R v Marshall - [2010] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARSHALL
Criminal Trial by Judge Alone
[2010] SASC 243
Judgment of The Honourable Justice Nyland
6 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
Criminal trial by Judge alone - accused charged with murder - identity of killer only issue in dispute - circumstantial evidence - some suspicious circumstances implicating accused - evidence of witnesses on a number of key topics affected by delay - robbery as a reasonable hypothesis not excluded - verdict of not guilty.

R v MARSHALL
[2010] SASC 243
NYLAND J:
The charge

Francis Lorraine Marshall (“the accused”) is charged on Information with the crime of murder pursuant to the provisions of s 11 Criminal Law Consolidation Act 1935 (“CLCA”). The particulars of the charge against her are that on 25 October 2002 at Victor Harbor she murdered Bernadette Anne Liston. Upon her arraignment the accused pleaded not guilty. Thereafter the trial proceeded before me as a judge sitting alone, pursuant to an election filed by the accused in accordance with s 7(1) Juries Act 1927.
Onus of proof
In considering the issues which arise for determination, I have at all times borne in mind that the accused does not have to prove her innocence. The accused is presumed to be not guilty of the charge against her unless and until I am satisfied of her guilt beyond a reasonable doubt. It is for the prosecution to prove that the accused is guilty of the charge against her and nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt nor to show that the accused is probably guilty. The requirement of proof beyond reasonable doubt also applies to each and every element of the offence charged against the accused. Where, in the course of these reasons I indicate that I find something proved, or I say that I am satisfied about something, that means that I have so concluded beyond reasonable doubt.
The charge of murder
A person commits murder if he or she causes the death of another person deliberately and unlawfully whilst at the same time intending to cause death or grievous bodily harm. That is the general proposition. There are a number of elements which must be proved by the prosecution beyond reasonable doubt for the accused to be found guilty of the crime of murder. The prosecution must prove that:
1. The act or acts of the accused caused the death of Bernadette Liston;
2.The act or acts of the accused were conscious and voluntary, that is to say, that they were the result of the exercise of the will.
3.The act or acts of the accused which caused the death were done either with the intention to kill Bernadette Liston or with the intention to cause her grievous bodily harm. Grievous bodily harm means really serious bodily harm. The intention must exist at the time when the act which caused the death was carried out.
4.The killing was done without any lawful justification or excuse, such as lawful self-defence.
In this case there is no dispute as to the second, third or fourth elements. Bernadette Liston received multiple injuries in the assault which resulted in her death and the nature of those injuries is such that there can be no doubt that they were deliberately inflicted with murderous intent for which there is no lawful justification. The only issue which arises for decision in this case is whether the prosecution has proved beyond reasonable doubt that the accused was the person who inflicted those injuries. The prosecution has relied upon a number of items of circumstantial evidence to prove that the accused killed Bernadette Liston. As the case against the accused is circumstantial, I cannot find the accused guilty of murder unless I conclude that there is no reasonable explanation of the evidence other than the accused was the person who committed the crime. In other words, if there is any reasonable explanation other than the guilt of the accused, then the accused must be acquitted.
The following witnesses gave evidence for the prosecution:
Police witnesses:
Christopher John Hackett, a Crime Scene Investigator stationed at the Forensic Response Section of the South Australian Police Force (“SAPOL”).
Cheryl Marie Brown, a Senior Sergeant of Police, attached to the Forensic Response Section of SAPOL, an expert in blood stain analysis.
Michael Kevin Heath, a Brevet Sergeant attached to the Forensic Response Section of SAPOL.
Peter Alan Lawrence, Police Officer attached to the Ballistics Section of SAPOL.
David Mark Cousins, Police Constable. He attended at the crime scene and had a brief conversation with the accused.
David John Sheridan, Detective Brevet Sergeant, Major Crime Investigation Branch, SAPOL.
John Gerard Keane, Detective Sergeant, Major Crime Investigation Branch, SAPOL.
(Detectives Sheridan and Keane were the investigating officers)
Medical and scientific evidence:
John Duncan Gilbert, Forensic Pathologist employed by the Forensic Science Centre, Adelaide. He carried out the post mortem examination of the deceased.
Elizabeth Mary Brooks, Forensic Scientist employed by Australian Federal Police, specialist in hair analysis.
Family members:
David Anthony Liston, eldest child of Bernadette Liston and Ray Baines.
Alicia Margaret Liston, daughter of Bernadette Liston and Ray Baines.
Jennifer Louise Liston, daughter of Bernadette Liston and Paul John Childs. Jennifer discovered her mother’s body on 25 October 2002.
Paul John Childs, former partner of Bernadette Liston and father of Jennifer Liston.
Leah Michelle Childs, current partner of Paul Childs.
Daryl George Purcell, brother of the accused. He agreed to act as a sperm donor for Bernadette Liston and the accused, as a result of which, a child, Rebekah Liston was born on 4 July 1998.
Sallyanne Marie Warren, daughter of Daryl Purcell.
Michael Herman Paul Warren, husband of Sallyanne Warren.
Margaret Anne Meer, sister of Bernadette Liston.
Thomas David Meer, son of Margaret Meer.
Jacqueline Meer, daughter of Margaret Meer.
Nichole Meer, daughter of Margaret Meer.
Rosemary Anne Beattie, sister of Bernadette Liston.
Christina Ann Liston, sister of Bernadette Liston.
Richard Liston, brother of Bernadette Liston.
Other civilian witnesses:
David James Newton, partner of Alicia Liston.
Kelli Ann Cliffe, former fiancée of David Liston.
Sue Marie Jalleh, close friend of Bernadette Liston.
Emma Jackman, friend of Jennifer Liston.
Jason Aaron James Marshall, son of accused’s former partner, Anne Marshall (formerly Harvey).
Shane Donald Francis, son of accused’s former partner, Anne Marshall (formerly Harvey).
Sonja Maxine Willmott, daughter of accused’s former partner, Anne Marshall (formerly Harvey).
Tamarra Lynn Francis, wife of Nathan Francis, the nephew of Jason Marshall.
George Savutakis, former partner of Alicia Liston.
Amanda Jane Langley, present partner of George Savutakis.
Verlaine Phyllis Bell, friend of Barbara Maxwell.
Barbara Anne Maxwell, friend of Bernadette Liston.
Pamela Winifred Chapman, casual acquaintance of accused.
Neighbours:
Kenneth Frederick Clarke, resident at 24 Ives Crescent, Victor Harbor.
Iris Jessie Redwood, former resident of 25 Ives Crescent, Victor Harbor.
Footwear experts:
Rodney Thomas Cornelius
Richard Russell
Milan Bohutinsky
By consent, the following statements of witnesses were admitted into evidence as part of the prosecution case:

Exhibit Number
Witness Name

Involvement/relationship to deceased/accused

Date of Statement

P 33

P 34

Annette Marcelle SEELIGER

Kylie Joanne BRUNTON

) Officers with Commonwealth Bank at ) McLaren Vale. They dealt with
) Paul Childs on 25.10.02 re Visa card
) cancellation.

01.06.10

27.05.10

P35

Nicos KALOYIROU

Lawyer who acted for Paul Childs and possibly spoke to him on the morning of 25 October 2002
26.05.10

P 36

Serafino DONNARUMMA

Mortgage consultant with Aussie Home Loans who dealt with Daryl Purcell.

20.06.10

P 37

Anthony Ludwig
VAN RHODA

Bank SA employee who provided details of joint account held at Glenelg branch by Bernadette Liston and Daryl Purcell

12.01.09

P 38

Graham George YEEND

Real estate salesman who dealt with Daryl Purcell re purchase of house at Aberfoyle Park

30.03.03

P 39
P 40

Geoffrey Roy MITCHELL
Phillip John MIDDLETON

) Financial advisers to
) Bernadette Liston

08.01.03
02.01.03

P 41

Clarissa Ranee FALCKE

Personal Assistant to
Serafina Donnarumma

12.01.03

P 42

Heather Joy GOODLIFFE

Financial investigator with Bendigo-Adelaide Bank

09.01.09

P 43

Karen Jane SMITH

Forensic Accountant

26.05.10

P 44

Stephen William TULLY

Police officer and Crime Scene Investigator who took photographs of forensic examination of Daryl Purcell and the accused.

02.01.09

P 45

Teresa Marie HEATH

Police officer who took photographs of hands of accused.

20.08.07

P 46

Dr Ernest Leslie FLOCK

Medical practitioner who conducted forensic examination of accused.

10.05.05

P 47

Clive Tauber VERNIS

Ambulance officer

31.10.02

P 48

Jessica Kate ADAMSON and Channel 7 video footage

Reporter employed by Channel 7

21.06.10

P 49

Matthew David BUCK

Police Officer who collected accused’s car at 5.15 pm on 26.10.02 and delivered it to Sergeant Hackett for examination.

27.10.02

P 50

Graham William PHILP

Police officer stationed at Victor Harbor who received emergency call at about 3.30 pm on 25.10.02 and later assisted with collecting statements.

04.11.10

P 51

Bruce Arthur WATKINS

Police Officer – Forward commander at crime scene

06.11.02

P 52

David Eric JOHNSON and video footage taken at the scene

Detective Brevet Sergeant who made observations at crime scene and prevented accused from entering front door of house at 27 Ives Crescent. He also took part in the collection of firearms from Paul Childs’ house on 14.11.02.

19.03.09

P 63

Donna Elaine LANG

Friend of Michelle Marshall who was living with her in 2002. She recalled the accused speaking with Michelle about sexual abuse.

08.08.05

P 64

David Anthony LISTON

Son of Bernadette Liston – re return of some of his mother’s property

21.06.10

P 65

Brenton John SMITH

Police officer involved in search of records.

