R v Pfennig (No 2)
[2016] SASC 171
•11 November 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PFENNIG (No 2)
Criminal Trial by Judge Alone
[2016] SASC 171
Judgment of The Honourable Auxiliary Justice David
11 November 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - OTHER PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
Dieter Pfennig was charged with the murder of Louise Bell on 19 November 2013. The accused elected to be tried by Judge alone. The abduction of Louise Bell occurred from her parent’s Hackham West home at some time on the night of 4 January or the morning of 5 January 1983. Her body was never found.
The prosecution case is that the accused abducted and murdered Louise Bell. Advances in DNA science led to the accused’s arrest for the murder. The deceased’s pyjama top was recovered in February 1983 from the front yard of a house in the Hackham West area, near the deceased’s home. A DNA profile was obtained from material removed from that pyjama top. That profile was compared to a DNA profile obtained from the accused by Forensic Science South Australia and the Netherlands Forensic Institute. Neither laboratory could exclude the accused as a contributor to the DNA profile obtained from the material on the deceased’s pyjama top. Weightings were given to those comparisons which the prosecution presented as circumstantial evidence. Additional to the DNA scientific evidence, substantial non-DNA scientific evidence was led at trial indicating the deceased’s pyjama top had been submerged in a specific area of the Onkaparinga River. These two broad categories of scientific evidence were supported by a circumstantial case involving the accused’s movements and whereabouts at the time of the disappearance, and his words and actions to various neighbours, friends and colleagues in the years subsequent. Direct evidence in the form of prison confessions made by the accused were also led by the prosecution.
The accused did not give evidence. The defence case was that the accused was not involved in the abduction or murder of Louise Bell. The admissibility of the DNA evidence was not challenged, however the defence argued that, for a number of reasons, there was a reasonable possibility the results were not reliable and therefore should not be accepted beyond reasonable doubt. The means by which the DNA was deposited on the pyjama top was also challenged. The defence case was that innocent transference was a reasonable possibility, as the deceased and the accused’s daughter were classmates and involved in basketball through their school. The defence also submitted that the discrepancies in the probability ratios between the South Australian and Netherlands results showed that the evidence could not be accepted beyond reasonable doubt.
Held:
1. The prison confessions are unreliable, and have been set aside for the purpose of establishing guilt beyond reasonable doubt.
2. The evidence of Richard Medlycott and Susan Brannigan is too vague, and cannot support any conclusions as to the accused’s involvement in the murder. It has been set aside for the purpose of establishing guilt beyond reasonable doubt.
3. The results of the comparisons of the DNA profiles of the accused and the material from the pyjama top are proved beyond reasonable doubt. It is also proved beyond reasonable doubt that the weightings given to those comparisons are scientifically accurate.
4. It is not reasonably possible that the accused’s DNA was innocently transferred from the accused to the deceased’s pyjama top.
5. The evidence that the pyjama top was submerged in the Onkaparinga River and later washed in tap water before being deposited on KD’s property is proved beyond reasonable doubt.
6. The interaction and consistency of all circumstantial evidence in relation to the accused’s whereabouts, words and actions after the disappearance of Louise Bell is compelling, and leaves no reasonable possibility consistent with innocence open on the evidence.
The accused is found guilty of murder.
Criminal Law Consolidation Act 1935 (SA) s 11; Evidence Act 1929 (SA) s 34KA, referred to.
R v Geesing (1985) 38 SASR 226, discussed.
R v PFENNIG (No 2)
[2016] SASC 171Criminal: Trial by Judge Alone
DAVID AJ.
Introduction
Overview
Directions of law
Prosecution case
Scientific evidence
Non-DNA evidence
DNA evidence
Overview
The present case
FSSA analysis
NFI analysis
Defence submissions in relation to DNA
Inability of system used at the NFI to obtain results on the DNA extract from the fluff
Two code errors detected in the STRmix system
The NFI consensus profile in relation to the tape lift should have been replicated four times instead of three
Findings on the DNA results
Contamination
Alleged confessions
Defence case and submissions
Defence arguments
Analysis
Conclusion
Postscript
Introduction
Dieter Pfennig (the accused) is charged with the murder of Louise Bell (the deceased). He pleaded not guilty and elected for trial by Judge alone. I set out the Information in full.
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dieter Pfennig between the 4th day of January 1983 and the 1st day of March 1983 at Hackham West or another place, murdered Louise Bell.
Prior to the trial proper, I conducted a voir dire hearing pursuant to an application by the prosecution to lead evidence of discreditable conduct. The evidence sought to be led was that of acts giving rise to two convictions, and accompanying evidence of those acts.
The accused pleaded guilty and was convicted of the abduction and sexual assault of a 13 year old boy, whom I shall refer to as “J”, in 1990. That offence took place in December 1989. He was also convicted after a trial of the murder of a 10 year old boy, Michael Black, which offence took place in January 1989. The accused was convicted in relation to that case in May 1992.
It follows that when the accused was charged with this offence on 19 November 2013, he was imprisoned for the two above matters.
After hearing argument from both sides, I ruled that the evidence which was the basis of those two convictions should not be led in the present matter and I now hand down my reasons.
Consistent with my ruling, I emphasise that the facts of those two cases and the accused’s proved behaviour play no part in my consideration and decision in this case.
Overview
It is undisputed that on either the evening of 4 January 1983 or the early hours of the morning of 5 January 1983, the deceased was abducted from her bedroom at 5 Meadow Way, Hackham West. At that time she was 10 years of age and lived at that house with her parents, Colin and Dianne Bell, and her younger sister, Rachel, who was aged eight. She and Rachel shared a bedroom.
The deceased was last seen at about 10.30pm on 4 January 1983 when her father went into his daughters’ bedroom to say goodnight. The next morning, the deceased’s mother got up between 6.00am and 6.30am to get the milk and discovered that the deceased was not in her bed. Mr Bell searched the house and went across the road to 10 Meadow Way, where there was a swimming pool, and searched there. He then went to the deceased’s school which was on Glynville Drive, Hackham West, not far from the family home. All of those searches were unsuccessful and the police were immediately contacted.
When he said goodnight on the night of 4 January 1983, Colin Bell observed that the window in the girls’ room was slightly open on one side. It was a sliding window and there was a flyscreen. There were also curtains. The next morning he observed that the curtains were now pushed further open and there was damage to the flyscreen. The screen had been damaged prior to that evening, but his observations were that the damage was more extensive the next morning. Further evidence was led that outside, underneath the girls’ bedroom window, there were tent wires on the path. The milkman gave evidence that he usually had to jump over them when delivering the milk. On the morning of the abduction, when delivering the milk at about 6.00am, he observed that they had been pushed onto the lawn.
Evidence was led about the dimensions of the house generally and specifically the dimensions of the girls’ bedroom and its position relative to the bedroom of Mr and Mrs Bell.[1] Furthermore, I viewed the house on a number of occasions during the trial. As can be seen in the exhibits P2 and P3, the bedroom that was shared by the girls is very small. There were two beds on either side of the room with the heads facing the street, quite close together. Mr and Mrs Bell’s bedroom was next door, separated by a gyprock wall.
[1] Exhibits P2 and P3.
On inspection by the police later that morning, damage to the flyscreen was noted. This damage was of sufficient size to accommodate an adult carrying a child through the window. At the time, a demonstration whereby various police officers would enter the bedroom and take out a child through the window was conducted and filmed.[2]
[2] Exhibit P34.
There was no dispute that in 1982 the deceased was in year 5 at Morphett Vale Primary School and would go into year 6 in 1983. That school was situated at Glynville Drive, Hackham West, a short distance from the deceased’s house, having moved from the corner of Main South Road and Beach Road some three years earlier.
There was no dispute that on the night the deceased was abducted she was wearing a pyjama top and her knickers. Colin Bell gave evidence that she was not wearing the matching bottoms to the pyjama top because they were too tight and the knickers she was wearing were unrelated to the top. Colin Bell gave further evidence that those pyjamas were a Christmas present, hence relatively new.
Dianne Bell did not give oral evidence at the trial but her evidence at the trial of R v Geesing (“the Geesing trial”) was tendered.[3] In that evidence she said that the pyjamas, and in particular the top, were passed on to the deceased by her younger sister, Rachel, as they used to wear each other’s clothes. She said that Rachel wore them a couple of times and the deceased had them for a matter of months. That, of course, is in contrast to the evidence of Colin Bell. I say at the outset that on this discrepancy I prefer the evidence of Colin Bell to the tendered transcript of Dianne Bell’s evidence. I found Colin Bell to be an impressive and careful witness and I note the discrepancy in ages between the deceased and her sister as to the fit of the pyjamas.
[3] Exhibit P10.
It is undisputed that the disappearance of the deceased created a great amount of publicity and anxiety in the community, and police activity in the area. I make the observation that the South Australian community was shocked and outraged by the abduction. I heard evidence of police checks and house to house doorknocks, all of which were unsuccessful. The deceased was never found and it is clear that she was abducted in some manner from her bedroom and murdered by the abductor.
In January 1983, the accused lived at 31 Holly Rise, Hackham West with his then wife, whom I will refer to in these reasons as “Sandra”, and two daughters, Petra and Erika. At that time he was 34 years of age. His house was a short distance from the house of the deceased, amounting to a walk of under 10 minutes. There is no dispute that Petra Pfennig knew the deceased; they were in the same year at the same school and participated in a number of common activities, including basketball. Petra was about a year younger than the deceased. At the time the accused was a teacher at Mitchell Park High School and he remained so until he was arrested on 31 December 1989 for offences against J.
