Davies and Cody v The King. As Gobbo J said, it was not a situation in which the accused had been presented to the witness. It was a wholly spontaneous identification by the witness, who had simply been sitting alone, not looking for anyone in particular nor responding to any invitation from the police or anyone else to look for a suspect. It was, he said, true that her memory had apparently been revived when she saw the accused being conducted towards the Court in handcuffs, but that was a matter for weight that the jury was properly and repeatedly urged to take into account.
[73]As the learned trial Judge pointed out in his voir dire reasons, the validity of such reasoning was accepted by Kirby J. in the course of his judgment in Festa v The Queen (2001) 208 CLR 593 at 640.
[74]As has been said, the evidence in the present case is silent as to the format of the article as it actually appeared on the website and as to the extent to which, if at all, Ms Lees absorbed any of the text prior to seeing the appellant's photograph. Be that as it may, the critically important aspects for present purposes are these:
(a) In no relevant sense was the website photograph of the appellant presented to Ms Lees by the police for identification purposes. She accessed the website to view what a friend had told her was a complimentary article about her, with no expectation of seeing any such photograph;
(b) Even if it be accepted that she had read some of the relevant introductory text, she was unequivocal in her assertion that she spontaneously recognised the person depicted in the photograph. She said she would recognise him anywhere and had not been influenced by anything that she might have read;
(c) The learned trial Judge was of the opinion on the whole of the material before him and confirmed by Ms Lees’ actual evidence at trial that, having regard to her opportunities to observe her assailant at Barrow Creek and her evidence as to viewing the website, what occurred was in the nature of spontaneous recognition, in circumstances in which Ms Lees was not expecting to see an image of the appellant. By inference his reasons indicate an acceptance of the fact that her reaction to the photograph was the product of her clear memory of the events of the night in question and was not substantially affected or tainted by any knowledge that she may have possessed that the appellant was a suspect in relation to those events.
[75]The ultimate finding so made by the learned trial Judge was not an inference drawn from established facts. It was a specific acceptance of a fact which was confirmed by the testimony given at trial. His conclusion in that regard was the product of his assessment of the credibility and reliability of Ms Lees, an aspect as to which this Court is in that permanent position of disadvantage adverted to by Lord Sumner in Hontestroom (Owners) v Sagaporack (Owners) [1927] AC 37 at 40, re-affirmed by their Lordships in the well known case of Powell and Wife v Streatham Manor Nursing Home [1935] AC 243 and accepted by the High Court in Warren v Coombs and Another (1979) 142 CLR 531. The reasoning in those cases is of general application, notwithstanding that they were decisions in the civil jurisdiction.
[76]Of course, it is trite to say that it remains the responsibility of this Court to conduct its own independent examination of the evidence but, having done so, there is simply no compelling reason to reject the specific conclusion of the learned trial Judge. It was fairly open, given an acceptance by the learned trial Judge of Ms Lees as a witness of credibility and truth.
[77]The learned trial Judge clearly recognised that any knowledge that Ms Lees may have had, at the time of spontaneous recognition, of the fact that the appellant was a suspect in relation to the events at Barrow Creek was a less than ideal situation. However, he considered that, given ultimate appropriate directions and warnings, whether the spontaneous recognition was reliable or whether it was adversely affected by the circumstances, including any content of the article read by Ms Lees, were essentially questions of weight for the jury.
[78]That was a view to which he was properly entitled to come. Having regard to what he accepted was the spontaneity of the recognition, the potential for unfair prejudice did not outweigh the considerable probative value of the evidence. The learned trial Judge was justified in declining to exclude it in the exercise of his discretion.
[79]Applying the test enunciated in Alexander, this was not a situation in which the learned trial Judge ought necessarily have been compelled to the conclusion that the evidence proposed to be led was of little weight, as well as grossly prejudicial to the accused person. Moreover, the directions that he gave the jury in relation to the evidence in question were appropriate to the situation and would have ensured that the jury reviewed and weighed the material before them in a correct and balanced fashion.
[80]It was submitted on behalf of the appellant that, in concept, the situation was akin to and no different from a situation in which a police officer had approached Ms Lees, provided her with the information contained in the web site article, produced the relevant photographic image and then posed to her the question "Is that the man you saw on 14 July 2001?".
[81]We disagree. In Williams, the subject person was seen to be a person obviously in custody being taken into the court room. The present appellant was known to be in custody and under suspicion of the Barrow Creek offences. However, the crucial common feature of Williams and the present case was the sudden, unexpected and incidental appearance of the person/image in the focus of the witness and the unsolicited and spontaneous reaction of that witness to what was observed.
The photo-board identification
[82]Ms Lees testified that, on 18 November 2002, Australian police officers came to see her in Sussex in the presence of a local police officer. What occurred on that occasion was recorded on video tape. That tape was played at trial and tendered as exhibit P 47.
[83]The police officers requested Ms Lees to examine a photo-board containing 12 photographs (exhibit P 48). As the learned trial Judge expressed the situation in his summing up, those photographs were of 12 different men with varying shapes of faces and full beards and moustaches.
[84]One of the photographs was that of the appellant, albeit that the photograph in question presented him quite differently from what had been seen on the Internet. To adopt the description of the learned trial Judge in his reasons:
"The photographs under consideration are significantly different. Notwithstanding an underlying similarity, the direct front on view of the photograph on the photo-board is different from the slightly angled view on the Internet. The expression that appears in the posed photograph on the photo-board is quite different from the expression in the Internet photograph which appears to have been taken while the accused was walking along a street. There is a small difference in the length of the hair. The accused is clean shaven in the Internet photograph, but possesses a full beard and moustache in the posed photograph on the photo-board".