23.06.10

P 66

Troy Adam PURCELL

Son of Daryl Purcell – re whereabouts of Daryl Purcell on day of murder
(2 statements)

15.02.04
and
27.05.10

P 67

Robert Theodore NOACK

Police Officer and fingerprint expert
(2 statements)

28.10.02
and
12.09.07

P 68

Mark Ronald McEACHERN

Detective Sergeant who searched the accused’s premises on 22.08.08 and collected shoes for comparison
(2 statements)

15.02.09
and
01.06.10

P 69

Mark Scott WILLIAMS

Detective Brevet Sergeant who attended the crime scene and later collected the guns from Paul Childs’ property. (2 statements)

19.03.09
and
31.05.10

P 70

David Eric JOHNSON

Detective Brevet Sergeant (NB Seems to be same statement as P52)

19.03.09

P 71

Julie-Anne Michelle HENRY

Forensic scientist

17.03.09

Agreed facts

At the conclusion of the prosecution case, the following facts were agreed:
1.The single hair taken from Bernadette Liston’s left hand (BL1) was tested for mitochondrial DNA.
Nuclear DNA is present in the cell nucleus. It is difficult to extract nuclear DNA from hair. Mitochondrial DNA is present in the mitochondrion, the component of a cell responsible for its energy production. Mitochondrial DNA is inherited solely through the maternal line. That means that mothers, and their children, and the full siblings of both mother and child and maternal cousins and so on, will have the same mitochondrial patterns. Such patterns cannot be distinguished from each other, as is possible with nuclear DNA profiles.
That lack of a distinguishing character, the absence of uniqueness, has a number of consequences. On the one hand, it reduces the capacity for database comparison and consequent statistical evaluation. On the other hand, mitochondrial DNA is present in much higher numbers of copies than nuclear DNA. There is thus a larger amount of starting material in cells.
Dr Dadna Hartman (a forensic scientist), tested that single hair from BL1 for mitochondrial DNA and then compared that mitochondrial DNA against a sample of hair taken from the accused. Dr Hartman concluded that single hair cannot be excluded as originating from the accused or a maternal relative of the accused.
2.Trevor John Bignall lived in the granny flat at the rear of the Clarendon property at Baker Gully Road.
Trevor John Bignall had a shotgun registered to him from 1982. Records show the status of the shotgun is unknown.
Accused does not give evidence
At the conclusion of the prosecution case the accused elected not to give evidence nor call any witnesses in her defence. I should make it clear that the accused was not obliged to give evidence. She was entitled to refrain from giving evidence and to rely upon the failure by the prosecution to prove the case against her beyond reasonable doubt. As that was her right, no adverse inference can or should be drawn against the accused as a result of exercising the right given to her by law.
Credibility of witnesses
In the course of the trial it was necessary to carefully assess the evidence of each of the witnesses. I will refer to certain aspects of the evidence of some of those witnesses in due course but in my opinion each of the witnesses did the best he or she could to give truthful evidence. However, apart from the expert witnesses and police officers, who had the benefit of refreshing their memories from contemporaneous notes, the majority of witnesses laboured under the difficulty of giving evidence about events which occurred many years ago.
Bernadette Liston died on 25 October 2002 but the accused was not charged with her murder until 22 August 2008. The trial eventually commenced on 8 June 2010. In the course of the trial many of the witnesses were cross-examined as to inconsistencies between statements made to the police (many of which seem to have been taken two or three years after Bernadette’s death) and the evidence that they gave in Court.
Whilst in such a situation some inconsistencies are to be expected, it has been necessary for me to take them into account when assessing the reliability of the evidence given at the trial.
Statements to police
In the course of the investigation into Bernadette Liston’s death, the accused participated in a number of interviews with the police. They are discussed later in these reasons. The accused was eventually arrested on 22 August 2008, and charged with the murder of Bernadette Liston. At that time she exercised her right to silence and made no further comment about the matter. That also was her legal right and I draw no adverse inference against the accused because after her arrest she exercised the right to decline to answer questions of the police.
Background
Bernadette Liston
Bernadette Liston was born on 5 September 1956. She was 46 at the time of her death. She had three sisters, each of whom gave evidence at the trial. They are Margaret Anne Meer, Rosemary Anne Beattie and Christina Ann Liston. She also had two brothers, Richard and Terry, and Richard gave brief evidence at the trial. At some stage, Bernadette formed a relationship with a man called Ray Baines. She had two children of that relationship, namely David Liston, who was born on 1 February 1975 and Alicia Margaret Liston, who was born on 15 April 1976. There is no evidence as to when Bernadette Liston and Ray Baines separated, although David Liston thought that he was quite young at the time.
In the late 1980s, Bernadette formed a relationship with Paul Childs and they resided together until the early 1990s. They had two children, namely Andrew Liston, who was born on 31 March 1988 and Jennifer Liston, who was born on 5 January 1990. Paul Childs described the relationship as having some problems. He said that it was “a bit of an on and off relationship”. Bernadette’s sister, Christina, recalled that there had been some violence in the relationship and believed there had been an occasion on which Paul Childs had threatened Bernadette with a knife. She also referred to an incident with a gun, which she understood had some kind of light attached to it, which after separation Mr Childs would shine through the curtains and make patterns on the inside of Bernadette’s house.
Andrew suffered a near-drowning accident when he was about two and a half years old and was treated at the Women’s & Children’s Hospital. After Andrew came home from hospital, which appears to have been some time in 1993, Mr Childs and Bernadette went their separate ways.
Andrew eventually died on 8 June 1995. As a result of the injuries received in his accident, he had received an award in an amount in excess of $3 million. After his death, an agreement was reached whereby Paul Childs and Bernadette Liston divided the balance of that award between them. As a result of that agreement, Bernadette received a sum of about $1.4 million. The bulk of that money was invested. At the time of her death she had investments totalling about $1.3 million in a mix of cash, fixed interest, equity-based managed funds, Australian and international equities, infrastructure and property.[1] Mr Middleton was Bernadette’s financial adviser and he described her as being very generous with her money. He said:
When I first met Bernadette she was completely naïve at the start in respect of financial matters. She picked it up quickly though, and would feign naivety only if it suited her. The only real rental property is at Aberfoyle Park, the house bought for her son who died. Bernadette had quite an attachment to that house, which is rented out to a friend of Bernadette’s who was quite needy. Her friend didn’t have a house, so Bernadette let her live in that house. Bernadette didn’t mind that they weren’t paying the full rent because they were looking after her house for her. From information Bernadette gave to me, she had herself been needy all of her life. She’s never had any money and that’s why she was so generous and liked to help others. When Bernadette came into all of this money, she didn’t even want it, because she thought it was “blood money”.
[1] Statement of Philip John Middleton - Exhibit P40.
Mr Middleton also referred to the purchase by Bernadette of two properties in trust, one for her son David and another for her daughter Alicia as well as arrangements she was making for an investment fund for the other children as well.
There was evidence given at the trial that Alicia had some personal difficulties and problems with drugs and money. Bernadette would frequently give Alicia cash and also buy various items for her, such as food. On one occasion she purchased a car for her.

