R v Steven Wayne Hillier - [2010] ACTSC 33

R v STEVEN WAYNE HILLIER
[2010] ACTSC 33 (16 April 2010)

CRIMINAL LAW – trial by judge alone – murder – circumstantial case – evidence of motive, opportunity and consciousness of guilt and DNA evidence – reasonable possibility of contamination of DNA evidence – consciousness of guilt evidence not proved beyond reasonable doubt – verdict of acquittal entered.

EVIDENCE – burden of proof in relation to DNA evidence and consciousness of guilt evidence – proof beyond reasonable doubt required because of importance of evidence to Crown case.

EVIDENCE – waiver of rules of evidence under s 190 of Evidence Act 1995 (Cth) – tender of transcript of first trial.

Crimes Act 1900 (ACT) s 12
Crimes (Forensic Procedures) Act 2000 (ACT)
Evidence Act 1995 (Cth) ss 38, 135, 137, 190, 192
Supreme Court Act 1933 (ACT) s 68B

Adam v The Queen (2001) 207 CLR 96 referred to
Barca v The Queen (1975) 133 CLR 82 cited
Chamberlain v The Queen [No 2] (1984) 153 CLR 521 referred to
De Gruchy v The Queen (2002) 211 CLR 85 cited
Director of Public Prosecutions v Edwin Nair (2009) 170 ACTR 15 referred to
Dyers v The Queen (2002) 210 CLR 285 cited
Edwards v The Queen (1993) 178 CLR 193 discussed
Hillier v The Queen [2005] ACTCA 48 cited
Hillier v R (2008) 1 ACTLR 235 discussed
Jones v Dunkel (1959) 101 CLR 298 referred to
Melbourne v The Queen (1999) 198 CLR 1 cited
Penney v The Queen (1998) 72 ALJR 1316 discussed
Plomp v The Queen (1963) 110 CLR 234 discussed
R v Adam (1999) 106 A Crim R 510 referred to
R v Betancur-Galvis (2003) 142 A Crim R 527 cited
R v Butler [2009] QCA 111 cited
R v Farquharson [2009] VSCA 307 cited
R v Fletcher (1998) 2 Qd R 437 cited
R v Laz [1998] 1 VR 453 cited
R v Pantoja (1996) 88 A Crim R 554 cited
R v Stafford [2009] QCA 407 cited
Shepherd v The Queen (1990) 170 CLR 573 referred to

The Queen v Hillier (2007) 228 CLR 618 discussed
Velevski v R (2002) 187 ALR 233 referred to
Woon v The Queen (1964) 109 CLR 529 discussed

Byrne D and Heydon JD, Cross on Evidence, (Butterworths, Australian ed, subscription service) at [9040]

No. SCC 37 of 2004

Judge: Besanko J
Supreme Court of the ACT

Date: 16 April 2010

IN THE SUPREME COURT OF THE       )
  )          No. SCC 37 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

STEVEN WAYNE HILLIER

ORDER

Judge:  Besanko J
Date:  16 April 2010
Place:  Canberra

THE COURT ORDERS THAT:

On the charge on indictment that Steven Wayne Hillier murdered Ana Louise Hardwick between 30 September 2002 and 2 October 2002 at Canberra in the Australian Capital Territory there be a verdict of acquittal.

Introduction

Steven Wayne Hillier is charged on indictment with the murder of Ana Louise Hardwick between 30 September 2002 and 2 October 2002 at Canberra in the Australian Capital Territory. He has elected under s 68B of the Supreme Court Act 1933 (ACT) to be tried by judge alone.

The charge against the accused has a long history. In November 2004, the accused was tried before Gray J and a jury in the Supreme Court of the Australian Capital Territory. He was convicted of the murder of the deceased. He appealed against his conviction to the Court of Appeal of the Supreme Court. By a majority (Higgins CJ, Crispin P; Spender J dissenting) his appeal was allowed and the conviction was set aside (Hillier v The Queen [2005] ACTCA 48). The ground on which the Court allowed the appeal was that the verdict of the jury was unsafe and unsatisfactory. The Court of Appeal did not make an order directing entry of a verdict of acquittal, although, as the High Court noted in the subsequent appeal to that Court, it would follow from the reasons given by the majority that such an order should have been made.

The Director of Public Prosecutions applied for special leave to appeal to the High Court to set aside the orders of the Court of Appeal, or, alternatively, for an order for retrial. The matter was referred to the Full Court of the High Court as if on appeal. On 22 March 2007, the High Court made orders granting the Director special leave to appeal and treating the appeal as instituted and heard instanter and allowed. The High Court made an order setting aside the orders of the Court of Appeal of the Australian Capital Territory made on 15 December 2005 and an order remitting the matter to that Court for rehearing (The Queen v Hillier (2007) 228 CLR 618 (“Hillier”)).

A differently constituted Court of Appeal (Madgwick, Weinberg and Dowsett JJ) heard the matter on the remitter and, on 6 March 2008, that Court made orders upholding the appeal, setting aside the conviction and sentence and remitting the case for retrial (Hillier v R (2008) 1 ACTLR 235). This is the retrial of the charge.