Undisputed evidence was led that the accused and his family participated in a canoeing marathon over the 1982/1983 Christmas holidays which extended from Yarrawonga to Swan Hill in Victoria. At that time the accused was heavily involved in the sport of canoeing, especially on the Onkaparinga River. There is clear evidence that the accused went with other people and his family to participate in that canoeing marathon in which he and his family acted as a support team to another canoeist. When the marathon was finished the accused’s wife and two children travelled to Broken Hill in the family car to visit his wife’s parents. The accused was driven back to Hackham West by another member of the travelling party. The evidence as to the dates of these events will be discussed later in these reasons, but it is clear that the accused was back at Hackham West before the night of the abduction of the deceased and was without his family, who were in Mildura on the way to Broken Hill.
It is undisputed that the accused was born in Germany and at the time of these events had a slight German accent. Evidence was called that he was very intelligent, a heavy smoker and, according to his former wife Sandra, smoked a particularly dark cigarette with a gold band.
It is the prosecution case that over the years the accused became preoccupied with the disappearance of the deceased. A variety of witnesses gave evidence of him making comments about the deceased’s abduction on the Onkaparinga River whilst canoeing and whilst teaching in the classroom. Evidence was given that on occasions he proffered an opinion as to where the deceased’s body might be located.
Evidence was also led from a next door neighbour, RP, who was asked to water the accused’s lawn whilst he was away on the canoeing marathon. He continued to do so well after the accused had returned and told the police who were conducting doorknocks that the accused was away when, on the prosecution case, he was clearly back at his home.
It is undisputed that on 17 January 1983 KD, who lived in the Hackham West area and was called as a witness, received a telephone call from an unknown male person with a slight European accent. KD was so alarmed about what she heard on the phone that she took notes. That person told her that, among other things, he had the deceased with him and as proof of that fact if she went to the corner of South Road and Beach Road she would find the deceased’s earrings under a rock or a broken brick. After being contacted by KD, the police attended at the corner of South Road and Beach Road that same evening and earrings were located. I heard evidence which clearly indicated that the earrings found were those that the deceased was wearing when abducted.
On the morning of 28 February 1983 the same witness, KD, observed a girl’s pyjama top on her front lawn. Initially she took no notice of it but eventually took possession and later gave it to the police. Once again there was evidence led before me, especially from Colin Bell, which indicates there is no doubt that it was the same pyjama top that the deceased was wearing on the night she was abducted.
It is clear, and I draw the inference, that that person who made the phone call was the abductor and murderer of the deceased. The earrings and pyjama top belonged to the deceased. Whatever motive that person had for making that phone call and leaving those items, like many aspects of this case, will remain a mystery. Nevertheless, there is no argument that the person who called KD was responsible for what happened to the deceased.
The authorities have performed a battery of tests upon the pyjama top, further details of which will be given later in my reasons. As a result of those tests undertaken over many years until the accused was charged with this offence in 2013, a body of scientific evidence has been gathered by the prosecution.
Foreign items of a microscopic nature were removed from the pyjama top and subjected to numerous tests. These included what are described as “pickings”, “tape lifts”, and “vacuumings”. Tests were performed and comparisons were made on a number of these recovered items.
The first aspect of scientific evidence led was an analysis of vegetation and soil recovered from the pyjama top. A number of highly qualified scientific witnesses gave evidence, corresponding with their particular expertise, which indicated that the top was underwater at some stage. Material recovered from the pyjama top was consistent with having been in the Onkaparinga River, where the accused used to canoe. Further evidence of this nature was led which indicated that at some stage after being taken out of the Onkaparinga River the pyjama top was washed in non-river tap water.
The other aspect of scientific evidence led by the prosecution was DNA comparison evidence. This evidence was fundamental to the prosecution case. DNA samples were taken from the accused in 2003 and 2011. The Forensic Science Centre South Australia (FSSA) had a very small amount of material which was recovered from the top which could be used for DNA comparison. After unsuccessful attempts at such comparison, they sent samples to the Netherlands Forensic Institute (the NFI) who are experts in the area of DNA comparison where there are small amounts of material. This technique is known as “low copy number” (LCN) analysis. The material sent to the NFI and used for attempted comparisons in South Australia were from tape liftings from the pyjama top and a piece of fluff that was obtained from vacuumings from the pyjama top.
The evidence led was that, pursuant to the LCN analysis technique used by the NFI and using a Caucasian database, the NFI arrived at a range of likelihood ratios. As will be explained later in these reasons, in this case a likelihood ratio range was arrived at by assuming two propositions and comparing them. The first proposition was that the accused and one other person contributed to the DNA. The second was the proposition that a particular sample contained the DNA of two unknown people. That technique will be explained later in my reasons. The figure arrived at by the NFI using this technique was that there was a range between 9.6 billion and 36.9 billion in favour of the first proposition in relation to the tape lift, namely, that the accused and another person were the donors of the DNA extracted from the tape lift, compared to the proposition that it was two other unknown people. In relation to the DNA extracted from the fluff which was sent to the NFI, evidence was led that because of their sensitive techniques they could not successfully perform that comparison.
After that material had been sent to the NFI, FSSA started using a new technique called “STRmix”, which will also be elaborated on later in my reasons, by which likelihood ratios were also arrived at. I heard evidence that using that technique FSSA came to the conclusion that the DNA extracted from the fluff was 17,000 times more likely to have been obtained from the accused than from an unknown person. The opinion in relation to the DNA extracted from the tape lift from the pyjama top is that it is approximately 6,400 times more likely if the accused is a contributor to the DNA profile rather than if he was not and it was some unrelated, unknown individual.
Although there was no challenge to the admissibility of the opinions regarding the DNA evidence, its reliability was challenged. I was urged to find that such comparison opinions could not be proved beyond reasonable doubt and should therefore be discarded. I will also return to that issue later in my reasons.
I point out, however, that the DNA evidence is not direct evidence going to the guilt of the accused. I treat it as circumstantial evidence to be considered alongside all of the other evidence in the case.
Pursuant to the Evidence Act 1929 (SA) (the Evidence Act), I admitted a statement from a taxi driver, Richard Medlycott, who is now deceased. At the request of the defence I also admitted other statements that he had made which, in their view, impinged upon his reliability. Richard Medlycott said in his statement that on either 15 or 16 March 1983 he drove a person in his taxi from the city to the deceased’s house, under instructions from that passenger. He said that the person got out of the taxi and walked towards the house before being taken back to the city. The man was acting strangely and suspiciously, smoked cigarettes consistent with the brand and type which the accused smoked and had a slight European accent. The prosecution called this evidence as a further piece of circumstantial evidence and asked me to infer that it was in fact the accused who was the passenger in the taxi and that it indicated a further preoccupation with the abduction of the deceased on the part of the accused.
Another piece of circumstantial evidence led by the prosecution was the evidence of Susan Brannigan, whose sister lived at 28 Malpas Street, Old Noarlunga in 1983. Susan Brannigan would see her sister every weekend. The house that her sister lived in was adjacent to a road that led down to the Onkaparinga River. She gave evidence that on a Saturday, either 19 or 26 February 1983, she looked out of her sister’s kitchen window and saw a man walking towards the river. She was able to place the time on those dates as it was approximately six weeks after her niece was born on 7 January 1983. About half an hour later she saw him coming back. She described him as being wet but fully clothed and having something in his hands. She could not say what it was except that it was not a towel. The prosecution argued that there is an inference that it was the pyjama top of the deceased. She estimated the man’s height at 5’6” tall and said that he was of medium build.
The prosecution sought to draw the inferences that this was the accused, and although they cannot be precise about the full meaning of that evidence, he had been into the Onkaparinga River and retrieved the pyjama top. Once again, I will return to that evidence in more detail later in my reasons.
At this stage of the overview of the case as presented by the prosecution it is clear that it is a case based upon circumstantial evidence. A more detailed analysis will be made in relation to those circumstances, but suffice it to say the more important aspects are opportunity, the scientific evidence relating the pyjama top to the Onkaparinga River, the scientific evidence relating the pyjama top to the accused, his preoccupation with the deceased’s abduction, and his accent compared to that of the person who phoned KD. There are other aspects of circumstantial evidence which I will set out later in these reasons.
In addition to the circumstantial evidence, there were two witnesses who gave direct evidence, a prisoner whom I will refer to in these reasons as “Prisoner X” and Stephen Akpata.
Prisoner X gave evidence that he has spent much of his life in prison. Whilst incarcerated in various institutions, he came into contact with the accused who was (and is) incarcerated for the offences against J and Michael Black. He gave evidence that on or about Christmas Day, possibly in 2005, whilst he and the accused were smoking marijuana, the accused was talking about the Michael Black case. During the conversation the accused said words to the effect that he could not tell the authorities where the body of Michael Black was because the deceased, whom he described as “Bell”, was also there. He then pointed out on his computer part of a street directory indicating where the deceased lived and where he had lived at Hackham West. According to Prisoner X, the accused said that he took her and that there had been an accident. He also said that the deceased went with him willingly. Prisoner X said that during this conversation the accused and he were both affected by cannabis.
The prosecution also called evidence from Stephen Akpata. Whilst incarcerated he came into contact with the accused and became friendly with him in his role as a pastor. He gave evidence that in late 2008, although he was unsure of the actual timing, there was a conversation between him and the accused at Port Lincoln Prison in which the accused admitted that he killed Louise Bell. According to Stephen Akpata the admission was, to use my terms, in the form of the accused bearing his soul and being remorseful.
The evidence and credibility of both witnesses was strongly challenged in cross‑examination.
It was an agreed fact that a Raymond John Geesing was charged with the murder of the deceased and, after a trial which commenced on 6 November 1984, found guilty by verdict of jury on 14 December 1984.
It was also agreed that between June 1979 and November 1982 Raymond Geesing resided with his wife and stepchildren at 14 Hagen Crescent, Hackham West.
