R v De Gruchy

[2000] NSWCCA 51

Reported Decision: [2000] 110 A Crim R 271

New South Wales

Court of Criminal Appeal

CITATION:	R v De Gruchy [2000] NSWCCA 51 revised - 3/03/2000
FILE NUMBER(S):	CCA 60804/98
HEARING DATE(S):	29/11/99
JUDGMENT DATE:	2 March 2000
PARTIES :	Regina Matthew Wayne De Gruchy
JUDGMENT OF:	Wood CJ at CL at 1; Sully J at 36; Simpson J at 37

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70094/96
LOWER COURT JUDICIAL OFFICER :	Grove J

COUNSEL :	L. Lamprati P. Byrne SC/ JS Stratton
SOLICITORS:	S.E. O'Connor Andrews Sols
CATCHWORDS:	CRIMINAL LAW - appeals - appeal against conviction - murder - directions to jury - whether case for accused put fairly - whether verdict unreasonable having regard to the evidence - sufficiency of directions concerning comments by Crown - whether summing up unbalanced
CASES CITED:	Criminal Appeal Act 1912 (NSW) s6(1) Evidence Act 1995 s98
DECISION:	Appeals against conviction dismissed; Applications for leave to appeal against sentence refused

IN THE COURT OF
CRIMINAL APPEAL

No. 60804 of 1998

WOOD CJ AT CL
SULLY J
SIMPSON J

THURSDAY 2ND MARCH 2000

Regina v Matthew Wayne DE GRUCHY

JUDGMENT

1   WOOD CJ at CL: The appellant Matthew Wayne De Gruchy was convicted on 14 October 1998, of the murder of his mother Jennifer Ann De Gruchy, of his sister Sarah De Gruchy, and of his brother, Adrian De Gruchy, each of whom was killed in the family home on 12 March 1996. He was sentenced, on each count of murder, to concurrent minimum terms of 21 years and to additional terms of seven years. He now appeals against these convictions. Although the notice of appeal included an application for leave to appeal against the sentences, Senior Counsel for the appellant realistically conceded that nothing could be said on that aspect. The sentences imposed were manifestly appropriate for the offences of which the appellant was convicted.

