R v Rose
[2002] NSWCCA 455
•19 November 2002
Reported Decision:
(2002) 55 NSWLR 701
New South Wales
Court of Criminal Appeal
CITATION: R v Rose [2002] NSWCCA 455 FILE NUMBER(S): CCA 60086/02 HEARING DATE(S): 4/10/02 JUDGMENT DATE:
19 November 2002PARTIES :
Regina
Jeffrey William Spencer RoseJUDGMENT OF: Wood CJ at CL at 1; Howie J at 1; Smart AJ at 314
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : 70032/01 LOWER COURT JUDICIAL
OFFICER :Kirby J
COUNSEL : G I O Rowling (Crown)
S Odgers SC with Mr J StrattonSOLICITORS: S E O'Connor
D J HumphreysCATCHWORDS: CRIMINAL LAW -Murder - circumstantial case - trial held 18 years after alleged offence - important evidence lost or destroyed - combination of a number of doubts over evidence - verdict unreasonable and inconsistent with the evidence. - CRIMINAL LAW - Murder - Identification evidence - Identification of deceased rather than accused - whether appropriate that warning to jury be given. - CRIMINAL LAW -Murder -Hearsay evidence - representation - silence or refusal to answer question as an implied representation. - CRIMINAL LAW -Murder - Expert Witness - whether relevantly qualified - highly complex evidence. - CRIMINAL LAW -Murder - Crown recall of Witness - interests of Justice required that the matter be clarified. LEGISLATION CITED: Crimes Act 1900
Crimes Act 1914 (Cth)
Evidence Act 1995CASES CITED: Adam v The Queen (2001) 207 CLR 96
Arthurs v Attorney General for Northern Ireland (1971) 55 CAR 161
Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Bellavista Pty Ltd v Sovereign Motor Inns Pty Ltd [2002] NSWCA 279
Chidiac v The Queen (1991) 171 CLR 432
De Gruchy v The Queen [2002] HCA 33
Domican v The Queen (1992) 173 CLR 555
Dyers v The Queen [2002] HCA 45
Hall v The Queen [1971] 1 WLR 299
Jones v Dunkel (1959) 101 CLR 298
Jones v The Queen (1997) 191 CLR 439
Kelleher v The Queen (1974) 131 CLR 534 at 551
Lee v The Queen (1998) 195 CLR 594
Legione v Hateley (1983) 152 CLR 406
M v The Queen (1994) 181 CLR 487
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Milliman v Rochester Ry Co 3 App Div 109
Papakosmas v The Queen (1999) 196 CLR 297
Reid (Junior) v The Queen (1990) 1 AC 363
Rex v Christie [1914] AC 545
R v Baker [2001] NSWCCA 151
R v Beserick (1993) 30 NSWLR 510
R v Bulejcik (NSWCCA, 21 July 1994
R v Evans (1992) 142 FLR 319
R v G (1997) 42 NSWLR 451
R v Reeves (1992) 29 NSWLR 109
R v Stewart (2001) 52 NSWLR 301
R v Turnbull [1977] QB 224
Union Bank of Australia Ltd v Puddy [1949] VLR 242
Velevski v The Queen 76 ALJR 402 at [
Westpac Banking Corporation v Robinson (1993) 30 NSWLR 668DECISION: Appeal allowed. Conviction and sentence quashed.
60086/02
Tuesday 19 November 2002WOOD CJ AT CL
HOWIE J
SMART AJ
Regina v Jeffrey William Spencer Rose
On 2 October 2001 the appellant was tried for the murder of his wife, and found guilty. The appellant appeals the conviction. The deceased and the appellant were living in separate residences in Armidale in 1982 after their separation. On the night of 30 April 1982, the deceased had arranged to board the 11pm bus to Brisbane to visit a man with whom she had been having an affair. Prior to boarding the bus, she had agreed to meet friends at an hotel at about 9pm. She did not meet the friends nor did she catch the bus. Her body was found on 23 May 1982, with the only obvious sign of injury being a haematoma on her neck. There was no definitive evidence of cause of death although the Crown submitted that it was due to vagal inhibition resulting from pressure applied to the neck of the deceased. At his trial, the appellant said that he knew that the deceased had been seeing other men and there was corroborative evidence to that effect. The appellant said that on the night of his wife’s disappearance, she had called in at his flat, and pursuant to an arrangement that she would leave some of her belongings with him and have dinner there before meeting her friends and catching the bus. He said to police at the time of the disappearance and in his evidence at trial that, following dinner, a man arrived in a white Ford and invited her to accompany him to the bowling club, an invitation which she accepted. When she did not return as promised, he became concerned, as did the friends she was to meet.
It was the Crown case that the appellant had been angered with the deceased’s affairs, had killed her in his flat, then taken her body in her vehicle to the Pipeclay bridge. The Crown case was circumstantial, with the trial occurring 18 years after the discovery of the body. By this time, critical pieces of evidence had been lost or destroyed including swabs taken from the vagina and panties of the deceased which disclosed that she had engaged in sexual intercourse within the 24 hours before her death. While blood groupings were inconsistent with that of the appellant, the loss of the swabs, the panties and fingernail scrapings meant that DNA testing, not available in 1982 could not be carried out. The Crown relied on the relationship evidence and the deceased’s extra marital affairs as motive for the appellant to kill. Its circumstantial case depended otherwise on expert evidence led in relation to soil samples taken from the deceased’s car and from the site where the body was found, the fact that the appellant had been trained in karate and that such training includes identifying potentially dangerous pressure points on the neck, the finding of the deceased’s spectacles in the appellant’s unit. Crucial to the defence case was evidence from a local Laundromat owner that he saw a person who matched the description of the deceased and the photo shown to him of her, and who had informed him that she was catching the 11pm bus for Brisbane that night, at his Laundromat between 9 and 9:30 pm on the night of her disappearance, as well as a white or cream Holden or Ford parked nearby. It was the defence case that the person who killed the deceased may have been the man who had come to his flat or some other person who she had seen that night who had sexual intercourse with her. It was his case that the Crown could not exclude as a reasonable possibility that she had died inadvertently or through some cause other than vagal inhibition.
Ground 1 - the jury’s verdict was unreasonable & inconsistent with the evidence:
In relation to each aspect of the crown’s circumstantial case, there were serious question marks. Although considered individually, none may have given rise to a reasonable doubt, in combination, they must. This ground has been made good.
Jones v. The Queen (1997) 191 CLR 439, M v. The Queen (1994) 181 CLR 487, Chidiac v. The Queen (1991) 171 CLR 432 cited.
Ground 5 – The judge erred in permitting the Crown to lead evidence from a particular geologist as to whether the wheel dust on the appellant’s car came from the road leading to the site where the body was found as he was not qualified, there was no rational basis for the opinion, and he did not furnish to the jury criteria with which to evaluate his conclusions: The witness had specialised geological knowledge based on his training, knowledge and experience and he qualified as an expert under s 79 of the Evidence Act 1995 (NSW). While he had no experience of dust samples specifically, he had extensive knowledge of the minerals within the samples. The evidence of the appellant’s experts was critical of his evidence, but that did not make it inadmissible. There was no reason to exclude evidence under s 135 or 137 of the Act. The evidence was prejudicial so far as it was supportive of the Crown case, but not unfairly so. There are many cases where juries must evaluate highly complex evidence. That does not lead to its rejection. This ground is rejected.
Makita (Australia) Pty Ltd v. Sprowles (2001) 52 NSWLR 705, Bellavista Pty Ltd v. Sovereign Motor Inns Pty Ltd [2002] NSWCA 279, Velevski v. The Queen 76 ALJR 402, R v. G (1997) 42 NSWLR 451 considered.
Ground 6 – The judge erred in permitting the Crown to recall one of its witnesses: The appellant submitted that it was unfair in permitting the Crown to ask one expert crown witness to comment on the evidence of another expert crown witness after cross examination had been completed. Held: It was undesirable for this to have happened, but the position of that witness in relation to the evidence of the other Crown witness should not have been left up in the air. The interests of justice required that the matter be clarified.
Ground 7 – His Honour erred in admitting the evidence of a police officer concerning the negative response of the 300 university students who had been asked whether they had seen the deceased with a person in a vehicle of the kind which the appellant claimed to have seen at the time the deceased left his flat: A previous representation includes an implied representation. The failure of any person to respond to the question gave rise to an implied representation, and if the Crown wished to rely on this representation as evidence that no relationship existed with a person owning a white Ford Fairlane, then it was hearsay evidence. There is no reason why “representation” used in the Evidence Act 1995 should not encompass a failure to respond. The evidence should not have been admitted.
Lee v. The Queen (1998) 195 CLR 594 applied. Legione v. Hateley (1983) 152 CLR 406, R v. Evans (1992) 142 FLR 319 considered, Hall v. the Queen [1971] 1 WLR 299 distinguished.
Ground 10 – The Trial Judge erred in permitting the Crown Prosecutor to cross-examine the appellant as to whether he had an alcohol problem: There was no evidence that the appellant was affected by alcohol on the day of the deceased’s disappearance. The evidence may have been relevant to the relationship between the appellant and the deceased and the break up of their marriage, however, in the way in which the Crown sought to use the evidence, it had taken on the complexion of propensity reasoning. The Crown went too far in cross-examining the appellant as to his alcohol consumption on the day of his wife’s disappearance. This ground made out.
Ground 11 – The trial Judge erred in giving a Dominican type direction in relation to the identification evidence of the Laundromat owner which tended to be exculpatory of the appellant, but which the Crown asserted had made a misidentification: Per Wood CJ at CL and Howie J, Smart AJ in dissent – s165 of the Evidence Act referring specifically as it does to “identification evidence” in s 165(1)(b) may apply to evidence of visual identification not falling within the definition of “identification evidence” in the dictionary to the Act, and which is limited to evidence which incriminates a defendant and to criminal proceedings. Visual identification evidence of a particular person is no more or less reliable because the person being identified is not the accused. In any case, s 165 allows a judge to give a warning or other relevant information when it is necessary to do so in the interests of justice. A warning in the terms given by His Honour was appropriate.
Clarke (1997) 97 A Crim R 414, Domican v. The Queen (1992) 173 CLR 555 applied. Jamieson (1992) 60 A Crim R 68, R v. Baker [2001] NSWCCA 151 considered.
Per Smart AJ – because of the specific reference to identification evidence in s 165 of the Evidence Act, it was intended that the section would not apply to other types of identification evidence. In the circumstances of the case the caution given to the jury in the course of the trial, and the direction given in the summary was inappropriate.
Ground 12 - The trial Judge erred in not directing the jury that as the Crown had called a police witness, and he had not given evidence of attending the residence of Mr Powell looking for the appellant, the jury could infer that he did not do so: After the witness had finished giving evidence, defence counsel realised that he had omitted to ask whether the witness had attended Mr Powell’s residence on the day the deceased went missing. This being a relevance so far as the answer might have contradicted the evidence of another Crown witness. There were difficulties in having the witness return to Court, so defence counsel, without objection from the Crown, addressed the jury that they should infer from the failure of the witness to be asked about the matter that any evidence he could give on the matter would not assist the Crown. Held: Although the Crown Prosecutor agreed that he would not object to the defence counsel making the submission, that agreement could not bind the trial judge to reinforce it by way of a Jones v. Dunkel direction.