Both parties invited me to read the High Court decision and the two decisions of the Court of Appeal and I have done so. The High Court decision contains important observations as to the principles to be applied in a case based on circumstantial evidence and I will apply those observations. The two decisions of the Court of Appeal contain observations on the facts, but I must make my own decision on the basis of the evidence before me. This is an obvious point but I mention it because counsel for the accused read passages from the first decision of the Court of Appeal in the course of his closing address. I must apply the law as I find it to be, and I must make findings of fact based on the evidence before me. In fairness to counsel for the accused, I do not think that in the end he made a contrary submission.

In a number of respects the evidence before me was different from the evidence at the first trial. For example, evidence was put before me about conduct of the accused between 29 September 2002 and 2 October 2002, which, on the defence case, was inconsistent with a finding that the accused murdered the deceased. Furthermore, evidence was put before me of a further DNA analysis of the tapelift labelled 15C.7. That further testing was carried out by the Australian Federal Police (“AFP”) in February 2009. In addition, the AFP carried out a further DNA analysis of the pyjama top in the area from which the tapelift labelled 15C.7 had been taken. That further testing was carried out in May 2009. I mention at this stage that the accused maintains that the DNA results of the tests carried out by the AFP with respect to the tapelift labelled 15C.7 are unreliable. His principal ground of challenge to those results is that contamination or indirect transfer cannot be excluded as a reasonable possibility.

There are four principal elements to the Director’s case. First, the Director submits that the accused had a motive to murder the deceased in that he wished to regain custody of his children. Secondly, the Director submits that the accused had the opportunity to murder the deceased in that, on the night the Director submits the deceased was murdered, the accused was, on his account, home by himself. Thirdly, the Director submits that the accused’s DNA was found on the deceased’s pyjama top in circumstances establishing that he was present at the time of her death. Finally, the Director submits that conduct by the accused shortly after the deceased’s death indicates his consciousness of guilt of her murder. There are other issues which I must consider, such as the manner of the deceased’s death and the time of death.

Directions

The Director bears the onus of establishing beyond reasonable doubt the guilt of the accused of the offence with which he is charged.

The accused is charged with murder. The elements of that offence are set out in s 12 of the Crimes Act 1900 (ACT). They are that a person caused the death of another intending to cause the death of that person or with reckless indifference to the probability of causing the death of that person. The Director’s case is that the accused caused the death of the deceased and that he did so intending to cause her death. I remind myself that the Director must prove both elements beyond reasonable doubt and that the onus remains on the Director throughout the case.

The case against the accused is a circumstantial case because no-one saw the accused murder the deceased. The features of a circumstantial case and the approach which I, as the finder of fact, must adopt are clearly summarised in two cases: Plomp v The Queen (1963) 110 CLR 234 (“Plomp”) and the decision of the High Court in Hillier.

In Plomp, Dixon CJ said (at 242):

“All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.”

In Hillier, Gummow, Hayne and Crennan JJ said (at 637-638 [46]-[48]):

“The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
The force of that proposition is well illustrated by the decision in Plomp v The Queen. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife.
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
‘At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
(Citations omitted).

I direct myself accordingly. I also direct myself that it is not for the defence to establish that some inference other than that of guilt should be drawn from the evidence or to prove particular facts that would tend to support such an inference: Barca v The Queen (1975) 133 CLR 82; R v Betancur-Galvis (2003) 142 A Crim R 527.

I have mentioned the four principal elements of the Director’s case. I must determine whether one or more of these elements must be proved beyond reasonable doubt and then give myself a direction accordingly.

I start with motive. The Director is not required to prove a motive and it is not an element of the offence with which the accused is charged. I remind myself that a failure to prove a motive does not mean a motive did not exist.

In this case, the evidence of motive includes evidence of the relationship between the accused and the deceased. The evidence of motive is to be considered with all the evidence in the case and not simply at some later stage after certain other evidence has been considered and a conclusion drawn. I remind myself that motive, where established, is only one matter to be taken into account. Many people may have a motive to offend but never do so. Motive does not, of itself, constitute proof of involvement in a crime. Motive is simply one item of evidence in the case that may tend to show that the accused murdered the deceased (Plomp at 242 per Dixon CJ; De Gruchy v The Queen (2002) 211 CLR 85 at 99-102 [55]-[57] per Kirby J).

A question arises as to whether motive must be proved beyond reasonable doubt. In the first trial, the trial judge gave a direction to the jury to the effect that the motive alleged by the Director had to be proved beyond reasonable doubt. In Penney v The Queen (1998) 72 ALJR 1316, the High Court seemed to proceed on the basis that, in accordance with the principles stated in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 (“Chamberlain No 2”), motive had to be proved beyond reasonable doubt. Although motive may not need to be proved beyond reasonable doubt in every case (see Byrne D and Heydon JD, Cross on Evidence (Butterworths, Australian ed, subscription service) at [9040]) (“Cross on Evidence”), I think that in this case motive is of such importance to the Director’s case that it must be proved beyond reasonable doubt.

I turn now to the DNA evidence. In the second decision of the Court of Appeal, the Court said (at 245 [49]):

“The presiding judge, correctly in our view, directed the jury that they had to be satisfied beyond reasonable doubt that Mr Hillier’s DNA was found on the deceased’s pyjamas and was not there as a result of indirect transference via either of the children.”