The South Australian Court of Criminal Appeal quashed the verdict by judgment dated 12 April 1985 and substituted an acquittal.[4] It is undisputed that a witness who was called at trial and gave evidence of an admission made by Raymond Geesing whilst in gaol recanted on his evidence after the trial and that was the basis of the directed verdict of acquittal. I am told, and there is no dispute, that there was another alleged admission made by Raymond Geesing which was considered to be inadmissible and not pursued. Other than those undisputed facts, there was no evidence led in this trial indicating that Raymond Geesing, on any standard of proof, is responsible for the abduction and murder of the deceased. Any suggestion to that effect on the material before me would be mere conjecture.
[4] R vGeesing (1985) 38 SASR 226.
The accused did not give evidence. As part of the defence case, a psychiatrist, Dr Jules Begg, was called. Dr Begg examined medical records of Prisoner X and other materials and gave an opinion as to a personality disorder which he diagnosed in relation to Prisoner X. The defence argued that indicates, along with other matters, that Prisoner X’s evidence is, at best, unreliable.
The defence also presented other material which I will refer to later in my reasons.
I point out that the defendant has a right to remain silent at his trial and there can be no prejudice afforded to him for exercising that right. I also remind myself that his silence at trial cannot be used to bolster the prosecution case in any way.
Directions of law
I direct myself that for the accused to be guilty of murder the following elements have to be proved beyond reasonable doubt:
1That the acts of the accused caused the death of the deceased.
2That those acts were conscious and voluntary, that is to say that they were the result of the exercise of the accused’s will, they were not the result of an accident.
3That the act or acts of the accused which caused the death of the deceased were carried out with the intention of killing the deceased or at least causing grievous bodily harm. By the term grievous bodily harm I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out.
4That the killing was without any lawful justification or excuse.
I also direct myself that in this case if the act or acts which caused the death of the deceased were caused by the accused, there is no basis of fact in which an alternative verdict of manslaughter could be returned. I find that whoever abducted the deceased killed her and that killing was deliberate and amounted to murder. The clear issue in this case is whether it has been proved beyond reasonable doubt that the accused was the murderer.
I also direct myself when considering all of the issues that have arisen for determination that the accused does not have to prove his innocence. He is presumed to be innocent of the charge against him unless and until I am satisfied of his guilt beyond reasonable doubt. The requirement of proof beyond reasonable doubt applies to each and every element of the charge.
As I have indicated in my overview of the case, I direct myself to the fact that the accused has not given evidence in this trial and that is his right. No adverse inference can be drawn from that fact.
The case presented by the prosecution to prove that the accused committed the offence is based mainly on circumstantial evidence. As I have already indicated, there are two witnesses who gave direct evidence of admissions. I direct myself that in order to find the accused guilty in a case based on circumstantial evidence, I must exclude beyond reasonable doubt any hypothesis consistent with innocence from the accumulation of the circumstances which I find to have been proved. I further direct myself that one aspect of the circumstantial evidence, namely the opinions of the experts in relation to the DNA evidence, must be proved beyond reasonable doubt. I find that the DNA evidence and the weightings given to the comparison between the DNA extracted from the pyjama top and the DNA of the accused are such an indispensable intermediate step in the reasoning process towards the inference of guilt that those conclusions must of themselves be established beyond reasonable doubt.
In the unusual circumstances of this case in which the events happened so long ago, I give myself a direction that in considering the reliability of witnesses I will be aware of the dangers presented by the fact that some of those witnesses gave evidence of events that took place more than 30 years ago. Also, in assessing their reliability, I will be aware that many of them were not spoken to by the police about the matter until several years ago. These are matters that I concern myself with, especially when considering that much of their evidence was about conversations that took place.
I also factor in the disadvantage to the accused because of the lengthy period of time between the abduction of the deceased and the accused’s arrest in November 2013. Examples of that disadvantage would be in the difficulty he has in challenging various conversations which he was said to have had with various witnesses and perhaps remembering the exact sequence of events, especially from the time he left the canoeing marathon. These are matters I take into account.
I also direct myself that much care must be taken when assessing the evidence of Prisoner X and Stephen Akpata. I remind myself that the evidence of prison informants has been shown from the experience of the courts to be inherently unreliable. The reasons for that are well known and I have no need to elaborate upon them. I direct myself that it would be dangerous to act upon the evidence of either Prisoner X or Stephen Akpata unless that evidence is substantially confirmed by other independent evidence. I will return later in my reasons to whether there is other such evidence capable of confirming their evidence of admissions made by the accused. However, I direct myself that even if such evidence is available, nevertheless, I must and will scrutinise their evidence with great care having regard to the potential unreliability of their evidence and the risk of a miscarriage of justice in attaching undue importance to it. I further direct myself that both men have extensive criminal records and I give myself a further direction that there is evidence before me of a mental disability as diagnosed by Dr Begg which could have affected Prisoner X’s capacity to give reliable evidence. I warn myself about these matters in clear terms when assessing the truthfulness and reliability of both of those witnesses.
I further direct myself that the evidence of Prisoner X and Stephen Akpata must be proved beyond reasonable doubt.
The final direction of law which I give to myself is that the prosecution have called a great deal of expert evidence. I direct myself that as the trier of the facts of this case and the person responsible for the ultimate verdict, I am the sole judge of the facts and I am not bound to accept the opinion evidence. I will give due weight to the opinions of the expert witnesses called and I will have regard to their qualifications, their partiality and where appropriate I will consider whether an expert’s opinion might accord with other facts that I find proved.
I now turn to a more detailed account of the evidence.
Prosecution case
As I have already indicated, the prosecution case as presented at trial was a combination of circumstantial evidence and direct evidence, the latter being the accused’s alleged confessions to Prisoner X and Stephen Akpata.
The circumstantial case can be divided into broad categories, namely, the “scientific” and the “non-scientific” evidence. The scientific evidence itself can be put into two separate categories, which I describe as the “non-DNA scientific evidence” and the “DNA evidence”. The first category of the scientific evidence involved the examination by a number of experts of material (other than DNA) taken from the pyjama top. Those experts gave opinions as to the possible origins of that extracted material. The second category of scientific evidence, namely the DNA component, was a comparison of DNA extracted from the pyjama top compared with the DNA of the accused. Before dealing with the scientific evidence, it is important to set out an outline of the initial police investigation.
The first police officer to arrive at the Bell household at 5 Meadow Way, Hackham West on the morning of 5 January 1983 was Craig Warman, now retired but who at the time was a police officer on duty. He attended at the Bell house at about 6.30am, obviously after they had contacted the police. He gave evidence that Colin and Dianne Bell were understandably and visibly upset. He noticed and described damage to the flyscreen adjacent to the window of the Bell girls’ bedroom. Contemporaneous photos were taken of the window and produced to the Court.[5]
[5] Exhibits P3 and P4.
The window faces onto Meadow Way and is in two parts. If one faces the window from Meadow Way, the left side of the window is to the south and the right to the north. It measures 2.08 metres horizontally from left to right. Approximately half of the window from the left to the centre could be moved by sliding from left to right. The northern part of the window is fixed. On the outside of the window covering the southern moveable part is a flyscreen. The flyscreen is fixed in place and measures horizontally 1.01 metres from the southern edge of the window to approximately the centre where the fixed part of the window starts. On the inside of the window are two curtains that meet in the middle. The vertical length of the glass portion of the window is approximately 1.075 metres. The distance from the bedroom floor to the base of the window is 0.925 metres. The distance from the ground outside to the base of the window is 1.215 metres on the southern side and 1.175 metres on the northern side, obviously allowing for some slope in the land. Outside of the window is a narrow path which leads onto a lawn.
Both Brian Riddle, who delivered milk to the premises at the time, and Colin Bell gave evidence that directly under the window of the girls’ room there had for some time been tent wires on the path. Brian Riddle gave evidence that they were so placed that when delivering the milk he would be obstructed by those tent wires when moving along the path in order to place the milk on a flower box which was just below the northern edge of the window. However, on the morning of 5 January 1983, he noticed that those tent wires were now on the lawn. Colin Bell noticed the same thing.
I return to the evidence of Craig Warman. He noticed that from the bottom left corner of the flyscreen, all the way across the bottom and about three-quarters of the way up the top on the southern side of the flyscreen, the edge of the flywire had been dislodged. He also said that a curtain had been gathered towards the centre of the window within the girls’ bedroom.
Colin Bell gave evidence on the same topic and said that when he last observed the girls’ room the night before, he had noticed that the flyscreen had been damaged to a certain extent along the bottom where it had come away from the beading that held the flyscreen in the frame. Also the window itself was slightly open and he estimated the opening at about the width of a hand. The curtains, when he left the girls the night before, covered the whole of the window except for once again about a hand width closest to the deceased’s bed on the southern side. Colin Bell gave evidence that there was much more damage to the flyscreen the next morning than there had been before. He also noticed that the window was further open than it was the night before.
John Woite, a retired police officer, was based at the Major Crimes Squad in 1983 and became involved in the investigation of the deceased’s disappearance. He was initially given the job of coordinating the search for the deceased and gave evidence that on 6 January 1983 her disappearance was declared a major crime. Along with a number of other senior detectives, he played various roles. John Woite’s initial role was to search the area from the home at 5 Meadow Way, expanding outwards. He gave evidence of the atmosphere in the community caused by the deceased’s disappearance. There was great concern and there were hundreds of calls to the Christies Beach police station from people volunteering information. Many resources were used to conduct the search, including the STAR force, the State Emergency Service, the Country Fire Service, and the National Parks and Wildlife Service. Helicopters were also used to cover areas that were inaccessible. Eventually, on 6 February 1983 John Woite took over the job as administration sergeant and in doing so had access to various police records and running sheets of the investigation up until that point. In particular, he became concerned about “doorknocking” procedures that had taken place up until that time and gave evidence of how he organised more intensive and systematic doorknocks.
The system of doorknocking in the area was set out in exhibits P30 and P31, which indicated the areas and houses that were doorknocked and also whether those visits were successful. He gave evidence that if it was recorded that a doorknock was unsuccessful and the inhabitants were not in then that was recorded and the police would return. Further, Mr Woite crafted a series of 15 questions for the police officer who attended at a house to ask the resident. If the answers to those questions demanded further investigation a note would be made and that would be followed up. Exhibit P32 was a large map which was tendered setting out the doorknocked houses and the results.