Jones v. Dunkel (1959) 101 CLR 298, Dyers v. The Queen [2002] HCA 45 applied, Commercial Union Assurance Co of Australia Ltd v. Ferrcom Pty Ltd (1991) 22 NSWLR 389, Milliman v. Rochester Ry Co 3 App Div 109, R v. Beserick (1993) 30 NSWLR 510 considered.
All other grounds of appeal were abandoned.
Orders:
(1) Appeal allowed, conviction and sentence quashed.
(2) Verdict of acquittal to be entered.
- 1 -
60086/02
Tuesday 19 November 2002WOOD CJ at CL
HOWIE J
SMART AJ
1 WOOD CJ at CL and HOWIE J: On 2 October 2001, the appellant was placed on trial, before Justice Kirby and a jury, charged with the murder of his wife Kristine Anne Rose. To that charge he entered a plea of not guilty. On 16 November 2001, the jury returned a verdict of guilty. He now appeals against that conviction but not against the sentence imposed which, when adjusted for pre sentence custody, was effectively one of imprisonment for 14 years with a non parole period of 10 years.
The Evidence
2 The deceased and the appellant had married in 1977, but had separated in early 1982. They had 3 children. The deceased at the time of her death was aged 31 years, and was living at the Claude Street Units, which were part of the University of New England, Armidale, where she was studying. The appellant, who was then aged 37 years, was living at 3/68 Markham Street, Armidale.
3 The deceased had arranged, on the night of 30 April 1982, to board a bus for Brisbane. That bus was due to depart at 11.00 pm from the vicinity of the New England Hotel, Armidale. It was her purpose to join a man, Peter Adamedes, with whom she had been having an affair.
4 Prior to her departure she had agreed to meet various friends, including Stacie Adamedes, Joanne Fuller and Robert Delforce at the New England Hotel, at about 9 pm.
5 She did not meet those friends, and she did not catch the 11.00 pm bus. After a lengthy search, her body was found, on 23 May 1982, off Weirs Road, near a bridge over Pipe Clay Creek, some 6 km or so outside the City of Armidale. The only obvious sign of injury to her was a haematoma on the left side of her neck.
6 The appellant gave evidence at his trial, to the effect that he knew that the deceased was seeing other men, and that, although he did not feel good about that, he accepted it. He said that, prior to 30 April, he had agreed that the deceased could come to his flat in order to leave some belongings there before she left for Brisbane. He said that following individual counselling services that afternoon, the deceased came to his flat where they had dinner. He did not have sexual relations with her.
7 After dinner, he said, a 25 to 26 year old man, about 5 foot 6 inches in height, and of average weight, with shoulder length reddy-brown hair, whom he did not know, but who seemed to know the deceased, arrived at the flat and invited her to accompany him to the bowling club. According to the appellant, the deceased agreed, saying that she would not be long, and that she would come back to shower and change. They left the flat and entered a motor vehicle which looked like a white Ford Fairlane (a vehicle which he later said may have been a Ford Falcon).
8 When the deceased did not return, the appellant said that he became concerned, and he went to the New England Hotel to see if she was there. His search being unsuccessful, he returned home. Later, Robert Delforce and Joanne Fuller came to his flat looking for her. They then went together to the bowling club to see if she was there, again without success.
9 In the course of his evidence at trial, the appellant denied having been involved in the death of the deceased, denied having threatened to kill her, denied having any knowledge about pressure points to the neck (although he was otherwise aware of pressure points and of the need for care, since their inappropriate use could be fatal), and denied having read a card sent to the deceased by Peter Adamedes.
10 He explained that an entry in his diary for 30 April 1982 “Run Kris and Stacie to bus for Brisbane”, was wrong because he generally did not drive, having suffered an accident to his right arm in the 1960’s, which had also caused him to give up Karate, in which he had been trained to brown belt level. He denied having driven the deceased anywhere that evening. He said that he had given up alcohol after going to the Dependency Unit at Armidale Hospital, although he acknowledged that he may have had 3 or 4 beers on the afternoon of 30 April.
11 The appellant’s evidence concerning his arm injury was corroborated by the evidence of Professor Ehrlich, an orthopaedic surgeon, who said that the arm was only able to make feeble movements, and that it was unlikely that the appellant would have been able to pinch or chop with that arm.
12 It was the Crown case theory, however, that the appellant, having been angered by the behaviour of the deceased, and specifically by her planned visit to Brisbane, had killed her in the flat and had then taken her body in her motor vehicle, a small Mitsubishi wagon, registration number GLE 109, out along Weirs Road to the Pipeclay Creek bridge.
13 Its case against him was entirely circumstantial, the arrest and trial occurring more than 18 years after the discovery of the body of the deceased, by which time, regrettably, certain critical elements of forensic evidence, including vaginal swabs from the deceased, her panties upon which semen had been found, her jeans on which dust had been found, and various dust or soil samples which were of critical importance, appear all to have been lost or destroyed. To their significance we shall return.
14 Moreover, it was a case which the Crown pursued, without any definitive evidence as to the cause of death. At the highest, its case was that death was probably caused by a blow, or by the application of pressure, to the neck of the deceased in the area of the haematoma, thereby causing vagal inhibition.
15 In summary, its case depended upon the evidence which it led in relation to the several circumstances set out hereunder:
Relationship evidence and the appellant’s training in Karate
16 The evidence concerning the appellant’s training to brown belt Karate level assumed significance in view of the Crown case theory that the death of the deceased had been due to vagal inhibition of the kind which can be caused by some types of Karate holds or actions.
17 Diedre Allison gave evidence to the effect that she had overheard the deceased say, in late 1981, that the appellant “knows ways of hurting people without leaving marks”. Both she and her husband John Allison described the appellant as “possessive”, “controlling” and as having a temper that would just “erupt”. However, they conceded in cross examination, that they had never heard the deceased complain of the appellant hitting her, and had not seen him do so. Nor had they seen any marks of violence upon her person. Deirdre Allison also agreed, in cross examination, that she had not informed police of the remark which she had overheard, until 1999.
18 Joanne Fuller gave evidence of having seen the appellant behave angrily towards the deceased, at a party, on 11 April 1982. She added that the deceased had mentioned an occasion on which the appellant had thrown her out of a caravan. She also said that she had been aware of a number of arguments between them at the Claude Street building, after which the deceased had appeared to be tense and apprehensive. She similarly conceded, however, in cross examination, that she had never seen the appellant assault the deceased, nor had she seen her with any injuries.
19 Julie Wragg said that the deceased had lived with her for about 3 weeks before moving to Claude Street. She added that the deceased asserted that she had previously been living at a women’s shelter, that the appellant had been abusive and violent towards her, and had once thrown her across their caravan by lifting her up by the throat. She added that the deceased had also complained that he drank a lot. She acknowledged that she had not reported the incident when the appellant had allegedly picked the deceased up by the throat until the 1990’s.
20 Rhonda Craig said that she had met the deceased at the shelter, and had been informed by her that the appellant had been abusive when drinking. She recalled her saying that he used to hurt her physically and emotionally, and that at times he picked her up and threw her. She also recalled regularly seeing obvious bruises to the face, neck and arms of the deceased, as well as black eyes and split lips. It was her evidence that the deceased had been seen at the shelter by a Doctor Henschke, on an occasion when the appellant had threatened to strangle her.
21 In her presence, she recalled the appellant saying to the deceased, on one occasion, “If I ever see you with another bloke or you go with another bloke or have anything to do with another bloke, I will fucking strangle you”.
22 In cross examination she agreed that the police running sheet which had been prepared following her interview, contained no mention of the injuries which she claimed to have seen, or of the appellant’s threat to the deceased. Superintendent Becke, who had spoken to her on 6 May 1982, said that she had not made any mention of observing injuries to the deceased.
23 Dianne Bourke, who had been a neighbour of the Roses at an Armidale caravan park in 1982, when she was then aged 17 years, gave evidence of hearing the appellant say, after he had been drinking, that he knew how to kill someone by applying pressure to the neck, which he then demonstrated. She did not come forward in 1982 with this information although she was aware of the deceased’s disappearance.
24 Anne-Maree Reeves said that the appellant had been at the flat of her parents on the day that the body of the deceased had been found. At that time she was also aged about 17 years. According to her, he had said this day, that he knew how to kill someone if he wanted to, that he knew Karate and all the pressure points, and that he hated the deceased. She also said that he had made similar observations in the past, and had remarked to his children “you won’t have to worry about your mother, she won’t be here to look after you”.
25 She also spoke of a conversation shortly after the deceased had gone missing, when the appellant allegedly asked her parents if he could marry her sister Michelle. She acknowledged not coming forward with any of this information before 2001, it being her explanation that her parents had said, at that time, that they would take care of it, but then when they had later died, she had remained silent because they were unavailable to provide corroboration. She also said that, at the time, she had been in a state of emotional turmoil, having been pregnant as the result of a sexual assault.
26 Michelle Long, the sister of Anne-Maree Reeves, said that 2 to 3 weeks before the disappearance of the deceased, the appellant, who had been drinking with her father, had said that he was going to kill his wife, that he was a Karate expert, and that the best way to do it would be to come up behind her and get her with a Karate blow. He had also said, according to her, that he would try and strangle her, demonstrating this by placing his hands around the witness’s neck and giving it a bit of a squeeze, after which he said that he was having a joke. She added that about a week later, the appellant had asked her “If my wife wasn’t in the picture would you like to come back to Victoria with me?.” She similarly said that she had not reported her information to police earlier because her mother had said that they had reported the matter to Superintendent Becke, who was a friend of her father, Les Powell.
27 Superintendent Becke gave evidence to the effect that no information had ever been passed on to him by the parents of these two witnesses of a kind which was suggestive of the appellant having made threats in relation to the deceased. He added that Mr Powell had, however, passed on other information, including that which had come from the appellant, concerning the visitor to the flat who had allegedly left with the deceased in a Ford Fairlane. Former Detective Keith Smith, who had spoken to Mr Powell on 10 May 1982, said that he had no memory of any such information having been supplied to him. Had that occurred, he said, it would have been recorded in the running sheets for the investigation.
28 Two other witnesses, who were fellow students of the deceased, Christine Roberts and Susan Cawthorne, gave evidence, but made no mention of having heard or observed any complaint from the deceased of having been physically harmed by the appellant. On the contrary, Ms Cawthorn recalled her saying that she did not have any fears of being hurt by him.
29 In the appellant’s evidence, he denied having ever spoken to Diane Bourke, Michelle Long, Anne-Maree Reeves or Rhonda Craig, or to have ever been in their presence.
30 There was also some evidence from Mark Arnold, who had been counselling the appellant and the deceased in 1982, and who saw each of them separately on the afternoon of 30 April. It was his understanding that they had remained friends after their separation, and that the appellant had accepted that there was only a remote chance of a reconciliation. He did, however, note that the appellant had expressed concern that the deceased was attending university.
31 Both Mr and Mrs Powell, it was established, had died some 10 years before the trial, and before they could be asked about the matters which their daughters had only recently reported.
The deceased’s planned visit to Brisbane and her extra marital affairs
32 It was the Crown case that the appellant had a motive to kill the deceased arising out of her extramarital relationships, and her planned visit to Brisbane to continue one such relationship with Peter Adamedes.
33 Robert Delforce gave evidence that the deceased had informed him that the appellant was angry about her planned trip to Brisbane, but that he had agreed to mind her pot plants and budgerigar, which she was going to leave with him.
