R v Serratore - [2001] NSWCCA 123

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Serratore [2001] NSWCCA 123

FILE NUMBER(S):
60422/00

HEARING DATE(S): 29 January 2001
30 January 2001

JUDGMENT DATE: 06/04/2001

PARTIES:
Regina
John Serratore

JUDGMENT OF: Beazley JA Grove J Whealy J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70018/96

LOWER COURT JUDICIAL OFFICER: Kirby J

COUNSEL:
Appellant: R Toner SC/S Walsh
Crown: M Grogan

SOLICITORS:
Appellant: Macedone Christie Willis
Crown: S E O'Connor

CATCHWORDS:
Murder
Method of indictment
Single indictment
Evidence of intention
Verdict unreasonable or unsupported by the evidence

LEGISLATION CITED:
Crimes Act 1900 (NSW) s 18
Evidence Act 1995 (NSW) ss 72, 136

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
CCA 60422/00

BEAZLEY JA
GROVE J
WHEALY J

Friday, 6 April 2001

REGINA v John SERRATORE
FACTS
The appellant was indicted on a single count of murder. The Crown case was that the appellant either murdered the deceased himself, aided and abetted another person who caused the death or procured another person to kill her. He was found guilty by a jury of 12.
The appellant had been found guilty at an earlier trial but his conviction was quashed on appeal and a new trial ordered: R v Serratore [1999] NSWCCA 377.
HELD on appeal against the verdict in the second trial
per Beazley JA (Grove and Whealy JJ agreeing)
(i) The question of whether charging the appellant with a single count of murder where three different modes of involvement were alleged had been determined by the Court of Criminal Appeal in the appeal from the first trial. Leave should not be granted to re-litigate the question: R v Serratore [1999] NSWCCA 377; Burt v Barry & Roberts, Ex parte Barry & Roberts [1956] QSR 207; State Government Insurance Commission v Clift (1990) 54 SASR 52; Jacobs v London County Council [1950] AC 361.
(ii) The trial judge correctly admitted evidence of conversations between the appellant and a witness whom he had requested to assist him to kill the deceased five months prior to her death as evidence of intention: R v O’Leary (1946) 73 CLR 566; R v Adam (1999) 106 A Crim R 510; R v Player [2000] NSWCCA 123.
(iii) The evidence was sufficient to support a conviction. Indeed, the fibre evidence of which complaint was made, in particular expert evidence that fibres found on the deceased’s boots had come from the appellant’s vehicle pointed overwhelmingly to the appellant’s guilt: M v The Queen (1994) 181 CLR 487; Jones v R (1997) 191 CLR 439; Hocking v Bell (1945) 71 CLR 430; R v Pantoja (1996) 88 A Crim R 554.
ORDERS
Appeal dismissed
IN THE COURT OF
CRIMINAL APPEAL
CCA 60422/00