[85]As was depicted in the video film exhibit P 47, Ms Lees indicated photograph 10 as being that of her assailant. It is not in dispute that photograph 10 was a photograph of the appellant. The learned trial Judge described what was revealed by the video tape in these terms:
"Ms Lees was instructed to take her time. After a short delay during which it was apparent that Ms Lees was examining the photographs, Ms Lees indicated photograph number 10 and said "I think it's number 10". Ms Lees was asked what she meant by the words "I think". Her attention was drawn to possible meanings ranging from "I am very uncertain" to "I am very positive", and she was asked what her state of mind was when she identified photograph number 10. Ms Lees replied "I was very positive".
[86]There was no evidence to suggest that, at the time at which Ms Lees was requested to look at the photo-board, the police were aware of the existence of the Internet web site or that she had already seen the appellant's photograph on it.
[87]In his reasons, the learned trial Judge observed that numerous authorities had recognised the dangers associated with identification that occurs after a witness has seen a photograph of a person unknown to that witness, but known to the witness as the accused or a suspect. He accepted that this danger applies regardless of whether the identification that follows seeing the photograph is a process of identification by way of photo-board, identification parade, or dock identification.
[88]He referred to the phenomenon commonly referred to as the "displacement" effect and the potential problem of the so-called "rogues gallery" effect, because the photograph or group of photographs might convey to the jury that the accused has a criminal history. He further recognised the inherent deficiencies of photo-board identification, regardless of whether or not the witness has previously seen a photograph of the suspect or the accused.
[89]In summing up to the jury, the learned trial Judge carefully drew its attention to these problems and stressed the need to give due consideration to them. Having drawn attention to the differing presentations on the Internet site and in exhibit P48, he commented:
"What weight you give the evidence of Ms Lees when she identified this photograph as the person who attacked her is a matter for you. However, as I have said, you must bear in mind this was only one month after Ms Lees had identified the photograph on the Internet. You will quickly appreciate that you cannot place too much weight on the identification of the photograph in the photo-board because it is obviously a photograph of the same man whose photograph appeared on the Internet. In those circumstances it is hardly surprising that Ms Lees would pick the photograph because you would still expect her to have in mind the image of the photograph she saw on the Internet. However, the identification of photograph 10 is a matter for you to bear in mind and to give such weight as you see fit".
[90]As appears from his reasons, the learned trial Judge was of the opinion that the so-called "rogues gallery" phenomenon was not a significant issue in the present case, particularly having regard to the careful preliminary directions that he had given at the outset of his summing up. He pointed out that, quite apart from issues related to photo-board identification, it would be necessary to give appropriate directions regarding evidence touching on the use of amphetamines and the selling of cannabis to ensure that the jury made proper use of likely evidence or information dealing with the past activities of the appellant and did not engage in an impermissible line of reasoning.
[91]He expressed the view that the admission into evidence of the photograph on the photo-board added nothing in terms of the potential prejudice and the directions that ought to be given. Additionally, from the perspective of the jury, the involvement of the accused in illegal activities relating to drugs and the previous criminal proceedings in South Australia provided potential sources for the photograph on the photo-board, as the jury would well appreciate.
[92]The learned trial Judge was of the opinion that there was a further factor of considerable relevance in relation to this aspect. He pointed out that the appellant was charged with a particularly serious crime and that the circumstances alleged by the Crown and the evidence at committal had attracted very extensive publicity and speculation. As he said, the jury would need to be given strong directions as to their duty to put aside anything that they read or heard and to determine the appellant's guilt only on the evidence given in court. He commented that, if the jury speculate that the appellant might have a criminal history that led to him being photographed, such speculation would pale into insignificance in the particular circumstances under consideration. There was simply no reason to doubt that the jury would heed the directions to put aside speculation and anything heard or read outside the Court.
[93]So it was that the learned trial Judge said that he was satisfied that the probative value of the evidence of the photo-board identification far outweighed any prejudicial effect. He did not consider the admission of the evidence unfair and declined to exclude it in the exercise of his discretion. It was his opinion that the photo board identification was an exercise that was, in reality, different from that carried out in Sicily. It had probative value in its own right.
[94]It was submitted that there was a real risk that Ms Lees’ identification was of little weight, given that she had already seen a photograph of the accused in circumstances where she was aware there was information that there was a DNA match. It was argued that there were real dangers in allowing the evidence to be led, notwithstanding the giving of the usual warnings.
[95]It may be that the learned trial Judge overstated the situation when he said to the jury that the photograph on the photo board was “obviously” a photograph of the same man whose photograph appeared on the Internet web site.
[96]A perusal of the relevant photo board reveals that it was a good production of its type. All photographs were of men with varying types of full beard and moustache and having a range of hair lengths and styles. Most, if not all, exhibited at least superficial similarities in presentation to one another and all were full frontal facial presentations.
[97]The image of the appellant did not stand out in the photographic line-up and his presentation in it was markedly different, in terms both of angle of presentation and facial appearance, from the Internet web site image. In the latter, the angle and facial expression differ, he has no moustache or beard and his hair seems quite closely cropped.
[98]It is by no means apparent that, merely by reason of having seen the web site photograph some weeks earlier, Ms Lees’ attention would necessarily have been drawn to the photograph of the appellant on the photo board. No doubt, with the benefit of hindsight, and by placing the two photographs together, it may become obvious on a study of them (particularly when looking at the area of the eyes and nose, coupled with the ears) that they were images of the same person.