34 Peter Adamedes gave evidence of having had an affair with the deceased when meeting her during the 1982 Easter holiday period, and of having sent her a card, in fond terms following that weekend. The card was addressed “Dear Lovely Christine”, and concluded with the words “Keep well and in touch, come and visit if you can. Love Peter Adamedes xxxxxxx”. The deceased responded to this card by a letter, dated 21 April 1982, in which she indicated that she would be coming up to see him and would be catching the 11.00 pm bus on Friday 30 April.
35 His sister, Stacie Adamedes, said that the deceased had informed her that the appellant had seen the card from Peter while in her room, and had become jealous. The appellant agreed, in his evidence, that he had seen the card in her room, but said that he had not read it.
36 There was in fact evidence from a number of witnesses suggestive of a degree of promiscuity on the part of the deceased, apart from that concerning her relationship with Mr Adamedes. Evidence to this effect came from Deirdre Allison, Stacie Adamedes, Julie Wragg and Rhonda Craig, and from inquiries made by police (including Detective Murphy, Sergeant Smith, Senior Constable Thomas, Superintendent Becke and Detective Small). This fact was relied upon both by the Crown and the defence, although in different ways – it being alleged by the Crown that it provided a motive; while the appellant relied upon it, along with the presence of semen on her pants and on the vaginal swabs, as raising the possibility that some person other than him had either accidentally or deliberately killed her during, or after having had, sex with her on the evening of 30 April.
The movements of the deceased on 30 April
37 Julie Wragg said that the deceased had been at her house between 3.00 pm and 4.30 pm, presumably after the counselling session with Mr Arnold, and had reported that she was going to meet friends for drinks. She had arrived with some clothes which had to be altered.
38 Following this it appeared that the deceased went back to the Claude Street units, although there were some differences in the recollection of the witnesses who saw her back there, as to the time at which this occurred. Ms Adamedes said that she saw the deceased there between about 5.15 pm and 5.30 pm by which time she had packed her car with her clothes; Christine Roberts said that she saw her loading her car between 4 and 5 pm, and Mr Delforce recalled her knocking on his door, and saying that she was leaving, between 4 and 4.30 pm. Ms Fuller suggested that she had already left before her own return there at 4.30 pm.
39 Stacie Adamedes confirmed that the deceased had arranged to catch the 11.00 pm bus to Brisbane and had planned to see her brother. It was her evidence that, when the deceased left the Claude Street flats, she had said that she was going to the house of the appellant for dinner and to leave her car, pot plants and budgerigar there.
40 Ms Fuller, who said that the deceased had washed her clothes at the Claude Street flats (where there were washing machines but no driers) at about 9.00 am that day, confirmed that she had said that she was going to the appellant’s home for dinner, after which she was to meet her friends at the hotel. She helped the deceased load her plants and budgerigar in her car at some time after 1.00 pm. She did not see any bags in it, at that time.
41 Ms Fuller also gave evidence of a conversation with the deceased that day, in the course of which, she had said that she expected to meet a man called Frank at the hotel between 7.30 pm and 8.00 pm. Several witnesses said that a man, Frank Zirkler, who knew the deceased and who was said to have had an affair with the deceased, was at the hotel that evening. He was described as a somewhat elderly dance instructor, who had died by the time of the trial.
42 Christine Roberts, Mr Delforce, Ms Fuller and the others who had expected to see the deceased at the hotel, became concerned when she had not arrived by 10.30 pm.
43 When Mr Delforce and Ms Fuller arrived at the appellant’s flat in order to look for the deceased, shortly after 10.30 pm, they noticed that her car was parked in the undercover car space. They gave evidence, which was consistent with the evidence of the appellant, so far as he had informed them, that night, of the departure of the deceased, with the young man who was to take her to the bowling club. They agreed that the appellant appeared to be upset over the disappearance of the deceased.
44 Thereafter, Mr Delforce took Ms Fuller to the bus stop, before returning to the appellant’s flat with Ms Roberts. They again spoke to him, and looked in the car and flat without noticing anything that aroused their suspicions. On the following day each of Mr Delforce and Ms Wragg returned, at various times, to the appellant’s flat, and he was interviewed for the first time by police that afternoon. None of these witnesses, that is, Mr Delforce, Ms Fuller, Ms Roberts or Ms Bragg, reported observing any signs of a disturbance or struggle at the appellant’s flat, or any injuries to his person.
45 When the appellant was interviewed by police, he said that the deceased had arrived at his flat at about 5 pm, and then, after chatting for a while, they had a meal at about 6 pm. He said that she did not have a shower while there, but agreed that there were several of her bags found in the flat, containing makeup, gifts and clothing. These, he said, had been left there by her when she drove over in her car. It was between 6.30 and 6.40 pm, he said, that the young man arrived and invited her to go with him to the bowling club.
Subsequent Investigations
46 The doorman at the Bowling Club was interviewed by former Detective Senior Constable Thomas, on 1 May 1982, and said that he could not remember seeing the deceased there on the previous night. Her name did not appear in the visitor’s register.
47 On that day, and the next day, neighbours in Markham Street were canvassed, but none reported having heard or seen anything untoward occurring the previous night.
48 On 2 May, police took possession of the deceased’s motor vehicle, registration number GLE 109, for the purposes of examining it. The personal belongings of the deceased, which were found in the appellant’s flat, were also taken. On 3 May police returned to his flat, and with his permission, examined it and took various photographs which were placed into evidence. On that day the motor vehicle was examined by a senior scientific officer, and photographed. The vehicle was re-examined on 25 May, following discovery of the body of the deceased, and on this occasion a vacuum cleaner was used to obtain dust samples from the rear compartment and from each wheel.
49 On 26 May 1982 a search warrant was executed at the appellant’s flat, without turning up any incriminating evidence. On 1 June, soil samples were taken from the site where the body was found, and on the same day, the appellant agreed to provide an authority for a blood sample to be taken.
50 Superintendent Becke visited the university classes attended by the deceased on 2 June 1982, and asked if any of the 300 odd students there had seen the deceased in a vehicle of the description given by the appellant. There was no response.
51 Fingerprint testing of the deceased’s motor vehicle was negative, and there was no evidence of the appellant having driven it on this, or on any other occasion proximate to the offence. However there was evidence to show that the keys to the vehicle were at his flat, and that he had in fact been due to go for a licence on the following Monday.
52 On 6 June 1982, the appellant was reinterviewed by police, but did not provide any fresh information of relevance. Nor did he make any admissions.
53 Thereafter, apart from the inquest in June 1983, the matter rested until the investigation was reopened in 1995. For a short period during 1997 a telephone intercept was placed on the appellant’s phone, without any results. Some 3 years later, that is, on 18 July 2000, he was arrested and charged with murder.
54 Certain persons were identified in the course of police inquiries who knew the deceased, and who matched the general description of the man who, the appellant said, had called at the flat. They included Robert Swilkes, who had the use of a white Falcon in about 1982. He was called as a witness but could not remember whether he had ever had sex with the deceased. He denied seeing her on the night of 30 April.
55 Other such persons mentioned in the evidence, although not in a way which was incriminatory of them, included Garry Dell and Robert Weston, the former of whom was called as a witness, and denied ever having any relationship with the deceased, and the latter of whom was not called, even though he was said to have had a relationship with her. Another witness, David Campbell, who owned a white Holden, was called, but similarly denied having had any sexual relationship with the deceased. Another possible candidate nominated as a former sexual partner of the deceased, was Darren O’Brien, but his physical description seemed not to match that of the man mentioned by the appellant.
56 Former Detective Sergeant Small and Superintendent Becke, who made specific enquiries, in an attempt to discover a person fitting the description supplied by the appellant, were informed of various other sexual partners of the deceased, including one who reported having had sexual relations with her on the first day on which he had met her. None, however, seemed to fit the description of the man mentioned by the appellant.
57 In the course of these inquiries, Superintendent Becke, however, said that police had been informed by one person, Marilyn Battese, that she had seen a grey or white Holden sedan driving along Weirs Road around 7.00 to 7.20 pm on 30 April. A canvas was made of other residents in the area which indicated that some of them owned white Holden sedans.
58 It was the Crown case that the account given by the appellant, in relation to the young man, was an invention. The defence case was to the contrary, suggesting, among other considerations, that the absence of any sign of him arriving at the bowling club with the deceased was consistent with that having been a ruse to cover up a sexual liaison, in the course of which, or following which, the deceased had died, either of natural causes, or accidentally, or as a result of some act on the part of the young man.
The Cause of Death
59 This was a critical issue in the Crown case since it had to establish beyond reasonable doubt that the appellant had applied pressure to the neck of the deceased, that this act had caused her death, and that by it, he had intended to kill her or to cause her grievous bodily harm. That it was critical in each respect arose from the fact that no other possible violent or toxicological cause for the death, of an apparently healthy female aged 31 years, was evident from a physical examination of her body.
60 Dr Sergio Staraj who conducted the post mortem examination of the deceased on 24 May 1982, and who was at the time a forensic pathologist, noted finding a haematoma on the surface of the strap muscles of the neck, just above the clavicle on the left side. The haematoma, he noted, “roughly” overlay the vagal nerve although it was to the side of it. Sufficient pressure in that area, he said, would transmit to all structures underlying that point, and “if sufficient it may” transmit to the vagal nerve.
61 Although he said that the haematoma had been caused within 24 hours of death, in his certificate to the Coroner he had reported that the cause of death was “indeterminate due to decomposition”. Vagal inhibition, he said at the trial, was a “reasonably possible” cause of death, although he had never himself previously encountered it. In cross examination, however, he said that it was his belief that vagal inhibition could not cause death unless it led to another incident such as fainting and hitting the head, an occurrence of which there were no signs. The location of the haematoma, he said, was such that he did not think it was indicative of vagal inhibition.
62 The evidence which he gave turned to some extent upon the fair interpretation of the evidence which he had earlier given at the Coroner’s Inquest in June 1983, and, in particular, whether he had then offered a view that vagal inhibition could have been a possible cause of death in this case, or whether he had been speaking generally or hypothetically, when he had observed that pressure on the vagal nerve, that is in the appropriate place, could lead to vagal nerve inhibition and cessation of heartbeat.
63 Dr David Breusch, a surgeon and local Government Medical Officer in Armidale, who assisted at the post mortem, said that the haematoma as recorded in Dr Staraj’s report to the Coroner, was 3 cms in diameter. It was located on the muscles on the left side of her neck, level with the thyroid cartilage. In his view, considerable pressure would have been needed to produce the haematoma which was evident.
64 Underlying the strap muscles, he said, was the carotid artery which divides in the region of the Adam’s apple and carotid sinus. Within the fibrous sheath, which encloses the branch of the carotid artery, which travels externally on the left side of the neck, lies the vagal nerve, which affects the rate at which the heart beats, and which, if pressed, can cause the heart to slow, to the point of death, in an extreme case.
65 It was his evidence that “sustained considerable pressure” at this point was the “potential cause” of death, especially as no other potential cause was found.
66 In cross examination however he admitted that it was possible that the death of the deceased was unconnected with the haematoma. He also conceded that the bruising was not in the optimal position to cause vagal inhibition, that position being one directly over the carotid sinus, at the position of the Adam’s apple rather than the strap muscle. He also noted the hyoid bone had not been damaged, as commonly occurs in the case of manual strangulation.