The Crown Case

2   The De Gruchy family, including the appellant and his father Wayne De Gruchy, lived at 28 Shearwater Boulevard Albion Park Rail. Mr. Wayne De Gruchy (“Mr De Gruchy Senior”) often stayed overnight at his parents’ house at Moorebank, rather than with his family, because of the time it took him to travel to work. He followed this practice on the night of the killing, having attended a company golf day at Pennant Hills Golf Club. He rang home at about 6 to 6.30pm to inform his wife that he intended to stay over at his parents’ home. Two fellow employees confirmed that he had played golf with them that day and that he was still at the club at about 7pm. Mr. Ronald De Gruchy, the grandfather of the appellant, also confirmed that Mr De Gruchy Senior was at his home on the night of 12 March between 8.30pm and 10.30pm, when he retired to bed. 3   Earlier that evening the appellant had been at his own home, where he took a telephone call from Mrs Dorothy Halliwell, his maternal grandmother, between 7pm and 7.30pm. He passed that call on to his mother. He took another call from Alyssa Brindley, his girlfriend, at about 8pm. An uncle, Raymond Halliwell, received a telephone call from the appellant’s mother at about 7.45pm. He spoke to her for about ten to fifteen minutes. These times are relevant in so far as they assist in fixing a possible time frame for the killings, and in so far as they establish a window of opportunity for the appellant to have committed the crimes. 4   Alyssa Brindley gave evidence that the appellant came around to her home at about 11.00 to 11.30pm, and spent the rest of the night, until 8am, the following morning, with her. Her evidence in this respect was corroborated by her mother, Mrs. Gail Brindley. Alyssa said that the appellant explained that he was late because “my mum was having prank calls and she asked me to stay”. She had attempted to phone him at his home at 10.30pm, but had repeatedly received an engaged signal. She said that he was wearing a white T-shirt and black tracksuit pants when he arrived. She saw no blood on him or on his clothes. He had no apparent injuries to his face or body, and he did not seem depressed, anxious or upset. Mrs. Brindley senior also noticed nothing unusual about his demeanour. 5   At about 8.30am on Wednesday 12 March 1996, the appellant went to the house of Steven Bailey who lived opposite the De Gruchy home. He was seen to be crying, and was heard twice to say “There is something wrong with mum and Sarah”. Mr. Bailey did not notice any blood or injury upon him. He went over to the De Gruchy home where he found Mrs De Gruchy dead in her bed. He then alerted the emergency services. He returned to the house where he found the body of Sarah. This occurred at about 9.03am. Another neighbour, Laurens Hoogvliet, and two of the first police to arrive at the scene, Detectives Williams and Pepper, similarly noticed the appellant to be very distressed, describing him as lying down and sobbing outside Mr. Bailey’s house. Two ambulance officers thought him to be sufficiently upset for them to take him to Shellharbour Hospital. 6   When Alyssa Brindley questioned the appellant later that day, after he had returned from the hospital, about the prank phone calls, he said “someone had rung and said three people in your family would be deceased”. This was not something that he mentioned to police that day or subsequently. 7   When police investigated the scene, they found the appellant’s mother, brother and sister all to be deceased. Each was suffering from massive head wounds and, in the case of Adrian, extensive injuries to the trunk. Mrs. De Gruchy and Sarah were in their beds, while Adrian was lying in a supine position on the floor in the garage. He smelled strongly of petrol. His arms were blistered and his shirt and shorts were soaked in that substance. His head and neck were covered with a doona, which had some cuts in it A cushion found in Sarah’s bedroom, which appears to have been placed over her head, was also found to have several cuts. 8   During a post mortem examination of Adrian’s body, some strands of hair were found between the fingers of his right hand. They were 8 to 10cms in length. As his own hair was 4cms at its longest, it seems that the strands had not come from his head, at least upon that day. The strands had blood upon them. DNA recovered from the sample, it was established, could not have been that of the appellant, but it could have been that of Adrian or Sarah. The report as to this test noted that it was not possible to determine whether the DNA came from the hair or from the blood which had soaked into it. 9   There was a good deal of blood from Adrian in the vicinity of his body and upon his hands. His right hand can be seen in a photograph of the scene to have been in an open position, palm down, resting over the back of an upturned chair. 10   There was an open Jerry can containing petrol near his body. The appellant’s fingerprints were found upon it, but Mr. De Gruchy senior said that both he and the appellant used Jerry cans from time to time to put petrol in the cars used by the family, in his case a Holden Berlina which had been temporarily replaced by a blue rented Holden Commodore following an accident to the Berlina, and in his wife’s case, a Toyota Corolla Seca hatchback. The appellant was permitted to drive this latter vehicle, and it was that vehicle that he used on the night of 12 March. 11   More detailed forensic examination of the crime scene revealed that a large square of carpet had been cut from an area directly in front of the bedside table in the main bedroom, where Mrs De Gruchy was found. Two smaller sections of carpet had been cut out from an area at the foot of the bed. A small tuft of carpet was later recovered from the Toyota Corolla. This tuft was found on the floor of the vehicle on the rear offside. It had a red stain at one end. DNA recovered from it matched the 6 DNA systems of the appellant. The DNA, it was established, could not have come from any of the deceased or from Mr. De Gruchy Senior. 12   Expert evidence was called to the effect that it was “highly probable” that the tuft came from the same carpet as that in the main bedroom. Mr. De Gruchy Senior gave evidence of having hired a carpet cleaner on 9 March 1996, which was then used to clean the carpets in the house. He did not notice any damage to any carpet that day or any area where carpet was missing. There was expert evidence to the effect that cleaning a carpet of the age of that in the bedroom was unlikely to remove a tuft. 13   The appellant’s fingerprints were found in a smear that appeared to be blood on the door knob to the cupboard under the vanity unit in the main bathroom. Other stains or smears that appeared to be blood were found in the wash basin, on the mirror, and on the inside of the door to the vanity unit cupboard. 14   A small circular reddish coloured stain was located in the bottom of the wash basin in the en suite to the main bedroom. Blood smears were found on the wall above the bed in that room. A set of numchukas were also present in this room, but there was evidence from Mr. De Gruchy Senior that they were his and were normally kept in that room. There was no evidence to suggest that they had any relevance for the killings. 15   When Detective Senior Constable Doherty, of the Crime Scene Unit, examined the bedroom of Adrian De Gruchy, he found some blood smears on the wall near the light switch, just inside the doorway. In the appellant’s room, he saw that the drawers in the wall unit had been pulled out and that the doors to the wardrobe were open. A number of items were lying on the floor, including a metal moneybox. 16   A reddish coloured stain was found by him inside the lid area of the washing machine in the laundry, which opened off the garage, along with blood smears on the floor of that room. Spots of blood or red smears were also found on the hallway floor and on the wall in the kitchen near the light switch. The washing machine in the laundry was seen to contain two towels and a pair of rubber gloves. One of the towels in the washing machine bore a reddish stain. 17   DNA recovered from a swab taken from the wall of the main bedroom behind Mrs. De Gruchy’s bed was found to be the same as the six systems of the appellant. Similar results were found in relation to a blood spot on the hallway floor. Blood grouping and DNA tests were, however, unsuccessful in relation to the smears on the bedroom mirror, or in relation to the spots found in the laundry, in the ensuite basin, on the wall to Adrian’s bedroom, and on the doorknob to the cabinet below the main bedroom ensuite. 18   In the loungeroom area, Detective Senior Constable Doherty noticed that the doors to the video cabinet were open, and that a video recorder had apparently been disconnected and removed. 19   He noticed that a towel had been placed over Mrs De Gruchy. He also noticed a wash basket containing towels on the floor in her bedroom, in front of the dressing table. In the main bathroom he found a slightly damp towel hanging over the top of the shower recess. The observations in this regard were made in the late afternoon/early evening of 13 March. 20   No smears or blood stains were found in the bedroom of the appellant. It was, however, seen to be in an untidy state with a number of items strewn around the floor. The appellant said, in his evidence that the drawers had not been pulled out when he left the house on the night of 12 March. 21   Detective Senior Constable Doherty did not observe any external damage to any doors or windows of the house. Similarly, he found no damage to the door locks of the Toyota Corolla. Inside the hatch (which was found to be open) in the rear of the vehicle he found a jack. He was, however, unable to find the standard jack handle or wheel brace, which employees of Ken Sams Toyota said had been supplied with the vehicle, before it was delivered to Mr. De Gruchy Senior in July 1995. It was his opinion that the spare wheel had not been used. 22   Post mortem examinations of the deceased revealed, in the case of Mrs. De Gruchy, a very severe depressed fracture between the eyes, severe lacerations in conjunction with skull fracturing in the left forehead region, fractures of the cheekbones and extensive underlying brain trauma, along with a number of abrasions and bruises. Dr. Cala was of the opinion that the injuries were capable of having been caused by a wheel brace or sledgehammer while the deceased was asleep. 23   In the case of Adrian De Gruchy, approximately 21 injuries to the head and neck were found. He had a grossly fractured face and base of the skull, along with numerous lacerations to the back of the head, right forehead, and mouth, as well as fractures to the cheekbones and jawbone. There were six injuries to the trunk, including some tram track or linear bruises to the chest. These bruises were replicated by very obvious bloodied tram track patterns on his shirt. Dr. Cala was of the opinion that the head injuries were similar to those suffered by his mother and sister, and could have been caused by a similar weapon to that used to inflict the chest injuries, which he opined to have been a heavy straight object approximately 1cm. in width and at least 15cms. in length, such as a jack handle or wheel brace. He tended to favour the latter, because of the presence of a coin shaped bruise to the chest of this deceased. A sledgehammer, he said, may have caused the head injuries. The peeling skin seen on the arms of this victim were consistent with petrol having been poured on him, preparatory to setting him alight. 24   In the case of Sarah De Gruchy, ten injuries were found to her head and neck, mainly confined to the right side. There was marked skull fracturing of the forehead, and of the right side and base of the skull, as well as extensive lacerations, abrasions and bruising. On the right arm there were three bruises including one tram track bruise, consistent with it having been struck with a tyre lever. She had some defence type injuries to her right arm. 25   It was Dr. Cala’s opinion that the time of death of each of the deceased was similar and that it occurred between 8pm on 12 March and 1am. on13 March. He conceded that the time of death could have been as late as 3am. 26   Detective Williams, who assisted in various aspects of the investigation, said that on 15 March he located a jewellery box in the walk in wardrobe of the main bedroom. It was ascertained that nothing had been taken from this box. Similarly it was shown that nothing had been taken from the appellant’s wallet or moneybox. 27   Several weeks after the killings, some children playing in the vicinity of a dam at the old Boral Brickworks, at Woonona, found a red bag containing a sheet, and a towel wrapped around a small sledgehammer. One of the boys removed the hammer and placed it in the grass. His companion put the bag back in the water. Some time later the first boy returned to the scene with a Mr. Sean Chamberlain, who moved the hammer behind a tree. The matter was then reported to police. 28   When police attended at the dam they recovered a red and white Le Sport bag, a black coloured backpack and a number of loose items. Those items comprised a towel, Sega game cases and control pads, a black lady’s purse containing credit cards, papers and a licence in the name of Mrs. De Gruchy, a light coloured sock, a pair of scissors, a pair of blue track pants and a calculator with the name “A De Gruchy” inscribed on the back . A hanky was also found lying in the mud of the dam. Another handkerchief was found alongside a game case near the west bank of the dam, after it was drained. The hammer was found under a tree, as had been reported. 29   The sports bag was found to contain two T-shirts, (one maroon coloured, one blue coloured) a video tape recorder, a kitchen knife, a key ring, a number of compact discs and cases, another towel, a pair of binoculars, a bottle of Zambucca, some pieces of carpet and a plastic zip-lock bag. The black back pack contained a Sega “Master System II, two calculators, some Sega game cases, a video cassette, Gameboy and games cartridges, a light coloured sock, a “Batman” bag and a black sports velcro wallet. 30   The pieces of carpet found in the dam bore similar black marks to those seen on the sheet. 31   The plastic zip-lock bag, that was found inside the red and white sports bag, was examined and seen to contain some bandaid wrappings and a torn up piece of paper in the appellant’s handwriting. When reconstructed it appeared to have been a sheet of “Noah’s on the Beach” notepaper, on which were written:

open gate
throw bottle down the back
throw things down wall in roof
track suit pants 1
knife 1
T shirts 2
Shoes 2
hanky
pole
towel
open blinds to see through
Sarah Mum
Adrian
head butt mirror (mirror crossed out) bench
have shower
throw hi fi down back
hit arm with pole
hit leg pole
cut somewhere with knife”

Written on the rear of this sheet of paper were a series of numbers.