BEAZLEY JA
GROVE J
WHEALY J

Friday, 6 April 2001

REGINA v John SERRATORE
JUDGMENT
BEAZLEY JA: Introduction

The appellant appeals against his conviction for the murder of Frances Tizzone.
Ms Tizzone, a 20 year old university student who lived with her family, did not return home from university, as expected, on the afternoon of 29 March 1995. Her body was found on the roadside along Wakehurst Parkway, Frenchs Forest on the afternoon of Sunday 2 April 1995. The body was fully clothed and there was no evidence of sexual assault. A Sportsgirl bag containing some of the deceased’s university books was found nearby. A plastic bag containing items used by the deceased in her course was also found. Her wallet appeared to be intact.
The deceased’s body bore a number of injuries to the neck, face and fingers. Certain of these injuries were consistent with strangulation and others with attempting to fight off the attacker. Other injuries appeared to have been caused by rodents attacking the body.
Dr Botterill, forensic pathologist, attended the body where it was found in the early evening of 2 April and conducted the post-mortem examination on 3 April. He concluded that the probable cause of death was strangulation or possibly suffocation. Based on the degree of decompositional change, he concluded that death occurred between 29 March and 2 April, but most likely on 29 or 30 March.
The appellant, who had had a boyfriend/girlfriend relationship with the deceased extending over 4 - 5 years but with several interruptions, was arrested and charged with the murder. The relationship and its volatile and sometimes violent nature was an important circumstance relied upon the Crown in its case against the appellant.
Another important circumstance was evidence that the deceased had arranged to meet the appellant on the afternoon of 29 March after university lectures.
However, the significant link between the appellant and the murder was the presence of grey, black and blue fibres on the soles of the boots the deceased was wearing at the time of her death. Forensic examination revealed that the fibres on the boots matched the fibres of the carpet on the floor of a 1990 - 1991 Honda CRX motor vehicle (the CRX). The appellant owned such a vehicle at the time. The possibility that the fibres might have come from a CRX other than the appellant’s was eliminated. Although senior counsel for the appellant did not dispute that there were fibres on the deceased’s boots which came from the CRX, there remained a critical dispute as to whether all the fibres on the boot came from the CRX. There was also a critical issue as to how long the fibres had been adhering to the boots.
The appellant at all times denied any involvement in the killing.
Issues on Appeal
Three essential issues were raised on the appeal. The first related to the form of indictment. It was submitted that it was inherently unfair to the appellant to indict him on one count of murder but allege that the crime could have been committed in one of three ways (grounds 6, 7 and 7A). Secondly, it was contended his Honour erred in permitting the evidence of the witness Bassam Radwan to be used as evidence of the appellant’s intention to procure the murder of the deceased (grounds 1 and 2). Thirdly, the verdict was challenged as being unreasonable or unsupported by the evidence (grounds 3, 4 and 5), or as amounting to a miscarriage of justice (ground 8): see s 6(1) of the Criminal Appeal Act 1912 (NSW).
10 It is significant to note that the appellant does not challenge any of the directions of the trial judge.
Grounds 6, 7 and 7A: Unfairness of Indictment
The appellant was indicted under s18 of the Crimes Act 1900 (NSW) on one count of murder. The Crown case was that the appellant was guilty of the murder, because:
(i) he murdered Frances Tizzone himself and had the intent to do so; or,
(ii) he was present at her death and aided and abetted another (but unknown) person to commit the act causing death, knowing that person had such intent; or,
(iii) he procured another (but unknown) person to kill her, which that person did.
The case advanced by the Crown was that it was likely that the appellant committed the murder although the other possible scenarios were available to found the guilt of the accused. There was no dispute that the charge covered each of the three scenarios relied upon by the Crown.
Senior counsel for the appellant submitted that for the sole count in the indictment to cover any one of the three possibilities was intrinsically unfair to the appellant. It was submitted first that the Crown case was vague in the sense that the whole of the evidence was presented as relevant to each scenario, notwithstanding that the appellant’s manner and extent of involvement in the deceased’s murder would have differed depending upon which scenario was being advanced. This, it was contended, made it difficult for the appellant to meet each of the cases alleged against him. Secondly, it was submitted it was unfair to the appellant because it was not possible to know how the jury reached its verdict. On this second point senior counsel for the appellant submitted:
“[T]here can be no certainty that there was even a majority [of the jury] in favour of any one of the scenarios presented by the Crown.”
This was the appellant’s second trial. On the appeal against conviction in his first trial he also challenged the form of the indictment, which was in the same form as the present indictment, and was put forward on the same basis as that advanced here: R v Serratore [1999] NSWCCA 377. That challenge was unsuccessful, although the appeal was upheld on other grounds. Senior counsel for the appellant submitted that he was entitled to raise the point afresh because each trial had to be fair and judged on its own merits.
In the first appeal, Greg James J (Dunford J and Smart AJ agreeing) noted that there was no authority in New South Wales directly on point. He thus referred to the historical background of the form of indictment and concluded at para 222:
“There is nothing in the New South Wales history, legislation or practice which speaks against its use in the way it was here employed.”
An examination of the authorities in other jurisdictions supported this conclusion: see Thatcher v The Queen (1987) 39 DLR (4th) 275 (Canadian Supreme Court); R v Giannetto (1997) 1 Cr App R 1 (UK Court of Appeal); and R v Leivers & Ballinger (1998) 101 A Crim R 175 (Queensland Court of Appeal). In Giannetto the Court (Kennedy LJ, Laws J, Maurice J) said at 8:
“[T]he trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing …
There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they did find the defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown alleged, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it: and the defendant knows perfectly well what case he has to meet.” (emphasis added).
In R v Leivers & Ballinger Fitzgerald and Moynihan JJ noted that:
“… if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, ‘it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so’.”
See also R v Thatcher.
Relying on these authorities Greg James J at para 226 rejected
“[t]he unattractive submission [made on behalf of the appellant] … that, where it is not possible to distinguish beyond reasonable doubt whether the accused killed, helped or procured the killing, he had to be acquitted even though there was sufficiency of evidence to enable a jury to find those matters.”
Accordingly, his Honour found that the form of indictment was good.
A preliminary question arose on this appeal as to whether the appellant required leave to argue this ground, given the decision of this Court in the first appeal which dealt directly with and rejected the point now raised. Although that appeal was allowed on other grounds, I consider that leave to reargue this point is necessary as the issue was raised and specifically dealt with by the Court: see Burt v Barry & Roberts Ltd, Ex parte Barry & Roberts [1956] QSR 207 at 219; State Government Insurance Commission v Clift (1990) 54 SASR 52; and Jacobs v London County Council [1950] AC 361 per Lord Simonds at 369.
There was nothing raised in argument by senior counsel for the appellant which warrants the grant of leave. No error of reasoning in the judgment on this issue was identified, nor is there any differing circumstance which requires this point to be considered afresh. Even if the matter is not one which requires leave, I would reject this ground of appeal. As I have said, the appellant could not point to any error of reasoning in the judgment of Greg James J, with which I agree.
It follows that, in my opinion, leave to argue grounds 6, 7 and 7A should be refused. Alternatively, these grounds should be rejected.
Grounds 1 and 2: Evidence of Bassam Radwan
The deceased’s family and other witnesses gave evidence that over nearly the whole of 1994, but particularly in the second half, the deceased had expressed a wish to terminate her relationship with the appellant and that over that time, he had become abusive and violent towards her. On 7 November, the deceased and her family called in the police after the appellant had once again come to their home and acted abusively towards the deceased as well as towards Mr Tizzone.
Mr Bassam Radwan, a former school friend of the appellant, with whom he had resumed his acquaintance in the latter part of 1994, gave evidence about a series of conversations he said he had with the appellant, particularly in late October and early November 1994 (the November conversations) concerning his relationship with the deceased, in which the appellant asked Radwan to help him kill her.
The most significant conversation occurred on 8 November. At this time the appellant had been coming to Radwan’s house about three times a week. The appellant had told Radwan that he was depressed about his personal life and that his relationship with the deceased “wasn’t so good”. Initially the appellant had told Radwan that he wanted to hurt Mrs Tizzone as she had been “interfering with his relationship”. However, by 8 November the appellant’s comments were directed towards the deceased. Radwan said the appellant had “wanted me to help him kill her … he wanted her to overdose on pills … to get her back … [f]or what she did to him”. Radwan said the appellant had outlined a plan to give himself an alibi. Radwan’s evidence continued:
“At first he said, ‘Tomorrow morning [the deceased] will be going to university and on the way to university she’ll be dropping her mother off at work and leaving to go to the university. Where she drops her mother off at work there’s a roundabout’ and he asked me when she approaches the roundabout to hop in the car with her and drive somewhere down the road and try and convince her - he said she’ll get scared of me and do what I say because she’ll be scared of me and he said, ‘You make her scared and make sure she swallows the tablets and write out a note’.
…
Q You told him, ‘No way’; in other words, you weren’t going to do it?
A Yes.
Radwan said that the appellant kept trying to persuade him to commit the murder, asking him “at least a hundred times” to help him and wondering where he could get some pills to give to the deceased. Radwan’s evidence was that he had refused to help the appellant, telling him that he would not let him “ruin [himself] … over a girl”. However the appellant persisted:
“A          He just kept on trying to convince me and I kept on trying to talk him out of it, trying to reason with him, tell him, ‘I’m not going to do it’ and tell him, ‘It’s not worth it’ and try and make him see.
Q            What happened then?
A            He just got more and more frustrated.
…
A            And desperate, yeah.”
Radwan’s brother gave evidence that six or seven months before the deceased was killed, the appellant visited Radwan at their house. He said:
“I saw Bassam talking to the [appellant] and he was saying ‘Come on Bassam, come on Bassam, if you don’t do it, I will do it’.”
On 9 November Radwan went to the appellant’s house:
“… because I was concerned that he was going to go through with it, whether he was going to go anywhere, and I walked to his house and my intentions were to stop him, to speak to his father and his father was not home and I seen John, I seen John warming his car up.
…
… I assumed that he was going to do what he said. So I decided to walk down the street around the corner towards my house and also towards [the deceased’s] house. I walked in that direction and within two minutes John came around the corner in his car and he pulled up beside me when I was walking and he asked me, ‘Are you going to help me?’ and I said, ‘No’.
… and he said, ‘Okay, I’m going to do it myself’.”
Radwan said he then went to the Tizzone’s house and informed the deceased and her mother of his conversations with the appellant. Mrs Tizzone was so concerned that she immediately contacted the police. She, together with the deceased’s cousin Antonella Notaro, then accompanied the deceased to Macquarie University. As they drove in, they saw the appellant walking towards his car and then saw him drive off. Mrs Tizzone and Antonella took the deceased to her class and then went to the university security officer and, putting the matter generally for the moment, expressed her fears for the deceased’s safety. The security officer called the police. The deceased was later accompanied from her class to the security office by another security officer. Two of her friends, including Rima Abou-Raad came with her. Later that day an interim Apprehended Violence Order (AVO) was made against the appellant.
There was considerable dispute as to what Mrs Tizzone and her daughter told the security officer and the police. Mrs Tizzone said she told them of the plan to kidnap and kill the deceased. The security officer denied she complained of a kidnap plan. He said he was told that the deceased’s boyfriend had threatened to cut her throat. He said, however, everyone was talking at once and the general scene could be described as one of “hysteria”. The complaint filed by the police in support of the interim AVO contained a different version - namely that the appellant had rung the deceased that morning and stated he would attend Macquarie University and shoot her. A somewhat different version again was found in an application made, by the police on 10 November, to have a firearms prohibition order taken out. In that application, the police stated that the deceased received information on 9 November that the appellant was going to go to the university intending to harm the deceased and possibly to take her life. There was other evidence which supported Mrs Tizzone’s version of what she told the security officer and the police.
Although senior counsel for the appellant sought to make something of these differing versions, I do not consider that the discrepancies would have been likely to have affected the jury. There was no dispute about the objective facts: that the Tizzones had called the police on 7 November; that Mrs Tizzone and Antonella had driven the deceased to university on 9 November and had complained, in what was described as a scene of hysteria, of danger to the deceased, at the hands of the appellant; and that the matter was considered to be of such seriousness that the security officer called in the police and the police filed a complaint and obtained an AVO against the appellant. To the extent there were differing accounts of conversations they are well explained by the circumstances in which they occurred.
Three or four weeks after this incident, on the request of both the deceased and the appellant, Radwan arranged for them to meet at Bayview Park, Cabarita on two occasions. There was other evidence that the relationship between the appellant and the deceased resumed about this time. The deceased had also told her mother in about February 1995 that she was seeing the appellant again.
About a month before the murder Radwan met with the appellant again. He gave evidence that the appellant said to him on this occasion:
“… ‘Don’t think I’ve forgotten. I am just thinking for the moment. I am only just sleeping with her’.
…
… ‘If anyone says anything or asks you questions about anything, just deny everything. Deny everything. If any police ask you anything, deny anything that happened’.”