67 Anthony Kelly, a martial arts expert, said that Karate training includes identifying pressure points on the body, among them those on the neck, and he confirmed that pressure on those points could cause death. He described various holds or techniques which can be applied to pressure points, and of the caution given to students of Karate as to the consequences of the application of inappropriate force to these areas.
68 Of some relevance, in relation to this aspect of the evidence, was the difference in size between the appellant, a man, who was in the order of 6 feet tall and who weighted about 11.5 stone in 1982, and the deceased, who was a good deal smaller. Additionally of relevance was the fact of the injury to the right arm of the appellant, which on his account, as well as that of Professor Ehrilich, had left him with little strength in it, as well as an inability to straighten it.
The Deceased’s Spectacles
69 The relevance of this arises from the absence of spectacles in the area where the body of the deceased was found, even though she customarily wore them by reason of her being extremely short sighted, and from some evidence as to the discovery of a pair of spectacles, which may have been hers, at the appellant’s flat. A starting point in this respect was the circumstance that the glasses worn by the deceased, at about the time of her death, were those shown in the various photographs of her which were tendered.
70 Julie Wragg said that she had visited the appellant’s flat on the morning of the deceased’s disappearance, and had there seen her glasses on a kitchen bench under some cupboards, or at least on some form of permanent fixture.
71 In cross examination she acknowledged that she had nominated three different places where she had seen the deceased’s glasses while in the kitchen: on the kitchen table, on a bench top, and on a breakfast bar. Additionally, she conceded that she had not mentioned seeing those glasses when interviewed by police on 2 May 1982.
72 Patricia McPherson, the sister of the deceased, said that she had gone to the appellant’s flat in late June 1982, in order to help clean it out. While removing the items of the deceased from a sock and underwear drawer in the bedroom, she had found a new pair of glasses similar to those worn by the deceased as shown in the passport photos. She asserted that the deceased had always worn glasses since the age of 12 years and said that she could not have afforded to have more than one pair of glasses at any one time.
73 A statement by Gwenda Callaghan, the mother of the deceased, was read to the jury, in which she said that she had been at the flat with Patricia McPherson in June. In this statement she had said that she had seen a pair of the deceased’s glasses sitting on a shelf just outside the kitchen. The appellant, she said, had remarked that they were a pair of the deceased’s glasses and had suggested that they be thrown in the bin.
74 A statement by Sergeant Gregory Harborne concerning the search which was made of the appellant’s flat, on 26 May 1982, was read to the jury, which confirmed that a pair of steel rimmed optical glasses, in a white case, had been found that day. Detective Murphy said that the glasses had either been left in the flat, or returned soon after.
75 The appellant informed police, during the second interview, that the deceased had been wearing her glasses, which had light brown plastic frames with an orange fleck, when she had left the flat. He said that she had left an old pair in the flat “in a junk bag”. He agreed that the glasses shown in the passport photos of the deceased were those which she customarily wore.
76 There was evidence from Robert Delforce, Joanne Fuller, Christine Roberts, Julie Wragg, Deirdre Allison and John Allison to similar effect, although the latter said that the deceased also had a second pair, which were metal and oval shaped, and which she used for study. In general, they each confirmed that the deceased wore glasses most, if not all, of the time.
77 Kristine Roberts and Mr Delforce were each asked whether they had seen any of the deceased’s glasses in the premises on the morning after her disappearance. Each answered in the negative; even thought they had been in the kitchen.
Dust Samples and the Appellant’s Motor Vehicle
78 Dust samples were collected from the area near where the deceased was found, and also from the rear compartment and wheels of the motor vehicle of the deceased.
79 Various belongings of the deceased were found by police in the vehicle, along with, what was said to be, a blood smear on the window frame of the front passenger door. The finding of this smear, however, appears to be of no significance, having regard to the absence of any sign of blood in the appellant’s flat, or of any injury to the body of the deceased which would have led to blood loss.
80 The presence of dust in the vehicle and its significance, involved a good deal of trial time, and the admissibility of the evidence concerning it is the subject of specific grounds of appeal. On any view its forensic value was of importance for the prosecution case theory, which involved the proposition that having killed the deceased, the appellant used her car to take her body out to Pipeclay Creek, and dumped it there, along with her handbag, before driving back to his residence.
81 It was common ground that Weir Road, the only route out to this area, was an unformed road, and a vehicle using it was likely to accumulate a good deal of dust. In those circumstances a link between the dust found on the wheels and dust from the Pipeclay Creek area, and/or between dust from the rear compartment of the vehicle, and the jeans of the deceased (which it was suggested came from her body being carried in that rear compartment) was potentially of considerable forensic significance. As mentioned in more detail in relation to Ground 1, the possibility of any such connection was considered by three experts called by the Crown, Dr Byrnes (a geologist), Mr Stroud (a geologist) and Dimitri Karaolis (a scientific officer with the Department of Mineral Resources), and by two experts called by the defence, Professor Gilkes (a geologist and soil scientist) and Professor Hibbert (an analytical chemist). The testing included colour comparison, chemical analysis, mineralogical comparison, and a GIS search for possible sources of similar dust.
82 In summary, Dr John Byrnes said that his analysis led him to the view that dust from the wheels of the appellant’s vehicle (“wheels dust”) contained basaltic, granitic and sedimentary rock detritus that were similar to dust found near the location where the body of the deceased was found (“bridge dust”).
83 The dust on the deceased’s jeans, he said, was unlike the bridge dust, but did have some similarity to that found inside the rear of the vehicle.
84 He accepted that some of the dust samples (as well as the jeans of the deceased) were missing, and that had they been preserved, more modern methods of analysis could have been used to give more accurate results.
85 In relation to the jeans, there was something of a problem, in that, by the time they reached Dr Byrnes for analysis, the dust had fallen away and was gathered in the bottom of the paper package in which they had been transported. That dust was, accordingly, a combination of the drying dust from the buttocks area, which had become wet when the body was lying on the ground, and of dust from the linear markings which were apparent on the legs of the garment.
86 Dimitri Karaolis said that the chemical analysis, involving x-ray fluorescent spectroscopy, which he had made of the wheels dust and bridge dust, showed, adopting a statistical confidence limit of 99%, that there was “little similarity” between them.
87 Mr Stroud suggested that there should be adjustments made to his figures: firstly, to allow for the presence of water, and, secondly, so as to normalise the samples by assuming a similar proportion of silicon dioxide.
88 While such recalculations would result in the wheels and bridge dust becoming more similar (one of the 5 major oxides then falling within the expected concentration range), Mr Karaolis said that they were still not similar.
89 Mr Karaolis, in any event, questioned the validity of the second adjustment, pointing out that it was only appropriate to do so if it were assumed or known that both samples had come from the same source – the very point in issue, being that which the forensic investigation was meant to determine.
90 William Stroud, a geologist with expertise in determining the geological make up of the New England area, gave evidence of performing a petrological, microscopic examination of the dust samples. This testing, he said, showed that the wheels dust and bridge dust had come from the same area and were remarkably similar, as the lithic clasts and radiolarian cherts looked identical.
91 He then used the geographic information system (GIS) to search for similar areas to Weirs Road, using distances based, in part, on how far certain rock types were from the Weirs Road area. In undertaking this exercise he had regard to the geological characteristics, which were known to produce dust, with the characteristics of the bridge and wheels dust. He then looked for areas that replicated that geology in order to frame the search parameters. This was a technique which he explained was used, for example, in the search for gold bearing deposits. The exercise turned up, so he said, 14 other roads which could match the criteria. After field-visiting some of these roads and examining others on a topographical map, he came to the conclusion, for various different reasons, that none could have produced the same material as that found in the wheels or bridge dust.
92 Mr Stroud also said that, after recalculating Mr Karaolis’ figures on an anhydrous basis, and normalising the silicone dioxide figures, it was his view that, from a geochemistry point of view, the samples came from similar sedimentary rock.
93 The differences between them, he said, were normal for very similar rocks, explaining that the size of the grains analysed for example, could contribute to different figures, without being of significance.
94 Professor Robert Glikes said that, in his opinion, the jeans dust and the dust from the back of the appellant's vehicle were from different sources. He said that the basalt, granite and chert from the Armidale area would be similar, particularly when considered as small fragments. It was his view, accordingly, that similarity in the wheels and bridge dust samples could not lead to the conclusion that they came from the same source, since the components were common materials in the region.
95 He also said that recalculating Mr Karaolis’ figures on an anhydrous basis was inappropriate, as water was a necessary component. Normalising the silicone dioxide figures, he also said, was inappropriate, and completely changed the analysis.
96 He expressed the view that the criteria used by Mr Stroud to look for similar roads to Weirs Road were seriously flawed, as material could be naturally, biologically and artificially transported between sites, without being shown on GIS. The parameters which Mr Stroud had adopted, he described as quite arbitrary and as lacking any scientific basis. He thought that there may be many roads, additional to the 14 roads selected by Mr Stroud, in the Armidale area which could give rise to the dust found in the relevant wheel samples.
97 In cross examination he said that the jeans dust resembled the wheels dust and that parts of it could have come from the rear of the vehicle. He also said that he could not rule out that the wheels dust came from Weirs Road, there being a similarity so far as the samples each contained fragments of basalt sediment and granite.
98 He made it clear that there was a major problem in comparing a dust sample and the jeans sample, since, while larger particles may fall free, the small particles may remain trapped in the fabric, a matter which may affect the ratio of the elements in the different samples.
99 In respect of most of the elements, he thought that the dust in the vehicle seemed to be different from that on the jeans. The elements revealed by analysis, he said, were common and hence not diagnostic. Although he could not exclude their source as coming from the vehicle, he could not necessarily include that, because in his view the common elements would appear in most dust samples.
100 Professor David Hibbert said that the chemical analysis techniques used on the jeans dust, and on the rear compartment dust samples, limited the ability for comparison, with the consequence that the results were of little worth. The only conclusion he could make was that the stains on the jeans were “probably of dust, but we cannot say anything at all about the origin of the dust.”
101 He also said that, in his view, the wheels and bridge dust did not appear similar, even after recalculation of Mr Karaolis’ figures. In that latter regard, he accepted that the adjustment to make the sample 100% anhydrous was appropriate. He could see no valid reason, however, for the second adjustment made by Mr Stroud.
102 There was evidence from some witnesses to suggest that Weirs Road was something of a lovers lane, and that it was also used by local residents.
The Clothing of the Deceased and Traces of Semen
103 When the body of the deceased was discovered, it was found that she was not wearing a bra or spencer. She was, however, wearing panties.
104 Vaginal swabs and stains on the panties were analysed by Dr Goetz in 1982. Semen was found on the swabs and panties. The semen on the panties was on the outside of the elastic band around the legs, rather than on the crutch area. It was Dr Goetz’ evidence that the deceased would have had intercourse within 24 hours preceding her death.
105 He also found blood under fingernail clippings of the deceased, but tests done on that blood were unsuccessful.
106 The appellant, after being interviewed on 1 May 1982, and supplying information concerning the man who had allegedly come to his flat, and departed with the appellant, voluntarily provided a blood sample, on 1 June 1982. He was aware that it was sought for investigative purposes.
107 By the time of his arrest and trial, the vaginal swabs and panties, along with the deceased’s jeans, had been lost, and police were unable to establish any complete paper trail as to their whereabouts or destruction. A consequence of this was to deny, both to the Crown and to the appellant, the opportunity of DNA sampling, a procedure not available in 1982.