There was also evidence that the house which Bernadette had purchased for Alicia was broken into and trashed after Alicia moved out. Alicia Liston said in evidence that had been done by hooligans who were on drugs. There was also an occasion when the words “You are dead” were scratched on the front door. Alicia said her ex-boyfriend, George Savutakis did that. George Savutakis gave evidence at the trial and denied that was so but said he was aware of the threat carved on the door. He said that Alicia had problems with alcohol and behaved erratically when drinking or on drugs.
Notwithstanding these problems, Bernadette maintained a relationship with her daughter and tried to look after her. On the day before her death, Bernadette expressed concerns about Alicia to Paul and Leah Childs at the bowling club, as she had not seen Alicia for some time. She also visited Alicia’s boyfriend, David Newton at his place of employment and asked him to give a letter to Alicia, asking Alicia to contact her.
Bernadette’s friend, Sue Jalleh, referred to an occasion when Bernadette advanced her $1,000 to get her car fixed and another in about 2001 when Bernadette loaned her $10,000 to purchase a new car. She said the payment of $10,000 was made in cash.
Bernadette Liston worked as a child care worker for about 16 years and I am satisfied that she was a good mother who was devoted to all her children and was kind and generous to her friends.
The acrimony between Bernadette Liston and Paul Childs appears to have dissipated with the passage of time, possibly coinciding with Mr Childs entering into a relationship with his present partner, Leah, in about 1995. At the time of Bernadette’s death, Paul and Leah Childs were Bernadette’s friends and there was regular contact between them as part of a weekly bowling group. In addition, Jennifer had regular fortnightly access visits with her father.
The accused: “Frankie” Marshall
The accused who is known as “Frankie” was born on 28 January 1947. There is a limited amount of information available as to the accused’s early years, but it appears she had some siblings who included her brothers Keith and Daryl Purcell. Daryl Purcell said in evidence that the accused had acquired the name Marshall as a result of a marriage but there are no details about that. When the accused was aged 16, she had a child, Michelle Marshall, who was born on 4 November 1963. The accused told police that after she gave birth to Michelle, she met other homosexual people:[2]
… and then realised that I wasn’t the only strange person in the world … there were other people like me, I didn’t have to live my life for other people, I could actually be myself.
[2] Exhibit P57B, p 52.
Michelle was adopted by the accused’s parents and was brought up by them until she was about eight and a half years old. Michelle was about six or seven years younger than Daryl and was essentially brought up as his sister.
At some stage, the accused entered into a relationship with a woman called Anne Marshall (formerly Harvey), who appears to have been the mother of Jason Aaron Marshall, Shane Donald Francis and Sonja Maxine Willmott, each of whom gave evidence at the trial.
The accused told police she did not have a good relationship with Shane, who had only lived briefly with her and his mother.[3] It seems that Anne Marshall eventually died of cancer. The accused later formed a relationship with Robyn Sheridan and they adopted a child, Nathan, who was born in about 1992. Nathan, like Andrew Liston, was involved in a swimming pool accident when he was aged about three years and he also was treated at the Women’s & Children’s Hospital. This is where the accused met Bernadette Liston.
[3] Edhibit P57B, p 64.
The accused told the police that Nathan died on 23 August 1995. She said that her relationship with Ms Sheridan had broken down some time before that and they eventually separated a few weeks after his death. Some time thereafter, the accused went to live with Bernadette Liston at her house at Aberfoyle Park. In 1997 they moved to a house property at Clarendon which David Liston described as being “like a homestead property”. At that stage, David and Alicia had both moved out and it was only Jennifer who moved to Clarendon with Bernadette and the accused.
In about December 2001, Bernadette and the accused moved to 27 Ives Crescent, Victor Harbor, which is where Bernadette was living at the date of her death.
Birth of Rebekah Liston
Daryl Purcell, who is the brother of the accused, first met Bernadette in about 1996 when she was living with the accused at Clarendon. The accused told the police[4] that she and Bernadette had talked about having another child because they had both lost a little boy and Bernadette wanted the child to be part of the accused biologically. She said they initially approached the accused’s brother, Keith, and with his help endeavoured to undertake an artificial insemination procedure. When that did not work, the accused spoke to her brother Daryl and explained to him what they wanted to do. She said she told him that there would be no moral or legal obligations and Daryl agreed to the proposal.[5] This is consistent with the evidence of Daryl Purcell, who said that he understood he was chosen because of something to do with the family line and at that stage he thought all that was required was to assist conception. He said that before Rebekah was conceived, he had sexual intercourse with Bernadette Liston four or five times. Rebekah was born on 4 July 1998.
[4] Exhibit P57B, p 33.
[5] Exhibit P57B, p 35.
The murder of Bernadette Liston
Bernadette Liston was murdered on Friday, 25 October 2002. Her body was discovered by her daughter, Jennifer, and Leah Childs at about 3.30 pm when Jennifer returned home from school. At that time no-one else was in the house except for Leah Childs’ two sons. The accused arrived home a short time thereafter by which time the police were there. The accused had Rebekah with her. She told the police that she had left the house at about 9.30 am and had taken Rebekah with her on her fortnightly visit to the Munno Para Cemetery.
Crime scene evidence
Sergeant Hackett:
Sergeant Hackett attended at 27 Ives Crescent, Victor Harbor at 6.11 pm on the evening of Friday, 25 October 2002. His examination of the premises included the preparation of a sketch map[6] and the taking of photographs.[7]   Bernadette Liston’s body was located in the room referred to as “office” or “study” in the course of evidence.
[6]    Exhibit P4.
[7]    Exhibit P3.
Shoe marks
Sergeant Hackett observed a number of shoe marks which appeared to be the result of contact with blood. There were a number of them in the office adjacent to the body and also the safe. Others led from the office down the hallway to the kitchen and part way back, cutting out in the hallway. The shoe prints and their direction are marked on Exhibit P4. Sergeant Hackett described all the prints as having a similar sole pattern which was basically linear. They appeared to be from a left foot only. Exhibit P10 is a life-size photograph of one of the footprints in the main bedroom of the house. The space between the footprints indicated that the movement of the maker of them was fairly regular and constant. They lessened in intensity as they left the office and returned. Sergeant Hackett said they appeared to have been made by a shoe with a continuous sole with no heel or toe as such. The deceased’s shoes had a linear pattern, but were distinguishable from the bloody footprints by having a heel and a finer linear pattern.
Sergeant Hackett later eliminated the footwear of other persons at the premises, namely Leah Childs, Jennifer Liston and Iris Redwood, as well as police and ambulance officers. He also checked shoes located in the house but none of those appeared to match. He subsequently made enquiries to establish the nature of the material from which the sole had been made. He spoke to a number of footwear manufacturers, which included Mr Bohutinsky of Regal Footwear, following which he identified material which he considered was consistent with the sole print he located in the house. Mr Bohutinsky, together with Rodney Cornelius and Richard Russell, who are footwear experts, gave evidence at the trial. Each of them identified the sole print in Exhibit P10 as a 304LL sole from an ugg boot.
As a result of that evidence, I am satisfied that the killer of Bernadette Liston was wearing ugg boots with a 304LL sole at the time of the murder. According to Sergeant Hackett, the size of the print was a man’s size 6, which equated to a woman’s size 6 and a half or 7. None of the experts was able to express an opinion as to the age of the boot, as that depended on where and how often it had been worn
Other observations at the house
Sergeant Hackett examined the rest of the house for blood and said that the plug hole in the wash basin of the en suite bathroom and the shower floor produced positive results with respect to the presumptive test for blood.
Sergeant Hackett said that the house showed no signs of recent forced entry, but conceded that the premises were not secure, as the doors at the rear of the premises, although closed, were not locked. Leah Childs said in evidence that when she arrived at the house, the wooden and screen doors of the front of the house were closed but unlocked, which was not unusual. When she walked through the house, the rest of the doors were also unlocked. Sergeant Hackett said he did not observe any signs of disturbance in the house, other than in the room in which the body was located. The chest of drawers in the bedroom was undisturbed and no jewellery had been removed from the deceased’s person. There was a black handbag upturned on the floor, but no money was found in the wallet.
Sergeant Hackett located a bent knife[8] next to the deceased and said it appeared to match the knife block[9] in the kitchen. He also located a metal plate which appeared to be a lid to the safe located in the corner of the office[10], but there was no sign that the safe itself had been tampered with. He said hairs were visible in the hands of the deceased. In addition, there was a clump of hair on the ground to the right of the deceased near the desk.[11]   Hair was also located at the top of the rubbish bin near to the entry to the office.[12]   He said they appeared to be reddish in colour. He also located a live projectile on the ground adjacent to the body[13] and a spent projectile underneath the desk.[14]
[8]    Exhibit P7.
[9]    Exhibit P8.
[10] Exhibit P9.
[11] Photograph 28 of Exhibit P3.
[12] Photograph 32 of Exhibit P3.
[13] Photograph 27 of Exhibit P3.
[14] Photographs 28 and 29 of Exhibit P3.
Examination of the accused’s car
On the day following the murder, that is, Saturday, 26 October 2002 at about 5.15 pm, the accused’s car was collected and delivered to Sergeant Hackett for examination.[15] He did not see the car on the day of the murder. At the examination there was no sign of a child seat in the car but a drink bottle and an ice cream container were located on the back seat.[16] He described the vehicle as clean, but said it did not appear to have been recently washed. No blood was detected in the car.
[15] Photographs 83, 84, 85, 86, 87, 88 and 89 of Exhibit P3.
[16] Photographs 86 and 87 of Exhibit P3.
Bloodstains
Senior Sergeant Brown is in charge of the Forensic Response Section of SAPOL. In the course of her employment she has participated in various courses and has undertaken training including the interpretation of bloodstains. I accept her as an expert in this area. She attended at the premises at 27 Ives Crescent, Victor Harbor at about 12.15 pm on Saturday, 26 October 2002 and examined areas of blood staining in the room in which the deceased’s body was located. In the course of her evidence she produced a bundle of 31 photographs[17] taken as part of her examination of those premises. She described a number of different forms of blood stains in the room. Projected stains are those that have been propelled or released as a result of some force in addition to gravity and are typically elliptical in shape. Other stains were described as impact spatter, which meant that liquid blood had been subjected to some force which resulted in the blood stain dispersion. Transfer staining occurs when wet blood comes into contact with another surface. For example, the smeared blood stains in Photographs 22 and 23 of Exhibit P15 were primarily transfer stains and had the consistency of having been made by blood-stained fingers. Senior Sergeant Brown also described other stains as passive, which were consistent with having been formed by gravity.
[17] Exhibit P15.
It is unnecessary to canvass this evidence in detail as the evidence of Senior Sergeant Brown and the conclusions she reached were not disputed. Senior Sergeant Brown concluded that the original assault could have occurred anywhere:
… until there is a blood-shedding event and from that it would appear that the blood source had been – the source of blood had been upright and standing or leaning over the first of the three modular units near the entrance to the room.
She said that:
The blood source has touched the hand piece of the telephone which has then found its way to the floor and then there have been further blood-shedding events which has resulted in the impact spatter on the hand piece and on the telephone handset. The blood source has been then moved around the room, across the desk area, resulting in a number of impacts and has finally resulted in the area of the saturated blood stain on the floor.
As a result of her examination of the blood stains, Senior Sergeant Brown believed that the substantial assault had taken place while Bernadette Liston was on the floor.
The post mortem examination
Dr Gilbert attended at the premises at 27 Ives Crescent, Victor Harbor at about 8.00 pm on 25 October 2002. He saw the body of the deceased in situ and he noted extensive blood spatter in the vicinity of the body. He conducted a preliminary examination at the scene and noted severe and extensive scalp lacerations, together with a stab wound and gunshot wounds on her back. He also observed clumps of hair sticking to the fingers of both hands of the deceased.
Dr Gilbert conducted a post mortem examination commencing at midnight on 25 October 2002, which was completed at about 5.00 am on 26 October 2002. In the course of that examination he prepared a body chart depicting 43 injuries which had been inflicted on Bernadette Liston.[18] The numbering on the chart does not, however, reflect any opinion as to the order in which the injuries were inflicted. Dr Gilbert also took a number of photographs.[19]
[18] Exhibit P16.
[19] Exhibit P17.
The injuries observed by Dr Gilbert can be divided into four categories.
Gunshot wounds
Dr Gilbert identified five gunshot wounds, which are numbered 1 to 5 on Exhibit P16. Number 1 was to the region of the right eye over the outer end of the eyebrow and the projectile was lodged in the back of the eye socket, but did not cause any penetration to the eye or brain. The second was to the mid-back, passing through the muscles around the spine. The projectile was located against the vertebra without having caused any fracture to the vertebra. The third projectile entered the back of the right shoulder and stopped in the outer wall of the right armpit. The fourth gunshot wound was to the back of the head in the right occipital region. Dr Gilbert could not identify the entry wound for the fifth gunshot, which was either obscured or incorporated in the extensive laceration on the left side of the scalp, but the projectile was located towards the top of the head, on the right side close to the midline.
Dr Gilbert referred to another injury, namely number 31 on Exhibit P16. When he conducted the post mortem, he thought that this resembled a gunshot wound but he was not quite sure about that. Later, after learning that a projectile had been found at the scene, he concluded that injury 31 was in all likelihood a gunshot wound from which the projectile had fallen. That meant that there were six gunshot wounds in all. He said that the gunshots appeared to have been fired at close range but there was no skull fracture or brain injury associated with any of the shots fired at the head or head area. They were not life threatening. In Dr Gilbert’s opinion the only result of the injuries caused by the gunshots would have been pain and a bit of bleeding but not much else. He thought that the nature and appearance of the wounds suggested that:
There is something abnormal about the gun, because these projectiles were only making very superficial penetrations into the body and doing far less damage than one would normally expect.
Lacerations and skull fractures
Dr Gilbert noted that there were a large number of scalp injuries. Injury number 6 on Exhibit P16 was:
… a large area of convoluted lacerations; in other words, multiple lacerations all intersecting each other and causing a large area of damage over the left rear of the scalp, over an area of 18 cm by 12 cm and exposing the underlying scalp.
Dr Gilbert considered the force involved to inflict these lacerations and underlying fractures was moderate to severe. The fractures were consistent with at least six blows having been administered but there could have been considerably more. Dr Gilbert was shown the metal plate[20] which was located at the scene and he said that was consistent with an item that might have been used to deliver those blows.
[20] Exhibit P9.
Injury number 7 was a 7 cm x 5 cm lacerated wound involving the left lateral aspect of the forehead and extending on to the left upper cheek. It was associated with fractures of the outer and lower walls of the left eye socket and the left cheekbone. That injury is shown in photograph number 17 of Exhibit P17. Dr Gilbert thought that moderate to severe force would have been required to cause that injury.
Injuries numbered 8 to 24 consisted of lacerations to the head and face area, which appeared to be consistent with having been inflicted by the metal plate. He thought injuries 22, 23 and 24 could have been caused by one blow. Injury 25 consisted of peri-orbital bruising around both eye sockets with swelling but was more marked on the left side because of its association with injury number 7. He thought that the bruising on the right side had been contributed to by a gunshot wound.
Injury number 26 was a 2 centimetre abrasion of the right cheek with no associated bruising and Dr Gilbert said that that could have been a post mortem injury, which was possibly carpet burn.
Knife wounds
There were two incised parallel wounds across the front of the neck which are numbered 27 and 28 on the chart.
Dr Gilbert said injury number 27 was quite deep and cut through muscles of the front of the neck into the airway just above the larynx. That was consistent with having been caused by the knife.[21] Dr Gilbert thought that at least five strokes of a knife had been used to produce the entire injury.
[21] Exhibit P7.
Injury number 28 was below injury 27 and Dr Gilbert described that as simpler. He said it was:
… a more superficial injury going to a total depth of 2 cm into the fat layer beneath the skin and superficially into the strap muscles over the side of the neck.
It did not involve any vital structures and was not life-threatening.
In addition to the injuries to the neck there was a stab wound to the midline of the upper back, which he numbered 29. Dr Gilbert said that the knife used to inflict this wound had encountered the back of the right fourth rib. The rib at the end of the injury was cracked longitudinally. In Dr Gilbert’s opinion “a fair bit of force” would have been required for that to occur. He thought that the further progress of the knife had been arrested by the rib, so it did not penetrate the chest cavity and that was consistent with the bending of the knife. Injury 30 consisted of three superficial punctures over the upper back to the left and right of injury 29, which could have been caused by the tip of the knife blade.
Defence injuries