Kirby J admitted the evidence of the November conversations on two bases: first, as relationship evidence and secondly as evidence of intention under s72 of the Evidence Act 1995 (NSW). The admissibility of the evidence on the first basis was not challenged. The challenge was as to the second basis.
The jury were directed that this evidence could establish that, at the time of the conversations in November 1994, the appellant had an intention to murder the deceased and to engage another person to carry out the murder. In combination with other evidence, this could be used by the jury to decide whether it was satisfied beyond reasonable doubt that on or about 29 March 1995 the appellant intended to and took steps to kill the deceased or to have her killed.
Senior counsel for the appellant submitted that his Honour erred in permitting the evidence to be used in this manner because the November conversations were not sufficiently proximate to the murder to constitute evidence of intention. It was counsel’s submission that the conversations were properly categorised as tendency evidence and the preconditions for the admissibility of tendency evidence had not been satisfied.
The Proximity Issue
The principle which governs the admissibility of evidence of intention is simply stated. Evidence of the conduct of an accused, which is part of a series of connected events, to prove the state of mind of the accused is admissible provided that it is relevant: R v O’Leary (1946) 73 CLR 566; R v Adam (1999) 106 A Crim R 510; R v Player [2000] NSWCCA 123. In O’Leary Dixon J, at 577, accepted that evidence of “connected incidents of one transaction”, being the accused’s violent and hostile conduct shortly before the murder occurred, was admissible to explain the “mind and attitude [of the accused] and, therefore, to implicate him in the resulting homicide”. As his Honour explained:
“Without [the evidence in question] the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.”
In Adam this Court accepted the “O’Leary principle” but appears to have added a temporal requirement as a condition of admissibility. The Court stated at 516:
“Evidence of conduct by an accused person that falls within the O’Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person ‘in the past’ or evidence tending to show that he has a particular ‘disposition’ or ‘propensity’ or ‘inclination’ and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort may be required) …” (emphasis added)
Did the Radwan conversations satisfy this description, given that the time lapse was some five months? In my opinion, they did. The conversations were an integral part of the setting of fear that the deceased found herself in, in November 1994. Specifically, they occurred at the time of a serious deterioration and eventual but not final split in the relationship of the deceased and the appellant. They demonstrated that the appellant reacted to the break up with the expression of a violent and murderous intent directed towards her. In about February 1995, the appellant, in the further conversation with Radwan, referred back to his earlier conversations in terms that indicated his intention was continuing. Four to six weeks after that, the relationship having again broken up, the deceased told her mother she was meeting the appellant so that sentimental items could be returned. The deceased’s body was found a few days later.
Considered in the context of this on and off, volatile relationship, the November 1994 conversations, the February 1995 conversation and the murder are part of a continuum. Being part of a continuum, I do not consider that the apparently lengthy time over which the conversations occurred affected their admissibility. That is not to say that time is an irrelevant consideration. There must be a point where the connection between a series of events is broken because of a lapse of time. What lapse of time will be sufficient to break the continuum will depend on the circumstances in a particular case. It might be quite short or it could be lengthy. In this case I do not consider that a time lapse of five months was sufficient to do so. Indeed, the trial judge’s description of the conversations as being “reasonably proximate” with the murder was, in my view, an accurate one.
Accordingly, I would reject this challenge to the admissibility of the November conversations.
The Possibility of Confusion with Tendency Evidence
Senior counsel also submitted to the trial judge, and again to this Court, that the evidence of Radwan was tendency evidence. His Honour, correctly, rejected the submission. Evidence which is an integral part of a connected series of events is not tendency evidence: R v Adam. For the reasons already given the evidence of the November conversations was an integral part of a connected series of events leading to the deceased’s murder.
The appellant also submitted that his Honour, should, in any event, have exercised the discretion conferred by s 136 of the Evidence Act to limit the evidence to relationship evidence.
I see no error in his Honour having admitted the evidence as evidence of intention. There was no danger of confusion for the jury and Kirby J was precise in his directions. He distinguished the November 1994 evidence from tendency evidence at the outset, before directing the jury as to the way that they were able to consider the evidence. They were told that the evidence could not be used to reflect the appellant’s guilt, but could be used along with other evidence, to reflect an intention on the part of the appellant to kill the deceased. It is not beyond the capability of a jury to differentiate between guilt and intention. Further, it is possible that limiting the use of the Radwan evidence as going to relationship only, would itself have been confusing and misleading to the jury. If the jury accepted this evidence, it is inconceivable that they would think that it could not have any connection with the events that it preceded, such as the appellant’s violent conduct, or the events that followed it and, in particular, a continuing intention to murder the deceased.
It follows that I would reject Grounds 1 and 2 of the Appeal.
Grounds 3, 4 and 5: Evidence Insufficient to Support Finding of Guilt
The appellant submitted that the case against him required the Crown to prove, beyond reasonable doubt, at least the following five matters:
(i) that the fibres on the deceased’s boots came only from the CRX and not from any other source;
(ii) that the appellant had rung the deceased on the evening of 28 March and made an arrangement to meet her the next day;
(iii) that the appellant left work early on 29 March;
(iv) that the appellant had asked Radwan Bassam to kidnap the appellant and murder her; and
(v) that the deceased died on 29 March.
It was submitted that there were such flaws, inadequacies and discrepancies in each of these categories of evidence that the verdict was unsupportable or constituted a miscarriage of justice.
The test to be applied when such a challenge is made to the verdict was stated in M v The Queen (1994) 181 CLR 487 at 493:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
The majority (Mason CJ, Deane, Dawson and Toohey JJ) explained the application of the test at 494 in these terms:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. … [W]here the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
See also Jones v R (1997) 191 CLR 439.
M v The Queen used the expression “unsafe and unsatisfactory” to describe the impugned verdict. However, in R v Fleming (1998) 197 CLR 250, the Court said at 256:
“The fundamental point is that close attention must be paid to the language of s 6(1) of the Criminal Appeal Act. Use of the potentially confusing phrase ‘unsafe and unsatisfactory’ to cover the several different elements in the sub-section is liable to mislead. There is no substitute for giving attention to the precise terms in which s 6(1) is expressed.”
In R v Maxwell (unreported, New South Wales Court of Criminal Appeal, 23 December 1998, this Court (Spigelman CJ, Sperling and Hidden JJ) said:
“[Fleming] precludes further use of the phrase ‘unsafe and unsatisfactory’ to describe a ground of appeal. In that regard, it focuses attention on the language of s 6(1) of the Criminal Appeal Act 1912. …
…
In one of the ways in which the phrase ‘unsafe and unsatisfactory’ was used in the past, a conviction may be appealable on the first of the grounds mentioned in s 6(1) … on the ground that the conviction is unreasonable and/or cannot be supported having regard to the evidence. on the other hand, a conviction may be appealable in the other sense in which the phrase ‘unsafe and unsatisfactory’ was used in the past … on the second and/or third grounds … error of law and/or miscarriage of justice.”
This principle applies as much to expert evidence as it does to the evidence of lay witnesses, it being well established that:
“Scientific evidence, even when composed in part of text-books, is no less a matter of fact within the province of the jury than is other evidence, and it is the jury’s function to estimate the reliance to be placed on scientific witnesses, however eminent.”