108 Professor Boettcher gave evidence of the DNA testing which could have been performed had the relevant items been available. Mr Goetz also said that, if the semen samples and fingernail clippings had been available, more sophisticated DNA analysis would have been possible.
109 Of perhaps lesser relevance was the evidence concerning the question whether the deceased had showered at the appellant’s flat and the fact that when her body was found she was not wearing a bra, skivvy or spencer. Its relevance related to the Crown suggestion that she had been attacked by the deceased while naked, after having had a shower at his flat, and then redressed by him, without her bra or without the red skivvy which Ms Wragg said she had been wearing earlier that day.
110 In that regard, the appellant had said in his two records of interview, and in his evidence at trial, that she had not showered while at his flat, although she had indicated to others an intention to do so before setting off for the hotel and bus. He had also informed police that she had brought the bags to the flat, which were later found, for the purpose of showering and changing for the trip. It was his case that she had been interrupted in this plan, when agreeing to go out with the young man who had called at the flat.
111 The clothes in which she was found, comprising brown and white sneakers, white socks, pale blue jeans and a multicoloured roll neck blouse, fitted the description which he had earlier provided of the clothes that she had been wearing when she had first arrived at the flat and when she had later left with the young man.
112 Among the luggage found in her car were brassieres, and there was evidence from Peter Adamedes and Joanne Fuller supportive of the proposition that she normally wore a bra, and from Julie Wragg that she always wore a spencer as she felt the cold. Christine Roberts said that that the deceased always wore a singlet. Further, there was evidence from Detective Small that 30 April was a cold day, with a brisk wind, and consequently a significant chill factor, to the point where a person with a cotton type blouse, and no undergarments, might feel extremely inconvenienced by the cold.
113 There was, however, evidence from Detective Sergeant Small that Ms Wragg had informed him, in May 1982, that the deceased did not always wear a bra, that she owned only one such item, and that she had left it at her residence. Additionally there was evidence from Sergeant Smith that Darren O’Brien, who acknowledged having had sexual intercourse with the deceased on several occasions over a period of 2 weeks, had informed him that she had not been wearing a bra, although she did have a spencer. The appellant said that sometimes she wore a bra, and sometimes she did not, but agreed that she did feel the cold.
114 The defence argument, as put to the jury, was that evidence concerning the absence of a bra or spencer were neutral, in so far as, if someone other than the appellant had engaged in sexual intercourse with her this evening, then that person may also have not fully redressed her, whether or not he had also killed her.
Laundromat
115 A critical piece of evidence for the defence came from Leslie Dawson, who ran a Laundromat in the Centrepoint Arcade off the main Street, in close proximity to the New England Hotel and the place from where the bus was due to leave. He was interviewed by police on 4 May 1982, and said that he had gone to the Laundromat from his home, at about 9.00 pm on 30 April, in order to close up the premises. While there he saw a lady using two washing machines. He described her as 5 foot 8 inches in height, with shoulder length hair, slim and wearing a brown coat with a heavy collar. He thought that she was aged about 30 years, and significantly, he said that she was wearing glasses and faded blue jeans.
116 When he returned at 9.25 pm, he saw that she had her clothes in the dryers. He noticed a white or light cream Ford or Holden in the car park. He recalled the lady saying that she was on her way to Brisbane on the 11.00 pm bus that night. He noticed shortly after the lady had departed the premises, that the vehicle earlier mentioned had also left the area. He said that, on the following morning, immediately after opening up, another woman had gone to one of the machines, which the lady previously mentioned had been using, and had handed to him a pair of green trousers which she found inside it. They were given to police but they have since been lost. They were said to be largish, size 14 or thereabouts.
117 On the following Monday he saw a photograph of the deceased on television, and recognised her as the lady who had been in the Laundromat on the evening of 30 April. Police interviewed a number of passengers who caught the 11.00 pm bus, who said that no one on it resembled the deceased.
118 Anne Wilcox and Margaret Meale said that they had walked past the Laundromat around 9.00 pm having driven to the parking lot behind the arcade in a silver grey Sigma sedan. Neither of them went inside, nor spoke to Mr Dawson. Ms Meale did, however, say that there was someone in the premises, but she could not say whether that person was male or female.
119 There was evidence from Ms Wragg and from Ms Fuller, to the effect that the deceased was no bigger than a size 8, so that the green trousers would have been much too big for her.
120 No evidence was called to show that any bus, other than the one on which the deceased had a booking, had left Armidale at 11.00 pm that night for Brisbane.
121 A public request was made for anyone who had used the Laundromat this night to come forward, but no one did so.
122 As has been previously noted, there was evidence to the effect that the deceased had washed clothes that morning at the Claude Street units, and also to the effect that she had packed her clothes in the bags which were found in the rear of her vehicle or in the appellant’s flat. There was no suggestion by the appellant that the deceased had been wearing a brown coat when she had left his premises, although a coat was said to have been found in the rear of the vehicle.
123 By reason of this combination of circumstances, namely the stated intention of the deceased to meet her friends at the hotel at 9 pm, the apparent absence of any reason for needing to wash or dry her clothes, the discovery of the green trousers, and the fact that she had not been wearing a coat when she left the appellant’s flat, the Crown submitted that Mr Dawson’s identification of her as the lady who had been in his premises between 9 pm and 9.30 pm was in error.
124 The defence submission was that he was not in error, and that, having regard to the observation which had been made concerning the bus, and to the fact that no other passenger on the bus had failed to catch it, or answered the description of a person who had been at the Laundromat that night, Mr Dawson’s evidence meant that the Crown case theory, of the appellant having killed the deceased at his flat, fell to the ground.
Ground 1 –
The Jury’s verdict was unreasonable and inconsistent with the evidence.
125 This ground was associated with ground 2, relating to the trial Judge’s refusal to grant a stay of proceedings in view of the 18 year delay in charging the appellant, and the loss of critical exhibits. It was submitted that, had they been subjected to contemporary forensic analysis, it could have established his innocence. That ground was not itself pursued, other than as an adjunct to ground 1.
126 In summary, it was submitted that, in accordance with the principles established in Jones v The Queen (1997) 191 CLR 439, M v The Queen (1994) 181 CLR 487 and Chidiac v The Queen (1991) 171 CLR 432, the case was one where this Court, having made its own independent analysis of the evidence, and making due allowance for any advantage which the jury may have had, as triers of the facts, would reach the conclusion that the jury were bound to have entertained a reasonable doubt as to the appellant’s guilt, or should have accepted some reasonable hypothesis consistent with his innocence (De Gruchy v The Queen [2002] HCA 33 per Kirby J at para 67). The appellant submitted, in effect, that the overall quality of the evidence was so lacking in probative force, or was subject to such challenge, that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
127 In support of this ground, the appellant identified what were asserted to be significant deficiencies in the Crown’s circumstantial case. He also submitted, relying in particular upon the evidence concerning the Laundromat, as well as that relating to the recency of sexual activity on the part of the deceased, that there was a reasonable hypothesis left open which was consistent with his innocence. This was to the effect that some person other than himself, possibly the man who called at the flat, had been responsible for her death.
128 It is next convenient to deal with the individual groups of evidence which, together, were said to make out a circumstantial case of murder.
(a) Cause of Death
129 The appellant submitted that, in view of the conflict between the evidence of Drs Staraj and Breusch, and the somewhat provisional nature of any opinion which either had offered as to the cause of death, there had to be a doubt as to whether the deceased had been murdered, and if so, whether that was due to an act of his.
130 This was obviously a critical and fundamental element in any case of murder brought against the appellant, which turned not only upon the post mortem examination, but also upon the question, assuming that the cause of death was vagal inhibition, whether the appellant could have been the person who applied the force or pressure needed to bring about that process.
131 The possibilities, which were identified by the appellant as alternatives to the hypothesis of him having killed the deceased, were that the young man who had come to the flat had murdered her after having sexual intercourse, or that she had died accidentally, or of natural causes while in his presence or in the presence of some other person who had intercourse with her, either of whom had then panicked and disposed of her body.
132 On these alternative possibilities, the death could have occurred in the vicinity of Pipeclay Creek, the area being known as a “lovers lane”, or elsewhere, in which case it was chosen as a convenient place for dumping the body.
133 The location of the deceased’s body, and the state in which it was left, would appear to be equivocal as to the identity of the killer (if it was, in fact, a case of murder or of manslaughter) since either the appellant, or whoever else had been with the deceased when she died, could have left her where she was found, or carried her there.
134 Equally, the absence of a bra or skivvy is equivocal, not only having regard to the evidence from the appellant, from Detective Smithers (who questioned Darren O’Brien on this topic) and Julie Wragg, that the deceased did not always wear a bra, but also by reference to the circumstances that these garments may well have been removed, had she been engaged in sexual activity and died in the course thereof, or soon afterwards.
135 Whoever had been present may well have not troubled to replace these garments when dumping or abandoning the body. Absent their discovery in the appellant’s residence, or in the motor vehicle of the deceased, or in the possession of some other person, the fact that they were missing from her body does not seem to prove anything in relation to the identity of any offender.
136 Returning to the post mortem examination, and to the 2 doctors who gave evidence concerning their findings and opinions as to the cause of death, it is not unimportant that Dr Staraj was uncertain as to the cause of death, and that Dr Breusch was only prepared to say, at the highest, that vagal inhibition had been a possible cause.
137 The haematoma on the surface of the strap muscles, although indicative of the application of pressure to that region, seems not to have been in the optimum position for interference with the carotid sinus or vagal nerve. Dr Staraj indicated that it may have been a love bite, and he said more than once, in his evidence, that he did not believe that pressure in the area of the bruise could have caused vagal inhibition.
138 There was no evidence of injuries, to the hyoid bone or otherwise, which either of Drs Breusch or Staraj saw as indicative of manual strangulation. Dr Staraj also said that sometimes people do die without leaving a visible cause of death, for example a heart attack, or in the middle of strenuous physical activity such as sexual intercourse.
139 The evidence in relation to the appellant's earlier training in Karate, and his alleged claims to knowledge of how that form of martial arts could be employed, through application of force to pressure points so as to cause death, has to be considered in a context where the Crown could not show clearly or unequivocally that vagal inhibition had in fact been the cause of death.
140 In this regard, the appellant said that he did not know the pressure points in the neck, and that he had little strength in his right hand by reason of the injuries suffered in the motor accident, which had caused him to give up Karate many years earlier.
141 This last mentioned circumstance the Crown sought to use to its advantage since it asserted that the presence of the haematoma to the left side of the neck was consistent with the offender using his left hand. That would only be true, however, if the assailant approached the victim from behind and was able both to restrain her and to apply the necessary pressure using one hand – a possibly dubious proposition.
142 By reason of the uncertainty as to the cause of death, there had to be at least a possibility left open that it was not the result of some deliberate or intended act of another party.
(b) The Laundromat Evidence
143 It was the Crown case throughout, that the deceased was killed at the appellant’s flat, and then taken by him in her car to the Pipeclay Creek Bridge area where her body was dumped. If the person seen in the Laundromat between 9.00 and 9.30 pm had been the deceased, then, unless she had returned to his flat after that time, his premises being some distance from the Laundromat, this case could not be established.