Mr Woite gave further evidence that there was no successful doorknock for 31 Holly Rise, the residence of the accused at the time. If such a doorknock was successful the police would have received a form consistent with the system used but none was forthcoming. Because of the lapse of time since the investigation, Mr Woite could not say whether any action to follow up on that unsuccessful doorknock took place. He also gave evidence that there was no statement on file from the accused and no record of the accused providing any assistance to the police in relation to the investigation of the disappearance of the deceased. That aspect of Mr Woite’s evidence is important when considering other evidence in the trial to which I will refer.
Mr Woite organised a re-enactment of what might have happened during the abduction of the deceased. That re-enactment was recorded on video and that video was tendered in evidence.[6] I viewed it very carefully and it showed a number of police officers and volunteers simulating what might have happened on the evening that the deceased was abducted. On each occasion, an adult male person would detach that part of the flyscreen in the manner that it was shown to have been detached. The flyscreen had been reinstated for this purpose. He would enter the bedroom of the Bell girls and attempt to remove a child of a similar age and build to the deceased. Various methods were tried. They included reaching in and pulling the child out or going in and carrying the child out or going in and bringing the child out through the front door. After each simulation, the flyscreen was reinstated before the next simulation. I indicated at the time, as I do now, that the purpose of that evidence was not to allow me to choose between the various scenarios that were depicted as to how the deceased was abducted. The video was led for the purposes of allowing me to better understand the nature of the tear of the flyscreen and the size of the gap resulting from that tear and the feasibility of the deceased being removed through that gap. That evidence was admitted for those purposes only.
[6] Exhibit P34.
John Woite also gave evidence of the collection of certain samples which I will refer to later in these reasons when considering the scientific evidence and the evidence of KD. I now turn to her evidence.
KD was a significant witness in the trial. In 1983, she lived at Underbank Grove, Hackham West with her two sons. Her estranged husband had left her in 1981. She knew the Bell family and became aware of the deceased’s disappearance on 5 January 1983. She did not know the accused or his family. By reference to exhibit P12, a street directory of the area which was tendered, it can be seen that Underbank Road is connected to Meadow Way and is also a short distance from Holly Rise. She gave evidence that she would walk her two boys to Hackham West Primary School and on one occasion whilst walking shortly before the deceased’s disappearance she noticed that the screen on the deceased’s bedroom window was broken.
She gave evidence that on 17 January 1983 she received a telephone call from an unknown person. She was so alarmed by the initial contents of the call that she took contemporaneous notes of the details of that phone call and referred to them when giving evidence.[7]
[7] Exhibit P45.
She gave evidence that she received that phone call at 9.10pm. At that time KD was known as KS and the male caller referred her as Mrs S. She then gave evidence that the caller said he needed help, that he was in a desperate situation and her help could save someone’s life. She replied to him that he should not be ringing her but should be ringing the appropriate authorities. In her evidence she said that he replied that he could not ring any place where his voice could be traced and talked about tones and frequencies. She said he initially sounded upset because there was a quaver in his voice and he appeared to need to take deep breaths but after some time settled down. Her evidence continued that the male went on to say he needed her to call two telephone numbers and mentioned the name Louise Bell.
He said that Louise Bell was with them, she was happy with them and she did not want to go home. He said that he needed information of a medical nature for her. KD then asked him if it was regarding her asthma but he said no, her asthma was under control. She asked him why he did not ring a hospital and he again replied that he could not contact anywhere that his voice might be traced. He then gave her two phone numbers which she wrote down and they were 519 197[8] and 267 1234.[9] He said those numbers were press numbers and he wanted to pass on information to the press for medical advice; the caller then described the injuries for which he wanted medical advice. She queried the caller as to whether it was a genuine call and he replied that to prove that he had Louise Bell and that it was a genuine call her earrings could be found if the police looked under a rock or broken brick on the corner of South Road and Beach Road. She gave further evidence that during the call he also said that the South Australian police were stupid and that they had missed a number of things. He said that any girl wanting to run away from home would not climb out of a window because it would be too noisy, that the bedspread actually covered the pillow and that it had not been pushed down or to one side and that the flywire had been eased out and stretched, not pushed from the inside. When the caller mentioned the flywire, KD said she asked him whether it was already broken to which he replied yes. She also said that the caller stated that if the police looked at the ground under the window, tent wires had been moved to avoid making a noise. He said in answer to a query from KD that her telephone number had been picked at random. KD brought the conversation to an end by telling the caller that she would be hanging up and ringing the police, which she did.
[8] As at 17 January 1983, 519 197 was listed under “The News Tips” in the September 1982 edition of the Adelaide White Pages; see Exhibit P50, agreed fact 35.
[9] As at 17 January 1983, 267 1234 was the phone number for the Channel 9 News; see Exhibit P50, agreed fact 36.
She described the voice as being that of a male about 20-30 years old and she thought she could detect a slight European accent. She said it was not English, French or Asian. It was broadly European and she could not be more specific. He also sounded intelligent and was well spoken. She said she contacted the police straight away and in due course they took a statement from her.
I interrupt the narrative of KD’s evidence to point out that it is an agreed fact that at 10.30pm on Monday 17 January 1983 the police attended at the intersection of Beach Road, Main South Road and Doctors Road, Hackham West and located a pair of silver earrings under a broken brick. Police seized the earrings and showed them to Dianne Bell and Colin Bell. They were photographed and those photographs were tendered in evidence.[10]
[10] Exhibit P7.
Colin Bell gave evidence that the police had shown him a pair of earrings which were those found under the brick. On close inspection, he identified them as the earrings that the deceased was wearing on the night she was abducted. He could do that by virtue of the fact that the deceased’s grandfather had made a slight marking on one of them when doing some repairs. Those earrings have now been destroyed, however Colin Bell identified exhibit P7 as showing the earrings that were shown to him by the police, which he said were worn by the deceased. In her evidence at the Geesing trial,[11] Dianne Bell gave similar evidence and identified the earrings which were shown to her on 17 January 1983 as being those that were worn by the deceased on the night she was abducted.
[11] Exhibit P10.
I return to the evidence of KD.
Early one morning about two weeks after the telephone call from the unknown man, she noticed an item on her front lawn. She initially thought it was just rubbish and ignored it. At that time, she was taking her son to school and when she returned at about 9.00am the item was still in the same place and she picked it up. She said it was folded neatly both lengthways and crossways, and she took it out the back and placed it by a rubbish bin to go out in the rubbish. She said she put it in an empty pot plant container. She still thought it was a piece of rubbish. After a time, she had second thoughts and realised that the deceased had been wearing a pyjama top when she disappeared. She went and retrieved the item from the pot and then had a proper look at it. She described it as “orangey floral” and said it was in fact a pyjama top. She then took the pyjama top inside, put it on the kitchen bench on top of a shopping bag because of its dirty appearance and contacted the police. The police came to her house fairly quickly and took the pyjama top away. That pyjama top was eventually identified as the pyjama top that the deceased had been wearing that night and which will be referred to in much more detail later in these reasons. It was from that pyjama top that, after many tests and examinations over the years, the material that forms the basis of the scientific aspect of the circumstantial case was obtained.
I now turn to a body of evidence that the prosecution leads by way of circumstantial evidence to prove that the accused had the opportunity to commit this crime. To do this, it is important to set out the background evidence which was led regarding the accused’s involvement with the sport of canoeing and in particular the Onkaparinga River.
Reginald Coppin gave evidence that he and the accused had been friends from 1980 onwards. He first met the accused when the accused and his daughters were introduced to the South Coast Youth Club between 1979 and 1980 and the accused became an instructor in gymnastics. He told how the accused was a very keen canoeist. Together they developed the canoeing aspect of the South Coast Youth Club when a toilet block at Port Noarlunga was converted into clubrooms. He told the Court how canoeing took place on the Onkaparinga River each Sunday and that the accused, with other people, was heavily involved in it. In fact, the only two people who had a key to the canoeing shed were he and the accused.
So keen was the accused on canoeing in the area of the Onkaparinga River that the accused drew a mural of the area on the wall of the shed. On Sundays a number of people would usually canoe towards the sea.
Mr Coppin then gave evidence of having been involved in what were called “canoe marathons”. During a marathon in late 1982 the accused was part of the land crew while Mr Coppin and others were canoeing about 400 kms from Yarrawonga to Swan Hill in Victoria.
Mr Coppin gave evidence that the marathon started on 27 December 1982 and lasted five days until New Year’s Eve. He said that a number of people left as a group on Christmas Day to go to Yarrawonga and the accused and his family were part of that group. He told the Court that the accused had a white station wagon. He had a Kombi van pulling a caravan. They travelled in convoy. He thinks that they set off at about 7.00am on Christmas Day and got to Yarrawonga at 5.00pm. Each day Mr Coppin and others would canoe. The land party, of which the accused was a member, would follow the canoes along the length of the Murray on the marathon route and at the end of each of the five days would set up a base where the canoeists would rest. They would attend to them before setting off again the next day.
Mr Coppin gave evidence that the marathon ended on New Year’s Eve and there was a celebration to mark its conclusion with presentations. A booklet of photographs was tendered[12] showing some of the people involved in the marathon including the accused and his family. The marathon ended at Swan Hill and the witness said that he left to go back to Adelaide on 2 January 1983, leaving Swan Hill at about 7.00am or 7.30am and getting home at about 3.00pm. He was unsure about how the accused got back. He was also unsure as to when the accused left to go back to Adelaide.
[12] Exhibit P24.