The defence submits that this is the approach I should take. I should add that, having regard to the evidence, I must consider the possibility of contamination as well as the possibility of indirect transference via either of the children.

As I understand it, the Director submits that the observation in the second decision of the Court of Appeal is incorrect and that the DNA evidence does not need to be proved beyond reasonable doubt. The Director submits that the DNA evidence is not an intermediate fact or an indispensable link in the chain of reasoning towards an inference of guilt in the sense described in Shepherd v The Queen (1990) 170 CLR 573. The Director submits that the intermediate fact in this case is the accused’s presence at the scene of the crime.

In strict terms, the Director’s submission seems to be correct; the DNA evidence itself is not necessarily an indispensable link in the chain of reasoning towards an inference of guilt. However, the cases demonstrate that the DNA evidence may be of such importance in establishing the accused’s presence at the scene of the crime in the particular circumstances of the case that it is appropriate that, before it is relied upon in the case, it should be proved beyond reasonable doubt: R v Pantoja (1996) 88 A Crim R 554 at 583 per Abadee J; R v Fletcher (1998) 2 Qd R 437 at 440-441 per Lee J; Cross on Evidence at [9040]. It seems to me that this is such a case; the DNA evidence is of such importance to the Director’s case that it must be proved beyond reasonable doubt.

A major issue in this case is the possibility of contamination or indirect transfer. I direct myself that I must be satisfied beyond reasonable doubt that the accused’s DNA was on the deceased’s pyjama top and that (assuming I find it was there) it was not on the pyjama top as a result of contamination or indirect transfer. I must be able to exclude contamination or indirect transfer as a reasonable possibility. In this context, I note that a failure by investigating authorities to adopt recommended or desirable procedures does not of itself give rise to a reasonable doubt, nor is such a doubt raised simply because items were liable to contamination: R v Butler [2009] QCA 111 at [107], [109] per Keane JA; R v Stafford [2009] QCA 407 at [126] per Keane JA.

I turn now to the consciousness of guilt evidence. The Director submits that damage to the accused’s hands and his explanations as to how the damage occurred is evidence of his consciousness of guilt. The Director submits that there are two, possibly three, elements to the evidence. First, the accused deliberately damaged his hands in order to avoid a sample of his fingerprints being taken. The Director submits that I should give myself an Edwards direction (Edwards v The Queen (1993) 178 CLR 193 (“Edwards”)) in relation to that contention. Secondly, the accused lied about how he damaged his hands and he did that out of a consciousness of guilt. The Director submits that this is a separate item of evidence and that I should give myself an Edwards direction in relation to it. Thirdly, the Director submits that the accused’s explanations might be seen to fall within the type of evidence described by Kitto J in Woon v The Queen (1964) 109 CLR 529 at 537-538:

“The point here is that, whether or not an accused person’s reactions to statement or questions put to him in the course of an interview indicate either that he admits any particular fact suggested to him or only in his own mind recognizes that it is a fact, those reactions may have evidential value upon the ultimate question of fact in the case because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged. It cannot be that while the jury may be allowed to take account of conduct of the accused person as showing his state of mind upon a subsidiary or primary question of fact they may not take account of it as showing his state of mind upon the ultimate question of fact. In the present case, in my opinion, it was in accordance with law that the jury was invited to consider the significance of the applicant’s answers to such questions as he chose to answer and to treat as material upon which to found a verdict any revelation they might think those answers afforded of what they would have discovered upon the question of guilt or innocence if (to repeat the trial Judge’s vivid expression) they could have looked inside the applicant’s mind.”

The defence argued, correctly in my view, that the accused’s statements as to how he damaged his hands were not a separate and independent item of evidence revealing a consciousness of guilt. If, as the Director contended, the accused deliberately immersed his hands in a chemical substance in order to avoid having a sample of his fingerprints taken, then that is the evidence of his consciousness of guilt and it is difficult to see how the lies take the matter any further. If he did not do that, then the statements, although relevant to an assessment of the accused’s general credit, are not lies indicating a consciousness of guilt. I should add that his statements as to how he damaged his hands are certainly relevant to the question whether he did deliberately immerse his hands in a chemical substance in order to avoid having a sample of his fingerprints taken.

I give myself an Edwards direction (see Edwards at 211-212 per Deane, Dawson and Gaudron JJ). In the context of this case, I need to be satisfied that the accused deliberately damaged his hands, that he did so in order to avoid having a sample of his fingerprints taken and that he wished to avoid having a sample of his fingerprints taken because he considered it may implicate him in the deceased’s murder.

It seems that this aspect of the case turns to a large extent on whether I am satisfied that the accused deliberately damaged his hands because, if he did so, it is hard to resist the conclusion that he did so because of a consciousness of guilt.