144 Reference has already been made to the evidence concerning this aspect of the case, which, so far as the Crown was concerned, should be accepted as having involved a mistaken identification by Mr Dawson of the deceased as the lady in the Laundromat.
145 In the appellant’s favour was the contemporary nature of the identification in terms strongly descriptive of the deceased; the observation which Mr Dawson recalled of the lady’s intention to catch the 11.00 pm bus for Brisbane; the absence of any evidence suggestive of any of the 13 passengers upon that bus having been into the Laundromat, or having spoken to Mr Dawson, or even of any one of them having a similar appearance to that of the deceased; and the absence of any response to public requests for anyone, who had used the Laundromat that night, to come forward.
146 Mr Dawson’s recollection of hearing the sound of a vehicle starting after her departure, and of later noticing the absence of the vehicle, which he had earlier seen in the car park, were of some relevance.
147 If the person in the Laundromat had not been the deceased, then, at the least, her stated intention of catching the 11.00 pm bus would have constituted an extraordinary coincidence; as would the fact that Mr Dawson saw, in the car park, a white or cream Ford or Holden of the kind generally matching the contemporary description given by the appellant of the vehicle in which, on his account, the deceased had driven away with the young man who had come to his flat.
148 On the other hand, there were reasons for questioning whether the lady, who was in the Laundromat, was the deceased, including the fact that Mr Dawson had not previously known her, and that he made the identification from a single small photograph of the family.
149 Then there was no apparent reason why she would want to wash or dry clothes at that time of the night, having washed her clothes earlier in the day, and having arranged to meet her friends at the hotel. Furthermore, there was no suggestion, by the appellant, that she had taken any clothes with her, or a coat, when she had left his premises at about 6.30 pm. To have taken clothes to the Laundromat she would have had to return to his premises, or at least to her car, and then to have either walked back to the Laundromat, or to have been driven there by someone else, since her vehicle was found outside the appellant’s flat.
150 Moreover, there was the mystery of the green trousers, which clearly did not belong to the deceased. No friend or student ever came forward to suggest that she had agreed to wash any clothes for him or her. Nor was there any suggestion, in the absence of a claimant to them, that they may have been left over from an earlier wash than that undertaken by the woman seen by Mr Dawson.
151 In addition, it appears to have been the case that there were other cars in the car park at the time of his observations, including the metallic silver blue Sigma of Ms Meale.
152 This evidence, in our view, however did leave open a possibility that the deceased was still alive at 9.30 pm, as well as the possibility that she had in fact been taken to the Laundromat by a person of the kind described by the appellant, each of which possibilities would have been inconsistent with the Crown case.
153 A separate ground of appeal was pursued in relation to the caution, which his Honour gave in relation to Mr Dawson’s evidence. That will be addressed later in these reasons.
(c) Physical Evidence
154 It was submitted that the loss of the physical exhibits comprising the vaginal swabs, the panties, the spot of blood from the deceased’s car, and the untested fingernail clippings of the deceased, had disadvantaged the appellant in so far as he was unable to subject them to more modern forms of analysis.
155 Additionally, it was submitted that the delay may have occasioned the appellant difficulty in remembering details of the events on the day of the disappearance, and/or may have reduced his chances of locating a witness who could have corroborated his version of events.
156 It must be accepted, so far as DNA testing of bodily samples was concerned, that it may have provided an opportunity to identify who it was who had possibly engaged in sexual intercourse with the deceased, within 24 hours before her death, or at least to eliminate the appellant as one such person. In that respect, such evidence, if available, may have questioned so much of the Crown theory as depended upon the proposition that he killed her after having intercourse, or may at least have identified another possible suspect, who could then have been investigated.
157 Whether further analysis would have had such a result is, however, unknown, and to assert that it would or would not have done so, remains an open question.
158 In this regard, there was evidence of blood grouping tests having been carried out in relation to the seminal fluid which revealed that it had the characteristics of group A, PGM 2+1+. The results for the appellant were PGM 2-1- Hp 2-1, while those for the deceased were group A, PGM 2+1+ HP2-2. While the blood grouping was inconsistent with the results for the appellant, it was possible that all that was being picked up from the swabs was contamination from the deceased.
159 There were seemingly 3 possibilities open: first that the deceased had sexual intercourse before she arrived at the appellant’s flat, with someone other than him; second, that she had intercourse with him while there; and third, that she did so subsequent to leaving his flat, again with someone else.
160 There was no evidence, according to Drs Staraj and Breusch, to suggest that the deceased had been the victim of a sexual assault, although it must be recognised that the possibility of discovering superficial scratches to her body would have been limited by the state of decomposition of her body once it was found.
161 In the light of the earlier separation of the deceased and appellant, the willing provision of a blood sample by the appellant, and the grouping results, the second possibility seems unlikely.
162 The presence of semen on the side of the deceased’s pants rather than on the inside of the crutch area would tend to favour the third possibility over the others. In that regard, the explanation suggested by the Crown, to the effect that semen may have been washed away from the panties by immersion in water during the 3 weeks preceding discovery of her body, seems unlikely in the light of the fact that there was a still a stain evident on the side of the garment, that there had only been 1 mm of rain in the Armidale area over that period, and that the body was above the creek and not in it. It was, however, the case that at least the back of the deceased’s jeans was wet when she was found.
163 While the Crown Prosecutor did not press the case upon the basis that whoever had engaged in sexual intercourse with the deceased during the period proximate to her death had necessarily killed her, that had certainly been the belief of the investigating police, and it made some sense.
164 In these circumstances, further DNA analysis of the kind which Professor Boetcher said could have been undertaken had the vaginal swabs and panties been available, may have been helpful, although it must be recognised, particularly in view of the deceased’s reputation for promiscuity, that a “matching” DNA profile would not necessarily have identified her killer, or for that matter, have even proved that she had been murdered.
165 This aspect of the case had some significance in view of the evidence which showed, either positively, or as a matter of belief, that there was a pool of men who had been having sexual relations with the deceased in early 1982, following her separation from the appellant. Some of them may have matched, albeit in a general way, certain of the physical characteristics of the man with whom the appellant said she had left his flat, at about 6.30 pm, and not all of them were known to him.
166 Moreover, so far as the appellant was concerned, it needed to be considered in a factual context where it was not suggested that any signs of a struggle, or of blood, or indicators of sexual intercourse, were observed in his flat, either by the lay witnesses who had called by there, on the night of the deceased’s disappearance, or the following morning, or by police who later searched the premises, unsuccessfully, without finding any such signs.
167 It is true that a blood smear was found on the front passenger side door of the deceased’s motor vehicle. However, Detective Hawkins could not say how long it had been there, and no evidence was led to show whose blood it was. Had it been that of the deceased, then it is unlikely that it would have been placed there post mortem, since it would have been somewhat extraordinary for a dead body to have been placed in the passengers seat, as distinct from the rear compartment (the latter scenario being that suggested, in fact, by the Crown).
168 Additionally, it is not irrelevant that, although the deceased’s vehicle was fingerprinted, no print of the appellant was found upon any of its surfaces.
169 Again, it must be recognised that the absence of signs of blood, or of any disturbance in the flat of the appellant, were not necessarily indicative of his innocence, or, put another way, inconsistent with his guilt. If vagal inhibition, as the result of a single unexpected and forceful blow or application of pressure by the appellant to the deceased’s neck while at his flat, had been the cause of death, then there may have been no occasion for any such signs.
170 A similar comment may be made in relation to the absence of any fingerprints in the deceased’s car, since with gloves no prints may have been left.
171 Of greater concern however would seem to be the absence of any signs of bodily fluid in the vehicle, or of any obvious pattern of disturbance of dust in the rear compartment, of the kind which would be consistent with the Crown case theory of the body having been carried to the bridge in that section of the vehicle.
172 At the end what is of greater relevance than speculation or hypothesis in these respects, is that the forensic examination of the appellant’s flat, and of the deceased’s vehicle, turned up no forensic evidence positively linking the death to the appellant.
360 Mr Stroud said that he had expertise in the field of contrasting chemical analysis. He did not do comparisons of soil or analysis of soil. He did have expertise in the comparison of small mineral and rock grains. This was his only experience of comparing dust samples. Mr Stroud said his experience of geochemical analysis of rock samples was extensive but his experience of geochemical analysis of dust samples, strictly speaking, was limited to the present case. This passage appears in Mr Stroud's evidence:
- "Q. You are in a position to comment on the appropriate test for a chemical comparison of dust samples even though that is an area about which you have no expertise?
- A: It is spliting (sic) hairs. Because the dust samples compr(om)ise minerals and rocks of which I do have experience. I see no problem with me commenting on their chemical analysis. Strictly speaking I have no experience in dust samples but it has been shown that those dust samples consist of rocks and minerals which I have extensive experience. Therefore, I feel I am qualified to comment on their chemical analysis."
361 In that passage a key is to be found to Mr Stroud's expertise. While he has had no experience with dust samples as such he has had experience with the rocks and minerals found within the dust samples. It was Mr Stroud's contention that the dust on the wheels of the vehicle was collected by travel of that vehicle along Weir's Road or a road of very similar geological and mineral composition.
362 Mr Stroud agreed that one rational explanation for the differences in the iron and potassium content of the bridge and wheels dust samples was that they came from different sources.
363 Mr Stroud said that when he was looking for other dirt roads which would match Weir's Road, he used 14 criteria, including a dirt road, six geological criteria and seven geographic criteria. These criteria were taken from Weir's Road. They were explored in cross-examination on the voir dire. They included the shape of the radiolarian, the appearance of the lithic clasts and the presence of the distinctive pyrite cubes in the cherts. Mr Stroud agreed that apart from major installations or works the GIS did not take into account the effects of transporting minerals as a result of human endeavours.
364 Mr Stroud agreed that the wheels dust could reflect an aggregation of dirt on a number of roads including roads on which roadworks were being carried out. Once you get dirt from driving along a dirt road on your wheels it stays there until it is washed off. It appeared that the part of Weir's Road near the quarry could be described as a lover's lane. There were many used condoms. The deceased was known to have had a number of affairs.
365 At T742 and T746 the judge ruled that Mr Stroud could give evidence of the matters to which he deposed and that the various objections and criticisms of the appellant went to the weight of the evidence. The judge added:
- "… the witness has given evidence about the outcome of the journey along Weir's Road and then Clark's Road and Kirby Road and the difference between each and the inference he seeks to draw from each and I think that furnishes some basis for inference ultimately in relation to the sample whether it's a reliable basis and how far and precisely it gets the Crown at the end of the day in terms of the tests they must satisfy I think is a matter of argument and submission but I don't see that as a matter of admissibility that it excludes it."
366 Much of the evidence given on the voir dire was repeated before the jury, often in an expanded form. As to the last matter there was evidence that about 9 February 2001 a clean vehicle was driven along Clark's Road to Kirby Road and then down Weir's Road to Booralong Road. The rims of that vehicle were vacuumed and the dust collected. The vehicle was washed and then driven from the sealed surface on Booralong Road along Weir's Road to just north of the bridge over Pipeclay Creek and returned. Again the rims were vacuumed and the dust collected. Mr Stroud subsequently tested those samples. In 2001 there were not as many fragment types as in 1982 and the proportions were different. This reflected the change of surface by the topping which had taken place. The section of the road from the intersection of Booralong Road up to the entrance to the quarry had a much higher quartz content. It has no ferruginised lithic fragments. It contains no basalt fragments but it contains quartz, chert and plagioclase. After that intersection the road changes in character. The geology changes. The geology from Booralong Road to the quarry turn-off is entirely with pieces of rock and minerals associated with Dumaresq Creek. It is called alluvium. North of the quarry nearly to the bridge over Pipeclay Creek there is an outcrop of rock. The road reflects the geology of the different rock types along that section of the road. That was significant in that Mr Stroud saw in the thin samples of wheel dust geological evidence consistent with the stretch of road beyond the quarry up close to Pipeclay Creek. In other words, the bridge dust sample and the wheel dust sample taken in 1982 each reflected the outcropping of or fragments of Weir's Road beyond the quarry.