Gary Astill gave evidence that he was involved in the South Coast Youth Club. He was born in 1966 and knew the accused through the Youth Club and first became involved in canoeing when he was 13 years of age. He gave evidence that he went on the 1982 canoeing marathon to Yarrawonga with Reginald Coppin in his Kombi van. Also present were Bernie Graham and his wife and both of Bernie’s sons. The accused went with them with his family in another car which Mr Astill described as a Toyota Corolla station wagon. He thinks that they set out on Boxing Day at about 7.00am or 8.00am, leaving from Bernie Graham’s house, and drove to the Yarrawonga Caravan Park. He did not remember when they left to go back after the marathon was finished, but he thought he was back at work on Tuesday 4 January 1983, Monday 3 January being a public holiday. He did not remember whether the accused drove back with them in the Kombi van but did remember that the accused’s girls were in the back on the return journey. I say at the outset, in contrast to the rest of the evidence, and especially that of Sandra, that is obviously a mistake.
The prosecution also called Richard Coppin, the son of Reginald Coppin. He was aged 46 when he gave evidence. He attended the South Coast Youth Club as a child and came to know the accused. He went on the canoe marathon in 1982, when he was 14. He gave very clear evidence that they drove to Yarrawonga in his father’s Kombi van and the accused’s wife drove their family car. They left from the accused’s house and travelled in convoy. That was at about 7.00am on Christmas morning and everybody at that stage was in the Kombi van except Sandra. He gave evidence that the canoeing marathon finished on 31 December 1982 at Swan Hill and he returned to Adelaide in the Kombi van with the accused, Reginald Coppin and Gary Astill. They got to Adelaide on the evening of 3 January 1983 or 4 January 1983. They then returned the caravan to the people from whom they hired it. He was unaware of when the accused’s wife and daughters left Swan Hill, but it was not with them.
Consistent with that evidence, Julie Stanford told the Court that she and her husband owned Stanford Caravans and it was from them that Reginald Coppin hired the caravan that was used to go to the marathon. A business record[13] was tendered to the Court and showed that the vehicle was returned on 4 January 1983, consistent with Richard Coppin’s evidence.
[13] Exhibit P25.
Roger Graham gave evidence that he was aged 13 in 1982 and participated with his father in the canoeing marathon. He knew the accused who was an instructor and identified the mural that the accused made on the clubhouse wall. He gave evidence that after the marathon finished on 31 December 1982, he and his family stayed on for a bit. He remembered the accused, Reginald and Richard Coppin and Gary Astill leaving in the Kombi van and the accused’s wife and girls leaving in another car. He was unsure of exactly when that was.
Further on this topic, I turn to the evidence of Sandra, the accused’s former wife. I will be referring to her evidence in these reasons not as a singular summary but as it relates to certain topics. In relation to the 1982 canoeing marathon, she said that she and the girls went with the accused to Yarrawonga. She said that they were to be part of the land party and she had asked her next door neighbour, MP, to keep an eye on the lawns while they were away. She planned that at the end of the trip she and the children would go to Broken Hill to visit her parents. The accused would return home. She gave evidence that they left on Christmas morning 1982 and went in a group with Reginald Coppin, who had a Kombi van towing a caravan. There was the Kombi can, the car that she was in and another car all travelling in convoy. She thinks that the accused was in the Kombi van with Reginald Coppin on the trip to Yarrawonga. She told the Court that the journey to Yarrawonga took two days because they stayed one night at Swan Hill and then arrived at Yarrawonga the next afternoon. She said that the marathon finished on New Year’s Eve and that the others, including the accused, left early in the morning after New Year’s Eve in the Kombi van to go back to Adelaide. She and the girls spent at least one more night in the caravan park at Swan Hill and then went to Mildura and Broken Hill and came back to Adelaide a minimum of two weeks after the accused left Swan Hill to return to Adelaide. That had always been the plan.
Finally, Petra Pfennig, the daughter of the accused who is now aged 42, gave similar evidence to her mother. Her evidence was that they all left on Christmas Day to go on the canoeing marathon on the Murray River. She remembers the plan was for her, her mother and her sister to then go to Broken Hill to visit her mother’s parents, with her father going back. They left early in the morning and arrived at Yarrawonga late at night, travelling in convoy with other vehicles. She gave evidence that the Pfennig family went in the white Corolla. When the marathon finished at Swan Hill, she, her mother and her sister stayed three nights after its completion but the accused stayed two nights. She gave evidence he left in the morning with others and that she, her mother and her sister stayed on before going to Mildura and then to Broken Hill. They were away for about a further week and a half and then came back home.
To complete this topic, I turn to the evidence of RP.
RP gave evidence that he was the accused’s next door neighbour at Holly Rise, Hackham West. He gave evidence that the accused was a heavy smoker, intelligent, and spoke very good English but in a different accent. In fact, he said the accused’s voice sounded very much like the present Federal Finance Minister, Mathias Cormann.
On a number of occasions, the accused had asked him to look after his place when the accused and his family were away and in particular to water the lawn. He stated that he did so over the Christmas period in 1982 into 1983, the accused having asked him to water the lawns. He was told that they would be away for a couple of weeks and the accused wanted RP to move the sprinkler around on the lawn. The accused said nothing to RP about him coming back separately from his family.
RP then described the significant presence of police and searchers in Hackham West when it was discovered that the deceased was missing. He told of an occasion when the police were doorknocking houses, which was during that time when RP was watering the accused’s lawn because he thought the accused was away. He gave evidence that he spoke to the police when they came to doorknock the accused’s house, telling them that the accused and his family had gone away on holidays and informing them that the accused was a respectable member of society.
Sometime later when RP went over to water the accused’s lawns, he thought he saw a curtain move. This was at a time when he thought the accused was still away. He knocked on the front door and the accused appeared. He said the accused looked dishevelled and there was a conversation during which RP told the accused about the police doorknocking because of the disappearance of the deceased. RP gave evidence that the accused said words to the effect of, “There goes my alibi”. He gave further evidence that at one stage the accused spoke of disposing of a body. RP was vague about the context of that comment and exactly when it took place. It was put to RP in cross‑examination that it could have been in the context of the Richard Kelvin case, but he could not remember. He also accepted that the comment about an alibi was said in a joking way.
The prosecution led that body of evidence to establish, as part of their circumstantial case, that the accused had the opportunity to abduct and murder the deceased. Like all the other evidence, I will analyse that argument later in my reasons.
The next aspect of the circumstantial case presented by the prosecution is the question of comments made by the accused over the years showing a preoccupation with the Louise Bell case. There are a number of witnesses in this category and it is the accumulation of their evidence, in many instances brief as it may be, that the prosecution relied upon to bolster its circumstantial case. I now turn to that evidence.
I start with the evidence of Beverley Anderson. She worked at Mitchell Park High School from 1977 to 1997 as a Library Assistant. She knew and worked with the accused. She told of a conversation in 1983 between her and the accused about the deceased’s disappearance.
He said words to the effect that it was possible for Louise Bell to have been abducted. The reason he gave was that he used to walk the streets at night to clear his head after working on his computer before going to bed at about midnight. He said to Ms Anderson that on those occasions he had never seen another soul and so he believed it was possible to carry a child down the street without detection. He said that he lived two streets away from Louise Bell and that he taught her in the local gymnasium.
In cross-examination Ms Anderson agreed that she spoke to the police about this conversation after she read an article in the Sunday Mail on 9 October 2011 about possible further police action in the Louise Bell case. However, she maintained that she had always remembered that conversation. That article from the Sunday Mail was tendered in evidence by the defence.[14]
[14] Exhibit D43.
Jane Quinn gave evidence that she was a student at Mitchell Park High School from 1981 to 1985 and the accused was her teacher. She said that he talked about Louise Bell being missing whilst in class. She said he had what appeared to be a middle-European accent. She said that she first spoke to the police about this on 22 November 2011.
Konstantine Heyer was a school counsellor at Mitchell Park High School and became friendly with the accused whom he said taught maths and science. He kept in touch with the accused for a number of years after he was incarcerated and saw him for the last time about two years ago. He gave evidence that on one occasion in the staffroom whilst they were at the school together, at about the time of the deceased’s disappearance, the accused said to him that he was not allowed to discuss the matter because he was a person of interest. That, of course, was not the case at the time.[15]
[15] T271.
Mr Heyer agreed in cross-examination that he was first spoken to by the police about the accused in December 1990 but said nothing about Louise Bell or the accused being a person of interest in respect to Louise Bell. He could not say what the conversation in 1990 was about, except that it was some form of investigation.
Karen Hodgkison gave evidence that she was a student at Mitchell Park High School in years 8, 9 and 10. She gave evidence that early in 1983 the accused, who was her teacher, brought up the topic of Louise Bell with the class. She in fact prepared a diagram setting out where she was sitting in the classroom.[16] She gave the following evidence:[17]
[16] Exhibit P126.
[17] T1219/29-T1220/14.
Q.What was going on in the class when the topic came up.
A.I’m not sure, sorry.
Q.Presumably it was some sort of lesson.
A.Maths, yes.
Q.Who brought the topic up.
A.He did.
Q.How did it come up.
A.He just asked if we had heard about a young girl going missing, Louise Bell.
Q.Did you or anyone in the class respond.
A.I did. I don’t know if anyone heard me. It was ‘nut’. I was 15. I watched the news.
Q.And what did he say from there.
A.That his daughter went to school with her and it was one of his daughter’s best friends.
Q.Did he go on to say anything further.
A.No - that his daughter was upset, obviously.
Q.So did he say that or is that something you concluded.
A.He said his daughter was very upset, sorry.
Q.Was this being directed to you or to the whole of the class.
A.Whole of the class, I believe.
Q.Did he say anything further on the topic from there.
A.No.
In cross-examination, she said that she first spoke to the police about this topic just before she gave evidence in this Court. She said in re‑examination that the reasons she provided that statement to the police at that late stage was because she had seen the deceased’s father on television and thought that what she had to say might be relevant.