Again, a question arises as to whether I need to be satisfied beyond reasonable doubt of the matters I have identified in [24] above. In the first trial, the trial judge instructed the jury that they must be satisfied of the relevant matters beyond reasonable doubt. The decision in Edwards (at 210 per Deane, Dawson and Gaudron JJ) suggests that that is the correct direction in cases where the lies are the only evidence against the accused, or are an indispensable link in a chain of evidence necessary to prove guilt (see also R v Adam (1999) 106 A Crim R 510 at 521-522 [55] and [60]; Velevski v R (2002) 187 ALR 233 at 244-245 [42]-[44] per Gleeson CJ and Hayne J). The cases since Edwards suggest that whether consciousness of guilt evidence must be proved beyond reasonable doubt depends on all the circumstances of the case and the importance of the consciousness of guilt evidence in those circumstances: R v Laz [1998] 1 VR 453; R v Farquharson [2009] VSCA 307.

In this case, I am not satisfied of the DNA evidence beyond reasonable doubt. In those circumstances, I consider I must be satisfied beyond reasonable doubt of the consciousness of guilt evidence before I rely on it.

I turn now to the topic of evidence and witnesses. The Director tendered all of the evidence given at the first trial. That evidence consisted of the evidence called by the Director at the first trial and the evidence called by the accused, including evidence given by the accused himself.

Some, but not all, of the witnesses who gave evidence at the first trial gave evidence before me. As far as non-expert witnesses are concerned, I remind myself of the fact that it is open to me to accept all of the evidence of a witness, or only part of it, or to reject it in its entirety. Where I have seen and heard the witness, I am entitled to have regard to the witness’s demeanour. In the case of all witnesses, I am entitled to have regard to the inherent probability or improbability of what the witness has said and to weigh and consider it having regard to the other evidence in the case. I must remember that there are differences in temperament between witnesses, and that, in the case of a number of witnesses, they will not have given evidence before.

As far as expert witnesses are concerned, I remind myself that I am not bound to accept their opinions on matters of fact. I am the ultimate decision-maker as to matters of fact. I am entitled to look at the factual assumptions made by the experts and to determine whether they have been made out on the evidence.

The accused gave evidence on oath at the first trial and, as I have said, the Director tendered that evidence in the trial before me. I am to approach my assessment of that evidence in the same way as other evidence in the case. In the trial before me, the defence did not call any oral evidence. I remind myself that no adverse inference is to be drawn against the accused by reason of the fact that he did not give evidence before me.

The accused put forward evidence of his good character. Evidence was given of his qualities as a father and as an employee. If I accept this evidence, I am entitled to use it as probative of the accused’s propensity to commit the crime or his credibility, or both: Melbourne v The Queen (1999) 198 CLR 1 at 14 per McHugh J. I have taken the evidence into account but, for reasons I will give, it has not been sufficient to dissuade me from the conclusion I have reached as to the reliability of the accused’s evidence given in the first trial.

Counsel for the accused pointed to the fact that the Director did not call witnesses who could have given evidence about the handling of the deceased’s pyjamas. In that respect, he identified a senior forensic officer (Ms Moira Johnson) and officers who had access to search room 1. Counsel for the accused asked me to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298). It was not suggested by the Director that Ms Moira Johnson was not available to give evidence. The 9-12 people who, on the evidence of Mr Williams, may have entered search room 1 between 3 October and 6 October 2002 were not identified in the evidence. The Director did not suggest that they were not available. I do not think that I should give myself a Jones v Dunkel direction for two reasons. First, as a general rule, such a direction should not be given: Dyers v The Queen (2002) 210 CLR 285 at 291 [6] per Gaudron and Hayne JJ. Secondly, at no stage did counsel for the accused identify those factual matters with respect to which he asked me to conclude that the absent witness would not have assisted the Director’s case.

Matters of evidence

Section 190 of the Evidence Act 1995 (Cth)

The Director opened his case both orally and in writing. In the course of his oral opening, he applied to tender the transcript of the evidence given at the first trial and the exhibits tendered at the first trial. As I have said, the transcript included not only the prosecution witnesses, but also the evidence called by the defence, including evidence given by the accused. In his written opening the Director listed the witnesses he proposed to rely on as part of his case. Some only of those witnesses were witnesses the Director proposed to call at the trial before me. They were to be called for further evidence in chief in some cases and for cross-examination. There were witnesses who gave evidence at the first trial and whose evidence the Director proposed to rely on who were not to be called at the trial before me. It was apparent from the course the Director proposed to follow that there had been discussions between the Director and counsel for the accused as to the witnesses who would be called before me.

The defence consented to the course of action proposed by the Director and handed to me a document entitled, “Consent to Waiver of Rules of Evidence under Section 190 of the Evidence Act 1995 (Cth)”. I will refer to this document as the Consent to Waiver document.

Paragraph 2 of the Consent to Waiver document provided as follows:

“2.The parties consent to the waiver of the rules of evidence in Chapter 2, Part 2.2 and Chapter 3, Part 3.2 of the Evidence Act 1995 (Cth) in respect to the tender of the transcript of evidence given by both witnesses for the prosecution and defence at the first trial, as indicated below:”

The document then set out details of the transcript to be tendered. The document was signed by the Director and counsel for the accused.

The accused signed a consent which read as follows:

“1.I, Steven Hillier, consent to the tender of the transcript of the proceedings of the first trial as outlined above in the trial to be heard by Judge alone to commence on 1 March 2010.
2.I confirm I have been advised to do so by my legal Counsel.
3.I understand that as a result of the transcript being tendered, the evidence given by witnesses for the prosecution, myself and other witnesses for the defence in the first trial will be evidence in the re-trial and that the trial Judge will be able to make findings of fact based on that evidence, together with any further evidence given by those witnesses in the re-trial.”