Injuries 32 to 43 consisted of injuries to the hands of the deceased. Dr Gilbert said that the hands had numerous lacerations, scattered abrasions and bruising and the overall pattern of injury to both hands indicated blunt trauma. Some of the injuries were associated with fractures of the fingers. Dr Gilbert considered that these consisted of defence injuries incurred when trying to protect the head from blunt trauma and were indicative of a very vigorous defence. They also showed that Bernadette Liston was conscious for at least the first part of the assault.
Cause of death
Dr Gilbert concluded that the cause of death was blood loss due to the scalp lacerations and the incised wounds of the neck. Dr Gilbert said:
… the six gunshot wounds … remarkably … never contributed to the death in any meaningful way, nor has the stab wound to the upper back.
Time of death
Dr Gilbert estimated the time of death as being at about 9.30 am but said that this estimate was “quite rubbery” and it could have been three hours on either side of the central time of 9.30 am. He calculated a 95 per cent probability of the time of death being within that six hour period which he described as representing a bell-shaped curve with 9.30 am being at the apex. However, in view of the evidence of Jennifer Liston that she left for school at about 8.30 am and everything was normal, it is clear that the death did not occur any earlier than 8.30 am.
Injuries to the accused
Dr Gilbert was shown Exhibit P18 which consists of seven photographs taken of the accused and her hands. Dr Gilbert did not personally examine the accused’s hands but he had been shown the photographs at an earlier date. He said that photograph number 2 showed swelling of the back of the left hand and some small injuries around the base of the left thumb. In photographs 3 and 4 the injuries at the base of the thumb are more clearly seen. Dr Gilbert thought they appeared to be fairly recent, that is within a couple of days, as there was not much scabbing around them. They could have been caused by a glancing injury from an object with a rough surface.
There did not appear to be any bruising. He said if the larger of the two injuries was an incised wound, it might be from a sharp object such as a knife, or some other object with a sharp edge. There was swelling to the back of the left hand, which was a little darker in colour than the right hand, probably due to underlying bruising. There was evidence that the accused had punched the wall of the house when she was told about Bernadette’s death and also punched another wall and the side of a shed the next day. Dr Gilbert was asked whether the injuries to the accused’s hands could have been caused by doing that. Dr Gilbert said:
A.The bruising on the back of the hand, possibly. The abrasive injuries over the base of the thumb, it would be a little unusual. It’s hard to see how the base of the thumb would necessarily be damaged if one was to punch a wall in the usual fashion, unless it was a glancing blow to the wall and that it scraped over the base of the thumb.
Q.If a wall was punched in what you describe as the usual fashion, what injuries might one expect to see associated with the hand typically.
A.If it’s straight into an untreated brick wall one would usually expect to see abrasions, possibly lacerations and certainly bruising, particularly over the knuckles of the hands.
Q.Again, would that depend on the amount of force used.
A.Yes, and the nature of the surface, whether it’s, you know, a plastered wall or just bare bricks.
Q.And are any of those sorts of abrasions or lacerations visible in those photographs.
A. No, but I wouldn’t exclude the possibility, if a less than forceful blow was directed at a wall and ended up with bruising, one would have to concede that possibility, but if a forceful blow was administered against a brick wall one would expect to see at least some minor sign of injury over the knuckles, which aren’t present here.
In cross-examination Dr Gilbert was asked to comment on the possibility that the abrasion seen to the left thumb in photographs 4, 5 and 6 could have been caused by the fingernail of the index finger gouging into the base of the thumb if there was a closed impact with a wall or door or something like that. He conceded that was a potential explanation for the shelved larger injuries.
The prosecution case
As I said earlier, the prosecution case against the accused is entirely circumstantial. Mr Norman, counsel for the Director of Public Prosecutions, referred to the following items of evidence as providing circumstantial evidence implicating the accused in this crime:
·Motive;
·Ugg boots;
·Firearms;
·Hair evidence;
·Arrangements with respect to Rebekah;
·Injuries to the accused’s hands;
·The alibi evidence;
·Aspects of the crime scene evidence.
Mr Norman also submitted that the accused had told deliberate lies about a number of significant matters such as her knowledge of the impending break-up of her relationship with Bernadette Liston, her ownership/possession of ugg boots and firearms, how or when she obtained information about the alleged sexual molestation of her daughter Michelle by Daryl Purcell and where she was at the relevant time.
On the prosecution case the lies told by the accused were motivated by a realisation that if she told the truth it would implicate her in Bernadette’s death. Those lies thereby strengthened the case against the accused.
Defence case
The accused was interviewed by the police on six occasions between the date of the murder and her eventual arrest on 22 August 2008. Those interviews took place on:
26 October 2002 (Exhibits P56A and P56B);
22 November 2002 (Exhibits P57A and P57B);
12 January 2005 (Exhibit P59).
This interview took place in the course of what was described as a road trip in which the police endeavoured to retrace the route taken by the accused on the day of the murder.
10 February 2005 (Exhibits P60A and P60B);
21 February 2007 (Exhibits P61A and P61B);
6 March 2007 (Exhibits P62A and P62B).
This was a fairly short interview which took place in the course of a search of the premises where the accused was then living.
The accused has consistently denied any involvement in Bernadette Liston’s death. On her account, the morning of 25 October 2002 was no different from any other. She said that Bernadette got up at about 7.00 am or 7.15 am and she got up at about 7.40 am. It was the accused’s practice to pay fortnightly visits to the cemetery where her son, father and brother were buried and this was her day to do that. She said Jennifer left for school at about 8.20 am and she thought that she herself left home at about 9.30 am. She said she got to the cemetery at about 11.20 am. This was not the accused’s day to look after Rebekah but she said that Rebekah went with her at Bernadette’s suggestion. The accused initially said that suggestion was made on the Friday morning at about 8.00 am, although in later interviews she said that the arrangement might have been made the night before and the prosecution relies on these conflicting accounts as evidence of lies. She said that when she left, Bernadette was in the kitchen and Rebekah said goodbye and gave her mother a kiss and couldn’t get out to the car quick enough because she was “going tatas in the car”.[22] She said her car was parked out the front and she drove off immediately after putting Rebekah in the car.
[22] Exhibit P6B, p 47.
On the way back at about 2.30 pm she collected her mother from Resthaven at Marion. She said that she was on the Victor Road on the way home when she received a phone call from Paul Childs, who was due to collect Jennifer that weekend for an access visit. Paul Childs told her that he had had a fight with his partner, Leah, and kicked her out and he wanted the accused to tell Bernadette that Jennifer’s access visit for that weekend was cancelled. Shortly after that, the accused received a phone call from Leah Childs who said the accused needed to come home quickly as something bad had happened. The accused told the police that she thought that Leah was talking about the argument with Paul Childs. She said that in the course of the trip Rebekah had thrown up in the car but otherwise there was nothing unusual on the journey.
When the accused arrived home the police and ambulance were already there. Leah Childs said the accused pulled her car up on the front lawn and jumped out and wanted to know what was going on. Leah told the accused that Bernadette was dead, whereupon the accused screamed “No, no”, and punched the front wall near the door.
On the prosecution case, the accused deliberately punched the wall to cover up for the injury to her hand incurred in the assault on Bernadette Liston earlier that day. The prosecution maintains that the accused had discovered that Bernadette Liston was about to leave her and establish a home with the accused’s brother, Daryl Purcell, and the thought of losing everything, that is, her partner, her daughter and her lifestyle, provided the motive for the commission of this crime.
Motive
Motive is not an element of the offence of murder. The prosecution does not have to establish a motive for this crime. Nevertheless, in this case it is an important piece of circumstantial evidence which I must take into account when considering the case against the accused. It is therefore necessary to carefully examine the evidence which relates to the relationship between Daryl Purcell and Bernadette Liston.
The relationship between Daryl Purcell and Bernadette Liston
Daryl Purcell said that he developed feelings for Bernadette in the course of having the sexual relationship to conceive a child. Eventually, he told Bernadette that he was in love with her. He said he used to go to Clarendon nearly every weekend to see Bernadette and after Rebekah’s birth, to see her as well. He said that after Rebekah’s birth he continued to have regular sexual intercourse with Bernadette, apart from a period of about a month when Bernadette was living at Clarendon. He said that came about because he thought the situation was getting a bit hard and he needed to have a break. He resumed contact, however, after Rebekah was injured in a scalding accident. He said thereafter he and Bernadette resumed having sexual intercourse whenever they had a chance. That continued until just before her death. He thought Bernadette had miscarried before Rebekah was born and again when Rebekah was about two years old. He said that on the latter occasion when Bernadette discovered she was pregnant, she gave him the pregnancy strip and he had kept that for about three or four years.
Mr Purcell said that in about August 2001 he opened a joint account with Bernadette at Glenelg.[23] He said that although there was not a lot of money put in to the account, it was intended as savings for their future.
[23] Bank statements in relation to this account are attached to the statement of Anthony van Rhoda – Exhibit P37.
Mr Boucaut for the accused suggested that this account was simply a savings account which had been established so that items for Rebekah could be purchased from time to time, but Daryl Purcell denied that was so. He said he put whatever he could into the account and Bernadette would match it dollar for dollar. When he put money in, he would let Bernadette know and she would send him down some money to bank in the account. He said that they were going to be together eventually and they planned to marry in March 2006. Bernadette did not explain to him why she chose a date so far ahead. She just said she needed to sort things out so her life wasn’t so complicated.
Mr Purcell said that as part of their prospective marriage plans, at the beginning of 2002, Bernadette came up with the idea of buying a property together. As a result of this he applied to Aussie Home Loans. He said Aberfoyle Park was chosen as Bernadette liked that area as she had lived there before. He said that he arranged a loan of $160,000 through Aussie Home Loans and Bernadette was going to contribute $80,000. He said that when he first applied for the loan it was to be in both names but Bernadette subsequently asked him to take her name off the application and have it in his name alone because she did not want the accused to find out about it.
When cross-examined by Mr Boucaut about his relationship with Bernadette, Mr Purcell agreed that not long after Rebekah’s birth, everyone knew that he was the biological father. Mr Purcell said that the accused was not keen on him having regular contact but she went along with it, although she appeared concerned he was getting too close to Rebekah. He said that initially his relationship with Bernadette was just an affair, but when Rebekah was about one and a half, he and Bernadette started talking about setting up house together, and the plan was for Rebekah and Jennifer both to come to live with him and Bernadette. As far as he was aware, the affair with Bernadette remained a secret, although it seems his daughter, Sallyanne, worked out what was going on.
Although Mr Purcell maintained he and Bernadette had sexual intercourse as often as they could, he agreed that after Bernadette moved to Victor Harbor there were only about three or four occasions as he was then living at Salisbury and that was some distance away.
In the interview with the police on 26 October 2002 the accused agreed that Daryl was in love with Bernadette and that his dream would be for her and Bernadette to split up, but she maintained that to her knowledge he had never had a relationship with Bernadette, although he had made advances to her. In the interview on 22 November 2002 the accused said she did not know anything about the Glenelg bank account nor was she aware of any plan for Daryl and Bernadette to buy a house together.
Mr Purcell’s evidence as to the nature of his relationship with Bernadette Liston, however, gains support from his daughter, Sallyanne Warren. She said that she had seen her father behave in an affectionate manner towards Bernadette on many occasions. She thought it was obvious that Bernadette reciprocated Daryl’s feelings and anyone could see they were flirting. She said that she personally knew that Daryl and Bernadette contacted each other by phone and she once saw a text message which said, “I need you, I need to feel like a real woman again”. Ms Warren was also aware that her father was looking for a house to purchase in Aberfoyle Park. She knew that her father could not afford to buy a house by himself and she drew her own conclusion. She asked her father if it was Bernadette with whom he was buying the house and her father admitted that was the case. She knew about the joint bank account and said it was:
… a bank account for them to have together, that whatever money dad was putting in to it, she was always putting money into it as well, the same amount.
Ms Warren said that her father had told her that the reason for the account was that Bernadette was sick of people using her for money and he wanted to prove to her that he wasn’t doing that. She thought that this had occurred before Rebekah was born and that the account was not set up for Rebekah.
Jennifer Liston also supports the evidence of Daryl Purcell that Bernadette was planning to leave the accused. She said that a couple of months before her mother died, Bernadette had a conversation in the car with her about moving in with Daryl. Bernadette told Jennifer that everything was a bit too much and they were going to move at some point. She did not go into details, but said she did not want to clean up after everybody any more and cook home meals every night. She said that when they moved out, Jennifer would have to help out as Bernadette had some problem with her back. Jennifer could only recall one conversation about this and her mother told her not to tell anyone about it.
Events in the week preceding Bernadette’s death
That brings me to the week preceding Bernadette Liston’s death.
Mr Donnarumma was an Aussie Home Loans mortgage adviser in 2002 and his personal assistant was Clarissa Falcke. Ms Falcke confirmed that Daryl Purcell had signed a deal on 26 September 2002 with Mr Donnarumma for a $160,000 loan to purchase a home, which was subsequently approved. She said that on 11 October 2002, she phoned Mr Purcell, who advised her that he was still looking for a house and he was going to look at some houses that weekend. She phoned again on Friday, 18 October 2002 and Mr Purcell advised her that he had put an offer in on a house and was going to sign an agreement for the house that day. He said he had paid for a valuation on the house, which was required by Aussie Home Loans to finalise the loan, and he was going to ring when he was ready to finalise the loan. On 21 October 2002, she phoned Mr Purcell again at which time he told her that he had decided against the house. On the morning of Friday, 25 October 2002, she had a further conversation with Mr Purcell, who said he was going to look at a house the following day.
At the relevant time, Mr Yeend was a real estate salesman. He said that on 2 September 2002 he listed a house at 2 Medina Street, Aberfoyle Park for sale. He subsequently spoke to Mr Purcell about that house on 12 October 2002. He said Mr Purcell made a verbal offer over the phone of $183,500 for the house, but the offer was subject to finance. On Friday, 18 October 2002, Mr Yeend attended at the house about 3.00 pm or 4.00 pm and was met by Mr Purcell, who signed a contract for the property. Mr Yeend said that after Mr Purcell signed the contract, he left the house. When Mr Yeend left the house a few minutes later, he saw Mr Purcell talking to a woman who was seated in a car. On Sunday, 20 October 2002 Mr Purcell rang Mr Yeend and told him he was not going to go through with the deal because something had come up, but he didn’t tell him what that was.
Mr Purcell in evidence confirmed that he signed a contract on a house at 2 Medina Street, Aberfoyle Park on 18 October 2002.[24] He said that Bernadette was with him at the house, although she had remained in the car. Mr Purcell said he subsequently withdrew his offer on 20 October 2002 partly because Bernadette had some reservations about the house and there was also some problem with the carport. Mr Purcell was due to visit Bernadette and Rebekah that weekend, but on the night of 18 October 2002 (being the date on which he made the offer), Bernadette rang him and told him not to come as the accused had found out about the house. Bernadette said she would be in contact with Mr Purcell in about a week’s time. Mr Purcell assumed that his daughter had told someone about the house purchase so after this conversation, he went to see his daughter, but she denied saying anything about it.
[24] Exhibit P24.
Mr Purcell said that on about 22 October 2002, he received a cheque from Bernadette for $30,000. The cheque[25] was dated 21 October 2002. Mr Purcell said that after receiving the cheque he had a further conversation with Bernadette, who told him to keep looking for a house.
[25] Exhibit P25.
Mr Middleton was Bernadette Liston’s financial adviser at the time and he said that on 16 October 2002, Bernadette Liston consulted him about taking some cash out of her portfolio without affecting the amount established for her monthly living expenses. He said that at that meeting she told him she needed between $60,000 and $80,000 for two reasons: one as her son David was getting married and she thought she needed about $20,000 for that and the second reason was that someone wanted to borrow between $40,000 and $60,000 from her. She did not give him any details. It appears, however, that on the same day as Bernadette wrote out the cheque for $30,000 to Daryl Purcell she wrote out a cheque in favour of the accused in the sum of $40,000.