32   Some evidence was called from Stephen Heyman to the effect that he had seen the appellant, on a couple of occasions prior to 1996, riding his bike with companions at the brickyard. Detective Sergeant Sharkey gave evidence to the effect that the brick pit was 31 kms. distant from the De Gruchy home, and that it took 26 minutes to drive there at a speed 5 kms an hour less than the speed limit. Detective Palamera gave similar evidence and also said that the distance between the Brindley home (at 9 Luxor Street Woonona) and the brickworks was 2 kms, the travel time by vehicle being in the order of two minutes. 33   The pieces of carpet found in the sports bag at the dam were compared with the main bedroom carpet and with the tuft found in the car. Mr. Pailthorpe, an expert in fibre science, concluded that it was “highly probable” that the carpet found in the dam, similarly to the tuft found in the Toyota, came from the carpet in the main bedroom. 34   The hammer tested presumptively for blood, but it would seem that DNA testing and blood grouping were unsuccessful. No fingerprints were recovered from the items in the dam, it would appear, because they had been immersed in water for too long. 35   After discovery of the note police made a further examination of the De Gruchy home. Nothing was found to have been hidden in the roof cavity, or thrown down any wall space. A search of the area to the rear of the house also produced nothing of relevance. However, during a search conducted on 22 June 1996, a single sheet of “Noah’s on the Beach” note paper, similar to that recovered from the dam, was found in the appellant’s bedroom. Items in his handwriting were compared with the last mentioned note, by a document examiner who provided an expert opinion that they were produced by the same hand - a proposition that was not challenged by the defence. 36   Mr. De Gruchy Senior said that so far as he was aware, the tyre lever and jack handle, that were standard issue for a Toyota Corolla Seca of the kind which he had purchased in mid 1995, had never been used. 37   He also said that he had kept a small sledgehammer in the garage but it did not look like the one found at the dam. He was able to identify some of the items found at the dam as coming from his home. Some items he was unable to identify one way or the other. 38   When the appellant was interviewed electronically by Detective Sgt Sharkey on 17 March, he detailed his movements during the evening of 12 March and the morning of 13 March 1996. He said that when he returned to his home that morning, he went into the kitchen/dining area, but nowhere else. He put down his overnight bag. He did not see anybody around about. He went back to his mother’s car and drove to a supermarket to purchase some cigarettes. It was upon his return that he discovered the body of his mother. He placed a towel over her and ran outside for help. He did not go into Sarah’s room, Adrian’s room, the bathroom, the laundry, or the main bedroom ensuite, at any stage that morning. Nor did he open any cupboards, doors or drawers or use the bathrooms. 39   He stated that he had left to go to Alyssa Brindley’s house, the preceding night, a bit before 10pm. He said that there had been about five prank calls up to about 9.40pm. He added that when the phone had been picked up, all he could hear were the beeps, indicating that the caller had hung up. He also said that he had packed a change of clothes in a bag, which he took to Alyssa’s home, and left in the family room upon his return. The clothes were not used. 40   This interview followed the taking, by Detective Senior Constable Dickinson, of a preliminary statement from the appellant on the afternoon of 13th March, as to his movements that day and the preceding day. 41   In neither the statement nor the ERISP did the appellant make mention of any person informing his mother that there were to be some deaths in the family. In the statement he said that he had been wearing a pair of blue quicksilver shorts and a white track shirt, and runners when he went to Alyssa’s home. The next morning he said that he changed into a tracksuit. He was to give a different version at his trial. 42   When he was arrested on 22 June 1996, the appellant exercised his right to decline to answer any further questions. 43   Finally, it may be noted, that on 19 March 1996, a man by the name of Wakehim committed suicide and left a note in which he noted that he was afraid that he would be blamed for the De Gruchy murders. Police discounted this line of inquiry, it having been shown that this man had been depressed and had contemplated suicide from an earlier time. 44   It was the Crown case that the appellant had murdered his mother, brother and sister some time after 8pm. on the evening of 12 March 1996, and had then driven to the quarry in the Toyota Corolla, where he disposed of various items taken from the house, in the dam. His purpose in removing the items from the home, the Crown suggested, was to create the pretence of a robbery. Having done that, the Crown alleged, he went to his girlfriend’s house before returning home the following morning, where he pretended surprise at the discovery of his mother and sister. 45   The Crown accepted that its case was entirely circumstantial, and that it could not point to any motive on the part of the appellant to murder his mother and siblings. 46   It was the appellant’s case that he knew nothing about the murders and that they must have been the work of someone other than himself. He gave evidence at the trial to the effect that he last saw his family alive when he left his home at around 10pm on 12 March, before driving to his girlfriend’s home in his mother’s Toyota Corolla. He had been delayed, he said, because his mother had been concerned about a couple of prank phone calls. She informed him that the caller made mention of three family members going to be deceased. 47 When he left the home his mother and sister were in their rooms. He did not know where Adrian was and assumed that he had gone out. He had gone home the next morning he said to return the car so that his sister and brother could be driven to school. When he arrived the house was quiet and he assumed that someone else had taken them to school. It was after going to the supermarket to buy some cigarettes and returning that he found his mother. All that he remembered thereafter was running outside to find help. 48 He was given medication at the hospital which left him confused and feeling dopey. He was still in that state, he said, when interviewed by police on the afternoon of 13 March and again on 17 March, as he was continuing to take the sleeping pills prescribed. 49 He said that he got on well with his mother and loved her. He had not argued with her or with his brother or sister on 12 March. 50 After the carpets has been cleaned over the weekend before the killings, he said that he placed the carpet cleaner in the back of the Toyota on a piece of carpet to protect the car. Offcuts were kept in the garage for this purpose. He also used the Jerry can to fill up the car with petrol, as was his duty when his father was away. 51 He gave evidence that there had been a family party at the home to celebrate his eighteenth birthday in mid December. Some of the activities involved in holding the party, he said, were consistent with things written in the torn up note recovered from the dam. He added that some of the birthday presents he received were also consistent with items recorded in the note. The numbers noted on the back he said could have been consistent with tracks on CD disks selected as music for his birthday party. 52 The appellant said that he had no actual recollection of writing the note but he accepted that the writing was his. 53 Evidence of his good character was led from his uncle, Paul De Gruchy, from his father and from his girlfriend - who variously said that he was a gentle, polite person who was not given to violence and who got on well with his family. It was accepted that he had no prior convictions. His uncle, who was present at the interview on 17 March, confirmed that the appellant appeared affected by the sleeping pills. 54 A wheelbrace was tendered in the defence case. It had been found by Mr. Urquhart, the occupier of 34 Shearwater Boulevarde, and given to police on 17 June 1996. Detective Doherty said that it had not been provided to Dr Cala for examination or subjected to fingerprint examination. Presumptive tests carried out by him in relation to it had been negative, and to his mind nothing of an evidentiary nature was located in relation to it. In the cross examination of Detective Doherty, it was also established that a black handled knife was found in Koona Street, some 100 metres or so from Shearwater Road. It was examined but nothing of an evidentiary nature was found. 55 The substantial ground argued on appeal was that the verdicts were unreasonable or not supported on the evidence: S6(1) Criminal Appeal Act 1912, as that ground has been refined or explained in decisions such as Gipp (1998) 72 ALJR 1012, Fleming (1999) 73 ALJR1, and Giam (1999) NSWCCA 53. As this is an acquittal argument, I shall deal with it last.