[99]Bearing these aspects in mind, the photo board identification was of substantial probative value.
[100]For the reasons articulated by the learned trial judge, the so-called "rogues gallery" effect was not really an issue and, such are the differences between the two photographs, that any danger arising from the displacement effect was, in this case, minimal.
[101]The fact that Ms Lees was, without equivocation, able to identify the man depicted in photograph 10 as her assailant after the lapse of some weeks and in the context of a quite different form of presentation was important as demonstrating a degree of consistency on her part that would otherwise not be relevant or significant, had the image presentation been similar to that seen on the web site.
[102]It is to be observed that her oral description of her assailant as recorded in Exhibit P 274 was consistent with the appearance of the appellant in both the Internet photograph and photograph 10.
[103]As the learned trial Judge said to the jury it was, at the end of the day, a matter of what weight they were prepared to accord the evidence, given the careful directions and warning that he gave them.
[104]There is no substance to the appellant's complaint concerning the admission of this evidence.
Dock identification
[105]At trial it was apparent to the jury that Ms Lees had made a dock identification of the appellant during the committal proceedings. The learned trial Judge further permitted her to make a dock identification in giving evidence before the jury.
[106]In his reasons he stressed that, against the background of two photographic identifications, the dock identification of the accused was essentially a formality. He then proceeded to demonstrate, by reference to a series of published authorities, that such a process was, in the circumstances, both proper and desirable.
[107]It was the contention of the appellant that, because the Internet and photo-board identification evidence ought to have been excluded, so also the dock identification should not have been permitted.
[108]It was also contended that, even if the Internet and photo board identification evidence was properly admitted, the dock identification nevertheless remained inappropriate. It was submitted that there is no principle of completeness that requires a Criminal Court Judge to permit an empty ritual which, of its very nature, was unfair to the accused.
[109]In the course of his reasons the learned trial Judge reviewed a substantial number of relevant authorities bearing on this aspect. It is unnecessary to retrace his steps.
[110]It will suffice, for present purposes, to say that the dicta in R v Britten (1988) 51 SASR 567, R v Gorham (1997) 68 SASR 505 and R v Clark and Others (1996) 91 A Crim R 46 readily demonstrate the rationale for allowing a dock identification in such circumstances. The process is, in reality, no more than identifying in the dock the person already identified in the photographs, so as to confirm that the person previously identified is, in fact, the person before the Court. There is ample authority to support the approach adopted by the learned trial Judge.
Dog identification
[111]There were two dogs seen by Ms Lees on the night of 14/15 July 2001. The first was seen by her in the assailant’s vehicle at the crime scene. The second was a blue heeler dog named Tex, subsequently seen by her at the Barrow Creek Hotel.
[112]The evidence before the jury was to the effect that the appellant travelled across Australia on a regular basis and was always accompanied by his dog, Jack. The dog regularly travelled in the front seat of the vehicle in the position in which Ms Lees saw a dog on the night, although sometimes it travelled in the rear of the vehicle or on the floor.
[113]The Crown proposed to lead evidence from Ms Lees to the effect that, when shown a photograph of the appellant’s dog, she described it as "very similar to the dog the man had".
[114]This proposal was objected to by counsel for the appellant. He argued that, by reason of preceding events, the proposed evidence was demonstrably unreliable, tainted, and lacking in probative value. Any probative value was outweighed by unfair prejudice to the appellant.
[115]In statements made by her shortly after the events at Barrow Creek Ms Lees described the dog in the offender's vehicle as "medium-size, brown and white, short-haired". In a statement made on 16 July 2001, she described the dog as being "medium-size, it's a blue heeler, brown and white, short haired".
[116]In the course of his reasons the learned trial Judge said:
"… … after Ms Lees waved down a truck, the driver took her to Barrow Creek. Ms Catherine Curley was employed at the Barrow Creek roadhouse. She was woken at about 1:50 am on Sunday 15 July 2001 by the truck driver. Ms Curley made her way to the bar of the roadhouse and saw Ms Lees. Later she attended to comforting Ms Lees when Ms Lees became upset. While Ms Lees was at the roadhouse she saw Ms Curley's dog.
……
In her evidence at the preliminary hearing, Ms Lees explained that she had not seen a Blue Heeler before the events. She then gave the following evidence which explains how she could refer to the dog as a Blue Heeler:
‘Q. How do you know it was a Blue Heeler?
A.Because I clearly saw the dog and later when I was taken to Barrow Creek I saw a dog almost identical.
Q. We'll come to that when we come to Barrow Creek.
A. Yep.
Q. How big was he?
A. I was - I'd call it a medium-size dog.
Q. Can you tell us what colour he was?
A. It was brown - brown and white.’
Later in her examination Ms Lees said there was a discussion between her and the young woman about the dog:
‘Q.What was said?
A.I asked the girl who owned the dog what breed of dog that was because I recognised it is the same breed of dog as the one that the man had.
Q.What was the response?
A.She told me it was a Blue Heeler dog.’
According to the statement of Ms Curley dated 17 July 2001, she accompanied Ms Lees to the toilet. She described the events as follows:
‘We walked back out and into the laundry and my puppy came running in. I think I asked her if the dog had looked like my dog, and she said it did sort of but it was black and brown.’
In the statement dated 17 April 2004, Ms Curley said that she and Ms Lees had been discussing the fact that the offender had a dog. She said that when she and Ms Lees walked through the laundry her dog ‘bounded up to us'. The statement continues:
‘I/S: Did he look like this dog here? (Pointing to Tex)
S/S: Yeah, he did look similar.’