The police asked the accused why Bernadette had paid her $40,000 in the week prior to her death. The accused said she needed some money to help her daughter, Michelle. As the accused’s money was tied up, Bernadette suggested she repay the accused for her interest in the house. The accused said she had put $32,000 into the house when they purchased it, but they agreed on the figure of $40,000 on the basis that the property had increased in value since then. The accused said she subsequently gave Michelle $10,000.[26] The balance was retained in an account of the accused.
[26] Exhibit P57B, p 9.
The accused maintained she had no knowledge of Bernadette and Daryl buying a house nor the money paid to Daryl. She said, however, that Bernadette might not have said anything to her about lending Daryl money for a house as Bernadette knew she had been unhappy about her lending money to other people in the past.
Evidence of Jason Marshall
Jason Marshall, the son of the accused’s former partner, said he told the accused about the house plans about a week before Bernadette’s death. At that time he was staying with a friend at Gawler West. His nephew, Nathan Francis, and Nathan’s wife Tamarra, were also there. Nathan worked with Daryl Purcell’s son, Troy, and Troy mentioned the house purchase to Nathan. Nathan told his wife, Tamarra, who then passed the information on to Jason. Jason said he initially wondered whether he should say anything but Tamarra said she would like to know if she was in that position. Jason then rang the accused and told her that there was a rumour going around that Bernadette and Daryl were getting a house together and that Daryl had already received some money. Jason said the accused responded that it was just that, a rumour, and not to listen to lies. Jason said that he spoke to the accused again later that night and the accused again said not to say anything outside the square because it would just cause a lot of riff-raff with the family. When asked what he meant by “outside the square”, Jason said:
Just basically not to talk Chinese whispers and make it into a big rumour that it might not have been, basically. Because if – whether it was true or not it, you know, might not have – she just didn’t want it to basically start a big fight between the family if it wasn’t true or – so it was just best to leave it and not say anything about it.
Mr Marshall said he did not get the impression that the accused was upset. She just said not to listen to rumours and she had other things on her mind at the time. He could not precisely remember when these calls were in relation to Bernadette’s death, as it was so long ago. However, the telephone records[27] show that Mr Marshall made a call to the accused at 1645 hrs on 18 October 2002, which lasted for 8 minutes and 49 seconds and a further call at 2115 hrs on the same date, that call lasting for 13 minutes and 13 seconds.
[27] Exhibit P55.
Tamarra Francis said that she had obtained this information about Daryl and Bernadette buying a house together from her husband, Nathan, who worked with Daryl’s son, Troy, and Troy had mentioned it to her husband.[28] She said she was present when Jason phoned the accused, the purpose of the call being to let the accused know that Bernadette and Daryl were going to buy a house together and that Daryl was going to leave her. On the prosecution case it was this advice that was the trigger for what happened next. The telephone record shows that the accused rang her daughter, Michelle, at 1827 hours on 18 October 2002, a short time after the first phone call from Jason. This appears to be the phone call in which the accused spoke to Michelle about her having been abused by Daryl Purcell.
[28] Exhibit P66: statement of Troy Purcell dated 27 May 2010. Troy did not recall ever speaking to Nathan about his dad or Bernadette and he did not know Tamarra O’Sullivan. (O’Sullivan was Tamarra’s maiden name).
I will return to a discussion of that call shortly. On the prosecution case this call was a deliberate ploy on the part of the accused to re-agitate allegations of which she was aware in a last desperate attempt to drive a wedge between Bernadette and Daryl, having heard about the prospective house purchase from Jason.
When the police spoke to the accused on 10 February 2005 about the phone calls from Jason, the accused said she did not have any memory of him ringing her and was adamant that she did not find out about the house until after Bernadette had died. The accused appeared to have a good relationship with Jason and she said that he did not lie but she had no recollection of this conversation.
The lack of memory of these phone calls may be attributed to the passage of time but they relate to a significant topic and I find it hard to believe that the accused would have no memory of them. Mr Boucaut pointed out, however, that Jason had described the accused as dismissive of what she referred to as rumours, and that she had mentioned that she had other things on her mind. On the defence case this was a reference to the sexual molestation allegations involving the accused’s brother, Daryl, and her daughter, Michelle. These appear to have been a topic of discussion at the Ives Crescent house in the weekend before Bernadette’s death and according to the accused were the reason for the cancellation of Daryl’s visit, not, as he suggested, her discovery about the house.
Sexual molestation allegation
In her interview on 26 October 2002 the accused made an oblique reference that “something happened a week and a bit ago” which had resulted in the cancellation of Daryl’s visit. The accused said that she had told Bernadette and she was horrified.
The police returned to this topic in the interview with the accused on 22 November 2002.[29] The accused then told the police that she had received an anonymous phone call, she thought on the Wednesday of the week before Bernadette’s death (which would have been 16 October 2002), in which she was told that Daryl had molested Michelle when he was about 14 and Michelle was about six. As a result of this the accused phoned Michelle on Friday, 19 October 2002, and she confirmed the allegations. The accused said that when Bernadette arrived home that night, she found the accused in tears. Bernadette was also upset, angry and confused about this and when Daryl rang Bernadette on the Saturday morning about the weekend arrangements, Bernadette told him not to come down. The accused said that Bernadette subsequently spoke to Michelle, who told Bernadette that she did not think Daryl was a threat to Rebekah, but Bernadette was not 100 per cent sure about what road they were going to take. This possibly is the phone call in Exhibit P55 which is shown as occurring at 1919 hrs on 22 October 2002 – ie the Tuesday before Bernadette’s death.
[29] Exhibit P57B, pp 51-63.
The police returned to this topic in the interview on 10 February 2005. They told the accused that they had checked the phone records and had been unable to identify any anonymous phone call made to her on 16 October 2002. They then put to the accused that she had not spoken to Michelle on the Friday, as she had initially claimed, but the phone records disclosed that she had spoken to Michelle on the morning of Saturday, 19 October 2002 at 10.10 am. This therefore contradicted the accused’s claim that on the basis of the sexual allegations Bernadette had told Daryl that morning not to come down for the weekend, as the phone records showed that Bernadette was speaking to Daryl Purcell at 10.06 am, which coincided with the time of the accused’s phone call to Michelle.
The accused then said that perhaps she had been wrong about the date and that the conversation with Michelle might have taken place on the Thursday. The police then put to the accused that if Bernadette had heard about such an allegation on the Thursday, it was not likely that she would have met Daryl on the Friday to look at a house to purchase, and the accused agreed with that.
Eventually, the accused said that so much time had gone by that it was difficult to comment. I have some sympathy with the accused in this respect as the questioning of the accused by the police about these calls had an element of unfairness about it because the police were incorrect in asserting that she had not spoken to Michelle on the Friday. The police were presumably unaware that Michelle was at that time residing with Donna Lang at Tailem Bend. The phone records show that a phone call was made from the Ives Crescent address to Donna Lang at Tailem Bend at 1827 hrs on Friday, 18 October 2002, that call lasting 14 minutes and 11 seconds. Ms Lang subsequently provided a statement in which she said that Michelle Marshall was residing with her then and Ms Lang recalled that about a week or two before the murder the accused rang her house and asked to speak to Michelle.
Ms Lang could not recall how long the call lasted, but she said Michelle was upset after it. Michelle told her that the accused was also upset. Ms Lang said she knew that the call was about the sexual abuse on Michelle by Frankie’s brother a long time ago. She said that about a week or two before that phone call, Michelle had told her that she had been abused by Daryl when she was younger. Ms Lang said that was the first time she mentioned it to her. She was not sure what brought it up, but her recollection was that Michelle said something about a lady named Robyn bringing it up, or someone had been told about it by Robyn. She is not sure how it came about, but Michelle said she had told Robyn about it a long time ago and she also said that Robyn was the only one that knew about it. Michelle said that Robyn was Frankie’s partner from a long time ago and they brought up Nathan until his death. She said in relation to this particular phone call she did not know if Frankie knew about the sexual abuse on Michelle before the phone call or not.
There is other evidence to support the accused’s claim that the question of sexual abuse was a topic of concern that weekend. Bernadette’s friend, Sue Jalleh, stayed overnight at Ives Crescent on the Saturday night, 19 October 2002. Ms Jalleh said she rang Bernadette before she went to the house and Bernadette said she might not want to come because she would “probably be coming into a bit of a hornet’s nest”. Ms Jalleh said she nevertheless went ahead with the visit. When she arrived, she went outside and had a coffee with Bernadette and asked her what was wrong. Ms Jalleh said Bernadette then gave her the scenario about what was happening. When asked to explain what she meant by the use of the word “scenario”, Ms Jalleh said Bernadette had asked:
… if I found out there was a teacher at Daniel’s[30] school who had been found to be molesting children years before or something … how would I feel about that and of course I told her that I wouldn’t be happy about that.
[30] Daniel is Sue Jalleh’s son.
Ms Jalleh tried to get more information but she said Bernadette was not more forthcoming than that. She did not return to the topic that weekend nor did she mention Daryl Purcell in that context. The rest of the weekend seems to have been unremarkable. Ms Jalleh said that they all played cards that night and also on the Sunday morning. Ms Jalleh said that Bernadette had said she would have liked to have gone for a walk with her, but they did not get the chance. However, Sue Jalleh had a further conversation with Bernadette on the Wednesday before her death – ie 23 October 2002. Ms Jalleh said that she had it in her head that that there was something wrong between Bernadette and the accused and she said to Bernadette:
‘Look’, I said ‘You can leave Frankie, you would be okay all by yourself, you’ve done this before. You would be fine’, but she sort of said to me, ‘I can’t do that, that would hurt Frankie’.
Mr Boucaut relied upon the evidence of Sue Jalleh and Donna Lang as supporting what the accused told the police about her discovery of the allegations concerning Daryl Purcell and Michelle. Although the prosecution submitted that the accused’s claim to have received an anonymous call was a lie, Mr Boucaut pointed out that when Detective Sheridan gave evidence with respect to the phone chart, he agreed that it did not contain all phone calls, but mainly phone calls that he regarded as being potentially relevant. I nevertheless have my doubts about the accused’s claim to have received an anonymous phone call informing her of these allegations but I accept that there was some discussion about the sexual allegations over the weekend and that may have been one of the reasons for the cancellation of Daryl’s visit. I am, however, satisfied that Bernadette was planning to leave the accused and move in with Daryl Purcell at some time in the future, although the proposed marriage date of March 2006 suggests that the separation may not have been imminent.
Christina Liston Letter
That the relationship between the accused and Bernadette Liston was over gains support from a letter which Bernadette wrote to her sister, Christina, on 22 October 2002.[31] Christina had lived in Tasmania since 1999 but it appears that she and Bernadette kept in contact often by correspondence. This particular letter was date-stamped at Adelaide at 6.00 pm on 24 October 2002 but was not received by Christina until after Bernadette’s death. Most of the letter is relatively mundane, but includes the comment:
Frankie and I are having some problems at the moment. It is certainly a horrible feeling to feel something so special fall apart and slip away. I don’t know if we will get through this, but I guess the good thing for me, if there is anything good, is knowing I can survive. I’m only hoping we can get through.
[31] Exhibit P31.
On the prosecution case, the inference to be drawn from this letter is that Bernadette was concerned about the impending termination of her relationship with the accused and that supports the prosecution contention that the accused had a motive to kill Bernadette Liston. However, the defence suggest that the problems referred to in the letter can be explained by reference to the issues which had arisen the preceding weekend with respect to the sexual molestation allegations and in this regard Mr Boucaut pointed out that Bernadette had included the accused’s name as part of the signature at the bottom of the letter.
In my view, the inference contended by the prosecution is to be preferred. I accept the evidence of Daryl Purcell that he and Bernadette were planning to purchase a house together and that those plans were ongoing in the days before Bernadette’s death. If Bernadette had some concerns about the sexual abuse allegations she was hardly likely to have paid Daryl Purcell $30,000 towards the purchase of a house after she had heard about them. The $40,000 paid to the accused at the same time also savours of a settlement of their respective financial obligations with respect to the Ives Crescent house purchase, although there is no evidence to enable me to make any positive finding about that. However, I am satisfied that the accused was told by Jason Marshall about the plans being made by Bernadette and Daryl and that must have been devastating information to receive, and even more so if Daryl Purcell was guilty of the sexual molestation of her daughter at such a young age.
I am therefore satisfied that these matters provided the accused with a motive to kill Bernadette Liston. Motive, however, is not enough for a finding that the accused is guilty of murder.
Ugg boots
The next important item of circumstantial evidence is concerned with ugg boots. The evidence relating to ugg boots took up a large part of the trial and, in view of my finding that the killer of Bernadette Liston was wearing such footwear, it is a significant issue in the case although the ugg boots in question have never been found.
The accused was interviewed about the ownership of such footwear on many occasions over the years and consistently denied that she had ever owned or worn a pair, although she said that Bernadette would wear them from time to time. On 21 February 2007, however, the police confronted the accused with two photographs in which she was wearing ugg boots.[32] Both photographs were taken on 7 April 1996. The police put to the accused that she did own ugg boots then and the accused responded:
Well, obviously, but I didn’t remember that.
[32] Exhibits P20 and P21.
And later:
Well not, well I, I, I had never remembered that but, yeah, there you go.
The police then asked whether she had owned ugg boots at Clarendon and the accused responded:
Oh, that, we would have lived at Andrew Court then, maybe.
The accused was again asked about ugg boots at Clarendon and she said she didn’t remember. She then became rather defensive and wanted to know what this had to do with Bernadette dying. The police put to her that she well knew the significance of the ugg boots as they believed the footprints left at the crime scene were from an ugg boot. The accused then said she could not remember having any ugg boots in the house at the time of Bernadette’s death. She did not know what had happened to the Clarendon ugg boots and said that:[33]
… maybe they got chucked out when we were moving along with a lot of other stuff . I have no idea. I can’t answer a question that I don’t have the answer to.
[33] Exhibit P61B, p 14.
On the prosecution case the accused deliberately lied about her ownership of ugg boots, well-knowing the significance they had in this investigation. On the prosecution case, the accused had esoteric knowledge of the crime scene and was desperate to distance herself from the ownership of such incriminating footwear. These lies can therefore be relied upon as showing a consciousness of guilt of the crime.
The prosecution called many witnesses to prove that the accused had lied about her ugg boots. David Liston and his former fiancée, Kelli Ann Cliffe, and Alicia Liston all said that they had seen the accused wearing ugg boots at Clarendon. David Liston identified the two photographs of the accused which the police had shown to the accused, he being one of the people present in photograph Exhibit P20. He said that the photograph had been taken at his grandmother’s house at Christies Beach. However, it is not clear from his evidence whether his memory of the accused wearing ugg boots was independent of, or prompted, by the photograph. Sallyanne Warren recalled the accused wearing ugg boots at Clarendon, as well as grandpa slippers. Margaret Meer and her children, Thomas, Jacqueline and Nicole all said that they had seen the accused wear ugg boots at Clarendon, but the possibility of some contamination of their evidence cannot be excluded as it appears that Margaret, Thomas and Nichole all gave their statements to the police on the same occasion at Nichole Meer’s house at Morphett Vale in 2006. Nevertheless, I am satisfied that the accused did own/wear a pair of such boots at some time in the past.
The evidence of the accused wearing ugg boots at Victor Harbor, however, is less clear. Jacqueline Meer thought she saw the accused wearing ugg boots at family gatherings away from Victor Harbor. Barbara Maxwell was a friend of Bernadette’s and she said that she had seen both Bernadette and the accused wearing ugg boots when she was visiting their home. She said that the accused and Bernadette visited her house for a barbecue in October 2002 but on that occasion the accused was wearing sneakers and it was Bernadette who was wearing ugg boots.
Verlaine Bell was at the same barbecue, which was attended by about 15 to 20 people. Ms Bell described the accused as wearing a moccasin-type of shoe, suede, grey or camel in colour. However, she was unable to say what Bernadette was wearing, nor what she herself had on her feet. It is not evident why Ms Bell was able to so clearly recall the footwear of the accused, particularly as she agreed that she had not given a statement about this until 1 October 2004, ie some two years after the event. When the police put to the accused on 10 February 2005 that Ms Bell had seen her wearing moccasins at the barbecue, the accused responded that she must have been mistaken as she did not wear them and suggested that Ms Bell had perhaps mixed up her shoes with the ones Bernadette was wearing. The accused was adamant that she would not wear the sort of shoes described by Ms Bell, which she referred to as “bloody girl stuff”.