Ground two - exclusion of evidence of other violent murders committed in the neighbourhood

56 Counsel at the trial attempted to secure production, pursuant to subpoena, of police records concerning investigations into the violent murders of David Thomas O’Hearn and Frank Arkell, in respect of which Mark Van Krevel was arrested and charged on 1 October 1998, ie during the trial of the appellant. 57 It was accepted that each of these murders occurred well after those with which the appellant was charged. Each, however, occurred in the same general area - Mr. O’Hearn’s residence being suggested at the trial to have been only 300 yards from the De Gruchy home, although in fact it was 1.7kms. distant. The killing of Mr. Arkell occurred further away, in his home at West Wollongong. Mr. Van Krevel lived at Albion Park Rail, and he had been to the same school as the De Gruchy children. It was accepted that these two murders had also been marked by extraordinary levels of violence; although they were somewhat different in that the two victims had been the subject of mutilation. 58 It was submitted that his Honour erred in refusing access to the subpoenaed documents, and also in precluding cross examination of police concerning the Arkell and O’Hearn murders or concerning other murders in the greater Wollongong area. Access to the subpoenaed material was sought, and the cross examination was pressed, upon the basis that a legitimate forensic purpose existed, namely to show an alternative hypothesis consistent with the appellant’s innocence - that Van Krevel or some other unidentified person lived in the area who was disposed to acts of random and gratuitous violence, and who may have been responsible for the killings with which the appellant was charged. 59 His Honour declined access to the subpoenaed material upon the basis that there were insufficient similarities between the killings to make the material admissible under S98 of the Evidence Act, as coincidence evidence. It was submitted that in approaching the subpoena access question from an admissibility point of view, his Honour posed the wrong test. Rather, it was submitted that the correct test was whether a legitimate forensic purpose was shown for access to the material: Saleam (1989) 39 A Crim R 406 and Alister (1983-4) 154 CLR 404. In Saleam Hunt J, as he then was, expressed the test in the following terms:

“In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made. Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time ( cf National Employer’s Mutual General Association Ltd v Waind [ 1978] 1 NSWLR 372 at 385) and the judge’s initial refusal to permit inspection should always be open to review. The problems which arise when counsel is unable to formulate such a submission with clarity are well exemplified by the decisions in Maddison v Goldrick [1976] 1 NSWLR 651 at 666 and in McPhail (1988) 36 A Crim R 390.
In my view, the criterion finally suggested by Gibbs CJ in Alister as that which had to be satisfied before a court should inspect documents in relation to which a claim for public interest immunity had been made is appropriate to be applied also when the trial judge has to determine whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production. He must be satisfied that it is ‘on the cards’ that the documents would materially assist the accused in his defence.”

60   To similar effect are the decisions in Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498 at 504, and Carroll v the Attorney General for New South Wales (1993) 70 A Crim R 162 at 181 to 182. 61 So far as the cross examination was concerned, it was submitted that his Honour similarly applied too narrow a test in confining the issue to one of coincidence evidence. Rather it was submitted the cross examination should have been allowed since it also went to the existence of a possible alternative hypothesis consistent with the appellant’s innocence: Barca (1975) 133 CLR 82 at 104-106. There Gibbs, Stephen and Mason JJ observed (at 105):

“… although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.”

62   By excluding exploration of the possibility that Van Krevel, or some other unidentified assailant, was the killer, or of at least placing that possibility before the jury, it was submitted his Honour erred and deprived the applicant of a chance to be acquitted. 63   It is clear from his Honour’s reasons for judgment that he dealt with the application for access, and the attempted line of cross examination, upon the basis presented by trial Counsel, namely that by reason of apparent coincidences between the various killings, the evidence would support the existence of the alternative hypothesis. That was the forensic purpose identified and it was appropriate therefore for his Honour to have considered whether it was a legitimate purpose, in the circumstances of the case, or merely a fishing expedition. 64   Alister and Saleam dealt with very different factual circumstances, in which the material subpoenaed had an obvious link with the case in hand. In the present instance the documents sought, and the line of cross examination involved in my view, nothing more than a fishing expedition. The Arkell and O’Hearn murders occurred in June 1998, more than two years after the killings with which the appellant was charged, and his Honour, after examining the documents, saw no common modus operandi or anything in the way of physical evidence or otherwise that might link Van Krevel with the events at the De Gruchy home. Moreover, there had been no admissions by him concerning those events, whereas he had come forward to confess in relation to the Arkell and O’Hearn killings. In confessing to those crimes he stated that while O’Hearn had been randomly selected as a victim, Arkell had been chosen because of the things he had done - a reference, it may be assumed, to the paedophile charges that he faced. 65   It was, in these circumstances, mere speculation that he may have been involved. In the terms of the test approved in Saleam, it was not “on the cards” that the subpoenaed material would assist the defence. His Honour was accordingly correct in refusing access to those documents. 66   Equally, in my view, he was correct in excluding the proposed cross examination both in relation to the Arkell and O’Hearn murders, and in relation to any other killings that may have occurred in the greater Wollongong or Illawarra districts. In this latter regard, Counsel did not identify any particular killings, solved or unsolved, that bore any similarity or possible connection. It would have been pure speculation to float before the jury the circumstance that since other killings had occurred, so might the present killings have been the work of one or other of those responsible for them - absent that is, some identified connection. 67   Again, Barca is distinguishable since there was there strong circumstantial evidence pointing to a party other than the accused as having been responsible for the killing in the form of evidence going to the existence of a motive on his part, threats by him directed towards the victim and a witness, the existence of intense anger upon his part towards the victim, the fact of his involvement in another killing having a marked similarity to the case before the Court, and the existence of a custom for persons of his ethnic background to carry out the very kind of offence charged in circumstances where, as it was there alleged, the honour of his daughter had been besmirched. 68   Since the matters raised did not go beyond mere conjecture as to the existence of an alternative hypothesis, I am not persuaded that his Honour erred in the approach taken, or that the appellant was deprived of an opportunity for acquittal by the exclusion of a possible body of evidence going to the O’Hearn or Arkell murders, or of any other murders that may have happened to have been committed in the general district, over an undefined period, before or after the present killings.

Ground 3 - directions given concerning remarks made by the Crown Prosecutor in his closing address, as to whether or not the appellant had a disturbed mind.