Russell McMillon was a teacher at Mitchell Park High School from 1973 to 2000 and knew the accused. He gave evidence that he was part of a car pooling arrangement with the accused in 1986 to 1988. He gave evidence that the accused was intelligent and had a slight accent. He believed the accused was German. At one point, the accused spoke about the deceased and said that he was able to help police because his daughter Petra and the deceased were close friends. Mr McMillon also gave evidence that the accused said that the deceased and his daughter had sleepovers at each other’s houses. He thinks this conversation took place in 1986 or 1987. He gave further evidence that the accused spoke of jogging and said that it was surprising what you can see in windows when you go jogging.
Also in the same car pool arrangement was Michael Owers, who gave evidence of a conversation with the accused whilst they were in the car about the accused seeing things whilst jogging at night.
The prosecution then led a number of witnesses who gave evidence about conversations they had with the accused concerning the deceased in the context of canoeing.
Neil Campbell told the Court that in the late 1980s when he was in his 20s he became involved in the South Coast Youth Club. He met with the accused, Reginald Coppin, and Bernie Graham and became a regular canoeist. He told the Court that Sunday was the main canoeing day and a group of four of them, namely the accused, Coppin, Graham, and himself would all canoe together. On Sundays they would normally canoe to a spot on the Onkaparinga River called Perry’s Bend and sometimes further on to another spot called Shelly’s Beach. He gave the following evidence:[18]
[18] T402/20-405/20.
Q.You started to tell us ‘He told me a story’. Just continue.
A.He was paddling along and he mentioned that his paddle tangled up in some bones he thought might have been human, and told me that around the corner the police found some substance, some pyjamas or substance, to do with Louise Bell.
Q.Can you just repeat that last answer. I’m not sure I caught it.
A.He was paddling down the river and his paddle got caught up in some bones, which he probably thought were human, and told me that Louise Bell - the police had found some substance or traces of pyjamas, or some substance on her pyjamas there, and I probably heard that mentioned a couple of times when we paddled in the same area.
Q.I just want to clarify some of that. You said that he told you that he had come across these bones paddling and then you said he probably thought they were human.
A.Yeah.
Q.Did he say that to you or is that something you’re assuming.
A.He told me, I think, yeah.
Q.You also said that he said something like there were traces or a substance on her pyjamas.
A.Yeah.
Q.Do you remember what word he actually used to describe what was on the pyjamas.
A.No, not really; not really.
Q.Did he say anything about where that trace or substance may be located.
A.Yeah, he told me that the police should be searching that area.
Q.For what.
A.For Louise Bell, or they searched the area.
Q.Just go back.
A.Yes.
HIS HONOUR
Q.I want to know whether your recollection of the conversation was to the effect that the police had searched the area and found something in relation to Louise Bell’s pyjamas, or they should search the area. Do you remember what the conversation was.
A.They should search the area.
Q.They should search the area.
A.Yes.
XN
Q.Which area was he referring to.
A.Shelly’s Beach. Shelly’s Beach.
Q.Where were you on the river at the time that was said.
A.In that area.
Q.When he said that to you - and you mightn’t be able to tell us now, but tell us if you can - given you were in the area of Shelly’s Beach, did he use the words ‘Shelly’s Beach’ or some other words.
A.Shelly’s Beach.
Q.I think you said already that this topic came up more than once.
A.I might have heard it twice, yeah.
Q.Do you remember now anything about the circumstances in which it came up the second time.
A.I think in the same conversation.
Q.Where were you the second time.
A.Paddling on the river.
HIS HONOUR
Q.Was that the same time you were paddling along the river.
A.Different time, I think.
Q.Different time.
A.Yeah. Same part of the river.
Q.Different journey.
A.Same journey.
Q.Different day.
A.Different day.
XN
Q.Are you able to indicate how long at all between the two dates, the two conversations.
A.Maybe a couple of weeks. It could have been months. I paddled that area a lot of times.
Q.How did it come up this second time.
A.Same. Same.
Q.Just take us through what was said.
A.Yeah, as we were paddling along, the conversation just come up.
Q.Was there the reference to the theme of the bones again on the second occasion.
A.Yeah.
Q.Was the comment made about where the police should look on the second occasion.
A.Yeah; yes.
Q.Are you able to assist us at all in terms of when these two conversations occurred.
A.Repeat that again?
Q.Can you tell us when these two conversations occurred.
A.When I was paddling along the river.
Q.I am trying to put a time frame on it now.
A.Yes.
HIS HONOUR
Q.What time of what year, if you can remember that.
A.Late ‘80s in the evening, late afternoon; late afternoon.
XN
Q.And do we take it from that then it was at a point in time when you were training for a marathon or in training.
A.Yeah.
Q.So we can link it with that period of time in your life when you were training for marathons.
A.Yeah.
Q.And can you assist us with how old you were during that period when you were training for marathons.
A.Early 20s.
Q.By the way, during the time that you knew Dieter Pfennig, did you notice if he had any accent when he spoke.
A.He had a bit of a German or Austrian accent.
Nicola Davis knew the accused through Neil Campbell, who was her sister’s partner. She became involved in canoeing. In the 1980s she would go canoeing with a group that would include her sister, Neil Campbell, the accused, and an older man called Bernie. They would often canoe towards the mouth of the Onkaparinga River. She gave evidence of a conversation near the mouth side of Perry’s Bend about the topic of missing children. She said that the accused got grumpy as a result of that conversation and rowed to the other side of the river, got out of his canoe and said he was going to walk back. She also gave evidence of another conversation at Neil Campbell’s house during which the accused, at one stage, said that they used to turn the streetlights off at 11.00pm in his area until Louise Bell was found to be missing. He said that after that they left them on all night.
The final witness on this topic was Mark Furga, who at the time of giving evidence was aged 52. He was involved in the South Coast Youth Club in 1988 for three to six months. He said there was a core group of five, including the accused, involved in the canoe club. He gave evidence that occasionally when he went canoeing with the accused, the accused mentioned the name of Louise Bell. At one point, the accused, indicating an area of the river, said “Louise Bell’s body is here”. He said that when this conversation took place there were three other people there besides himself and the accused, namely Neil Campbell, a man called Reg, and a man called Bernie. He started canoeing in mid-1988 but cannot remember the date of this conversation. He gave the following evidence as to how the conversation began:[19]
[19] T1225/19-T1226/30.
Q.On this occasion when the topic came up, how did it come up, how did the conversation start.
A.We were just talking. I think it was a religious debate of some sort and, as we were going further down the river, we spotted a dead sheep sitting or floating on the banks of the river, just on the water’s edge.
Q.When you say ‘we’ -
A.Both Neil and myself, and I think what I recall is that Neil, to break the ice - he might have seen it was getting a bit heated at the time and he said ‘Look, there was a dead sheep’, and he said ‘Dieter, have you seen any dead bodies in the river?’, and he turned and said ‘Louise Bell’s body is in there’, and at the time we went past there was a lot of reed grasses and things like that (INDICATES).
Q.You have just indicated for us. We need to get a description of that on the record. You have held your hands out in front of you with clenched fists.
A.We were kayaking and both hands - it’s a paddle, one paddle and two hands, and Dieter was in front of us and Neil Campbell and myself were kayaking side-by-side (INDICATES).
Q.I just need to get a description of what you are doing on the transcript. So you are indicating there with your two hands with clenched fists.
A.Yes.
Q.With a sort of kayaking motion.
A.Going through the water with the kayaking motions, and Dieter pointed with his head and said ‘Louise Bell’s body is in there’ (INDICATES).
Q.And as you were doing that kayaking motion you just turned to your left and suggested with your head.
A.Yes.
Q.What was he gesturing to.
A.Gesturing that there was a body - he stated ‘Louise Bell’s body was in there’.
Q.And when you looked to where he gestured, what was he indicating.
A.Just with his head. It sort of just came out quick. I don’t know -
HIS HONOUR
Q.What was he pointing to.
A.He wasn’t sort of pointing. He turned and -
Q.What was he nodding to.
A.There was an area on the left side of us where there was reeds.
Q.Reeds.
A.Reeds, yes.
Q.And it was near the bank, was it.
A.A bank, to the middle of that part of the river.
In cross-examination, he said he spoke about the matter to the police just before the present trial, and agreed with defence counsel that the comment by the accused could have been interpreted as joking or silly.
In re-examination, he said that Neil Campbell was speaking in a joking and silly way but he did not believe the accused was.
To complete my summary of this body of evidence, I refer to the evidence of the accused’s daughter Petra, who said that although she played basketball with the deceased and went to an end of basketball party in 1982 with the deceased, she did not have much of an association with her outside of school. She never went to the deceased’s house, but the deceased may have come to her house once for a birthday party. She gave evidence that there were never any sleepovers at either house with the deceased.
I turn to the other non-scientific aspects of the circumstantial case as presented by the prosecution.
Robert Trowbridge gave evidence that he lived diagonally across the road from the accused’s house on Holly Rise, Hackham West in 1983. He saw the accused walking up and down the street late at night. He would see him walking at around 11.00pm about once a week but could not recall the year or years that this happened.
On that same topic Sandra said that the accused would often go for walks or runs at night and said that he had insomnia. She never spoke to him about going out for runs and walks at night.
There was evidence of a circumstantial nature about the possible contact and familiarity between the accused and the deceased, either directly or through their families. As I understand it, this topic on the prosecution case might provide a possible scenario explaining how the deceased may have been lured out of her window by a person with whom she was familiar.
The first and most obvious aspect of this evidence was from Petra Pfennig who said she played in the same basketball team at school as the deceased and they all went to an end of season basketball party in 1982 which was videotaped.[20] However, she said she did not have much of an association with the deceased outside of school and, as I have already indicated, there were never any sleepovers. They were both part of a class trip to Mount Gambier in late 1982.
[20] Exhibit P22.