Section 190 of the Evidence Act 1995 (Cth) (“Evidence Act”) provides relevantly:

“190 Waiver of rules of evidence
(1)The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of:
(a)       Division 3, 4 or 5 of Part 2.1; or
(b)       Part 2.2 or 2.3; or
(c)       Parts 3.2 to 3.8;
in relation to particular evidence or generally.
Note:Matters related to evidence in child‑related proceedings (within the meaning of section 69ZM of the Family Law Act 1975) are dealt with by that Act.

(2)In a criminal proceeding, a defendant’s consent is not effective for the purposes of subsection (1) unless:
(a)the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel; or
(b)the court is satisfied that the defendant understands the consequences of giving the consent.”

Out of an abundance of caution and having regard to s 190(2)(b), I made a statement to the accused about the consequences of giving consent.

After making that statement, I gave the accused the opportunity to confer with his counsel. He was represented by both senior and junior counsel. After he had done so, he told me he understood the consequences of giving consent. I was satisfied he did and the transcript became an exhibit in the trial before me.

Section 38 of the Evidence Act 1995 (Cth)

Section 38 of the Evidence Act provides as follows:

38 Unfavourable witnesses
(1)A party who called a witness may, with the leave of the court, question the witness, as though the party were cross‑examining the witness, about:
(a)evidence given by the witness that is unfavourable to the party; or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.

(2)Questioning a witness under this section is taken to be cross‑examination for the purposes of this Act (other than section 39).
(3)The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
Note:The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4)Questioning under this section is to take place before the other parties cross‑examine the witness, unless the court otherwise directs.
(5)If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6)Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a)whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7)A party is subject to the same liability to be cross‑examined under this section as any other witness if:
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b) the party is a witness in the proceeding.”

In the case of two witnesses called by the Director, the Director applied for leave under s 38(1) to question the witness as though cross-examining the witness.

Mr Keith Chavasse is a station officer with the Fire Brigade of the Australian Capital Territory. He has trained as a fire investigator. It was apparent that there had been a fire in the bedroom in which the deceased’s body was found. Mr Chavasse attended the deceased’s premises to investigate the fire. He spent some time in the bedroom where the deceased’s body was found. Forensic officers were also present in the bedroom. One of the claims made by the defence is that those present in the bedroom may have contaminated the deceased’s pyjama top with the accused’s DNA. Hence, it became relevant to ascertain who may have handled or touched the deceased’s body. Mr Chavasse said in his evidence in chief before me that he thought he had touched the body in that he helped forensic officers to roll the body over. At the committal hearing, he said that he did not touch the body. The Director applied for leave under s 38(1) and he relied on s 38(1)(c). I was satisfied that there appeared to be a prior inconsistent statement by Mr Chavasse and that there were no discretionary reasons under ss 38(6), 135, 137 or 192(2) not to grant leave. Counsel for the accused did not seek to be heard on the Director’s application.

Daniel Hillier was called by the Director. The primary significance of his evidence related to his possession of a fourth set of keys to the deceased’s premises. I refer to my summary of his evidence set out below (at [228]-[233]). The Director submitted that, having regard to his evidence in chief, he was not making a genuine attempt to give evidence about matters of which he may reasonably be supposed to have knowledge. In addition, the Director submitted that Daniel Hillier had made a prior inconsistent statement when he was interviewed by the police on 9 October 2002 (“the interview”). Therefore, the Director submitted, the case fell within paragraphs (1)(b) and (c) of s 38(1).

Counsel for the accused was heard on the application. He acknowledged that there were inconsistencies between the identified questions and answers in the interview on the one hand and Daniel Hillier’s evidence on the other. Counsel for the accused submitted that, in truth, the means whereby Daniel Hillier obtained possession of the fourth set of keys to the deceased’s premises – whether he found them outside and told nobody that he had them, or took them from his mother without her knowledge – was simply a matter of credit, and cross-examination as to credit alone was only permitted in limited circumstances. He referred to s 102 and s 103 of the Evidence Act. Counsel for the accused submitted that either s 38 did not operate in such circumstances, or the importance of the evidence was minimal in the circumstances and that was a discretionary reason within s 192(2) not to permit cross-examination.

Counsel for the accused submitted that there was another discretionary reason not to permit cross-examination of Daniel Hillier. Counsel submitted that it would be unfair to the witness to permit cross-examination and that that was a relevant consideration. It would be unfair to him having regard to the following:

(1) The traumatic circumstances he finds himself in; his father is accused of murdering his mother.

(2) The fact that the prior inconsistent statement was taken during a lengthy police interview when he was 11 years old and unaccompanied by an adult.

(3) The fact that his inability to recall relevant events some 7½ years after the relevant events was not surprising.

I considered that it was appropriate to grant leave under s 38(1). I considered the interview represented a prior inconsistent statement. I did not think the subject matter of the evidence was simply a matter of credit. It went directly to an issue, namely, if the prosecution case was established that the deceased was murdered by occlusion of the airways and there were no signs of forced entry to her premises, the means by which the killer gained access to the premises. In reaching my conclusion, I had regard to the decision of the High Court in Adam v The Queen (2001) 207 CLR 96 and the decision of the Court of Appeal in Director of Public Prosecutions v Edwin Nair(2009) 170 ACTR 15 and the authorities referred to in that case.