69   Somewhat inadvisedly, the Crown Prosecutor suggested, in his closing address, that the person who committed the murders “must have had a disturbed mind”. This followed an earlier observation to the effect that in cases where there has been extreme and apparently senseless violence visited upon a victim, there is quite often no motive. 70   Complaint was made at the time by Counsel for the appellant to the effect that, by these observations, the Crown Prosecutor had offered to the jury an explanation for the absence of any apparent motive, an explanation which was totally lacking in support since there was no evidence in the trial as to whether the appellant had or had not been psychiatrically examined, let alone shown to have had a disturbed mind. As a consequence, a request was made that the submission be withdrawn. 71   In response the Crown Prosecutor pointed out, as was clearly correct, that the Crown did not have to prove a motive. The justification for the balance of the comment was said to lie in the “nature of the acts themselves”, it being put that “as a general proposition anybody responsible for these acts must have had a disturbed mind.” 72   The approach taken by the Crown Prosecutor in this regard was both ill-advised, and curious since the comment did not necessarily advance the prosecution case. It also involved a degree of circularity. In the absence of any evidence that the appellant had a disturbed mind, the comment was capable of being understood as pointing to some person other than the appellant as the culprit. To that extent, it favoured the defence case. However, the complaint of the appellant lay in the submission that it offered a possible explanation for the appellant acting in a most disturbing and violent way, which was apparently out of character for him. 73   It is evident that his Honour saw it necessary to deal with this matter, and with the submissions made in respect of it during the closing addresses, which he elected to do in the following terms:

“You may remember that the Crown Prosecutor when he addressed you said to you that the Crown is not required to prove a motive. That is correct in law … Of course, it is comforting to an ordinary human being where you are seeking to assess somebody’s action to know why they did it but I should tell you the law does not require the crown to tell you why people commit crimes.”

His Honour went on to note:

“It was said that the Crown Prosecutor had observed to you that frequently it was the case that crimes of great violence had been committed without motive.
My understanding of what he said was that such crimes were known to have happened and the motive was unknown or ‘baffling’ was a word I remember him using. I did not understand him to say that there was no motive; merely that the motive was unknown. “

74   So far the directions were unexceptional, as were the preliminary observations reminding the jury of the remark of the Crown Prosecutor which had attracted attention:

“The matter which is argued by counsel or related to what was said about that, is an expression used by the Crown Prosecutor when he was talking about motive and making submissions to you and he went on to say that the three killings and the level of violence with which you had to deal would have been the product of a disturbed mind.
Let me say that at the very least I would suggest to you that that was an unfortunate expression for counsel to use in the flourish of advocacy.
This is not a case about disturbed mind. “

75   It is what followed that gives rise to this ground of appeal, namely the observation:

“In the course of address on Friday counsel for the accused said there was no evidence here or anywhere else that the accused had a disturbed mind. I confirm to you there is no evidence here that the accused has a disturbed mind or anything that might be described. So far as anywhere else is concerned, neither you nor I know whether there is such evidence one way or other and it is entirely irrelevant. To your mind, excise it in this case . Because counsel have engaged in this dispute, I think it appropriate that I should say a few further things to you.”

76   His Honour then proceeded, in a lengthy passage, to place the matter of mental illness into its proper context, explaining:

“I expect in the course of your ordinary lives you would have read in newspapers or heard from other organs of the media that in trials for murder evidence is given by psychiatrists and the like as to what the state of mind of an accused person is in terms of normality. Sometimes issues arise in a trial, for example where a person is charged with murder, as to whether or not that person should be found not guilty on the grounds of mental illness. That involves an inquiry as to whether or not that particular accused suffered a defect of reason so as to be not responsible for his or her act because that person either did not appreciate the nature and quality of the act of killing or if that person did that they did not know it was wrong.
Sometimes in a case of murder, defences, as they are called, arise concerning what is called diminished responsibility. That involves issues as to whether or not a particular accused in a particular case suffered from such an abnormality of mind as to reduce that person’s culpability for killing. The result of that I will mention to you in passing is that the crime of murder can be reduced to manslaughter. No such issue arises in this case. If such an issue had arisen, it is conceivable that evidence could have been called about the state of mind of the accused."

77   His Honour went on to emphasise that not only were there no such issues in this trial but also that there was no evidence concerning them. In the course of doing so, he repeated, in the italicised sections which follow, the passages to which the present complaint is directed.

“I emphasise to you there is no such evidence and I am not suggesting I know one way or the other whether any such evidence exists. This matter has been somewhat elaborated, starting with a flourish by the Crown Prosecutor, as a murder by a disturbed mind and responded by his opponent that if that is what he wanted to suggest you would have heard about it. You would have heard evidence and there were no questions even hinting that the accused had a disturbed mind.
For my part and this is a comment of mine, I do not know what the Crown Prosecutor meant by his expression “disturbed mind” but this I can tell you, there is no issue in this case about the state of mind of the accused other than the allegation that if he was the person that caused the death, at the time of causing the death he intended to kill or do grievous bodily harm. You should put entirely to one side, first, the observation by the Crown Prosecutor about “disturbed mind” and secondly the observations by his opponent that you could have heard evidence called by the Crown or otherwise about it.

It is as I said to you earlier, to say the least, unfortunate that this contretemps has arisen but what I tell you as a matter of law is that you in this case put entirely to one side both the observations as to disturbance of mind made by the Crown Prosecutor and by counsel for the accused because one thing is certain in this case, there is no evidence as to the state of mind of the accused, so far as disturbance is concerned one way or the other. What you are invited to infer from the evidence is that whoever perpetrated these killings intended at that time to cause death or grievous bodily harm.
But insofar as the remarks that have been made to you invite you to speculate about disturbance of mind, in the sense that that phrase is commonly used, that is not an issue for deliberation in this case. As I say to you, I do not know precisely what the Crown Prosecutor meant when he used the phrase in the first place and I can say no more than that the response to it, which seems to me to carry the implication that the Crown was somehow seeking to raise one of the issues that I mentioned to you that you could have in some trials but not as an issue in this trial was perhaps an understandable response but nevertheless an unnecessary one I apologise to you for spending so much time on this. I am only seeking to emphasis that you should put to one side the original remark and the response to it.

78   At the conclusion of the summing up trial Counsel asked his Honour to withdraw the whole of these directions and also asked for an instruction that there was general evidence (i.e. character evidence) from which the jury could reason that the appellant was in fact not of a disturbed mind. This request was declined. 79   It is now submitted that his Honour erred in directing the jury, that:

(i) there was no evidence as to whether or not the appellant had a disturbed mind; and that
(ii) they should ignore the appellant’s submission that had there been any evidence that the appellant had a disturbed mind, the Crown could have or would have called it.

80   As to the first point, it was submitted that there was evidence to the effect that the appellant was not of a disturbed mind in so far as there was unchallenged evidence from his father, his uncle and his girlfriend that he was a gentle, polite and quiet person not given to violence, and in so far as it as shown that he had no prior convictions. 81   This submission lacks conviction. The character evidence was not evidence going to the existence or non existence of a disturbance of the mind in the sense that his Honour was directing the jury, i.e. in the context of mental illness or diminished responsibility. 82   As to the second point, it was submitted that the response of Counsel at the trial was well based, and that as good character had been raised, the Crown would have been entitled to call evidence of any disturbance of mind, on the appellant’s part, had it been available. That may have been so had such a disturbance of mind sounded in anti social or discreditable conduct, ie subject to any discretionary exclusion of the evidence relevant to its probative value and its prejudicial effect. As a general proposition, however, it is too broad. 83   Read fairly, and in its full context, what his Honour was at pains to do was to make it clear that this was not a case in which any issue arose going to the state of health of the appellant’s mind, as would arise in a case where issues as to mental illness or diminished responsibility arose. 84   I am satisfied that the jury would have understood the remarks of his Honour to have been directed to that matter, and in that respect to have neutralised the somewhat ill-advised and circular observation of the Crown Prosecutor. Once these directions were given, there is no reason for supposing that the jury were left with the apprehension that there might have been some uncalled evidence available to this effect, or that they might properly speculate that the accused had been suffering from a disturbed state of mind. 85   I am also satisfied that the directions did not have the effect of watering down the character evidence which remained available and capable of showing that it would have been out of character for this appellant to have committed crimes of the savagery here involved. Nor did it water down the proposition that the Crown had not proved, and could not prove, a motive on the part of the appellant - a matter it conceded throughout.