Natalie Knapp gave evidence that she lived on Holly Rise, Hackham West and knew the Pfennig family when she was a child. She was in the same class and played basketball in the same team as the deceased. She used to see the deceased at the practice sessions and on one or two occasions saw the accused there also.
Patricia Murrell also lived at Hackham West and her daughter was in the same year as the deceased. Ms Murrell coached the basketball team in which the deceased played from March to December 1982. Games were played on Friday nights in a stadium at another place away from the school. The deceased was a regular player. Petra Pfennig was in the team but was not in the core group. She said that Petra Pfennig and the deceased appeared to be good friends, and on occasion Ms Murrell dropped Petra Pfennig at home after basketball games. She told of the post-season barbeque in 1982 at which the team members were present, enjoying themselves both at a barbeque and in a swimming pool as depicted in exhibit P22. I carefully observed the deceased in that video.
Priscilla Grace was a teacher at Hackham West Primary School and taught the deceased in year 5 in 1982 and described her as shy and quiet. Petra Pfennig was in another class but they were in the same group that went on the class trip to Mount Gambier.
Also in relation to possible contact and knowledge between the accused and the deceased, Angelina Richards gave evidence that she was born on 9 November 1968 and grew up at 34 Holly Rise, Hackham West. She went to Hackham West Primary School from 1979 and used to walk to school. She knew the Pfennig family, who lived in the same street. She was about 14 years of age when the deceased was found to be missing. She told the Court that she saw the deceased in the company of Petra Pfennig on approximately six different occasions. She said that on each occasion they were heading away from Hackham West Primary School and walking towards South Road, up Glynville Drive. On the occasions that she observed them she said that she was waiting for her girlfriend, Natalie Limbert. On each occasion that the deceased was walking with Petra Pfennig, the accused was there and they were walking as a group. She particularly noticed the accused because he wore dark pink flared trousers and she would see them go halfway up Glynville Drive. These six occasions took place over a short period of time; possibly three to six months, with the last occasion at least a year before the deceased was found to be missing.
It was put to her in cross-examination that instead of seeing Louise Bell walking with Petra Pfennig and the accused it might have been Erika Pfennig. The witness denied that possibility.
I mention the evidence of Jennifer Mullins who lived at 4 Meadow Way, across the road from the Bell house, from 17 December 1982. She gave evidence that from her house she had a clear view of the Bell house and could see through the windows and would often see the girls “mucking around” from her bedroom window. She recalled observing them on one occasion about a week before the deceased’s disappearance.
I now turn to the arguments of the accused’s counsel.
Defence arguments
Submissions were made on the accused’s behalf by two experienced counsel, Mr Algie and Mr Charman. Mr Charman dealt exclusively with the DNA aspect of the case. I have summarised his criticisms of the prosecution DNA evidence earlier in these reasons. I now summarise the arguments presented by Mr Algie, who dealt with the case overall.
Mr Algie conceded the obvious fact that the deceased was abducted from her home on the night of 4 January 1983, or in the early hours of the morning of 5 January 1983. He made the appropriate submission that the real issue in this trial is: has it been proved beyond reasonable doubt that it was the accused who did it? He acknowledged the clear evidence that when it happened there was huge public interest throughout South Australia. He did not dispute the evidence of KD that she received a phone call on 17 January 1983 from a man she did not know, was told about the earrings which were to be found under a rock or a broken brick and directed the police to the earrings. He also said there is no argument that the pyjama top eventually found on her front lawn belonged to the deceased.
He then cleared away further undisputed facts by saying that there was no dispute to the evidence that the pyjama top had at some stage been somewhere in the Onkaparinga estuary. He conceded that the evidence established that the accused had an association with the Onkaparinga River through the canoeing club and his activities there. Mr Algie reinforced the point, however, that there were many people in the area and probably from further afield who had a similar association with the river.
Mr Algie then submitted that the evidence of Prisoner X and Stephen Akpata should not be believed. At the very least, I had to doubt their evidence. He properly emphasised that another person, namely Raymond Geesing, had been incorrectly convicted of this crime on the evidence of a prison informant and that highlighted the care that needed to be taken in dealing with the evidence of Prisoner X and Mr Akpata.
I have already indicated that I do not accept their evidence and I will not use it in the resolution of this case. That being so, the careful and cogent submissions of Mr Algie on the topic of the credibility and reliability of those two witnesses need not be considered further. As I have indicated, the prosecution is dependent on the circumstantial evidence presented.
Mr Algie then submitted that the other witnesses who gave evidence of conversations with the accused about the deceased did not report those conversations at the time. He said the failure to do so goes to the question of the reliability of those witnesses. He asked me, as the trier of fact, to be very careful in assessing the reliability of witnesses who gave evidence of conversations that took place 30 years prior. He submitted that casting your mind back over 30 years, and trying to remember conversations having not made an initial statement is, to use Mr Algie’s own words, “almost impossible”.
Having made submissions generally about those witnesses who recounted conversations they had with the accused, Mr Algie put more specific submissions.
He firstly dealt with Angelina Richards who said she saw the deceased walking home from school with the accused. He pointed out that her first statement and recollection was made in November 2011. Jane Quinn, Mr Algie pointed out, first gave a statement in relation to her evidence on 22 November 2011. Russell McMillon first spoke to the police in August 2015 after this trial had commenced. Michael Owers, Karen Hodgkison, and Mark Furga gave statements for the first time in 2015. Beverley Anderson gave a statement for the first time after she had read an article in the Sunday Mail[103] on 9 October 2011. Mr Algie pointed out these dates as a general illustration of why the evidence of these people, both as to their observations and conversations, could not be relied upon, not by way of lack of credibility but lack of reliability.
[103] Exhibit D43.
Mr Algie then dealt with the evidence of RP, who first gave a statement in February 1990. Mr Algie pointed out that RP said to the police that the comment “There goes my alibi” was said in a joking manner.
He also submitted that the suggestion made by the prosecution that the accused “was laying low” when the police were doorknocking the area was, at best, an unfair one and of no significance because after such a period of time it would be impossible for the defence to establish where the accused was when the police were doorknocking.
Mr Algie then pointed to two topics which he submitted tended to prove that the accused was not responsible for the disappearance and murder of the deceased. Of course, he did not have to go that far, but nevertheless he argued that there were two significant factors.
The first was RP’s evidence that the accused was not scared or unnerved by the police having attended. He submitted that this was a significant piece of evidence which indicated the reasonable possibility of the accused’s innocence. Also, he argued that the comment “There goes my alibi” is hardly something that a guilty man would say to his next door neighbour.
The second telling piece of evidence going to the innocence of the accused, according to Mr Algie, was that the accused did not have a car. The evidence presented by the prosecution was that there was one car in the family at that time. Sandra drove that car from the canoe marathon to visit her parents in Broken Hill whilst the accused returned to Adelaide in another car with Mr Coppin. Mr Algie argued that the abductor of the deceased must have used a vehicle: it was impossible that the deceased was abducted and, at the age of 10, somehow walked down the street or was carried off without the use of a car. He further argued that to get the deceased to the accused’s house, which was approximately a 10 minute walk away, or to have placed her body in the Onkaparinga River, the accused would have needed a car. Mr Algie argued that fact points away from the accused’s guilt.
I have already indicated that the evidence of Ms Brannigan and the material presented in relation to Mr Medlycott are too vague to be used as pieces of circumstantial evidence. Mr Algie took the matter further and argued that Ms Brannigan’s evidence points away from the accused being the deceased’s killer. Ms Brannigan described the man she saw leaving the river as 5’6” tall and probably in his mid-20s. She said his hair was straggly and she could not recall him having facial hair. She gave this description in March 1983, making her evidence and descriptions more reliable. Ms Brannigan was also shown an identification book in which the accused’s image was placed. She did not identify him. However, this occurred much later on 14 July 2012.
Mr Algie asked that I compare the description given by Ms Brannigan with the photos of the accused shown at the canoe marathon,[104] in which his hairstyle is different and he has a distinctive moustache. He was aged 35 at the time and approximately 6’1” tall.[105]
[104] Exhibit P24.
[105] T1335.
As I understand Mr Algie’s argument, despite the fact that I disregard Ms Brannigan’s evidence for the purposes of the prosecution case, he nevertheless submitted that it is reasonably possible that the person seen by Ms Brannigan was in fact the murderer of Louise Bell. However, that person was not the accused.
Mr Algie also submitted that the man who Mr Medlycott said was in his taxi was not the accused and made a number of cogent submissions on that topic. The most important was that if the accused wanted to return to the scene of the crime and look at the house from where the deceased was abducted, he needed only to walk from his home, not catch a taxi from the city. Also, he pointed to the differences in descriptions by Mr Medlycott of the passenger in his taxi, and the accused’s appearance at that time. Mr Medlycott said in his statement that the person was clean shaven, however the accused had a moustache. He described the man as in his late 30s or early 40s which is not significantly different to the age of the accused. He described the passenger’s height as 5’8” to 5’9” tall.
Mr Algie argued that there is a reasonable doubt as to whether the man in the taxi was the accused. As I have already indicated, I find Mr Medlycott’s description and evidence as presented far too vague to be relied upon as a piece of circumstantial evidence. In that sense, I agree with the submissions of Mr Algie.
Mr Algie finally submitted that there was a reasonable possibility that the person responsible for the abduction and murder of Louise Bell was Raymond Geesing. He said that although Raymond Geesing was acquitted by a decision of the Court of Criminal Appeal, that does not exclude a reasonable possibility that he committed the crime. When that submission was made to me I indicated to Mr Algie that there was no evidence upon which I could base such a finding. Other than the agreed facts as already set out, there is no evidence before me in relation to Mr Geesing. Furthermore, I invited Mr Algie to ask for an adjournment in order to present such evidence if he wished. That invitation was declined. I find that submission has no merit.