See Hocking v Bell (1945) 71 CLR 430 per Dixon J at 496.
The point was re-iterated in R v Pantoja (1996) 88 A Crim R 554, where Hunt CJ at CL (Hidden J agreeing) said at 559:
“Conflicts between scientific witnesses - as with any other witnesses - are to be resolved by the jury, not by the trial judge or the appellate courts.”
Abadee J, in the same case, said at 576:
“… where there is a conflict of expert evidence the question is one for the jury (including whether proper techniques were employed, and whether procedures employed by the Crown at the first stage level were or were not adequate or appropriate, reliable or outmoded). Likewise the assessment of competing opinions, and which should or should not be accepted is for the jury …
… The rule is stated in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 298:
‘Under our existing system it is, of course, within the exclusive province of the jury in cases such as the present to determine which of two conflicting bodies of expert evidence they will accept.’”
Sufficiency of the Fibre Evidence
The deceased’s body was examined where it was found in the late afternoon, early evening of 2 April by Detective Senior Constable Layton (Layton). During the course of his examination, he observed that there were fibres adhering to the soles of the deceased’s boots. The boots were otherwise clean and in good condition, except for some scuffing on the right sole which appeared to have been caused by the boot having rubbed on or against something and some wear around the heels of both boots. Layton removed the boots from the deceased and placed them in individual sealed plastic bags for later examination. He took the boots to the office of the Crime Scene Unit and there took a number of photographs of the boots and the fibres.
Layton said that the fibres did not fall off merely by shaking the boots. It was the Crown case that the fibres adhered by electrostatic force and by physical entrapment around the heel areas.
The presence of the CRX’s carpet fibres on the boots was the only evidence of any contact that the deceased might have had with the appellant’s motor vehicle. Accordingly, for the Crown to prove the guilt of the appellant in any one of the three ways for which it contended, it was necessary for it to establish beyond reasonable doubt that the fibres on the deceased’s boots came only from the CRX and had transferred to the boots a short time before her body had been dumped just off the Wakehurst Parkway.
The appellant accepted that there were fibres on the deceased’s boots which came from the CRX. The dispute both at trial and on appeal revolved around two issues: whether the black fibres came only from the CRX and the extent, or likely duration, of the adherence of the fibres to the boots.
At the time that Layton first observed the fibres, he did not know where they came from. However, as he considered they might be a potential source of evidence he took the steps to preserve the evidence in the manner indicated. A few days later, he removed a random selection of the fibres from the soles of the boots with a pair of tweezers and placed them in sterile jars, leaving “a considerable number of fibres on the shoe”. The boots with the remaining adhering fibres were re-sealed for later examination.
On 5 April 1995, Layton took the fibres to Darrell Waight (Waight), an analyst employed at the division of Analytical Laboratories, Physical Evidence Section of the New South Wales Police Department for forensic testing.
Waight investigated the chemical composition of the fibres with infra-red spectroscopy and found there were 3 types of fibre: grey polypropylene, 7 denier blue polypropylene and 6 denier black polyester. “Denier” is a measurement of weight of fibre. Waight was not able to ascertain the denier of the grey fibres because of their small size. Six denier is a common weight for black polyester fibre and is the Australian industry standard for carpet in motor vehicle boot liners.
It is convenient to record at this point that five other “stray” fibres - including a purple woollen fibre and at least one cotton or rayon fibre - were also found on the boots. The presence of these fibres was considered a normal incidence of fibre adherence and played no part in the issues raised except in one respect in relation to the appellant’s case on fibre adherence to which I shall refer later.
Waight counted the fibres found on the boots and calculated that they had adhered in proportions of 13.89 percent grey, 16.67 percent blue and 69.44 percent black. He also did a count of the number of fibres in a section of the CRX carpet. That count revealed proportions of 55.3 percent grey, 18.3 percent blue and 26.4 per cent black. This count was confirmed and accepted by Professor Griffith, the appellant’s expert in textile technology.
There was a marked variance in the proportions of the three fibres found on the boots in Waight’s count when compared to the proportions he counted in the carpet. In particular, significantly more black fibres were found on the boots, whereas, on the counts of the CRX carpet carried out by Waight and Griffith, the predominant fibre in the carpet was grey. This discrepancy was relied upon by the appellant to demonstrate the unlikelihood that all the black fibres came from one source.
Waight carried out the counts before he received the manufacturer’s specification and, when compared, there was a wide discrepancy between the figures in the specification and the count of fibres on the boots. According to the manufacturer’s specification, the CRX carpet was comprised of 60 percent grey polypropylene, 15 percent blue polypropylene and 25 percent black polyester. There were two different weights of grey fibre - one of 7 denier and the other of 15 denier. The blue fibre was 7 denier and the black was 6 denier weight.
However, the specifications did not nominate whether the percentage proportions of fibres were by weight or by number. If the specifications referred to the proportions by weight and not number, the mix of grey, blue and black fibre in the carpet more closely approximated the mix of fibre found on the deceased’s boots. Dr Roberston, Director of Forensic Services, Australian Federal Police and Mr Cauce, a chartered textile technologist, both gave evidence that the specification related to weight. There was no evidence which contradicted this.
The appellant also contended that regardless of the proportions in the carpet itself, the proportion of fibres found on the boots bore no relationship to the degree of transference of the three types of fibre. This argument was based upon the results of scuffing tests carried out by Griffith. Griffith gave evidence that by scuffing the deceased’s left boot and an identical right boot on the CRX carpet, he obtained a rate of transference of 68.8 percent of grey fibres, 22 percent of blue fibres and 9.2 percent of black fibres, demonstrating a significant discrepancy between the percentage of black fibres found on the boots and that obtained in these tests.
This evidence might have appeared compelling to the jury, except that it was discounted, if not discredited, in cross-examination. The proportional transferability suggested by this result was, it turned out, an aggregation of the results of a number of tests. When the results of the individual scuffing tests were analysed, there were significant variations in the take up of the number and type of fibres. This was consistent with the scuffing tests carried out by others, including Waight and Robertson, which showed that there was a significant variation in the transference of fibres on different occasions.
Griffith indeed conceded that the results of his test varied “as would be expected if a person walks on a carpet and takes up some fibres on one occasion and using the same feet, the same person, the same shoes on another occasion … different numbers of fibres [would be] collected”. He also conceded that the results of his tests did not reveal any particular pattern of take up of fibres.
It was thus open to the jury to reject the argument that there was a discrepancy of any significance between the proportion of fibres in the carpet and on the boots.
However, there was an aspect of the evidence of the fibres as found on the deceased’s boots which was not explicable by reference to the proportion of the fibres found in the carpet. There was a clump of thirteen black fibres on the outside rear heel on the right boot. On the outside rear area of the left heel ten black fibres and one grey fibre were retrieved. The appellant contended that the presence of these clumps indicated there was some other source for the fibres.
Waight disputed the likelihood that the black fibres came from a different source. He said:
“… the chance of finding three different types of fibres on somebody’s shoe at random, and finding the same three different sorts of fibres in a single source, the percentages are astronomical.”