Ground 4: the summing up was unbalanced so far as the case of the appellant was concerned

86   In essence this submission depended upon the proposition that the summary of the Crown case occupied some twelve pages of the transcript, while the summary of the defence case occupied about seven pages, of which one and a half pages comprised a critique of the defence submissions concerning the failure of some police witnesses to record details in their duty books. It was submitted that in particular, insufficient attention was given to significance of the strands of hair found in the hands of Adrian De Gruchy during the post mortem examination. It was also submitted that added significance attached to the circumstance that his Honour dealt with the addresses in reverse order to that in which they were given and, it was put, almost completely omitted defence criticisms of the propositions advanced by the Crown. 87   It is always necessary that the respective cases be put in a balanced way and that the defence of an accused person be adequately put to the jury. As this Court made clear in Davis (CCA NSW 31 July 1997) the defence case needs to be clearly and fairly put as a recognisable entity, in which attention is drawn to any evidence or arguments that throw doubt on the Crown case: see also Vaudrey (CCA NSW 16 April 1998). 88   Whether or not a summing up is balanced in this respect cannot depend upon any numerical comparison of the pages of transcript devoted to the addresses. Almost invariably, and particularly in a circumstantial case, many more witnesses will be called in the prosecution case than will be called in the defence case, with the consequence that it will take longer to summarise the former. The present case was no exception - the Crown having called thirty-seven or so witnesses whose evidence extended over approximately 700 pages of transcript, while the defence case was confined to the appellant and his uncle, whose evidence occupied 70 pages or so. Even if such a comparison could provide a meaningful guide as to balance, the point could not, however, be made good in this case since, contrary to the submission advanced, the summary of the two cases occupied almost the same number of pages of transcript (fourteen in the case of the defence and thirteen in the case of the prosecution). 89   The submission that the defence case was not adequately put is not made good. His Honour reminded the jury that the appellant had said that he knew nothing about the killings, and that if this remained open as a possibility, then he must be acquitted. They were reminded of the evidence that the appellant and his uncle had given, and of the fact that the focus of the defence case was that there was a rational possibility open that someone other than the appellant was the killer. They were similarly instructed that if this was so they must return a verdict of not guilty. 90   His Honour next reminded the jury of the criticisms of the Crown case that had been offered by the defence, to the effect that police had ignored lines of inquiry which had not fitted with their view as to the appellant’s guilt - of which some instances were given concerning the lack of examination of windows, of doors, of shower taps or of the laundry for fingerprints; the omission to test the herringbone pattern in the blood on the garage floor and of the appellant’s clothing; the failure to examine the tools in the garage or the car of Mr. De Gruchy Senior; the conclusion that the wheelbrace found by Mr. Urquhart was irrelevant; the absence of a full forensic examination of the bag found in the dam which contained the note; a suggested inadequacy in testing the bloodied fingerprint on the vanity unit; and suggested inconsistencies in the testing of the hair found in the hand of Adrian De Gruchy. Attention was drawn to the suicide note and to the argument that it was consistent with the existence of a rational possibility that someone other than the appellant was the killer, it also being put that the behaviour of the appellant over the critical period between March and May was consistent with his innocence. 91   Earlier in the summing up the jury had been reminded that the appellant had made no admissions, and that an attempt by police to obtain incriminating evidence via a listening device had failed. They had also been reminded of the evidence of good character that had been led, and given an entirely proper direction in relation to it. 92   There was in my view no imbalance in the summing up, the defence case having been clearly and comprehensively put. So far as I can see no material point was omitted. The finding of strands of hair in the hands of Adrian De Gruchy was mentioned, and his Honour read to the jury, at the request of Counsel for the appellant, the terms of the certificate given by Professor Aitcheson concerning it. The possible significance of the hair was obvious and there was no reason for his Honour to go into any further detail concerning it. There was no denigration of the defence case, nor in my view, any unfairness arising out of the sequence in which the two cases were summarised.

Ground 1 - verdict unreasonable in that it could not be supported on the evidence

93   As I have observed the Crown case was wholly circumstantial and depended, in summary, upon proof of the following matters:

(a) the items taken from the home were not items of value other than a video recorder - in particular the jewel box of Mrs De Gruchy and the wallet of the appellant were not taken - suggesting, it was put, that an attempt was made to fake a ‘robbery’, particularly as the items that were stolen were dumped in the dam;
(b) the offender removed some carpet from the main bedroom floor, behaviour consistent with an attempt to remove or conceal some piece of physical evidence that might link him to the crimes.

(c) portion of the carpet, and some items taken from the home were dumped in the dam near Woonona, a place that was known to the appellant and that was on the route he took from his home to that of his girlfriend on the night of the killings.
(d) a tuft of carpet that matched the carpet removed from the bedroom was found in the Toyota of Mrs. De Gruchy containing material the DNA of which was consistent with that of the appellant and inconsistent with any other member of his family;
(e) the items found in the dam included the very curious note, in the handwriting of the appellant, that contained some items consistent, it was put, with a plan to kill the three deceased who were the only persons named in it , to carry out a number of activities after the killing to remove possibly incriminating evidence from the scene and from his person, and to inflict injuries upon himself so as to create the impression that he had been set upon by robbers.
(f) the explanation offered by the appellant for the note which had been torn up, it was argued, made no sense whatsoever in so far as it was suggested to be a list of birthday presents or of activities that occurred on his birthday.
(g) Dr. Cala testified that the fatal injuries could have been caused by implements such as the jack handle and wheelbrace that had been supplied with the Toyota, and which had been removed from it, even though they had not been used since the vehicle had been purchased;
(h) that vehicle was in the appellant’s possession on 12 and 13 March;
(i) The body of Adrian was splashed with petrol the obvious source for which was an open Jerrycan which was adjacent to his body, and which bore the appellant’s fingerprints.
(j) the knob to the cupboard below the vanity unit in the main bathroom bore a left palm print of the appellant, that was located within a smear that may have been blood.
(k) bloodstains consistent with having come from the appellant, but not from other members of the family, were found on the hallway tiles, and on the wall above and behind the bed of Mrs. De Gruchy;
(l) the appellant’s assertion that there had been prank phone calls to his mother and his suggestion that, in one such call, the caller had said that “three of your family will be deceased” bore, it was argued, the hallmarks of an invention by him to divert attention to a non existent marauder - particularly as the appellant had made no mention of such a chilling and accurate prophesy when he was interviewed by police on 13 or 17 March, and also because it was curious that such a “threat” should have been confined to three members of a family of five. Moreover, the Crown queried why in the face of such a threat, and the number of anonymous calls that the appellant said were made, he would have left the house, particularly if as he suggested, his mother was concerned about them.
(m) when the appellant first spoke to Mr Bailey, allegedly immediately after discovering his mother, he said that there was ‘something wrong with Mum and Sarah’, yet on the account he gave to police he could not have known that there was anything wrong with Sarah, since he had not been to her room, and had assumed, when he had first gone into the house, that she had already left for school;

(n) the appellant arrived much later than expected at his girlfriend’s home and it was submitted, had ample opportunity in the time available between 8pm. and 11pm, to carry out the killings, to collect various items at the scene, to drive to the dam to dispose of them, and then to drive on to his girlfriend’s house, a total trip occupying in the order of 28 minutes.