The dog Tex was born in November 2000. Ms Curley said that in July 2001 he was about three quarters the size he would become as a full-grown dog. Two photographs of Tex are attached to Ms Curley's statement of 17 April 2004 which shows him fully grown. According to Ms Curley the photographs show the same colouring as at July 2001.
Tex is a black and white Blue Heeler. He has a pointed nose and white/grey colouring extending from around his nose and mouth up to the forehead. There are two areas of black around each eye extending back over the cheek bones. The remainder of the body is a dappled black and white/grey colouring."
[117]The learned trial Judge observed that the case for the Crown was that the appellant’s dog Jack was a Dalmatian/Blue Heeler cross. A photograph of Jack reveals that the dog was predominantly white with black or dark brown spots. Its facial appearance indicated that the dog was not a pure bred Dalmatian. It was plainly a different breed from the dog seen by Ms Lees at the Barrow Creek Hotel.
[118]On 18 November 2002, some 14 months after the event, Ms Lees was shown a book described as a "Dogalog", which contained photographs of 400 breeds of dogs. She was asked to select one which was like the dog she saw in the offender's vehicle. She settled on an Australian Cattle Dog as being closest. Mr Barker QC submitted that, as at that time, the evidence of Ms Lees was exculpatory of the accused because the dog that she selected from the Dogalog was, in appearance, quite unlike the appellant's dog, Jack.
[119]Mr Wild QC for the respondent submitted this evidence was not exculpatory of the accused because it was obvious from Ms Lees’ evidence that a major factor in her selection from the book was that it referred to a “blue heeler” and she thought that the height, size and width of the dog was appropriate. As appears from her cross-examination, she particularly focused on the text description of the dog, rather than any colouring in the photograph in the book and said that the general build and size were similar to that of Jack.
[120]On 12 May 2004, shortly before she was due to give evidence at the preliminary hearing, Ms Lees met with the Director of Public Prosecutions. During a conversation with the Director, Ms Lees described the offender's dog as having ‘dark brown mixed fur - part white - quite chunky’. She was then shown a photograph of Tex and said she was ‘not sure’ if that was the dog she saw at the Barrow Creek hotel. Ms Lees was then told it was a photograph of Ms Curley's dog.
[121]Ms Lees told the Director that she knew that the dog in the cabin of the offender's vehicle was a Blue Heeler because she was shown a Blue Heeler at the Barrow Creek hotel and the dog in the vehicle was like the dog at the hotel.
[122]The learned trial Judge found that, following those exchanges, the Director showed Ms Lees a photograph of the appellant’s dog. He said that, according to the affidavit of the instructing solicitor present at the conversation, Ms Lees was not told anything about the ownership of the dog. When shown the photograph of the appellant’s dog Ms Lees said the ‘body shape and the ears’ were ‘very similar’ to the offender's dog and 'the build and the ears [are] similar’. It was after Ms Lees responded in that manner that she was told that the photograph was of a dog belonging to the accused.
[123]During her evidence at the committal, Ms Lees was shown the same photograph of the appellant’s dog. She said ‘It's very similar to the dog the man had’.
[124]Counsel for the accused objected to the admission of evidence that Ms Lees observed a photograph of the appellant's dog and described it as very similar to the dog in the offender's vehicle. Although Ms Lees was not initially told that it was a dog belonging to the appellant, counsel suggested she was likely to have inferred that fact at the time that she was asked to look at the photograph. Counsel also relied upon additional events that had previously occurred with respect to identifying the dog, to which it is now necessary to turn.
[125]When asked at the preliminary hearing about picking the dog from the book, Ms Lees gave the following evidence:
‘Q.What were the particular matters of similarity with that dog and the dog that you saw on the night?
A.Its size, its width, its build, the shape of the dog's face and the ears of the dog.
Q.What about the colouring?
A.Not exact.
Q.What do you saw (sic) about the colouring - what do you say about the colouring of the dog you saw?
A.That it was dark brown and white.
Q.Similar build though was it?
A.Similar.
Q.Just to explore that a bit further. When you say "brown and white", are you able to give us any proportions of colour?
A.At least half and half.
Q.And anything else about the configuration of the colouring?
A.Patches of dark colour.’
[126]When it was put to Ms Lees in cross examination at the preliminary hearing that obviously she did not pick out a Dalmatian, Ms Lees responded:
‘I was going on the build of the dog, the shape of the dog's face, the height, the fur, the length of fur.’
[127]At trial counsel for the accused submitted that Ms Lees should not be permitted to give evidence that the appellant’s dog as depicted in the photograph she was shown is similar in particular respects to the offender's dog. It was contended the evidence should have been restricted to the comparison with Ms Curley's dog and a selection of the cattle dog from the book.
[128]The learned trial Judge noted that the challenged evidence was not evidence of positive identification of the appellant's dog as the dog seen in the offender's vehicle. Nor was it evidence that the appellant’s dog was of the same breed or possessed features that were identical to the offender's dog. At its highest it would be evidence that it was "very similar" in build, shape of face and ears.
[129]He concluded that the evidence had probative value as a piece of circumstantial evidence. He went on to observe:
"While the circumstances in which Ms Lees first saw the photograph of the accused’s dog would have suggested to her that she was observing a photograph of the suspect's dog, against the background to which I have referred and in view of the response of Ms Lees, in my view this is not a case in which it is appropriate to exercise the discretion to exclude the evidence. Ms Lees’ state of mind can be explored as can the differences between the three dogs about which Ms Lees will give evidence. Bearing in mind that the jury will hear of Ms Curley's dog and the cattle dog in the book, in my opinion it is appropriate for the jury to hear what Ms Lees says about the accused's dog.