A submission was made in relation to the disappearance of a 12 year old girl called Rhianna Barreau in October 1992 from the Morphett Vale area. That matter was investigated as an abduction and a murder but has never been solved. Of course, in October 1992, the accused was in gaol.[106] Mr Algie argued that the unknown perpetrator of that crime may have been, as a reasonable possibility, responsible for the deceased’s disappearance in this case. There was no evidence led in this case to support that proposition as a reasonably possibility.
[106] Exhibit D231.
Mr Algie did not mention the question of DNA evidence, which was thoroughly canvassed by Mr Charman.
Analysis
I have considered all arguments and the evidence carefully.
As I have already indicated, I find that the prosecution cannot rely upon the direct evidence of Prisoner X or Mr Akpata. I set their evidence aside.
I find the evidence of Ms Brannigan and the agreed statements of Mr Medlycott too vague to be established as items of circumstantial evidence. In analysing that body of evidence, I am of the view that it could have been the accused who was in Mr Medlycott’s taxi and whom Ms Brannigan saw go to and return from the river, but the evidence was vague and is fraught with risk. If it was established that the man was the accused, then they would be pieces of circumstantial evidence showing, in Mr Medlycott’s case, a disposition to return to the scene of the crime and, in Ms Brannigan’s case, a subsequent dealing with the pyjama top. However, I cannot make such a finding. Their evidence and statements remain intractably neutral.
I have already analysed the DNA evidence in detail and indicated that the findings and weightings of both the NFI and FSSA have been proved beyond reasonable doubt. They are items of circumstantial evidence to be added to the other circumstantial evidence which the prosecution argued points to the guilt of the accused.
I find the non-DNA scientific evidence both compelling and, indeed, undisputed. As I have already indicated, a number of witnesses gave opinions that the pyjama top[107] had been submerged in water consistent with the Onkaparinga River. As the scientific evidence was presented through the various experts called, the evidence of exactly where the pyjama top was submerged became more precise. Mr McColl gave evidence that his comparisons with collected soil samples revealed that the material collected from the pyjama top was consistent with having come from the Onkaparinga River, but was also consistent with other waterways in South Australia. Professor Fitzpatrick was able to be more specific due to the presence of pyrite which indicated that the pyjama top had been underwater in the Onkaparinga River. Additionally, the absence of expected levels of salts from such an estuarine environment indicated that the pyjama top had been rinsed by rain events or washed in fresh water. Agreed facts indicated that there was no rainfall in the relevant area at the relevant time, leaving washing in fresh water as the likeliest scenario. Professor Cann was able to provide even more certainty and specificity as to exactly where the pyjama top was submerged. The foraminifera found on the pyjama top closely matched with a South Australian estuary. Within that larger category, the closest match was with the Onkaparinga River between Ford F and Ford G. The presence of glauconite added certainty to the foraminifera comparison, and contributed to his unequivocal opinion that the pyjama top was submerged in that specific area of the Onkaparinga River. I find it proved that the pyjama top was submerged in the Onkaparinga River between Ford F and Ford G.
[107] Exhibit P6.
I also find proved the undisputed evidence that the pyjama top was washed in tap water after being removed from the river and before DNA samples were extracted.
I accept the evidence of KD. I find it proved that the pyjama top left on her lawn was the pyjama top of the deceased. I find it proved, accepting and preferring the evidence of Colin Bell to the statement of his wife, that it was a Christmas present given to the deceased. I also accept KD’s evidence that the stranger who phoned her had a European accent and sounded intelligent.
I have had close regard to the arguments put by Mr Algie concerning the reliability of those witnesses who spoke about conversations with the accused. Despite the period of time that has elapsed, I find the evidence of Jane Quinn, Angelina Richards, Konstantine Heyer, RP, Neil Campbell, Russell McMillon, Nicola Davis, and Natalie Knapp to be truthful and reliable.
I accept each witness’s evidence as a piece of circumstantial evidence to be regarded with the balance of the circumstantial case. Each witness just mentioned described fairly benign events and interactions with the accused. They do not of themselves amount to evidence of guilt beyond reasonable doubt. However, the cumulative effect of each of those witnesses’ evidence carries great force when assessed together, contributing a full picture with each individual part being consistent and resonant with the others in the story they tell of the accused’s interest and involvement in the disappearance of the deceased. The accused’s preoccupation with the deceased, and in particular the deceased’s body being in the Onkaparinga River, is given great force by the scientific evidence that definitively states that the deceased’s pyjama top was submerged in that river. The evidence also strongly indicated that the point of submersion was an area with which the accused was extremely familiar.
There is no doubt that the accused was at his home alone at the time Louise Bell was abducted. That body of evidence is overwhelming. The two most impressive witnesses on that topic were Richard Coppin and Sandra.
I therefore find the following items of circumstantial evidence proved:
1The deceased was abducted from her bedroom on the night of 4 January 1983 or in the early hours of the morning of 5 January 1983.
2The deceased has never been seen since. The only inference that I can draw is that she was murdered by the person who abducted her.
3The accused lived a short distance from the deceased’s house at the time of her abduction.
4The accused used to walk the streets alone at night.[108]
[108] Robert Trowbridge, Sandra.
5The deceased went to the same school as the accused’s daughter, Petra Pfennig.
6On about Christmas Day 1982, the accused and his family went in convoy with other people to Swan Hill and Yarrawonga in Victoria for a canoeing marathon.
7The accused returned to Adelaide with other people in their car on the evening of 3 January 1983. The accused’s wife and children went in the family car to Broken Hill.
8The accused spoke to RP and said he had lost an alibi when told about the police doorknocking. RP treated that comment as a joke.
9KD was phoned by an unknown person with a European accent.
10The accused had a German or European accent.[109]
[109] Russell McMillon, RP, Jane Quinn, Jerry Stachor.
11The pyjama top of the deceased was deposited on KD’s lawn about two weeks after the above telephone call.
12The person who deposited the pyjama top on KD’s lawn was the same person who phoned her. That person was in fact the killer of Louise Bell.
13From the time of the abduction of the deceased, the accused on occasion made comments about the deceased and her abduction.[110]
14The pyjama top was submerged in the Onkaparinga River and washed in tap water before it was deposited on KD’s lawn.[111]
15DNA was extracted from the pyjama top and compared with DNA from the accused. Various comparisons differed because of the different methods used and the different information placed into the mix by the laboratories. The results were as follows:
(a) using the random match probability analysis and a Dutch Caucasian database, the chance of finding someone in the Dutch Caucasian population with the profile obtained from the tape lift was 1 in 5,766 billion;
(b) by use of the same random match probability analysis, recalculating (a) but using the Australian Caucasian database, that figure was 1 in 7,537 billion;
(c) using the LRmix Studio probabilistic method, a likelihood ratio for material from the tape lift in support of the proposition that the accused and one other person contributed to the DNA on the tape lift, as opposed to the proposition that the tape lift contained the DNA of two unknown individuals is between 9.6 billion and 36.9 billion;
(d) using STRmix and using a Caucasian database and a Bavarian population database from Germany, it is approximately 17,000 times more likely to have obtained a DNA profile from the fluff (74.2.A) if the accused is a contributor to the DNA profile, rather than some other unknown, unrelated individual;
(e) by using the same method in relation to the material from the tape lift (74.3.3.B), it is approximately 6400 times more likely to have obtained the DNA profile if the accused is a contributor to the DNA profile, rather than some unknown, unrelated individual; and
(f) by use of STRmix and the likelihood ratios method in relation to the tape lift, Colin Bell, Dianne Bell, Rachel Bell and Raymond Geesing were excluded as contributors to the DNA profile.
[110] Beverley Anderson, Neil Campbell, Nicola Davis, Konstantine Heyer, Russell McMillon, RP, Jane Quinn.
[111] Exhibit P50 (agreed fact number 40).
I direct myself that before I can find the accused guilty of the offence, I must be satisfied beyond reasonable doubt that a combination of some or all of those circumstances leads to the conclusion that it was the accused who abducted and killed the deceased. I have to exclude any other reasonable possibility beyond reasonable doubt.
I find that a combination of the above circumstances amounts to proof beyond reasonable doubt that the accused abducted and murdered the deceased. In particular, I find the evidence of the weighting of the DNA comparisons compelling, combined with the fact that I also find that the pyjama top was washed in tap water before being deposited on KD’s lawn. This leads me to the clear inference that there would have been more DNA on the top before washing. I add to that all the other circumstances including the accused’s connection with the Onkaparinga River, the comparison of accents with the voice of the person who telephoned KD and the opportunity the accused had, being alone in his house on the night of the abduction. I can see no other explanation to account for these proven facts other than his guilt.
The pieces of circumstantial evidence paint a compelling and consistent story which amounts to proof of the elements of the offence beyond reasonable doubt to the exclusion of any reasonable possibility of any innocent explanation.
Conclusion
I find the accused guilty of the murder of Louise Bell.
Postscript
My finding of guilt is not affected by the fact that we will never know some details of what occurred or the full story. There are many tantalising gaps in the evidence.
I cannot say how the deceased was actually taken from her room, whether the accused leaned through the window and dragged her out, went into the room and took her out through the front door, or induced her to come out. Having viewed the room, I find it difficult to accept that the abduction was done by force. The deceased’s sister was very close by in a very small room. Her parents were also in a small room divided from the girls’ room by a very thin wall. Any form of forceful abduction would surely have woken another member of the household.
I think it more likely that the accused to some extent knew the deceased through his daughter and induced her out through the window. However, my inability to resolve that question does not affect my decision or cast any doubts in my mind about the guilt of the accused.
Similarly, I cannot make a finding as to where the deceased was taken, or how. I cannot make a finding whether the accused did this on foot or had access to a car. Mr Algie submitted that the accused did not have his car at the time, but that does not affect my finding. He may not have used a car or he might have had access to a car. The evidence is silent on that topic other than establishing that he did not have the family car.
I do not know how he actually killed the deceased, where he killed her, or where he put her body. These questions may never be answered, but they do not impinge upon the certainty of my verdict.