94   It was submitted by the appellant, however, that the various strands in the cable presented by the Crown were not compelling whether considered in isolation or together, and that the verdict was unsafe, being unreasonable or not supported having regard to the evidence. In particular it was submitted that:

(a) if the killer had been in the house to steal, then he may have decided not to take items of the kind mentioned either because he did not notice them, or because he was distracted, or because he chose not to take items which could be readily identified;
(b) there was no evidence of the appellant having sustained any injury on the night of the killing that might have been expected in the course of such a violent series of events, or that could have explained the presence of his blood on the tuft of carpet, or on the hallway or wall, or that could have occasioned him sufficient concern to remove the piece of carpet from the main bedroom;
(c) there was no evidence of his shoes or clothing being blood stained, and presumptive tests for blood on the steering wheel of the Toyota were negative;
(d) the jack handle and wheelbrace from the Toyota were never found or linked positively with the killings - any number of similar implements being capable of causing the injuries, including the wheel brace found by Mr. Urquhart some time later in Shearwater Boulevarde, which was not subjected to comparison by Dr. Cala.
(e) even if the tools from the Toyota had been used as the murder weapons, they could have been removed from the vehicle by someone else;
(f) off-cuts of the carpet were kept in the garage and were used, from time to time, to carry things in the Toyota to save it from getting dirty - in fact a piece of such carpet had been used the weekend before the killings when the hired carpet cleaner was returned;
(g) there was no way of determining the age of the blood (if that was what it was) on the tuft of carpet found in the Toyota;
(h) many other people were familiar with the dam, and there was nothing particular to associate the appellant with it;
(i) there was nothing surprising in finding the appellant’s fingerprint on the Jerrycan, since on his account, and as confirmed by his father, both of them used it from time to time to fill the cars,
(j) similarly there was nothing surprising in finding his fingerprints on the surface of a vanity unit in the bathroom of a house where he lived;
(k) there was an adequate explanation for a robber disposing of the items taken from the house, in so far as it would have been sensible for him or her to get rid of any items that might provide a link to the killings;
(l) the note found at the dam contained a number of events that did not occur - no bottle or hi fi was thrown down the back, nothing was found in the wall cavity, the appellant had no sign of injury suggestive of him having hit or cut himself, and there seemed to be little point in opening the blinds to see through;
(m) there was no sensible reason for leaving the list in a torn up state together with other items connected with the murders (rather than destroying it in a more effective way);
(n) it was possible that the note was already in the bag and was simply swept up by whoever was responsible for the killings, along with the other items taken from the scene;
(o) the conversation with Mr. Bailey, it was suggested, was explicable by the distraught state in which the appellant was, and by the possibility that he may not have been sure whose body he had seen;
(p) the appellant had no motive to kill a mother to whom, on the evidence, he was attached, or his brother and sister;
(q) the hair that was found in the hands of Adrian De Gruchy could not have come from him, because of its length (his hair being 4 cms at its longest, and that found in his hand being 8cms. to 10cms long) and, it was suggested, because it was of a different colour - thereby opening up a possibility that someone other than the appellant was the killer;
(r) there was nothing unusual in the demeanour of the appellant when seen by Ms Brindley and her mother, although this was at a time when upon the Crown case, he had just committed three terrible crimes; whereas on the following day he reacted in a way, it was submitted, that could only be described as natural and appropriate for a young man who had just discovered that his mother, at least, had been murdered;
(s) the appellant was shown to be a person of good character, without any prior conviction, who enjoyed a reputation as a young man of gentle disposition;
(t) no admissions were made by him when interviewed by police and nothing was discovered of an incriminating nature while he was subject to electronic surveillance;
(u) a number of the items found in the dam were described by his father as having no connection with the appellant’s home - most relevantly the sheet with a striped pattern and the small hammer;

(v) the suicide note left by Mr. Wakehim suggested that its author, now deceased, at least feared being accused of the killings;
(w) there was no examination of the Toyota for the presence of coal dust or of dirt, of the kind that may have been picked up, had it used the Coal Wash Road that was the only means of public access to the dam.