[334]In relation to the cable tie restraints it was the case for the Crown that these had been placed on Ms Lees at the time of the offence. Dr Whittaker had also examined them and a mixed DNA profile was said to have been obtained from the inner layers of the duct tape which was used to construct them. It was the opinion of Dr Whittaker that the major contributing profile was consistent with the profile of the appellant. He said that in this instance the combination of the DNA bands which match the appellant would be expected to occur in approximately one in 100 million of the United Kingdom population. The statistical expert, Dr Buckleton, calculated the probability of finding a second copy of the profile by reference to the Northern Territory database as also being one in 100 million.
[335]Before the trial commenced there was a challenge to the evidence of Dr Whittaker and, in particular, to the methodology adopted by him which was described as the low copy number test (LCN). The challenge was considered by the learned trial judge and, in The Queen v Murdoch [2005] NTSC 76, he ruled that LCN had a sufficient scientific basis and general acceptance within the relevant scientific community to render the results received by the LCN part of a field of knowledge which is a proper subject of expert evidence. He permitted the evidence to be called.
[336]Dr Whittaker then gave evidence before the jury. The appellant called Dr Both, an experienced forensic scientist from the Forensic Science Centre in Adelaide, who also gave evidence before the jury challenging the scientific validity of LCN. Having heard both experts and having revisited his ruling the learned trial judge confirmed his conclusion that the evidence of Dr Whittaker was admissible and should not be excluded in the exercise of his discretion. That decision was not challenged on appeal.
[337]However, the challenge to the evidence of Dr Whittaker at trial by Dr Both creates a problem for the respondent in seeking to rely upon this evidence in support of the submission that no substantial miscarriage of justice has actually occurred. Whilst it was open to the jury to accept the evidence of Dr Whittaker over that of Dr Both, this court must make its own assessment of the admissible evidence bearing in mind the natural limitations that exist for an appellate court proceeding on the record from the trial. As we have noted, if those natural limitations compel this Court to conclude that it cannot reach the necessary degree of satisfaction the proviso will not apply.
[338]Dr Both was described by the learned trial judge as “well qualified and experienced in the area of forensic DNA”. She did not regard the LCN technique applied by Dr Whittaker as having been scientifically proven, saying: “Dr Whittaker is pushing science to the limit”. She regarded it as a dangerous technique. Dr Both expressed concern as to the reliability of the results particularly having regard to what she saw as an increased prospect of contamination and the reduced ability to identify stutters which may mask a true allele. If a stutter masks a true allele Dr Both said: “It may be that you arrive including an individual where perhaps they shouldn’t be included or you may be excluding someone”.
[339]Ultimately the opinions of Dr Both and Dr Whittaker remained in conflict. The learned trial judge told the jury that they were each “very firm in their views”. In light of our conclusion as to the impact of the evidence as a whole we do not find it necessary to resolve this conflict. Suffice it to say that, having regard to the cross-examination of Dr Both and the observations of the learned trial judge to the jury in the course of his summing up, we do not find her criticisms of the evidence of Dr Whittaker to be compelling. However, in view of the conflict, the results of the analysis of the DNA obtained from the gear stick, the steering wheel and from the handcuffs may be put to one side in considering the application of the proviso.
Identification by Ms Lees
[340]On 15 July 2001 Ms Lees provided the police artist with an oral description of her assailant. The description is set out in paragraph [7] (31) of these reasons and accurately describes the key facial characteristics of the appellant.
[341]On at least three different occasions Ms Lees identified the appellant as the man who attacked her. The first was in October 2002 whilst she was working in Sicily when she saw his image on the Internet. The second was when she viewed a photoboard on 18 November 2002 in the United Kingdom and the third was when she formally identified the appellant in the dock. We have addressed each of these incidents of identification when dealing with ground 1. The circumstances of each identification are there set out. We will not now repeat them.
[342]At trial the evidence of Ms Lees regarding the Internet identification was compelling. The identification she described was both spontaneous and unequivocal. The witness said that she had not been influenced by anything that she might have read and that she could not now remember what the article said. She said of the appellant she would “recognise him anywhere”. As we observed when dealing with ground 1, the circumstances of the identification were the sudden, unexpected and incidental appearance of the image of the appellant to the witness and her unsolicited and spontaneous reaction to what was observed. Having revisited the evidence of Ms Lees at trial and having reminded ourselves of the requirement that identification evidence of this kind is to be approached with considerable care and with consciousness of the associated dangers we accept the evidence of Ms Lees.
[343]The photoboard identification followed the Internet identification in 2002. Ms Lees was shown a photoboard in which the appellant was depicted in a quite different way from his appearance in the photograph on the Internet. There was again a positive identification by Ms Lees of the appellant as being her assailant on the night. The fact that Ms Lees was able to positively and without difficulty identify the appellant as her assailant after a lapse of some weeks and in the context of a quite different form of presentation, demonstrated a degree of consistency on her part that would not have had significance had the image presented been similar to that found on the Internet on the earlier occasion. In our view the process had probative value in adding weight to her earlier observation that she would recognise the appellant anywhere.
[344]The dock identification occurred in circumstances which made it essentially a formality and did not add weight to the evidence of Ms Lees regarding the earlier identifications on the Internet and from the photoboard.
[345]We regard the identification by Ms Lees of the appellant as the assailant as powerful evidence in support of the Crown case.