I considered the discretionary considerations in ss 38(6), 135, 137 and 192(2) of the Evidence Act. In my opinion, they favoured a grant of leave. I did not consider that the grant of leave would unduly prolong the trial and I saw no unfairness to the accused and, in fact, none was suggested. There are a number of important issues in the case of which access to the deceased’s premises and possession of the fourth set of keys is one. I did not think the tragic circumstances surrounding the deceased’s death and the charge of murder against the accused was a basis to claim that the grant of leave would be unfair to Daniel Hillier within s 192(2). I considered that the circumstances in which the interview was conducted may go to the question of fairness and that it would almost certainly be a matter to take into account in assessing the evidence. I gave the matter careful consideration, but I did not think that either alone, or with the other matters to which counsel for the accused referred, it should lead to a refusal of leave.

The facts

The deceased’s parents went to her premises at 20 Marengo Place, Isabella Plains, a short time after 10.00 am on Wednesday 2 October 2002. They found her dead in her bedroom. She was lying face down next to her bed and there was evidence that, when found, part of her body was entwined in the doona which was part of the bedclothes. The deceased was wearing purple “Winnie-the-Pooh” pyjamas consisting of a top and pants. There were marks on her neck.

There had been a fire in the room. Mr Michael Collins gave evidence about the likely behaviour of the fire. He was an honest witness and I accept his evidence. Mr Collins is employed by the ACT Fire Brigade and, in 2002, he was a fire safety officer engaged in the Fire Safety Section. Based on his evidence, I am satisfied that the fire in the bedroom burnt itself out because the bedroom door was closed. Based on his evidence, I am satisfied that, had the deceased been alive during the development of the fire, she would have been breathing for some minutes before dying of smoke inhalation.

Dr Michael Burke is a registered medical practitioner who specialises in forensic medicine and pathology. Dr Burke was an honest witness and I accept his evidence. Dr Burke carried out an autopsy on the deceased’s body on Thursday 3 October 2002. The deceased was dressed in purple “Winnie-the-Pooh” pyjamas and the pyjamas showed evidence of burning to the right sleeve, right leg, left arm, left leg and on the back. There were injuries to the deceased’s body in the form of abrasions to the nose and the neck. The abrasions to the neck included a complex abraded injury predominantly to the left side of the neck, another abrasion to the left side of the neck and a smaller abrasion in the area of the thyroid cartilage. No injury was seen to the back side of the neck. There was evidence of soot on the exposed portions of the skin. The deceased’s body showed early signs of decomposition. Dr Burke said that there was no evidence of injury to the external or internal genitalia of the deceased’s body.

On internal examination, Dr Burke found that there was no evidence of soot within the trachea or the major airways or the lungs. There was evidence on internal examination of bruising to the right and left wrists. There was no evidence of bruising on external examination. Dr Burke did not think the bruising was caused by the use of handcuffs, but he could not exclude that possibility. The toxicology report revealed that the deceased had a blood alcohol reading of 0.041 grams per 100 ml. The carbon monoxide test supported the conclusion that the deceased died before the onset of the fire.

Dr Burke expressed the conclusion, and I find, that the cause of the deceased’s death was neck compression. Dr Burke could not estimate the time of death and he agreed that the deceased could have been dead for days. That was because of the heat in the house and the effect it had on the decomposition of the body. Dr Burke could not exclude strangulation by a cord or a rod or manual strangulation. Dr Burke agreed that the case was a difficult one. He could not exclude a belt being applied to the front of the deceased’s neck.

Dr Burke agreed in cross-examination that it was a “non-recommended practice” to undress and re-dress a body at a crime scene because of the fact that it may cause the loss of trace evidence. He also agreed that it was quite difficult to undress and dress a dead body. The significance of this evidence will become apparent later in these reasons. Dr Burke was asked whether he had observed two marks to the deceased’s left thigh and said that he had not.

Based on Dr Burke’s evidence, I find that the deceased died of neck compression and that she died before the development of the fire. The police investigations establish that the fire was deliberately lit by a person other than the deceased. I find that the person who lit the fire in the deceased’s bedroom did so in order to avoid apprehension by destroying evidence.

I did not understand the defence to abandon a suggestion that the deceased died of what it described as sexual misadventure. It is convenient for me to deal with that suggestion now. The evidence the defence points to is also relevant to another suggestion made by the defence, namely, that the deceased was in a relationship with a person in addition to her boyfriend, Mr Michael Koppie. The evidence the defence points to is as follows.