95   It may be accepted that there were significant arguments for the jury to consider, in determining whether the only rational inference open was that the appellant killed the three deceased. The fact that a jury, properly instructed, came to that conclusion, after having heard and seen the appellant and the other witnesses, after having reviewed the physical exhibits, and after having heard detailed closing addresses as well as a careful and comprehensive summing up from a very experienced trial Judge, is not conclusive of the matter when, on appeal, a S6(I) ground of appeal is raised. This Court must make its own independent assessment of the sufficiency and quality of the evidence, and in the light of that review, reach its own conclusion as to whether or not a jury ought to have entertained a reasonable doubt as to the appellant’s guilt: Jones (1997) 72 ALJR 78. 96 In making that assessment, regard may properly be had to the advantage which the jury had in seeing and hearing the case unfold, particularly when credit issues arise and conflicting evidence is received. However, if at the end of the day, after making due allowance for the extent to which any difficulties apparent in the Crown case might be resolved by reference to that advantage, the Court has a doubt itself as to the guilt of the appellant, then normally it will conclude that such doubt ought to have been entertained also by the jury; 97 The most significant factors in favour of the appellant were his unchallenged prior good character; the lack of any apparent motive for him to commit such appalling crimes; the absence of injury or of any sign of abnormal behaviour or distress or anxiety on his part, on the night of 12 March (compared with his apparent reaction the following morning); the presence of hairs in the hand of Adrian De Gruchy, which the defence suggested may have been seized from the head of his assailant; and the finding of some items in the dam that were not positively identified as coming from the De Gruchy home; 98 The explanation offered by the Crown concerning the penultimate matter, to the effect that hair previously shed by Adrian, (from a time when his hair was longer) or by his sister (see Dr. Goetz’s evidence noted above) may have been already present on the garage floor and adhered to his bloodied hand, cannot be dismissed as entirely improbable. The photographs of the deceased in situ do not show the hand in which the strands were found to have been clenched. Rather, it was in an open position, palm down, resting on the ground over an upturned chair. To this extent the evidence does not inevitably suggest that the strands were torn from the head of an assailant. 99 Another possibility, admittedly unexplored, also remains open - namely that the strands were gathered from the head of Sarah, when she was struck and having adhered to the weapon used upon her, were transported to the garage where Adrian was beaten. Her hair, it would seem from the photos, was a good deal longer than that of Adrian’s, and to have been of a similar colouring. 100 So far as a disparity in colouring was suggested to have existed, that depended entirely on Dr. Cala’s description of the recovered strands of hair as having been “dark brown”, and of the hair of Adrian as having been “dark brown-black” - an imprecise distinction with little if any material difference. 101 In the end, the evidence concerning the strands was equivocal, since DNA that could have come from either Adrian or Sarah was found in the sample, and it could not be said with any certainty, that the hair inevitably must have come from an assailant who could not have been the appellant. 102 The suggested scenario of a thief or thieves having been disturbed, and having attacked the occupants, thereby missing the more valuable items in the house is in my view unconvincing, having regard to the fact that Mrs. De Gruchy and Sarah were obviously killed in their own beds. Equally unconvincing is the suggestion that the thieves deliberately ignored items that may have provided identifiable links to the killings, since the purse of Mrs De Gruchy, the video recorder, and the calculator found in the dam served that purpose. 103 While it is true that Miss Brindley, her mother and police did not notice any injuries to the deceased, there seems to be little doubt that he did lose some blood that night in view of the spots of blood found in the hallway and on the wall above Mrs. De Gruchy’s head, and in view of the material found on the tuft of carpet, which although of insufficient size to be presumptively tested for blood (because that would have prevented DNA testing), gave every appearance of being blood. 104 There was no occasion for Miss Brindley or her mother to make any detailed observation of the appellant on the night of 12/13 March, nor in the absence of immediate suspicion was he subjected to medical or other examination for possible minor injuries such as a nosebleed or small cut. Moreover, while the tuft in the car could conceivably have got there, and collected the material from which DNA was recovered consistent with that of the appellant, on another occasion, there was no evidence to suggest any such occasion on which he had suffered a cut or other injury, or on which he had lost some bodily fluid that may have provided the source for the DNA. 105 The suggestion that robbers might have torn up the note, or placed it and other items such as the clothing, towel and knife, that happened to be mentioned, in the dam, makes little sense. The fact that not all of the steps listed was attended to is of limited significance, since a decision may have been made that they were unnecessary. 106 What was important about this list was its authorship, and the references to the three deceased, to steps consistent with a plan to remove possibly incriminating physical evidence from the scene, and to steps consistent with an attempt to manufacture a possible appearance of the appellant having been assaulted 107 Apart from the reference to the three deceased, it is significant that against the words ‘tracksuit pants’ appears the numeral ‘1’, against the word ‘knife’ appears the numeral ‘1’, and against the words ‘T-shirts’ appears the numeral ‘2’. Found in the dam in fact were 1 pair of tracksuit pants, 1 knife and 2 T-shirts. Furthermore, among the items listed in the note and found in the dam were a hanky, a towel, and a bottle. 108 The appellant was unable to give any explanation in relation to the items concerned with head butting a mirror or bench, or to cutting somewhere with a knife. His explanations to the effect that the references to hitting arms or legs with a pole may have had something to do with guests at his birthday party getting wild with the lanterns that had been placed on bamboo poles to light the garden area or with someone stumbling over, were to my mind absurd - particularly in the light of the added comment that he might have needed to write these things down to remember them, or to render help. 109 The explanations given for other items make little better sense. For example, the appellant suggested that the reference to ‘throw bottle (singular) down back’ was a reference to the collection of bottles from the party in a container at the back of the garden, and that the reference to the hi fi, was to a small portable hi fi, that was taken outside where the younger guests had assembled. The item ‘throw things down wall’ was said to be a reference to the placement of baits, for field mice or rats, in the ceiling, a precaution that he said was taken from time to time and repeated just prior to his birthday. In fact, the wall cavities were capped save for one area where there was an opening or inspection point. The “opening of blinds to see through” and of the “gate” were also said to relate to the birthday party, the former to allow people to circulate inside and outside the house, the latter to allow people to see into the house from the Pergola, as well as to look to the outside from the house, “just to keep an eye on people”. Such events are so mundane as not to justify mention or recording in any programme for a planned birthday party. 110 The numbers written on the back of the note, the appellant acknowledged, he could not readily explain or remember writing. The “only thing that could come to mind” he suggested was the selection of track numbers on CDs for music at the party - again a somewhat extraordinary answer if the note had in fact been written as a plan for a birthday party held only three months earlier. The reference to “have shower” he suggested may have been a reference to having a shower “when under the influence of alcohol to straighten oneself up” - again an explanation lacking credibility. 111 The existence of this note, and the extraordinary explanations or answers given in relation to it, in my view provided powerful evidence for the Crown. The appellant’s evidence, upon the face of the transcript was unimpressive in several other respects. Apart from the significant conflict with Mr. Bailey as to whether he mentioned that there was something wrong with Sarah, he gave accounts that were contradictory either of known facts or of his statement to police as to the items of clothing that had been placed in the overnight bag, as to whether he had been wearing shorts or tracksuit pants, as to whether he had placed a pair of joggers in the bag, and as to whether the prank caller had conveyed a message or had hung up by the time the calls were answered. 112 Significantly, he identified a maroon Quicksilver T-shirt as one given to him by a friend some time after the killing, at a time when he could not get access to his own clothes. However, when it became obvious that this was problematic since it had been found in the dam with the other items, it was his explanation that this was “more towards the police” - the clear implication (which he was then reluctant to fully embrace) that they had “planted” it. 113   When all of the factors identified by the Crown are taken into consideration, in combination, I am not persuaded that the case is one in which the jury ought to have entertained a reasonable doubt. In particular, the combination of the note, the presence of the appellant’s fingerprint on the cabinet door knob, the DNA recovered from the carpet tuft, and from the spots of blood in the hallway and bedroom, the comment to Mr. Bailey about Sarah, the appellant’s unconvincing evidence concerning the note, the absence of any mention to police of the prophesy as to the death of three members of the family, the appearance of a staged robbery, and the finding of the items in a dam with which he was familiar, constituted a powerful circumstantial case. It may also be assumed from the verdict that, having seen and heard the appellant give evidence, the jury were not impressed with his credibility - a conclusion well open to them by reference to the matters I have mentioned. 114   In these circumstances I am of the view that the appeals against conviction should be dismissed, and the applications for leave to appeal against sentence refused.

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IN THE COURT OF
CRIMINAL APPEAL

No. 60804 of 1998

WOOD CJ AT CL
SULLY J
SIMPSON J

THURSDAY 2ND MARCH 2000

Regina v Matthew Wayne DE GRUCHY

JUDGMENT

115   SULLY J: I agree with Wood CJ at CL.

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IN THE COURT OF
CRIMINAL APPEAL

60804/98
WOOD CJ AT CL
SULLY J
SIMPSON J


2 March 2000
REGINA v Matthew Wayne DE GRUCHY

Judgment

SIMPSON J :

116   In every respect except one I agree with the analysis of the Chief Judge. The sole point of departure concerns the evidence of the hair clutched in Adrian’s hand, hair that could not have been that of the appellant, and which (by reason of its length, not its DNA composition) was very unlikely to have come from Adrian. I mention this because, absent a satisfactory explanation, I would consider this evidence to be of very considerable significance in the appellant’s favour. Unlike the Chief Judge (paragraph 98) I do regard the explanation proffered by the Crown (that this hair may have already been on the floor and come into contact with Adrian during or after the attack) as so inherently implausible as to warrant rejection. I do not so regard the alternative explanation proposed in paragraph 99. That DNA testing established that the hair could have come from Sarah answers the questions that would otherwise have remained unanswered. Given the events that must have taken place in the house that night, it would not be surprising if some of Sarah’s hair attached to the assailant, who then transferred it to Adrian. The question then is whether the remaining evidence satisfactorily establishes that the appellant was the assailant. The circumstances of which evidence was adduced by the Crown added up to a compelling case establishing that fact. It is unnecessary to reiterate what has been said. Having undertaken the independent analysis of the evidence that is required I am left with no reasonable doubt that the Crown established that the appellant was the killer. 117   I agree that the appeal should be dismissed.

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