The dog
[346]Ms Lees also gave evidence of the presence of a dog on the night of the offence. There was evidence from others of the practice of the appellant to travel with his dog, Jack. As we observed in relation to ground 1 of the appeal, the photographs of Jack, of Tex (the dog at Barrow Creek) and of the Australian cattle dog in the dogalog were all in evidence. It was the opinion of Ms Lees that there were points of similarity between Jack and the dog she saw on the night. This was not evidence of identification of Jack as the dog she saw on the night but rather of points of similarity between the two. Ms Lees was challenged as to her opinion by reference to her earlier descriptions of the dog Jack, the dog Tex and the Australian cattle dog shown in the dogalog. She identified the similarities upon which she relied as being “colouring, width of the dog, breed of the dog, head of the dog, quite broad face, head and ears”. We do not regard Ms Lees’ expression of opinion to have been shaken in cross-examination. It must be remembered that the evidence was of limited scope dealing, as it did, only with points of similarity. The evidence has probative effect in establishing that the offender was accompanied by a dog which had similarities to the dog which accompanied the appellant.
The presence of the appellant at the truck stop
[347]The Crown relied upon a number of witnesses to establish that the appellant was the person shown in the truck stop video and, therefore, as being present at that location at 12.38 am on 15 July 2001.
[348]We have discussed the evidence of Dr Sutisno in this regard when dealing with ground 14. Her evidence is limited to demonstrating that the person in the video had the identified similarities with the appellant and no dissimilarities.
[349]The Crown also relied upon the evidence of Beverley Anne Allan, Brian Charles Johnston and James Tehi Hepi regarding their opinions concerning the likeness of the person in the truck stop video to the appellant. We have discussed this evidence in relation to ground 11 of the notice of appeal. The evidence given by each of the witnesses is there summarised and we noted that, in each instance, and despite the relatively poor quality of the video record, the witness was able to identify particular physical characteristics said to be similar to those of the appellant. Of course Mr Hepi went even further and, when challenged, expressed the opinion that the person shown in the video was one and the same as the appellant. We have discussed this evidence when dealing with proposed ground 12.
[350]The evidence of the three witnesses to the effect that the appellant had particular physical characteristics similar to the man shown in the truck stop video was consistent, firm and in our view convincing. The evidence of Dr Sutisno, in so far as properly admitted, lent support to the reliability of the evidence of these witnesses.
The presence of a similar vehicle at the truck stop
[351]Further, there was evidence as to the similarity between the vehicle shown in the truck stop video and the vehicle driven by the appellant. Ms Allan said the vehicles were “similar”. Mr Hepi, who was very familiar with the vehicle driven by the appellant, identified it as that belonging to the appellant. He did so by comparing features that appeared on the video including oversized wheels with white rims and the bug deflector. However, Mr Hepi described the bullbar in a manner inconsistent with that which is shown on the truck stop video. Mr Johnston, who was also very familiar with the vehicle, expressed the view that it “looks very similar to the one Brad had” and remarked that the configuration of the canopy “looks very much the same” and the bullbar “looks like it”. Mr Johnston was involved in transferring the canopy from an F100 to the subject vehicle. Mr Johnston was able to describe the “truckie-style bullbar” on the vehicle driven by the appellant and to identify the date upon which that had been put on the vehicle as before 15 July 2001. He was challenged in that regard but was able to fix the time by reference to the date he had left Broome.
[352]In considering the identification of the vehicle as being similar to that driven by the appellant it is necessary to bear in mind the evidence of Professor Spring as to the poor quality of the truck stop video and also to bear in mind that there are many vehicles of that make, model and approximate configuration travelling in the area at any given time. Notwithstanding those matters there was cogent evidence of similarities between the two vehicles.
Changes in appearance
[353]Further, in support of the Crown case, was the evidence of the changes the appellant made to his appearance and to the appearance of his vehicle upon his return to Broome in July 2001.
[354]Ms Allan, who had known him as a close friend for some 12 months, described his appearance when he returned to Broome as having changed from having facial hair and hair on his head to being “completely clean shaven, no moustache, shaved his head … complete crew-cut”. She said this was the first time she had seen him without a moustache. She said that she had last seen the appellant around October 2001 and, in relation to his vehicle, by that time “the whole back had been changed”. In cross-examination she said the vehicle had previously remained basically the same until he changed the back of it.
[355]Mr Hepi said that in July 2001 the appellant had a long handlebar moustache and longish hair. When he saw him on his return to Broome his hair had been cut and his moustache was shorter. On the day of his return the moustache came off completely and the hair was cut “back to number 1 or a number 2”. Mr Hepi said that it was not unusual for the appellant to change his appearance after such a trip, however to him the change “just seemed quite dramatic at the time” and for the appellant to shave the whole of his moustache off was unusual. In cross-examination it was pointed out to Mr Hepi that he had on an earlier occasion told police that the appellant went from having full facial hair to no facial hair but he maintained on this occasion that it was unusual. In his evidence the appellant claimed that the change was just part of his usual routine and that he still had his moustache when he saw Ms Allan.
[356]In relation to the changes to his vehicle the appellant acknowledged that changes had occurred but said that they had been planned over a period of time. He regarded “mucking around” with his vehicles as a hobby.
[357]The fact that there had been major changes to the vehicle subsequent to 14 July 2001 was not in dispute. Counsel for the appellant put to the jury that they would be invited by the Crown to regard it as a “complete transformation of the 4-wheel drive vehicle” but submitted that, notwithstanding the alterations that were made, the appellant still had a “4-wheel drive Land Cruiser with a green canopy and a black bullbar”. He submitted that whilst work was done, it was “done pretty much locally, everybody knew who he was, his name, it’s not very hard to prove, but the question for you, members of the jury, is what does it prove? Anything or just that he was a bloke who kept mucking around with his car?”.