367 Mr Stroud explained that the February 2001 tests had two purposes. Firstly to detect whether dust would adhere to wheel rims driven over dusty roads. It did. Secondly, to see whether there was any difference between the dust collected on each of the two routes mentioned.
368 Mr Stroud said that the dust collected from the vehicle in 1982 was consistent with the travel of that vehicle along Weir's Road or a road of very similar composition. That caused him to turn to the GIS to see if there were any other dirt roads which met the same geological criteria as Weir's Road, as any other road yielding similar dust would have to lie within the same geological units and be close to other geological units represented in the material found in the thin sections. Earlier, reference was made to the criteria applied. He could find no other road apart from Weir's Road that could have produced the wheel dust in 1982. Mr Stroud said that the wheels dust exhibits those extra materials that you would expect if that dust had been collected from dust along that part of Weir's Road from Dumaresq Creek crossing to Pipeclay Creek, namely chert with radiolarian, weathered lithic fragments, basalt fragments and granite fragments.
369 In cross-examination in the trial this passage appears:
- " Q: Is comparison of samples of dust outside your area of expertise?
- A: If those samples contain rocks and minerals I can within my field of expertise comment on the rocks and minerals contained within the dust sample."
370 I interpolate that it was the pieces of rock and minerals, including the mineral clasts found in the samples of dust which formed the basis of Mr Stroud's evidence and opinions. Mr Stroud agreed that he did not have dust samples to compare and that he did not have expertise in the area of comparisons of samples of dust. He had thin sections, taken from two dust samples and Dr Byrnes’ report.
371 Mr Stroud rejected the suggestion that having regard to the material available to him in the thin sections there was no basis upon which he could reach the conclusion that there was a remarkable similarity between the sections taken from the wheel dust and those taken from the bridge. It was being suggested that the amount of material available was too small to enable a sound conclusion to be drawn. He did not agree. The samples were not identical and he indicated the differences but attached little significance to them. Nevertheless he thought the similarities were "remarkable".
372 As to the accuracy of information in the GIS this passage appears:
Q: Well that is fairly accurate?"Q: I take it you are confident in terms of its accuracy?
A: No. One can't be confident in terms of its accuracy … you do have to be very careful of the information put in any computer and that information of the GIS is only accurate to about one in 100,000 scale mapping.
A: It is fairly accurate."
A: That's – as a scientist I've got to say of course there may be, anything is possible.""Q: There may well be other areas in the Armidale area which don't meet the geological criteria for Weir's Road but which nevertheless produce dust similar to the wheels dust?
373 During the cross-examination of Mr Stroud it was frequently put to him that alternatives to what he propounded were, in effect, possible and he often agreed but the tone of his replies was that while possible they were unlikely. By "possible" he often seemed to imply that the alternative was a bare possibility.
374 The appellant attacked the seven geological factors selected by Mr Stroud as constituting the criteria which it was necessary to find before a geologist would say that a site containing these would be likely to yield sections of dust with marked similarities to those found on the wheels or the bridge. There were two criteria that drastically reduced the number of possible sites, namely, to produce similar sections the site had to be more than half a kilometre and less than 1.5 kms from tertiary basalt and greater than 1.5 kms and less than 3 kms from granite. Mr Stroud conceded that it was possible to get a dust sample similar to the wheel sample if tertiary basalt was 0.4 km away but it was less likely if the tertiary basalt was 1.6 kms away.
375 Mr Stroud conceded that the answers he had given in relation to distances just outside his criteria applied equally to all other criteria. Mr Stroud agreed that if the criteria he used were widened that may result in more than 14 potential sites. He agreed that samples of dust had not been taken from any of those sites nor had sections been taken.
376 Mr Stroud explained:
- " I made a geological inspection of those roads and based on that inspection of those roads I concluded that if dust in fact was sampled from those roads it would be different in composition to either the wheel dust or the bridge dust."
377 He did not make a microscopic geological comparison of the 14 sites with the wheels dust and the bridge dust. Mr Stroud stated that some of the sites which he thought might be potential matches tended not to be when the topography of those sites was taken into account. Mr Stroud further stated that his field examination of the 14 sites indicated that there were some inaccuracies in the GIS. For example on one site, Edward's Drive, basalt occurred closer than was indicated in the GIS.
378 Mr Stroud said that if the Geological Survey had a perfect map more areas would have been excluded than included because basalt would have extended with a perfect map to more areas. He was asked to take the hypothetical example of there being no basalt between 0.5 and 1.5 kms from the potential site according to the GIS, but a field inspection showed that there was basalt within that band. He agreed that in such a case inaccuracies in the GIS could lead to potential sites which would produce soil (dust) similar to the wheel dust and the bridge dust. On that hypothesis, there could be areas other than the 14 potential sites which could produce dust similar to the wheel dust and the bridge dust.
379 Mr Stroud relied on his intimate and detailed knowledge of Weir's Road and the rock and mineral geology of Armidale. He had had many years of practical experience and he relied on this and his skill as a well qualified geologist. His list of publications was substantial and they touched, amongst other things, on the geology of the New England region. For the jury to have convicted the appellant it almost certainly relied upon Mr Stroud's evidence.
380 Mr Stroud had extensive geological knowledge and experience including knowledge of geochemical matters. His evidence was based on that knowledge and experience and his detailed and specialised knowledge and experience of the Armidale region and Weir's Road. On the evidence before the jury it was open to them to take the view that he was a master of the geology of the Armidale region. He made it clear that he was relying on the pieces of rock and pieces of minerals which he found in the sections of the samples of dust taken in 1982. He exposed his reasoning and was cross-examined closely upon it.
381 A detailed examination of the evidence of Mr Stroud has persuaded me that he had specialised knowledge, based on his training, study and experience and that his opinions were substantially based on that knowledge. His initial opinion that there was a remarkable similarity between the sections of the wheels dust and those of the bridge was based upon the pieces of rock and minerals which he found in those sections. Those were the fingerprints which he used.
382 The attack on Mr Stroud's evidence developed by Senior Counsel in this Court focussed not on the point just mentioned but on his evidence that there were no other roads in the Armidale area that met the same geological criteria as Weir's Road and that he could not find any road, apart from Weir's Road, that could have produced the wheels dust.
383 It was submitted that Mr Stroud was wrong to conclude that the wheels dust could only have come from Weir's Road or a road of similar mineralogical composition as this excluded the possibility that the wheels dust was produced by the combination of dust from two or more roads. This criticism should not be sustained. Mr Stroud appreciated that the wheels dust could have represented the aggregation of dust from two or more roads. He was aware of the difference between the geology of the bridge section of Weir's Road and that of other sections of Weir's Road, Clark's Road, Kirby's Road and Booralong Road. He was moved by the marked similarities of the rock pieces and mineral pieces in the wheels dust and the bridge dust. That pointed to at least a portion of the wheels dust probably having come from the bridge area or from a road of similar composition. While it was theoretically possible that the wheels dust could have picked up the particular composition of geological and mineral similarities from a number of roads, ie, a number of similarities from each, this was unlikely.
384 The appellant further complained that in an attempt to find whether "a very similar road" existed in the Armidale area, Mr Stroud used GIS analysis to isolate roads in the area which were very similar in macroscopic geological/geographical terms to Weir's Road assuming that the wheels dust could only have come from a road very similar in macroscopic geological/geographical terms to Weir's Road. The appellant submitted that even if the wheels dust came from a single road the second assumption was flawed because the GIS maps were often wrong and it excluded the possibility that dust similar to that found on Weir's Road was on a road which was not similar in macroscopic geological/geographical terms to Weir's Road.
385 Dr Byrnes agreed that geological maps are often wrong. Mr Stroud thought that it was putting the matter too high to say that the GIS maps were often wrong. Mr Stroud readily conceded that there were inaccuracies. This is to be expected in such a wide ranging venture. Mr Stroud said that if the Geological Survey had a perfect map more areas would have been excluded than included because basalt would have extended to more areas.
386 Mr Stroud also conceded that it was a possibility that dust similar to that found on and around the bridge might be found in an area which was not similar in geological and geographic terms to the bridge area of Weir's Road. This could arise from the transportation of material by, inter alia, streams and water or from the quarry. However, he regarded this as unlikely.
387 Senior Counsel also submitted that Mr Stroud's opinion that it was not "necessary" to look for all areas in the Armidale region that may contain wheels dust similar to the thin wheels dust sections examined because "of the way the GIS had been applied and using my common sense as a geologist who knows the geology around the Armidale area" did not expose the reasoning process leading to the formation of the opinion that there were no areas in the Armidale region which could produce the wheels dust other than the section specified in Weir's Road.
388 Mr Stroud was looking for areas of similar mineral and geological composition. He used the GIS for this purpose acknowledging its limitations. He relied on his knowledge of the region, for example, that basalt tended to be more widespread than shown in the GIS. It was not incorrect for Mr Stroud to use the GIS in his effort to find areas of geological and mineral composition similar to the area on and around the bridge area of Weir's Road. The criticism that Mr Stroud did not expose his reasoning process is incorrect. Whether the process he adopted was correct was a matter for debate.
389 Counsel submitted that Mr Stroud concentrated on the wrong issue. His materials did not enable him to identify those roads which were composed of materials similar to those found in the wheels or bridge dust. All he could do was identify some areas which have geological characteristics similar to a section of Weir's Road. Counsel submitted that this was a significant difference. In answer to this contention it was Mr Stroud's point that use had to be made of the material available. The road dust reflects the underlying composition of the rock pieces and the mineral pieces. It was also possible to identify what had been introduced, for example, the cherts from the nearby quarry. What emerged was an underlying geological and mineral composition which was markedly individual.
390 The appellant's submissions tended to evaluate the admissibility of Mr Stroud's evidence by reference to that called on behalf of the appellant. The evidence of the appellant's highly qualified experts was highly critical of the evidence of Mr Stroud on fundamental aspects and regarded Mr Stroud's evidence as erroneous on important issues. That does not make Mr Stroud's evidence inadmissible. The appellant contended that Mr Stroud's ultimate opinion was not based substantially on reliable specialised knowledge but essentially on impermissible speculation without any rational foundation. That submission is not correct. Mr Stroud did rely on his specialised knowledge and experience. Section 79 of the Evidence Act 1995 does not preclude the admissibility of Mr Stroud's evidence. Of course, the evidence of the appellant's experts was highly relevant on the ground that the verdict was unreasonable.
391 The appellant submitted that Mr Stroud's evidence should have been excluded under s.137 or s.135 of the Evidence Act 1995 as its probative value was low and its prejudicial value was high. It was submitted under s.137 that the probative value of Mr Stroud's evidence was outweighed by the danger of unfair prejudice. Under s.135 it was submitted that the probative value of Mr Stroud's evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant. The appellant emphasised that the Crown had invited the jury to place great reliance on Mr Stroud's evidence. The appellant submitted that because of the weaknesses of Mr Stroud's evidence and the disproportionate impact Mr Stroud's evidence was capable of having this was one of those unusual cases where the Court would exercise its discretion to exclude it.