First, a DNA profile of an unknown person was found in an area on the front right collar of the deceased’s pyjama top. That is the area from which the sample labelled 15C.1 was taken. The profile was not one of the reference samples taken by the AFP. Those reference samples included Mr Koppie and the accused. Secondly, items which were described in the evidence as items which might be purchased from an adult sex shop were found in the deceased’s premises after her death. These items included videos and various forms of lingerie. Thirdly, a pair of handcuffs was found in the wardrobe in the deceased’s bedroom. Initially, it was considered that the handcuffs had not been used. However, a key which operated the handcuffs was found in the bedside table. Fourthly, a condom was found in the deceased’s handbag or purse. The evidence from Mr Koppie was that, for the reason he identified, there was no need for him to use a condom. Fifthly, some empty beer bottles were found in the deceased’s rubbish after her death. The brand of beer was “Melbourne Bitter”. The evidence was that the deceased normally drank wine and Mr Koppie drank other brands of beer. Finally, Detective Matthew Innes, who was in charge of the investigation into the deceased’s death, said, in the course of cross-examination by counsel for the accused, that the police had conducted inquiries at an adult store in Fyshwick and a person at that store was interviewed. That person said that, after a party plan in which the deceased was involved was over, the deceased attended the store and purchased items for herself. The deceased told that person that she had purchased a maid’s outfit in respect of a relationship she was having with a young man. I have to bear in mind the limitations of this evidence. It is second-hand, vague as to time and has not been tested.

The evidence of Ms Lesa Wells and Mr Koppie bears upon the significance of the matters I have identified.

Ms Wells was a close friend of the deceased. She said that the deceased was involved in a party plan for selling adult products. She did that for extra income and the plan was conducted like a party plan for Tupperware. The products included products one would find “down in a sex shop type thing”. Ms Wells said that the deceased was not herself interested in the products and it was “just a joke”. Ms Wells said she did know the deceased had a maid’s outfit at some stage. She said that the deceased’s relationship with Mr Koppie was not “a full-on, heavy relationship”.

Mr Koppie said, as far as he knew, his relationship with the deceased was an exclusive one. He did not think she would have another relationship; both morally and because she would not have time. He was aware of the party plan and, on the one occasion he knew one had been held, said that it involved a group of six to eight women. The party plan products involved lingerie and videos. He was not aware of handcuffs and he said that he never used handcuffs in the course of his relationship with the deceased.

I find beyond reasonable doubt that the deceased was murdered and that she did not die by sexual misadventure. The Director’s case was (and there is evidence to support it) that the person at the deceased’s premises at the time of her death probably wore gloves. That person started a fire and had the presence of mind to disconnect the smoke detectors. It seems to me hardly credible in those circumstances to suggest that the deceased died by reason of sexual misadventure.

I will need to return to consider the relevance of the evidence identified in [57]-[60] to the question of whether the deceased was or may have been having a relationship with another man.

The investigations which followed discovery of the deceased’s body

Crime scene investigators, police officers, Mr Chavasse and others attended the crime scene on Wednesday 2 October 2002. The defence contends that their conduct in connection with the deceased’s body and later her pyjamas gives rise to a reasonable possibility of contamination of the accused’s DNA with the deceased’s pyjama top. It is therefore necessary to set out in some detail what happened at the crime scene on Wednesday 2 October 2002 and in the days that followed.

Mr Gareth Williams is a crime scene investigator employed by the AFP in its Forensic Services Division. He gave evidence at the first trial and at the trial before me. Ms Christa Dudley was, in 2002, a crime scene investigator employed by the AFP in its Forensic Services Division. She also gave evidence at the first trial and at the trial before me. She and Mr Williams attended the crime scene on 2 October 2002.

Mr Williams was cross-examined at length in the trial before me. The thrust of the cross-examination was designed to show the potential for contamination of the pyjama top as a result of the manner in which the forensic investigation was carried out. Mr Williams prepared notes at the time, recording events as they occurred. He relied heavily on his notes and on the general practices he adopted at the time. His recollection of specific events was at times quite poor, an unsurprising circumstance considering the time which had elapsed since he conducted his investigation. I found him to be an honest witness. I make the same observations about Ms Dudley, subject to the further observation that her recollection seemed to be even poorer than that of Mr Williams.

It is convenient to summarise (by reference to the evidence of Mr Williams) the key events in terms of the involvement of Mr Williams and Ms Dudley and then examine the matters of particular relevance.

Mr Williams and Ms Dudley attended the deceased’s premises at about midday on Wednesday 2 October 2002. There were police officers present at the scene as well as Mr Chavasse.

The deceased was lying face down on the floor in the main bedroom. She was in her pyjamas. It was apparent that a doona on the bed had at some stage been entwined with the deceased’s body. It had been moved at a later stage. Mr Williams and Ms Dudley carried out a doona reconstruction exercise. Mr Chavasse may have assisted in that exercise. There had been a fire in the room and there was considerable fire damage. The premises were otherwise in a neat and tidy condition and there were no signs of forced entry. There was nothing to indicate a struggle in any of the other rooms. A number of photographs were taken. A number of swabs for DNA were taken.

Two smoke detectors were located, one in the dining room and the other in the hallway. Later testing of the smoke detectors on 10 October 2002 revealed that they did not work because the terminals were disconnected from the batteries. When the terminals were connected they operated in the normal way.

A footprint, which could not be identified, was found in the main bedroom. Later testing revealed that it had the same characteristics as shoes worn by the deceased’s father, Mr John Hardwick.

The head of the bed was not flush with the wall and it had been moved slightly. There was a bedside table next to the bed on which there was an ashtray containing a cigarette butt, a packet of cigarettes and a green cigarette lighter. These items were on the bedside table during the development of the fire. There was fire damage to the pillows and the mattress of the bed. There was soot and fire damage to other areas in the room.