He explained this further by reference to the clump of 10 black fibres and 1 grey fibre. He said that if the fibres were together it was likely they came from one source:
“Because it is most unlikely that there would be two different sorts of fibres together on the shoe coming from a separate source, on the work we have done.”
It followed, on his reasoning, that if the clump came from the one source, it was more probable that all the black fibres would come from one source.
Dr Robertson did not deny the possibility that the black fibres could have come from an alternate source, but believed that the high variability in the results obtained from scuffing the boots was consistent with the fibres coming solely from the CRX. Dr Robertson said this variance in transfer was explicable on a number of bases. He agreed with Griffith that the variance was a normal feature of transference. There were, however, other reasons. Dr Robertson explained that the extent and proportion of transference also depended upon “what was available on the surface”, which, he said might vary for a number of reasons.
First, in the various scuffing tests which Dr Robertson and those working with him conducted, there had been difficulty in counting the number of fibres transferred because “we found they came off not as single fibres but small groups or pools of fibre”.
Secondly, the wear of the carpet was relevant.
Thirdly, the method of manufacture of the CRX carpet also dictated what fibres were available on the surface. The carpet comprised 2 different types of fibre - polypropylene and polyester. Polypropylene is more sensitive than polyester to shrinkage due to heat. The evidence established that heat was applied on a number of different occasions during the manufacture of his carpet. With the consequence that the polyester fibres were sometimes longer and therefore closer to the surface than the polypropylene fibres.
Fourthly, the finer fibres tended to be closer to the surface. The black polyester fibre was the finest of the fibres used in the CRX carpet. Finally, the manufacturing process itself, which was a needle punch process, is such that the different fibres will shed from it in variable proportions. Dr Robertson considered that this made it highly unlikely that the carpet will shed in proportion to its percentage composition.
This evidence was uncontradicted in the appellant’s case.
The appellant’s submission, that the Crown failed to address the proposition that the weight of the evidence was such that it was probable the black fibres came from more than one source, is, therefore, untenable. There was an abundance of evidence which addressed the issue.
Likely Duration of Adherence of Fibres to Boots
It was the Crown case that the CRX carpet fibres had transferred to the deceased’s boots a short time before her death and that there would have been minimal ground contact with the boots after the fibres were transferred. The appellant’s challenge on this issue was twofold. First, it was said that the fibres were coated with a sticky substance which meant they were likely to have been stuck on the sole for some period of time. Secondly, it was submitted that there was evidence that on the right shoe some fibres were caught in striations on the sole, that the fibres had got onto the shoe prior to the striations being caused and could have been there for a considerable period of time.
The first part of this challenge arose because a substance coating at least some of the fibres had been observed in photographs of the fibre.
Mr Flynn (Flynn), a chartered chemist and manager of the University Analytical Laboratory at the University of New South Wales and was retained to identify the nature of the substance. His laboratory was provided with a number of fibres found on the deceased’s boots. An analysis carried out on one of the fibres revealed that there was a substance adhering to the fibre which was consistent with lignin. Lignin is a plant sap and is sticky, having been described in the evidence as “nature’s glue”.
Senior counsel for the appellant contended that Flynn’s evidence was unchallenged, un-met and threw doubt on the Crown case that the fibres transferred to the deceased’s boots from the CRX a short time before she was deposited where her body was found. It was submitted that having regard to the presence of the lignin, it was more likely that the fibres were ‘stuck’ to the boots and could have been there for any period of time - weeks, months or years.
There was certainly general acceptance amongst the experts that the presence of a sticky substance might affect the degree of persistence of fibres to the surface to which they transferred. That would seem to be a matter of common sense.
However, Flynn’s evidence did not necessarily advance the appellant’s case or throw doubt on the Crown case. In the first place, although tests were carried out on a number of fibres, only one was identified as being coated with lignin. Secondly, Flynn did not analyse that fibre nor did he know what it was. Waight was emphatic that the fibre identified by Flynn was not polyester or polypropylene but was either cotton or rayon. Waight’s evidence was not met in any way in the appellant’s case.
In short, Flynn’s evidence only established that there was one fibre, which was not or may not have been a CRX carpet fibre and which was coated with a sticky substance that was likely to have been lignin. That could not be said to demonstrate such fragility in the Crown case on this point to require the jury to have had a reasonable doubt as to the Crown’s case that the fibres had only been adhering for a short period before the deceased’s body was dumped by the roadside.
The appellant also sought to attack this part of the Crown case by relying on the evidence of Dr Gilmore, engineer, who was called to contradict the evidence of Dr Robertson. Dr Robertson (and others) had conducted a number of tests to determine how long the fibres were likely to adhere to the boots. The results of those tests revealed that once fibres were transferred to the soles of shoes they did not persist for long once the shoes were walked in. Few fibres adhered for more than five minutes. Fibres which did adhere for a longer time were found to be physically caught in the material comprising the sole or at the edge of the surface or in the groove of the sole. No fibres persisted after thirty minutes.
However, Griffith had conducted tests which indicated that the fibres adhered for a much longer period than that asserted by the Crown’s experts.
Dr Gilmore also contended that the fibres found on the boots were caught in striations on the sole of the boot which had been caused by scraping against a hard surface. He said it was not possible to determine how long the striations had been on the soles or how they had been caused, but that they could have been there for any period of time.
Dr Robertson agreed that the soles of the boots were soft and scuffed easily and that there were striations on the sole of the right boot. He was of the opinion that the scuffing did not affect the degree of transference of fibre but might affect the extent of retention, if for example, the fibres became entangled with the roughened surface. However, he did not consider that would cause the fibres to be retained for “any length of time because the material will just continue to be scuffed off … the surface”.
However, Dr Robertson could not find “any convincing example” from his examination of the photographs of fibres being caught in the striations on the sole of the right boot. He did point out that, from the photographs, towards the heel there appeared to be some diagonal marks across the area where some of the fibres were and that it was possible to interpret the photographs as showing that “fibres had taken up the linen of those marks”. He pointed out that there were many other fibres which did not take up the line of the marks and those which did appeared to be in clumps. He summarised his evidence on this point by observing:
“I don’t think it’s particularly unreasonable to expect that if there were some underlying marks on the shoes, that the fibres might take up the line of those marks but I can’t see personally if that’s the best example; that that’s especially convincing to me.”
There were problems with Dr Gilmore’s evidence. First, he had changed his opinion as to whether the fibres came first or whether they were transferred to the boot after the striations were laid down. In his report, he had concluded that the fibres had adhered to the striations which were already on the boot. At trial he said that the fibres had been laid down first and had been caught in the striations. This latter opinion was based upon his observations of one fibre on one photograph. Secondly, his evidence about fibres being caught in striations related to the right boot. That evidence did not explain how or when fibres had transferred to the left boot and how long they had been there. He did say there was scuffing on the left heel - there was no dispute about that - and he referred to a bundle of fibres on the lower left heel edge - there was no dispute about that either. However, there was evidence that the scuffing of the edges of the heel was quite different from the striations on the sole of the right boot. The scuffing appeared to have been caused by normal wear. Dr Gilmore did not clearly draw that distinction.
The jury was thus left with the conflicting evidence of the experts as to how long the fibres were likely to have adhered to the boots. The Crown adduced a substantial body of expert evidence on the issue. This was sought to be met by the appellant’s expert witnesses, Flynn and Gilmore. However, for the reasons set out, it was open to the jury to reject the appellant’s expert evidence. It certainly could not be said that their evidence left the Crown case on this issue in a such a state that it could not have been accepted by the jury. If the appellant’s experts were rejected, the jury was left with the extensive evidence of the Crown’s expert witnesses, upon which they could have been satisfied beyond reasonable doubt of the Crown case on this issue.