392 In making submissions under ss.137 and 135 the appellant placed emphasis upon Mr Stroud's use of the GIS and his use of the geological and mineral composition of the dust from Weir's Road on and around the bridge. It was submitted, in effect, that his approach to the question of whether there were other roads from which the wheels dust could come was self evidently, fundamentally flawed. Nor, it was submitted, could Mr Stroud's local knowledge of the geology and topography and his common sense as a geologist assist him.
393 The probative value of Mr Stroud's evidence including his use of the GIS was, if accepted, high. His evidence was very prejudicial to the appellant. However, there was no aspect of that evidence which made it unfairly prejudicial. The possibilities which Mr Stroud admitted and which were capable of eroding or destroying the value of his evidence were regarded by him as highly unlikely. He thought his explanations were the simplest and best from the data available. Mr Stroud's evidence and his approach turned out to be controversial. His evidence was quite complex and to follow it required sustained concentration. However, there are many cases where juries have to assimilate complex technical evidence and where complex expert evidence is controversial. That does not lead to its rejection. The jury were aware of the strong criticisms of Mr Stroud's evidence. In the context of this trial and the way in which the issues were canvassed this is not a case where the jury was likely to give undue weight to Mr Stroud's evidence merely because of his local knowledge.
394 There was no case for refusing to admit Mr Stroud's evidence under s.137 or s.135 and no case for refusing to allow him to give evidence of the use of the GIS and the conclusions he drew.
395 I would reject Ground 5.
Appeal Ground 6
The … judge erred in permitting the Crown to recall a witness, Dr John Graham Byrnes, after he had been examined in chief and cross-examined and ask[ed] his opinion of the conclusions of another Crown witness, William James Stroud.
396 Dr J G Byrnes was a highly qualified and experienced geologist with the Department of Mineral Resources in which he had held a variety of positions over the years. In 1982 he was at the Geological and Mining Museum and part of his duties involved examining specimens and samples which the police brought to the Museum for forensic comparisons and generally assisting the police in their investigations. The police in late May 1982 and on 2 June 19812 delivered various samples and items to the Museum. They included Item 4, Dust removed from the four wheels of the vehicle GLE 109, Sample 3473, thin sections T41738 and 41739 and Item 6, Dust removed from unknown bridge on Weir's Road, Armidale, Sample 3469 and thin sections 41736, 41737, 42591, 42675 and 42676.
397 In his evidence in chief Dr Byrnes covered a variety of matters. This ground of appeal only touches upon a couple of matters albeit important ones. Such matters bear upon significant aspects of Mr Stroud's evidence. At T510 Dr Byrnes said that he had concluded in his report that the dust from the wheels of the vehicle GLE109 contained basaltic, granitic and supplementary rock detritus that was similar to and could have been derived from the area where the body of the deceased was found.
398 Dr Byrnes said (T512) that it was concluded from tests that some of the marks on the deceased's jeans came from the body site under the bridge. Dr Byrnes (T572-3) said that the visual microscopic examination was vital. The chemical test was important but not as vital. Dr Byrnes said that he knew that what was in the wheels dust would match what was at the site both from what was on the geological map and from the composition of the thin sections made from the site samples. He added that he did not have any idea whether you could find dust of the same composition just anywhere around Armidale. He would have sought the assistance of a local geologist with local knowledge. In 1982-3 the GIS did not exist. Dr Byrnes had read the relatively recent reports of Mr W J Stroud.
399 Dr Byrnes said that the colour of the dust samples was quite influential in indicating whether the samples were identical or not. It was his opinion and that of two colleagues at the Museum that the wheels dust was slightly more orange or reddish than the bridge dust. Tests revealed that there was greater iron content in the wheels dust.
400 Dr Byrnes said that the wheels dust and the bridge dust were constituted basically of granite basalt and chert or of minerals which could be readily attributed to those rocks. They were very common. There were radiolarian-rich rock fragments in the New England area and they were common.
401 Dr Byrnes regarded the wheels dust and the bridge dust as broadly similar but he was aware that another expert saw them as different. Dr Byrnes said that in the context of chemical analysis he had written in his report, "… the wheels dust did not indicate strong similarity to the bridge dust." Chemically, he estimated a similarity of 50/50.
402 Dr Byrnes agreed that geological maps are often wrong. Further, even despite the geological structures being of the same kind you would commonly find variations in the dirts recovered. Allowance had to be made for people dumping materials or transporting materials. He cautioned Det Murphy that geological evidence should not be the only evidence implicating the appellant.
403 Despite a lengthy examination in chief and a lengthy cross-examination Dr Byrnes was nowhere asked directly, to deal with the methodology and conclusions of Mr Stroud.
404 That omission was going to make the jury's task even harder. The judge appreciated that this was going to leave the evidence in an unsatisfactory state and drew the parties' attention to it.
405 In his reasons for granting leave to the Crown to further examine Dr Byrnes, the judge noted that Mr Stroud had given evidence that he had examined the work of Dr Byrnes and agreed with his conclusion as to the differences between the wheels dust and the bridge dust. He had also prepared certain tables of his own findings based upon his examination of the thin sections. The wheels dust and the bridge dust were, in a number of respects, said to be strikingly similar.
406 The judge noted that for reasons beyond everyone's control, the adducing of the geological evidence had been somewhat disjointed. The judge recorded that the evidence of Dr Byrnes was interrupted after cross-examination and before re-examination in order to call certain evidence from Mr Stroud. That was to facilitate the view being held in Armidale, the trial taking place in Sydney. The judge remarked:
- "…it was not obvious to me whether the work that [Stroud] had done, based on the thin sections, which had been collected by Dr Byrnes, was the same as that undertaken by Dr Byrnes."
407 The core of the judge's reasons is expressed in this passage:
- "Dr Byrnes, when giving evidence in chief, and indeed in cross-examination, had not been invited to comment upon the tables prepared as a result of Mr Stroud's examination, nor upon the conclusions reached by Mr Stroud. In the absence of the jury I asked counsel about this issue. As a consequence of that discussion the Crown later sought leave to ask certain further questions of Dr Byrnes in chief.
- Mr Stratton complains that were leave given it would, 'Undo a day's cross-examination.' It was, therefore, unfair to Mr Rose [s 192(b)].
- Dealing with other criteria referred to in s 192, unquestionably the length of the examination of Dr Byrnes would be prolonged if leave were given and so would the trial, though not, in my judgment, unduly so [s 192 (2)(b)]. I believe that there is an element of hyperbole in Mr Stratton's submission. His cross-examination concerned many matters, not simply the issue which I believe could, with advantage, be addressed were leave given.
- The unfairness to Mr Rose, such as it is, has to a degree been ameliorated, in my view, through Mr Stratton being given the right to examine Dr Byrnes on these issues on the voir dire.
- In the circumstances, where the geologists had used the same basic data in order to form their conclusions, namely the thin sections, supplemented by the chemical analysis of the original samples, there is an obvious issue as to whether their views coincide. I believe that issue would occur to the jury as it occurs to me. Indeed, I believe I would have been entitled to ask the question in the presence of the jury, which I chose to raise in the absence of the jury in order to allow counsel the opportunity of making submissions.
- Having heard those submissions, I remain of the view that the extent to which the geologists using the same basic data agree with each other, and specifically the extent to which Dr Byrnes agrees with the tables of Mr Stroud (Ex AA), and the conclusions reached by Mr Stroud based on those tables, is important.
- I believe it would be helpful to have Dr Byrnes taken to Dr Stroud's tables, and his conclusion, and invited to comment, as the Crown now seeks to do. In the circumstances, and taking account of the matters identified in s 192(2), leave should be given to the Crown."
408 Following the judge's reasons Dr Byrnes gave further evidence in chief. He was reminded of Mr Stroud's evidence that the remarkable similarities included that the ferruginised lithic clasts in both the bridge dust and the wheels dust were indistinguishable and that some of the chert fragments with radiolarian in the wheels dust were identical with some of the fragments in the bridge dust. Those fragment types were distinctive. Dr Byrnes said that there were only very slight differences between his opinion and that of Mr Stroud. Dr Byrnes continued:
- "I think we both described the same rock types. He said numbers for particular grades, which I hadn't said. So it has gone a bit more quantitative in a sense, He has used the word 'distinctive'. Although I would agree that there is, in this case comparisons might even look the same, I think some of those things like the radiolarian particles, if you looked hard enough in other areas you would probably find similar appearance material."
409 In cross-examination Dr Byrnes confirmed that he stood by his report. He was struck by the similar range of features which occurred in both samples but added that those features could be found elsewhere. It was not particularly unusual. While he did not know, what he saw in the wheels dust would probably be found over a wide area of New England, but it would not be uniformly so.
410 Dr Byrnes agreed that he had written in his report:
- "The uncommon type encountered in the present case was a radiolarian clay possibly grading to radiolarian ooze infiltrated clay."
411 He had set out in that report thin sections in which he found that uncommon type of radiolarian. When dealing with the wheels dust he did not mention that unusual or uncommon type of radiolarian being present. It is apparent from the cross-examination of Dr Byrnes that counsel for the appellant was able to cross-examine Dr Byrnes effectively on the additional evidence he had given in chief. Counsel used Dr Byrnes 1983 report to which he adhered to suggest that his evidence of substantial agreement with Mr Stroud's opinions differed from the opinions which he had expressed in the 1983 report. Specific sections of the 1983 report were put to Dr Byrnes. As a result of the cross-examination there was a real basis for suggesting that Dr Byrnes had shifted ground somewhat. While the Crown case gained some support from the additional evidence led in chief, the appellant was able, by cross-examination, to raise doubts as to the accuracy of Dr Byrnes' additional evidence. From the point of view of the jury the evidence was complicated and important matters were not left up in the clouds.
412 The appellant correctly submitted that the general rule is that cross-examination of a witness is not to take place before the end of the examination in chief, unless the Court otherwise directs: s.28 of Evidence Act 1995. It otherwise directed in the present case.
413 The appellant submitted that there was an unfairness in permitting the Crown to ask Dr Byrnes to comment for the first time on Mr Stroud's evidence after the cross-examination had been completed. The judge correctly thought that this was not so. It was undesirable for the Crown not to have led the additional evidence in chief. That should not have happened. However, the position of Dr Byrnes as to the conclusions expressed by Mr Stroud should not have been left up in the air. That would have been puzzling for the jury. The interests of justice required that the matter be clarified. The evidence was technical, quite complex and not easy to understand.
414 Counsel for the appellant on the voir dire examination of Dr Byrnes as to the additional evidence tested it, investigated it, and ascertained what questions should and should not be asked when the jury returned. The result was a concise and effective cross-examination. If the additional evidence had been given in chief prior to any cross-examination the form of cross-examination may have taken a different form but the substance of the cross-examination overall would not have differed. There is no substance in the complaint in Ground 6.
415 The exercise of the discretion by the judge is not fairly open to attack. Indeed, the judge was correct for the reasons which he gave. Subsequent events confirmed that this was so.
416 Appeal Ground 6 should be rejected.
417 I agree with the orders proposed in the joint judgment.
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