[358]The submission understates the effect of the evidence. The changes were, as the Crown submitted, significant. They involved items from three vehicles being swapped around. The relevant canopy changed, the bullbar changed, the relevant compliance plate was changed and a turbo charger was added. These changes were of much greater significance than the appellant suggested. It was more than a man enjoying his hobby. Taken in context the evidence is significant. Although there was some general similarity in appearance to the vehicle as it was in July 2001, the effect was to completely change the vehicle upon closer inspection.
The evidence of Mr Hepi
[359]In making reference to or relying on the evidence of Mr Hepi, as to the vehicle seen at the Truck Stop, the presence there of the appellant, the appellant’s change of appearance on return to Broome and the changes in appearance to the Land Cruiser we are particularly conscious of the criticisms that were advanced by the defence and the strong warnings that were properly given by the learned trial Judge to the jury in relation to the consideration of his testimony. Clearly there was and is a need to scrutinise his evidence with great care. However, having done so, it must be observed that a significant amount of what he said was, ultimately, either not in issue or was substantiated by other acceptable evidence. Relevantly for present purposes, his evidence as to the matters referred to is both consistent with and derives considerable support from the other evidence to which we have specifically referred. Moreover, it carries with it the inherent ring of truth. We see no reason to question its accuracy.
The evidence of the appellant
[360]The appellant gave evidence in the proceedings and appropriate directions were provided to the jury in relation to his evidence. The Crown invited the jury to disbelieve certain parts of that evidence including his assertion that he did not attend at the Shell truck stop in the early hours of the morning of 15 July 2001 and that he had attended at the Red Rooster store at about 10.30 am on 14 July 2001.
[361]In relation to his presence at the truck stop the appellant gave evidence that he had arrived in Alice Springs at about 10.30 am on Saturday 14 July 2001, had gone to the Red Rooster store to purchase some chicken and then taken his vehicle to a car wash, made some purchases at Barbeques Galore and then refuelled his vehicle at a BP service station in Alice Springs. He told the jury that he drove north of Alice Springs and turned off along the Tanami Track at about 3.30 pm. His evidence was that between midnight and 1 am on 15 July 2001 he was somewhere near to the Granite Mine on the Tanami Track about 500 kilometres from the Stuart Highway. This evidence is in contrast with the evidence of Beverley Anne Allan, Brian Charles Johnston and James Tehi Hepi discussed above. As we have indicated, the evidence of the three witnesses to the effect that the appellant bore physical characteristics similar to the man shown in the truck stop video was consistent, firm and convincing. In addition to the evidence of those witnesses there is support for the proposition that the appellant was the man in the video based upon the similarities identified by Dr Sutisno. She conducted a thorough and exhaustive comparison and identified a wide range of similarities between the images of the appellant and those of the person in the truck stop video. She described those similarities in great detail. There were no relevant dissimilarities. Her evidence was available for this Court to consider and lent significant support to the evidence of Ms Allan, Mr Hepi and Mr Johnston.
[362]In our opinion the combined force of the evidence in support of the appellant being the person shown in the truck stop video, circumstantial though it is, is convincing. We do not accept the evidence of the appellant to the contrary. This view is reinforced by our finding that the blood of the appellant was deposited on the T-shirt of Ms Lees at the time of the incident north of Barrow Creek.
[363]In relation to the evidence of the appellant that he travelled to Alice Springs and went directly to the Red Rooster store to purchase food, the submission of the Crown is that this evidence should be rejected.
[364]Daryl Phillip Cragan gave evidence of travelling from Broome to South Australia and back again with the appellant in the course of one of his drug runs. Mr Cragan said that they carried with them an Engel fridge in which they kept their provisions. During the trip they ate “from the vehicle”. In cross-examination he was asked whether the Red Rooster store was “somewhere Brad would go to get food on these trips” and he responded: “No”.
[365]Mr Johnston did three drug trips with the appellant. He described the arrangements as including an Engel fridge in which there was food and “if we’d stopped and had a barbie or something like that, a bit of a feed, yeah, so a bit of meat, margarine, tomatoes”. When asked whether there were any purchases made along the way he indicated only fuel, ice and drinks. Mr Johnston gave evidence of stopping at fuel stops but not at any other location such as the Red Rooster store. He was not asked any direct questions in this regard.
[366]We do not accept the evidence of the appellant that he attended at the Red Rooster store at or about 10.30 am on 14 July 2001. In our view, and as the Crown submitted, that evidence was invented by the appellant in an effort to create doubt regarding the damning scientific evidence confirming the presence of his blood on the T-shirt of Ms Lees. It was clearly a lie told with a consciousness of guilt.
Conclusion
[367]The core issue in this case was the identity of the assailant. In our opinion the presence of the blood of the appellant upon the T-shirt of Ms Lees establishes beyond reasonable doubt the presence of the appellant at the time Ms Lees was attacked just north of Barrow Creek. When this evidence is considered along with the other evidence properly admitted at trial of events occurring at that location, the guilt of the appellant of the murder of Peter Falconio is established beyond reasonable doubt. The case against the appellant becomes overwhelming when the evidence of the identification of the appellant as the assailant by Ms Lees is taken into account.