The Telephone Calls
The deceased’s mother gave evidence that, on the evening of 28 March the deceased had told her that she had spoken to the appellant on the telephone and had arranged to meet him the next afternoon. The purpose of the meeting was so that the appellant could return a bag of her personal mementos to her and she could returns the Valentine card he had given her on Valentine’s Day a few weeks previously. She told her mother that this exchange was occurring because they had decided to end their relationship. Mrs Tizzone arranged with her daughter that she was to telephone from Strathfield station so that she could come and pick her up.
Mrs Tizzone’s evidence was supported by the evidence of the deceased’s sister, Antonella, who said she overheard the deceased on the telephone that night saying “I don’t want to meet you” … “Or else what? Why are you talking to me like this?” … “Okay. I will meet you tomorrow afternoon after uni. I will meet you at the station … I will bring the card, but make sure you bring the bag”. She said that although she did not hear the speaker at the other end, her sister’s tone was not friendly to the caller and “it was the way she used to talk when she was talking to [the appellant]”.
The appellant denied he had made the call.
The deceased’s university friend, Miss Abou-Raad had spent the day with the deceased at university on 29 March. They attended a class which was scheduled to finish at 5pm but finished early at 4pm. She left the deceased at 4.10pm. Before they parted, the deceased told her that she had to visit a sick relative and that she would be getting off the bus at “either Burwood or Strathfield station”. She asked Miss Abou-Raad to telephone her family and ask them to tape the 6pm news for her, as she might not be home by then. Miss Abou-Raad did so about 4.30 pm.
The deceased had not arrived home by 8pm nor had she telephoned. The Tizzone’s rang the police at about 8.30pm, but were told to wait a little longer before lodging a formal complaint. Mrs Tizzone, did not at that time mention to the police the telephone call the previous evening and the arrangement to meet the appellant. At about 10pm Mrs Tizzone rang the appellant. She said he told her he had not seen the deceased since the previous December, except at a party on 18 February 1995. This was, of course, false and Mrs Tizzone did not believe him.
There was another unusual feature about the evening of the 29 March. Shortly after the Apprehended Violence Order was made in November and up until 28 March, the telephone would often ring in the Tizzone household but if anyone answered other than the deceased the caller would hang up. The calls were frequent, usually occurring five or six times a day on weekdays after 6pm. Subsequently, in the course of the murder investigations, the source of the calls was traced to public telephones mostly in the Botany area. The appellant worked in Botany. There were no telephone calls from the unknown caller on the evening of 29 March or at any time after that date.
It was the appellant’s case that it was necessary for the jury to be satisfied that there had been a telephone call between the deceased and the appellant on the evening of 28 March as alleged by the deceased’s mother. The importance of the call was obvious as it was evidence that the appellant and the deceased were to meet the following day, the day of her disappearance.
It was submitted, that on the evidence, it was inherently unlikely that such a telephone call was made. In the first place, the deceased’s parents did not inform the police of it when they first went to the police station at about 8.30pm. In explanation of her reason why not, Mrs Tizzone had said in evidence:
“Well, if I had known what had happened to her, I would have … At the time I thought she had gone and met him and they’d lost track of time and then she would be home.”
It might also be relevant on that issue that Mrs Tizzone had not at that point informed her husband of the resumed relationship between the deceased and the appellant. Nor had she told him of the telephone call the previous evening making the arrangement to meet.
The second factor relied upon by the appellant was the conflict in the evidence of the Tizzones and that of Detective Williams. Williams attended at the Tizzones’ home about 7am on 30 March. Both Mr and Mrs Tizzone said that on that occasion they informed Detective Williams, and Detective Mark, who accompanied him, of the arrangements made between the appellant and the deceased to meet on the afternoon of 29 March. They also said that they had told the police who had attended at the home in the early hours of the same morning, of the telephone call. Detective Williams denied this was so. It was also conceded before the jury that Mr Tizzone had never given evidence of having told police of the telephone call save at this trial.
The third factor was that when Mrs Tizzone rang the appellant on the evening of 29 March inquiring as to whether he had seen her daughter, she did not inform him that she was aware that they had made such an arrangement in a telephone call the previous evening. The appellant told Mrs Tizzone that he had not seen the deceased since December. When cross-examined as to why she did not tell him that she knew of the telephone call she responded:
“well I asked him about three times if he had seen her or knew where she was and he told me he had nothing today [to do] with her and hadn’t seen her since December and I knew that wasn’t true.”
She reiterated this line of reasoning on a number of occasions. She said:
“Why should I if he wasn’t going to admit it to me. Why should I tell him that I knew.”
There is no doubt that the evidence of the telephone call on 28 March, if accepted, was important circumstantial evidence against the appellant. If the jury accepted the telephone call was made, it was inevitable that they would accept that the deceased both arranged and did in fact meet the deceased on the afternoon of 29 March. However, contrary to the appellant’s contention, the telephone call was not essential to the second and third way in which the Crown put its case and it follows, did not have to be proved beyond reasonable doubt.
The appellant’s counsel had made important forensic inroads into the Tizzones’ evidence in relation to the telephone call. That being so, it was a question for the jury as to whether they accepted this part of the evidence.
There was, however, evidence which supported the likelihood of the call in which the arrangement to meet was made. Antonella Tizzone gave evidence that she had seen a Valentine Card from the appellant to the deceased but that she could not find it after her disappearance. This evidence supported Mrs Tizzone’s evidence that the deceased told her that she was going to return the card to the appellant when she met him on 29 March, Mrs Tizzone gave evidence that the deceased had kept her bag of mementos since year 7 and one of the reasons for the meeting on 29 March was so that the appellant could return it. The jury might have thought, therefore, that the bag was of particular sentimental value and that it was likely the deceased would arrange to meet the appellant to have it returned. There was other evidence which supported this, as the bag was one of the things the deceased mentioned to the police at the time of the complaint which gave rise to the making of the interim AVO.
Miss Abou-Raad’s evidence also supported the likelihood that some such phone call had been made and that the deceased planned to meet the appellant.
Miss Abou-Raad said that when the lecture finished early on 29 March she had offered the deceased a lift home but that the deceased had declined. The deceased’s excuse was that she wanted to visit a sick relative and would take the bus to either Burwood or Strathfield station. However, the Tizzones had no sick relative at that time. Significantly, Miss Abou-Raad was not challenged either to the effect that the conversation about the sick relative did not occur or as to its terms.
Miss Abou-Raad’s evidence was cogent for other reasons. First, she was not aware that the deceased had, in the preceding months, resumed her relationship with the appellant. This was not surprising even though they were close friends. Miss Abou-Raad had previously made it known to the deceased that she did not approve of the relationship. It was reasonable to believe therefore, that the deceased would not have told her of the resumed relationship, or tell her of the arranged meeting. However, the deceased was placed unexpectedly in a position of being offered a lift home by Miss Abou-Raad and, presumably of having to provide a reason for refusing. Her explanation of wanting to visit a sick relative was, on the Tizzone’s evidence, made up.
It is highly unlikely, however, that Miss Abou-Raad had made up her evidence. In particular, it would be extraordinary for her to have phoned the Tizzone household, conveying the deceased’s request to tape the news, unless the conversation between her and the deceased of which she gave evidence had occurred.
Notwithstanding the challenge to the Tizzone evidence in relation to the telephone call raising a real question as to whether the evidence could be accepted, the state of the whole of the evidence on this issue was not such that it could be said that it was of such a character that the Court, and therefore the jury, ought to have a reasonable doubt. The jury might have thought it strange that Mrs Tizzone would have concocted the evidence in relation to the telephone call when there was other evidence which objectively supported part of its subject matter.
The Time the Appellant Left Work on 29 March 1995