Leah said that Rebekah would ordinarily sit in the blue booster seat with the Winnie the Pooh pattern, as she liked Disney characters in general. She said that Rebekah was pretty much in it all the time when she was in Bernadette’s car. She could not remember seeing it in the accused’s car. Ms Childs identified Exhibit P22 as a photograph of Rebekah sitting in the Winnie the Pooh blue booster seat (although the photo is in fact taken in the accused’s car). Mr Norman endeavoured to clarify Ms Childs’ memory of the seat in the car that day and asked:
Are you able to say if she was on anything at all other than the passenger seat.
and Ms Childs’ response was:
I am 90% positive she was on some sort of seat.
I agree with the submission made by Mr Boucaut that in view of the evidence that it would be unusual for Rebekah not to have been on a booster seat, its absence was the very thing that Leah Childs would have noticed and clearly remembered. The examination of the accused’s car did not take place until at least 24 hours after the discovery of the body and there may therefore be an innocent explanation for its absence at that time. I am therefore unable to find that Rebekah was not secured in a booster seat for the trip on that particular day and no inference can be drawn as a result thereof. Although I am not convinced by the accused’s explanation for her failure to take food and clothing on the trip, I am unable to find that the accused has deliberately lied about those matters. This aspect of the matter is therefore of limited weight.
Injuries to the accused’s hand
I have earlier referred to the evidence of Dr Gilbert about the injuries to the accused’s hand, as appear in the photographs.[38] Leah Childs and Iris Redwood (the next door neighbour) both described the accused punching the wall when the police would not let her into the house. David Liston and Kelli Cliffe described a similar incident happening the next day at their house at Old Noarlunga.
[38] Exhibit P18.
Mr Norman submitted that the nature of the accused’s injuries indicated that the punches were being pulled as there were no scratches on the knuckles. The punching of the wall in front of witnesses was simply a ruse to cover up injuries incurred in the assault on Bernadette Liston. Mr Boucaut, however, submitted that this was simply dangerous speculation on the part of the prosecution. There was independent evidence from witnesses that the accused had punched the wall on two separate occasions. Dr Gilbert agreed that the crescent-shaped injury on the accused’s hand could have been caused by the thumbnail contacting that part of the inner index finger.
On the defence case, the lack of any injury on the accused, apart from her hand, was inconsistent with the accused having been involved in a violent altercation with Bernadette Liston. Dr Gilbert’s evidence was that Bernadette had put up a vigorous defence. In that situation it is surprising that no mark, scratch or abrasion, apart from the injury to the hand, appears to have been suffered by the accused if she was the person who assaulted Bernadette, and I agree with that submission.
In any event, I am left with the evidence of a number of witnesses who saw the accused punch her hand into the wall. It was not put to any of them that the accused had pulled her punch or appeared other then genuinely distressed when she did so. I am therefore unable to draw any inference adverse to the accused as a result of the injuries to her hand.
The position in which the accused’s car was parked
In the course of his submissions with respect to inferences to be drawn from aspects of the crime scene, Mr Norman referred to the position in which the accused’s car was parked that morning. On the prosecution case, this provided an explanation for the lack of clothes, weapons or any other bloodied items being located in the house by the police. Mr Norman suggested that the accused had parked her car near the front door to enable her to quickly and discreetly remove such incriminating items from the house. He also suggested that the accused had deliberately parked her car in a similar position on the lawn when she returned home later that afternoon, possibly to cover up any tyre marks left earlier that day, although there is no evidence as to any tyre marks being found on the lawn by the crime scene examiners. Mr Norman pointed to conflicting statements made by the accused about parking her car on the lawn and in particular her comment that she never parked her car on the lawn unless she was washing it. These are said to be deliberate lies by the accused to cover up what she did that day.
In making this submission, the prosecution placed considerable reliance upon the evidence of Mr Clarke. Mr Clarke resides at number 24 Ives Crescent, Victor Harbor. Prior to 25 October 2002, Mr Clarke did not know the occupants of 27 Ives Crescent by name, but he knew there were two women living there, he thought, with two children. He said one drove an old-ish Ford and the other a dark red Kia (that being the accused’s car). He said the Ford always went in first and the other one was parked behind. He said on the morning of 25 October 2002 he went out to pick up the paper at about 7.10 am. He then went back inside. He next left the house at 9.15 am to take his wife to a Probus meeting, after which he went to the bank and then returned home. He said that morning he saw the red vehicle parked at a 45 degree angle on the block, not the footpath, and that was unusual. He could not say whether it was 7.10 am or 9.15 am when he saw the car parked that way, but it was one or the other.
Mr Clarke went to collect his wife from her meeting at about 11.15 am. He did not recall seeing any vehicles at that time, certainly not on the block. He went out again at about 3.30 pm, at which time he noticed a woman with a child and a grey vehicle at number 27. This fits in with the evidence of Leah Childs as to when she arrived. Mr Clarke returned home about 4.00-ish when the police were shutting off the road.
Mr Boucaut suggested to Mr Clarke that he might have been mistaken about when he saw the red car on the lawn and that it was possibly when he returned home, but Mr Clarke was adamant that it was at some time in the morning.
As it happens, Jennifer Liston also said that the accused’s car was parked on the lawn that morning. As far as Jennifer was aware, nothing untoward took place before she left for school. She said she had to be at school by 8.35 am and her school was about a 10-minute walk from home. She did not remember what Rebekah was doing when she left but she said goodbye to Bernadette and the accused before leaving and everything appeared to be normal. She said that when she got to the school gates, she realised that she had to go back home to get a jumper. She ran back, which took less than 10 minutes. She went in by the front door and went to her bedroom to collect her jumper. She could not remember whether she saw anyone or heard anything when she did that. She did not notice anything unusual. She again left by the front door and went back to school.
Jennifer told the police that she remembered the accused’s car being parked on the front lawn when she left for school. Jennifer said she did not know why the car was parked there, but it wasn’t really unusual. She said sometimes the accused would park on the lawn and sometimes in the driveway. Normally, she would only park on the grass if she was washing the car, or if the driveway was full, but not always.
There is no reason to doubt the evidence of Jennifer about the car being on the lawn that morning at about 8.30 am and that would be consistent with Mr Clarke seeing the accused’s car on the lawn when he was collecting his paper at 7.10 am. Further, another neighbour, Iris Redwood did not recall seeing the accused’s car when she drove past the house at about 8.50 am. That also suggests that Mr Clarke’s observation of the car was at the earlier time. No inference can therefore be drawn from this evidence.
The alibi evidence
On the prosecution case all of the relevant people associated with Bernadette Liston have an alibi for the time of her murder. David Liston had a sick day from work and was arranging quotes on tyres plus registration and insurance for a car he had purchased the previous day. Alicia spent the day with her boyfriend, David Newton, at his workplace at Lonsdale. Daryl Purcell was at home with his sons and one son’s girlfriend in the morning and went out looking at cars later in the day. Paul Childs was at the bank in McLaren Vale cancelling his Visa cards. Richard Liston was in Gilberton. George Savutakis spent the day at the Noarlunga Medical Centre with his partner, Amanda Langley, who was undergoing a medical procedure. There is, however, no independent evidence to support the accused’s claims about her movements that day.
On 22 November 2002 the accused told police that she was returning from the cemetery trip and was at about Mount Compass when Paul Childs rang to say that he and Leah had split up and they had had a big fight and that he had cancelled her bank card. He said as a result that he would not have Jennifer for access that weekend. The accused said it was not long after that call that she received the call from Leah to come home and she thought it was something concerning Paul and Leah.
Exhibit P55 records a phone call from Paul Childs’ mobile phone to the accused’s mobile at 1530 hrs on 25 October 2002 which lasted five minutes and 34 seconds. Mr Childs said that in that call he simply told the accused that he and Leah had a disagreement that morning and he thought that it would be better if they did not have Jennifer that weekend. He said that in the course of that conversation the accused told him that she had been to the cemetery and to her mother’s place and she was in the car on the way home with her mother and Rebekah. Mr Childs said that the accused seemed to go into a fair bit of detail of what her program had been for that day although he had not asked her about that. All he wanted her to do was to let Bernadette know that he wanted to cancel the access arrangements for that weekend. Mr Childs described his part of the conversation as fairly short.
Christina Liston said that over the years the accused had gone over the events of this day on many occasions and had repeated the details about what she had been doing and where she had been, such as taking Rebekah north, Rebekah being sick in the car, the call from Leah Childs and her distress when she arrived home and hitting her hand on the wall when the police would not let her inside the house.
The prosecution submitted that it could be inferred from the detailed description given by the accused to Mr Childs about her movements that the accused was endeavouring to reinforce her story as to what she was doing at the relevant time and thereby support her alibi. It was also suggested that the accused was trying to do the same with Christina Liston. I am unable, however, to draw any such inference from the Paul Childs conversation. Paul Childs maintained that he did not think he came across as being upset at the time he spoke to the accused, but it is clear that the argument with Leah that morning was more than just a minor tiff. According to Leah Childs there had been some problems between them for a couple of days. As a result, on her way to collect Jennifer from Ives Crescent, she visited Centrelink to obtain forms for a parenting payment as she was contemplating leaving Mr Childs and going to stay with her father. It would also appear that the argument was sufficiently serious for Mr Childs to visit the bank that morning to cancel the Visa card.
Mr Childs spoke to Leah that afternoon about cancelling the card, but he did not tell her not to collect Jennifer. Mr Childs unsuccessfully tried to phone Bernadette to tell her that he would not be taking access. It was only after all of that that Mr Childs spoke to the accused. In that situation I would expect a degree of agitation on his part and it is likely that he spent much longer than he appreciated in talking to the accused about what was happening in his life.
Furthermore, when cross-examined about these events, Mr Childs agreed that he had given statements to the police on 25 October 2002, 26 October 2002 and 10 November 2002, but none of them described this conversation in the way now contended by the prosecution. It appears the first occasion on which Mr Childs mentioned anything unusual about this phone call was 12 June 2007, ie nearly five years later. In that situation, some ex post facto reconstruction cannot be excluded. I therefore place no weight on this aspect of the evidence.
A similar situation arises with respect to Christina Liston. In my opinion, it would not be unusual for a person involved in a traumatic event such as this to constantly review the events of the day in question and wonder what had happened, where he/she had been and so forth. Ms Liston may not have wanted to discuss these matters with the accused but it is not possible to draw any inference of guilt arising out of those conversations.
Aspects of the crime scene
In addition to the matters I have mentioned there are a number of aspects of the crime scene from which the prosecution submits inferences can be drawn implicating the accused as the killer of Bernadette Liston. Mr Norman referred to the trail of bloodied footprints, which demonstrated a familiarity with the layout of the premises, and which facilitated the obtaining of the knife from the kitchen. He also mentioned such matters as the presence of the safe, the absence of money in it, the failure to remove Bernadette’s jewellery and the lack of any sign of a break-in as being inconsistent with robbery by an intruder.
Mr Norman also placed some emphasis on the missing Adelaide Bank cheque book. That appeared to have been removed from the open drawer in the office, as it could be inferred from the lack of blood located within that drawer that the book had been removed subsequent to the initial blood spill. On that basis, Mr Norman submitted that it must have been the accused who had taken the book to check up on what was happening with Daryl and the house purchase, as the book would not have been of interest to anyone else.
The presence of blood in the bathroom was also evidence from which it could be inferred that there had been a clean-up after the killing, which was inconsistent with the actions of a stranger.
Mr Norman further submitted that it could be inferred from the nature of Bernadette’s injuries that the safe plate had been the first weapon used, followed by the gun and then the knife and that sequence implicated the accused. Mr Norman argued that a robber or assassin would have first used the gun and not the safe plate. Mr Norman went so far as to submit that it could be inferred from the fact that the shed door was later found open that the accused had gone out to the shed to collect the gun after she had failed to subdue Bernadette with the lid of the safe. However, the sequence of events as suggested by Mr Norman can only be a matter of speculation. Dr Gilbert could not express an opinion as to the order in which the wounds were inflicted and, in my view, the evidence falls short of establishing which weapon was used first, although it is safe to conclude that the knife was used last.
On the defence case, it is equally plausible that the gun was the first weapon used. The absence of gunshot defence injuries is not surprising, given that five of those were to Bernadette’s back and head. According to Dr Gilbert, they only caused superficial damage and it is therefore reasonably possible that those wounds did not render Bernadette unconscious, following which the safe lid was then used, being a weapon of opportunity within easy reach. That sequence of events does not exclude robbery as a reasonable possibility.
Mr Boucaut in his address submitted that there was nothing particularly significant about the trail of footprints to the kitchen as knives are usually kept in kitchens. This was not a large house and it would not have been difficult for anyone to locate the kitchen. Sergeant Hackett agreed that the knife block would have been visible from behind the breakfast bar. Although the safe and jewellery were still in place, Mr Boucaut relied on the missing cheque book as well as the missing mobile phone and the lack of cash in Bernadette’s handbag, the contents of which had been tipped out on to the floor, as being consistent with a robbery. No inference could be drawn from the lack of any sign of a break-in as the evidence of Sergeant Hackett and Leah Childs established that all the doors were unlocked (which Leah Childs said was not unusual). There was therefore no need for a robber to breach the security of the premises to gain entry.
On the assumption that the blood in the bathroom indicated a clean-up, that meant that the killer had to remove incriminating items from the house thereafter, but Mr Boucaut pointed to the lack of blood or any other item located in the accused’s car to connect the accused with the murder. This was despite the thorough examination of that car by Sergeant Hackett, who described the car as clean, although it did not appear to have been recently washed.
Mr Boucaut also pointed out that this was hardly an incident which took place in silence. The assault upon Bernadette Liston included her being shot by a gun on six occasions and even a mis-firing gun would be expected to make some noise. In addition, it was unlikely that Bernadette would have remained silent during such a violent altercation. He submitted that such a violent encounter was unlikely to have taken place while Rebekah was still in the house, even if she was watching television at the other end of the house.
Mr Boucaut ultimately submitted that whilst there might be some aspects of the crime scene which were suspicious, the prosecution had failed to exclude robbery as a reasonable hypothesis. In this regard, the defence placed considerable weight on the evidence relating to what has been described as ‘the strange car’ which was seen outside the premises on the day in question.
Strange car
Jennifer Liston told the police that when she left for school, there was a car on the right, parked up on the hill as you come out of the front door. She did not recognise the car but she just noticed it because “it was something different”. She described it as a dark green 4-wheel drive with tinted windows.
Mrs Redwood, the neighbour who resided at 25 Ives Crescent also saw a strange car in the street that day. Mrs Redwood was a good, non-partisan witness and I accept her evidence that she remembered 25 October 2002 very well. She recalled that she rose between 6.30 am and 7.00 am. She left the house at about 8.50 am. She remembered that because she was running late. She was going to Goolwa to collect her daughter to take her to work. She said when she left home, she drove past number 27, but she did not see the accused’s car at the house.
Mrs Redwood returned home at about 10.30am to collect her neighbour, Marlene Gow, who lived at number 23, as they were doing Meals On Wheels together. She said the accused’s car was not then on the property. Mrs Redwood saw Marlene talking to her husband and she then walked across to her car. Mrs Redwood said that when she picked Marlene up, she looked in her right wing mirror and saw a late model car parked on the front lawn of number 27. She described the car as a dark-coloured very dark car, either black or navy. She was certain it was not the car of the accused nor Bernadette’s. Mrs Redwood then left with Marlene and went into Victor to do Meals On Wheels.
Mrs Redwood returned home at about 12.30 pm. She dropped Marlene off and then went to collect her daughter from work. She did a bit of shopping and then she and her daughter returned home and had lunch. At about 2.30 pm to 3.00 pm, she took her daughter back to Goolwa. Mrs Redwood arrived back home at about 3.15 pm. As she arrived, she saw Leah Childs sitting in her car and the boys getting mail out of the letterbox. Mrs Redwood went inside her house, but almost immediately she heard Jennifer screaming and then there was a knock on her front door and Leah was there with her phone in her hand, saying there had been an accident.