[362]That is sufficient to conclude that no substantial miscarriage of justice has occurred and therefore to dispose of the appeal. However there is evidence which lends further significant force to the case against the appellant, including the lie of the appellant as to his visit to the Red Rooster store and the evidence:
(a)of Ms Allan, Mr Johnston, Mr Hepi and Dr Sutisno which leads to the conclusion that the appellant was the person shown in the truck stop video;
(b)as to the similarity of the vehicle driven by the appellant to that shown in the truck stop video and, also, the similarity to the vehicle described by Ms Lees as being driven by the assailant;
(c)as to the presence of a dog in the vehicle driven by the assailant similar in identified features to the dog owned by the appellant;
(d)of the changes made by the appellant to his own appearance shortly after 14 July 2001 and
(e)of the changes made by the appellant to the appearance of his vehicle after his return to Broome on 16 July 2001.
This circumstantial evidence combined to contribute to the strength of the already compelling case against the appellant. The error in admitting one aspect of the evidence of Dr Sutisno does not gainsay such a conclusion.
[368]We conclude there has been no substantial miscarriage of justice in this case. The appeal against conviction must be dismissed.
Ground 15 – Non–parole period (pursuant to leave)
[369]The final ground of appeal is in respect of the non–parole period fixed by the learned trial Judge. It asserts that the non–parole period set by the learned trial Judge is manifestly excessive in all the circumstances in so far as, in practical terms, the appellant has a limited prospect of being released prior to his death.
[370]Having sentenced the appellant to life imprisonment for the crime of murder, the learned trial Judge imposed a sentence of four years imprisonment in respect of the offence of deprivation of liberty and a sentence of two years imprisonment in respect of the offence of aggravated unlawful assault. All sentences were directed to be served concurrently.
[371]As to the question of the non–parole period the learned trial Judge said:
“ … I bear in mind that you are not entitled to the benefit of a plea of guilty. Just as you are not to be punished for the manner in which your defence was conducted, similarly you are not to be punished for the failure to plead guilty. However, you are not entitled to any benefit to which you would have been entitled if you had pleaded guilty.
Also relevant to the question of your non–parole period is the issue of general deterrence. It is a very significant factor in your case. The need to deter others from committing offences of this type is obvious.
As I have said, you have not shown any hint of remorse. I am satisfied that there is a complete lack of any remorse. Given that you must spend at least the next 20 years in jail, it is impossible to predict with any confidence how you are likely to respond to such a lengthy period of imprisonment. History is full of occasions when offenders apparently incapable of rehabilitation have, after lengthy periods of imprisonment and a process of maturing, turned the corner and been truly rehabilitated. Whilst recognising that possibility, I am driven to the conclusion that your prospects of rehabilitation are minimal.
The nature of your crime, your personal history, including your prior offending, your obvious aggression and complete lack of remorse for the commission of the crimes or for the devastating impacts upon others, coupled with your maturity, paint a bleak picture of your prospects of rehabilitation.
The criteria relevant to the fixing of a non–parole period longer than 20 years must be viewed in the context of the statement in s 53A(2) that the standard non–parole period of 20 years represents the non–parole period for an offence in the middle of the range of objective seriousness for crimes of murder. Your crime is not in the middle of the range of objective seriousness for crimes of murder. While it is not at the top of that range, it falls within the upper end of that range.
I am satisfied that by reason of the objective and subjective factors affecting the relative seriousness of your crime, a longer non–parole period than 20 years is warranted. In that situation the legislation provides that I may fix a longer non–parole period. In other words, my discretion to fix a longer non–parole period is enlivened. All the factors to which I have referred must be weighed in determining whether to fix a longer non–parole period. In arriving at a period, I have borne in mind the advanced age at which you will become eligible for parole and the real prospect that you will die in gaol.”
[372]The learned trial Judge thereupon fixed a non–parole period of 28 years, commencing on 10 November 2003.
[373]The appellant argued that the legislation provides for a minimum term of 20 years where the murder is not sexually linked and is not multiple. Neither of those considerations apply in the present case. In the result, it is said that the period of 28 years for a man of the appellant’s age gives a very limited prospect of any parole at all.
[374]There have not been a large number of sentences imposed since the advent of mandatory non–parole periods as stipulated by s 53A of the Sentencing Act and it cannot be said that any particular standards have as yet emerged.
[375]In the present case the following factors are of importance:
(a) The killing was cold blooded and premeditated;
(b) The appellant has not demonstrated any remorse and the body of the victim has not been found. As the Crown put it there can be no closure for those grieving for the victim as the appellant has chosen not to reveal what he did;
(c) As to the other offences each was of an inherently serious nature that subjected Ms Lees to a terrifying ordeal in circumstances in which she had every reason to anticipate at least sexual violation and at worst eventual death herself;
(d) There were no factors to mitigate the appellant’s conduct which was cruel, remorseless and completely unprovoked.
[376]The separate offences against Ms Lees coupled with the circumstances attendant on the murder itself plainly called for a non–parole period substantially in excess of the standard statutory term. The learned sentencing Judge specifically addressed the issue of the age of the appellant and the fact that he might well die in prison. However, he concluded that the gravity of the offending and the lack of mitigating circumstances demanded the imposition of the non–parole period actually fixed.
[377]Individual minds might well differ as to what was an appropriate period above the statutory standard, but we are unable to conclude that the period arrived at by the learned sentencing Judge was manifestly outside of a reasonable range of sentencing outcomes in the circumstances. There is no basis on which this Court might properly interfere with the exercise of the sentencing discretion.
[378]The appeal against sentence should also be dismissed.
Orders:
1) Application for extension of time and leave to argue grounds 6 and 7 allowed.
2)All other applications for extension of time and leave to argue grounds of appeal against convictions are dismissed.
3) Appeal against convictions dismissed.
4) Appeal against sentence dismissed.
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