The appellant’s usual working hours were 8.30 am to 4.30 pm. The Crown case was that the appellant had left his workplace at about 3.30pm on 29 March, earlier than his usual finishing time. There was evidence to support this. Mr Bower, the husband of one of the appellant’s fellow employees, gave evidence that on 29 March he went to his wife’s work place at about 3.30pm or a little later, in the hope that his wife would be allowed to leave work early. There was a practice at the workplace that employees were allowed to leave early from time to time but which particular employee left early was in the discretion of the employer. On the day in question, Mr Bower said his wife was not permitted to leave early as the appellant had been allowed to leave early that day. Mr Bower placed the day in question as 29 March as it was his recollection that he had attended upon a Dr Gray on that day for a blood test. The blood test had been required because he had been hospitalised on 27-28 March and was required to attend for a review the next day. He recollected that when the blood sample was taken, Dr Gray was shaking. Dr Gray was found slumped at his desk in the latter part of the morning of 29 March, having suffered a stroke.
Mr Bower was a naval rating in the Australian Navy. There was no medical record of Mr Bower’s attendance upon Dr Gray on 29 March. The naval records showed that Mr Bower was seen by Dr Gray on 28 March and that Dr Gray required him to be reviewed on 30 March. The naval medical records revealed, however, that the second and third pathology samples received at the HMAS Penguin Naval pathology centre on 30 March 1995 were for Mr Bower (961). Miss Cavanagh, the manager of the pathology department at HMAS Penguin at the time gave evidence that that record only indicated to her that those pathology samples were received on that day. There was no record of when the samples were taken. She said it was possible that they were taken on 29 March or early in the morning of 30 March.
Miss Cavanagh was cross-examined extensively on the medical records. She was asked:
“Q          … Either this sample was taken late on 29 March, namely 4 or 5 o’clock or thereabouts, and then refrigerated in the hospital, is that right?
A            Yes, that’s true.
Q            Or, alternatively, and much more probably, the blood was drawn in pathology between 7.30 and 8.30am on 30 March. That’s right, is it not?
A            Yes, but you have to take also into account that that day was an abnormal day.
Q            Why are you insisting about the possibility or likelihood or whatever that this blood was drawn on 29 March? Had you spoken to police subsequently to giving your statement?
A            No, I’m not insisting that the blood was drawn on 29 March. I am saying that I do [not] know what day the blood was drawn because the person who took the blood did not write the date and time they took the blood. This is quite clear.”
She was further cross-examined:
“Q          So the overwhelming probability is that Mr Bower was at HMAS Penguin on 30 March, is that right?
A            Yes, he was.
Q            And the overwhelming probability is that he was not at HMAS Penguin on 29 March 1995, is it not?
A            Yes.
Q            And that he had two days leave from 28 to 30 March?
A            Yes.
Q            And all the records indicate 30 March and 28 March, do they not?
A            That’s true.
Q            There is not a single mention in any of this documentation of 29 March, is there? Not one, is that right?
A            That is true.
…
Q            So why do you struggle with the proposition that the overwhelming probability from these records is that the blood was drawn in the Pathology Department on HMAS Penguin on 30 March 1995? What’s your problem with that proposition?
A            I don’t have a great problem with it except I do not have proof that it was drawn then.
Q            What more proof do you need? Every document that you have seen refers to 28 March or 30 March. What more proof do you want?
A            I want the proof of someone having written on the form that they actually took the blood and what time and date they took it. Other than that we cannot say.
Q            I see, even though every piece of paper talks about 28 and 30 March, you’re saying you need a document from somebody to say, ‘I drew blood from Mr Bower on 30 March at X time’, is that right?
A            Usually the collector would say, ‘Collected by so-and-so at 0800 on 30 March’.
Q            Presumably if the blood was drawn on 29 March, such a document would have been in existence, is that right?
A            Yes, they would have written it on the request form but not necessarily because people don’t conform to that requirement. That’s the problem. That was the whole problem.”
The end result of this evidence was that it did not prove that Mr Bower had seen the doctor on 29 March. Nor did it disprove it. The jury may, therefore, have treated it as of no assistance. Or it might have raised for them a doubt as to whether Mr Bower’s recollection as to the day was accurate.
However, there was another aspect of Mr Bower’s evidence which was compelling. As already stated, there is no medical record that Mr Bower saw Dr Gray on 29 March. Mr Bower had a clear recollection of seeing him on that day and of observing that he was shaking. Dr Gray, as mentioned above, suffered a stroke on that day. Dr Gray’s appearance to Mr Bower on the morning he saw him is consistent with that being the same day he had his stroke. Mr Bower said it was Dr Gray who took the blood sample. It was not suggested to him in cross-examination that it was some other doctor or medical attendant. Mr Bower then said he saw a different doctor on 30 March. A medical attendance is recorded on that day. Given Dr Gray’s condition, it would not have been unreasonable for the jury to infer that Dr Gray had failed to make any note of Mr Bower’s attendance earlier that morning before his stroke. It is to be noted that the absence of any note in the records in relation to the time of taking of the blood sample was the matter which attracted Miss Cavanagh’s attention and which she considered to be unusual.
There was also other evidence to support Mr Bower’s version. Miss Seidl who worked with Mrs Bower, recollected that Mr Bower had attended the workplace on the day of his blood test and she recollected that the day was a Wednesday. 29 March was a Wednesday. She recollected that he wanted his wife to leave early but that it was the appellant who was allowed to leave early on that day. She recalled that the appellant left between 3.30pm and 4pm. She was unshaken in cross-examination except to this extent: when asked whether it would make a difference to her account that the blood test was conducted on a Thursday, she said “it possibly could”. It was not established of course, that the blood was taken on the Thursday. It was only established that the blood sample reached the pathology laboratory on the Thursday morning. The only person with direct knowledge of when the sample was taken, Mr Bower, was unshaken in his cross-examination that the blood was taken by Dr Gray on Wednesday 29 March. It was open to the jury in the circumstances to accept Miss Seidl’s evidence as confirmation of Mr Bower’s evidence.
There was no issue in the trial that the appellant had left work early one day that week. He contended it was 30 March. He said he had left that day as he knew that the police wished to interview him. Police records confirmed that the interview commenced at about 7pm. The appellant said that he waited for about half an hour at the police station before being interviewed. He said that prior to that he had gone directly from work to home and had waited there for his sister. During that time he said he went down the road to buy cigarettes. The appellant further explained that when he left work early he had not at that time intended to go to the police station with his sister, and had only decided to do that as he was driving home. His sister arrived home about 5.45pm.
The appellant’s evidence was supported by his sister.
This was again a typical jury question as to whether they accepted the Crown case that the appellant had left work early on 29 March. There was ample evidence on which they could have been satisfied beyond reasonable doubt that the appellant did leave work early on that date.
However, whether the appellant left work early was not a fact which needed to be proved beyond reasonable doubt. Even if the appellant had left his workplace at the usual time, there was still more than sufficient time for him to get from Botany to Strathfield to meet up with the deceased sometime after 5.30pm - which is the time they would have met had her lecture finished at its normal time, and which was in accordance with the arrangements the Crown contended had been made the previous evening.
The Time of Death
It was the Crown case that the deceased most probably died on 29 March (or possibly on 30 March) and that her body was deposited at the place where it was found shortly after her death. The appellant’s case was that she had died much later - most likely on 1 April or possibly on 31 March. However, all experts conceded that the time of death could not be estimated with precision.