Mrs Redwood returned to 27 Ives Crescent with Leah Childs. She went into the room and saw Bernadette. She touched her to see if she was alive, but she was cold. Jennifer was then in the back garden, but Mrs Redwood decided to take Jennifer next door to her home. Mrs Redwood said the gate was locked, so they unlocked the gate on the driveway side and she took Jennifer and Leah’s two boys into her house. The police arrived a short time later. Mrs Redwood said that she subsequently saw the altercation between the accused and her brother Daryl. She said Daryl flew at the accused, calling her a lesbian and she flew at him, calling him a paedophile. She said Daryl appeared to be very upset and said he was going to marry Bernadette in 2006. She said the accused also seemed to be distressed. She agreed that the accused punched the wall when the police would not let her into the house.
The evidence of Mrs Redwood is important as there are a number of matters arising out of it. If Mrs Redwood had been at home at the time of the murder, I would have expected her to hear something of the struggle that took place between Bernadette and her killer, as I agree with Mr Boucaut that there must have been some degree of noise associated with such a violent assault. There is a window in the office overlooking the front lawn and this appeared to be a rather quiet street. Mrs Redwood apparently had no difficulty hearing Jennifer screaming when she was inside her house later that day. On that basis, it can be inferred that the murder took place when Mrs Redwood was not at home.
Mrs Redwood was initially away from her house from about 8.50 am to 10.30 am. Although that timeframe would have been sufficient for the accused to carry out the crime Mrs Redwood said she did not see the accused’s car at the house when she drove past at 8.50 am. That does not mean that the accused’s car was not there, but if Jennifer is correct and the car was on the lawn when she left for school, it is surprising that Mrs Redwood did not notice it when she drove past a short time later. That leaves open the reasonable possibility that the accused left on her trip shortly after Jennifer left for school and before Mrs Redwood went past at 8.50 am.
Mrs Redwood made a brief return home at 10.30 am and then went out again. She said the accused’s car was not there at that time. It was then that Mrs Redwood noticed the strange car. Although this car may have had nothing to do with these events, its presence was sufficiently unusual for both Jennifer Liston and Mrs Redwood to have remembered it.
The periods during which Mrs Redwood was away from her house fit in with Dr Gilbert’s estimate of time of death and also allows sufficient time for a robber to enter the house, kill Bernadette and escape without attracting attention.
Conclusion
In the course of these reasons I have examined the various facts relied upon by the prosecution as proof of the circumstantial case against the accused. I have also referred to inferences which I am prepared to draw from those facts. I have described a number of items of evidence as suspicious or of limited weight. However, in determining the circumstantial case against the accused it is necessary to have regard to the whole of the evidence and consider the combined strength of the established facts.
I am satisfied that the accused had a motive to kill Bernadette Liston and, as I have said, there are a number of suspicious circumstances which point to the accused as the person who committed that crime. There is, however, an explanation consistent with innocence with respect to such items as the hairs found in Bernadette Liston’s hands and the injuries to the hand of the accused. I am unaware of why it took so long to charge the accused with this crime, but as I have indicated in the course of these reasons the delay has affected the reliability of the evidence of a number of witnesses on such important topics as the ownership of ugg boots by the accused and her possession/access to firearms. It also provides an explanation for inconsistencies arising out of statements made by the accused to the police over the years and I am thereby precluded from making findings that the accused has told deliberate lies about such topics which might otherwise have strengthened the case against the accused.
At the end of the day I am left with motive combined with a number of items of evidence implicating the accused which are suspicious, but suspicion piled upon suspicion does not equate to proof beyond reasonable doubt. There is no evidence of any kind to connect the accused to the unusual type of firearm that Officer Lawrence described as being used in this crime. Bernadette Liston’s financial circumstances appear to have been a matter of common knowledge. There is inconclusive evidence as to the threat left on Alicia Liston’s door. There is also the evidence of Mrs Redwood and Jennifer Liston as to the strange car in the street that morning. In my opinion, robbery cannot be excluded as a reasonable hypothesis.
Having considered all of the evidence in this matter I am unable to be satisfied beyond reasonable doubt that the accused is the person who killed Bernadette Liston. I am therefore obliged to return a verdict of not guilty.