The Crown relied upon the evidence of Dr Botterill, who attended the body at the scene and who performed the post-mortem examination and the entomological evidence of Dr Levot to establish the time of death. The appellant relied on its own expert pathology evidence and more particularly, upon entomological evidence to challenge the Crown’s case of death on 29 March.
The appellant’s postulated time of death was significant for two reasons. First, the appellant had come under observation by the police from 11am on 31 March. If death occurred on 31 March or 1 April, it was not likely that the appellant was the direct murderer, or present when she was murdered. Secondly, two witnesses gave evidence of having seen a female in a car on 31 March in two different locations. Each witness said the female they saw was distressed. The vehicle in each case differed and vehicles of those descriptions were not connected in any way to the appellant. Those sightings, if they were of the deceased, also made it improbable that the appellant was the direct murderer or present at the murder. There were significant issues of identification raised in respect of the two sightings. But, in any event, the sightings, if accepted, did not eliminate the possibility that the appellant had procured the murder.
Dr Botterill estimated the time of death to have occurred most probably on 29 or 30 March. His view was based on the nature and extent of decompositional change of the body and the extent of rigor mortis. Dr Botterill had also observed the presence of “a few” maggots on the deceased’s body when he examined her at Frenchs Forest. There was no large maggot mass present.
During the course of the post mortem Dr Botterill removed two larvae from the deceased’s body and forwarded them to Dr Levot for examination. Dr Levot is a senior research scientist in the New South Wales Department of Agriculture, with experience in forensic entomology, particularly relating to blowfly strike.
Dr Botterill said he forwarded the larvae to Dr Levot to seek assistance with the time of death. He explained that entomology can provide a minimum period of time that a person has been dead. Dr Levot confirmed this was so.
The maggot larvae was identified as the fly Calliphora augur. That identification was accepted by all experts in the case. The blowfly Calliphora augur is a first strike fly which usually finds a dead body within four to six hours of it being placed in an exposed location (that is a location to which the blowfly can have access). The female Calliphora augur usually lays a cluster of about 50 larvae and only deposits larvae in daylight. Egg laying blowflies arrive after the first strike Calliphora augur has laid its larvae. There are two types of such blowfly - described in the evidence as second and third strike blowfly, indicating the order in which they arrive at an exposed body to deposit eggs. There was no evidence as to the time frame in which such blowflies arrive after the Calliphora augur has laid its larvae.
Dr Levot was of the opinion that the larvae had been deposited on the body 24 to 30 hours before the body was removed from the scene - that is they had been laid on 1 April during daylight hours - and it followed that that was the minimum time the deceased had been dead. Dr Levot’s assessment was based on the larvae existing in optimal conditions of 27 degrees Celsius. To that extent, Dr Levot’s case was consistent with, but not determinative of the appellant’s case that death most likely occurred on 1 April or possibly 31 March. For reasons already explained, however, the evidence was not inconsistent with the Crown case.
Dr Ellis, a specialist forensic pathologist and Director of the Department of Forensic Medicine at Westmead gave evidence in the appellant’s case. He was of the opinion that the deceased died two, maybe three days before her body was found and that 31 March was the most likely time of death of the possible four dates. All witnesses excluded the 2 April as being a possible date of death. Dr Ellis did not exclude 29 March but thought that date was unlikely. Nor did he exclude 1 April as a possibility. Significantly, however, Dr Ellis agreed that Dr Botterill was in the best position to estimate the time of death.
Dr Ellis’ principal reason for determining 31 March as the probable date of death was the absence of maggots on the deceased’s body. He conceded, however, that on whatever date the body was dumped at Frenchs Forest, including his preferred time of death of 31 March, he would have expected that there would be considerable maggot masses on the deceased’s body. There were not. Dr Ellis said he had never seen a body exposed in the open for four days without a significant maggot infestation clearly visible. As he described it, that would be a first in his experience. Dr Ellis could provide no explanation for the absence of maggots on this occasion.
Dr Botterill and Dr Levot were also surprised that, on whatever day the body was dumped at Frenchs Forest, there was no significant maggot infestation in the order of at least hundreds and more likely thousands. Dr Levot had no explanation for the absence of a major infestation. One suggestion made during the course of the evidence was that the maggots could have been removed by a predator. Dr Dadour, one of the appellant’s entomological experts, dismissed rodents as a possible predator and no others were identified. He said that the absence of clumps or masses of maggots was not unusual, although he “could have expected that” and he “ha[d] no idea in this particular case … where … all the others [are] that you would expect to find”.
Dr Dadour said that given the known weather conditions over the period 29 March to 2 April, the larvae would have been laid 40 - 42 hours prior to the time they were removed. He was of the opinion however, that from an entomological viewpoint, the body could not have been placed where it was found on 29 March. His estimate was 31 March or early morning on 1 April.
All experts conceded that the time of death could not be estimated with precision.
Dr Dadour also gave evidence that the photographic evidence he examined clearly showed the presence of maggot eggs above the deceased’s right eyebrow. There was no identification of the egg larvae, except that it could not be the Calliphora augur which is a larvae laying fly. The eggs could, therefore, have been deposited by a second or third strike fly.
I have already referred to the principles which govern a jury’s task in evaluating expert evidence. Here there were competing expert opinions as to the time of death, which raised an issue for the jury to determine. It has to be remembered of course, that the appellant did not have to prove the time of death. It was for the Crown to do so. The appellant sought to rely on its expert evidence to demonstrate that the jury could not have been satisfied beyond a reasonable doubt as to the time of death advanced by the Crown. However a number of things are to be noted about the evidence on this issue.
Dr Botterill was unshaken in his evidence that the probable time of death was 29 March. Dr Ellis readily and without qualifications deferred to the advantage Dr Botterill had in assessing the time of death. Except for Dr Dadour, none of the expert witnesses ruled out 29 March as a possible time of death. No one could explain the absence of a significant maggot mass, whatever be the time of death - from 29 March through to 1 April. Some of the entomological evidence was based upon optimum breeding conditions. The evidence demonstrated that the temperature over the 4 days between the deceased’s disappearance and the finding of her body varied and did not reach those optimal conditions (although at times it was within close range to such conditions). There was evidence of secondary or tertiary maggot infestation, indicating that the time of death was longer than that put forward by the various entomological experts. It was open to the jury in the circumstances to accept Dr Botterill’s evidence. His evidence was not undermined in any way such that the jury must have had a doubt. It was also open to the jury to reject the entomological evidence as being of no assistance, or at least as not throwing a reasonable doubt upon Dr Botterill’s opinion. The evidence of a second or third strike fly having laid eggs on the body may have been accepted by the jury as lending support to Dr Botterill’s evidence, or had the effect of diminishing the appellant’s case that death had occurred 24 to 30 hours prior to the body being found.
Whatever the reasoning process was, the evidence on this issue did not bear the fragility for which the appellant contends.
It follows that the appellant has failed to demonstrate that the verdict was unreasonable or could not be supported on the evidence, or amounted to a miscarriage of justice.
The appeal should be dismissed and the conviction confirmed.
GROVE J: I agree with Beazley JA.
WHEALY J: I agree with Beazley JA.

LAST UPDATED: 07/05/2001