Exhibit Number	Witness Name	Involvement/relationship to deceased/accused	Date of Statement
P 33 P 34	Annette Marcelle SEELIGER Kylie Joanne BRUNTON	) Officers with Commonwealth Bank at ) McLaren Vale. They dealt with ) Paul Childs on 25.10.02 re Visa card ) cancellation.	01.06.10 27.05.10
P35	Nicos KALOYIROU	Lawyer who acted for Paul Childs and possibly spoke to him on the morning of 25 October 2002	26.05.10
P 36	Serafino DONNARUMMA	Mortgage consultant with Aussie Home Loans who dealt with Daryl Purcell.	20.06.10
P 37	Anthony Ludwig VAN RHODA	Bank SA employee who provided details of joint account held at Glenelg branch by Bernadette Liston and Daryl Purcell	12.01.09
P 38	Graham George YEEND	Real estate salesman who dealt with Daryl Purcell re purchase of house at Aberfoyle Park	30.03.03
P 39 P 40	Geoffrey Roy MITCHELL Phillip John MIDDLETON	) Financial advisers to ) Bernadette Liston	08.01.03 02.01.03
P 41	Clarissa Ranee FALCKE	Personal Assistant to Serafina Donnarumma	12.01.03
P 42	Heather Joy GOODLIFFE	Financial investigator with Bendigo-Adelaide Bank	09.01.09
P 43	Karen Jane SMITH	Forensic Accountant	26.05.10
P 44	Stephen William TULLY	Police officer and Crime Scene Investigator who took photographs of forensic examination of Daryl Purcell and the accused.	02.01.09
P 45	Teresa Marie HEATH	Police officer who took photographs of hands of accused.	20.08.07
P 46	Dr Ernest Leslie FLOCK	Medical practitioner who conducted forensic examination of accused.	10.05.05
P 47	Clive Tauber VERNIS	Ambulance officer	31.10.02
P 48	Jessica Kate ADAMSON and Channel 7 video footage	Reporter employed by Channel 7	21.06.10
P 49	Matthew David BUCK	Police Officer who collected accused’s car at 5.15 pm on 26.10.02 and delivered it to Sergeant Hackett for examination.	27.10.02
P 50	Graham William PHILP	Police officer stationed at Victor Harbor who received emergency call at about 3.30 pm on 25.10.02 and later assisted with collecting statements.	04.11.10
P 51	Bruce Arthur WATKINS	Police Officer – Forward commander at crime scene	06.11.02
P 52	David Eric JOHNSON and video footage taken at the scene	Detective Brevet Sergeant who made observations at crime scene and prevented accused from entering front door of house at 27 Ives Crescent. He also took part in the collection of firearms from Paul Childs’ house on 14.11.02.	19.03.09
P 63	Donna Elaine LANG	Friend of Michelle Marshall who was living with her in 2002. She recalled the accused speaking with Michelle about sexual abuse.	08.08.05
P 64	David Anthony LISTON	Son of Bernadette Liston – re return of some of his mother’s property	21.06.10
P 65	Brenton John SMITH	Police officer involved in search of records.	23.06.10
P 66	Troy Adam PURCELL	Son of Daryl Purcell – re whereabouts of Daryl Purcell on day of murder (2 statements)	15.02.04 and 27.05.10
P 67	Robert Theodore NOACK	Police Officer and fingerprint expert (2 statements)	28.10.02 and 12.09.07
P 68	Mark Ronald McEACHERN	Detective Sergeant who searched the accused’s premises on 22.08.08 and collected shoes for comparison (2 statements)	15.02.09 and 01.06.10
P 69	Mark Scott WILLIAMS	Detective Brevet Sergeant who attended the crime scene and later collected the guns from Paul Childs’ property. (2 statements)	19.03.09 and 31.05.10
P 70	David Eric JOHNSON	Detective Brevet Sergeant (NB Seems to be same statement as P52)	19.03.09
P 71	Julie-Anne Michelle HENRY	Forensic scientist	17.03.09