Mr Williams formed the opinion that the fire had started near the bedside table which was close to the bed. Mr Williams was later involved in tests with a pillow and a burning cigarette, and with a pillow and a lighter. The pillow could not be ignited with a burning cigarette.

The smoke damage in the room suggested that during the development of the fire, the light was on, the door was shut and the blinds on the window were shut. It also suggested that the lights were on in the toilet and hallway during the development of the fire.

During the afternoon, the deceased’s body was rolled over and injuries to her neck were noticed. Those injuries appeared suspicious and Mr Williams contacted Ms Moira Johnson. Ms Johnson is a senior crime scene investigator and she attended the deceased’s premises after being contacted by Mr Williams. Later in the afternoon, the crime scene investigators decided to check for any other injuries to the deceased’s body. They unbuttoned the pyjama top and removed the pyjama pants. Mr Williams noticed two red marks like finger marks on the deceased’s left thigh near her groin area. The deceased’s body was later re-dressed. Paper bags or envelopes were placed over the deceased’s hands. The jewellery which could be removed was removed.

Mr Williams said that during the afternoon he was wearing gloves and that he changed them regularly. One reason for doing that, he said, was to avoid contamination.

The funeral directors attended the deceased’s premises to collect the body at about 6.40 pm. The accused was in the driveway of the deceased’s premises when that was done. The funeral directors were called to give evidence. They are Mr Stuart Martin and Mr Leighton Mann. Both were honest witnesses. I will not set out the details of their evidence. I am satisfied that nothing they did in connection with the deceased’s body gave rise to a reasonable possibility of contamination. I also mention at this point that Sergeant John Dougan was called to give evidence about his role at the crime scene and his role in connection with the identification of the deceased’s body during the evening of Wednesday 2 October 2002. Sergeant Dougan was an honest witness. I am satisfied that nothing he did in connection with the deceased’s body gave rise to a reasonable possibility of contamination.

Mr Williams and Ms Dudley attended the deceased’s premises on Thursday 3 October 2002. Photographs were taken and various items collected, including the following: the ashtray and cigarette butt, cigarette pack and lighter; a sample of the pillow; and some debris found on the carpet.

Mr Williams and Ms Dudley then attended the autopsy carried out by Dr Burke at the Kingston Forensic Medical Centre. The deceased’s body was undressed and the pyjama top and pants were placed in separate brown paper bags which were sealed and labelled. They were given the item number 15.

After the autopsy had been carried out, Mr Williams and Ms Dudley returned to the deceased’s premises and seized from the rubbish bins, among other things, a Bacardi Breezer bottle and three Melbourne Bitter beer bottles. Various items were examined for fingerprints. It seems that the two brown paper bags containing the pyjamas were kept in the vehicle that Mr Williams and Ms Dudley were using that day.

Later that day, the pyjamas were taken back to the Forensic Services laboratory at Weston. The pyjamas were wet from blood staining and, at about 10.00 pm, Ms Dudley removed the pyjamas from their packaging in search room number 1 and placed them on brown paper on a table in the middle of the room. That was done so that they would dry. The pyjamas remained in that state for about 72 hours. Other exhibits relevant to the case were kept in the search room either in a separate plastic container or a cabinet type arrangement. Those exhibits, which, as I understand the evidence, were sealed, included items from the deceased’s premises and items seized from the accused’s premises pursuant to a search warrant.

Mr Williams and Ms Dudley were present when a search warrant was executed with respect to the accused’s premises on Friday 4 October 2002. They took precautions against contamination. Those precautions included the wearing of trace evidence suits and the use of different boots and vehicles. None of the accused’s shoes matched the footprint found in the main bedroom of the deceased’s premises.

Ms Dudley seized a toothbrush and razor found in the accused’s bathroom. A vehicle was seized from the accused’s premises and it was taken to the Forensic Services garage at Weston.

Mr Williams and Ms Dudley examined the vehicle on Saturday 5 October 2002. They took samples for hair and fibre analysis and tapelifts from various parts of the vehicle.

Mr Williams and Ms Dudley carried out further investigations at the deceased’s premises on Saturday 5 October (again, they took precautions against contamination), Sunday 6 October, Tuesday 8 October and Tuesday 22 October 2002.

On Sunday 6 October 2002, Mr Williams and Ms Dudley repackaged the pyjamas. They were placed in a walk-in coolroom where other exhibits from the case were stored.

Mr Williams and Ms Dudley examined a brown Mazda owned by a Mr Craig Burmann on 4 December 2002 with a view to determining the cleanliness of the engine. It did not appear clean and there were deposits of grease and dirt in the engine bay area.

On Thursday 27 February 2003, Mr Williams and Ms Dudley returned to the deceased’s premises. They examined the bedhead and noticed some scratches; some of the black powder coating on the bedhead had been removed. Mr Williams could not exclude the possibility that the marks he had observed had been caused by the use of handcuffs.

The evidence in chief of Ms Dudley largely accorded with that of Mr Williams. She said that, when, at the deceased’s premises, the pyjama pants were removed, they were placed on the floor near the body. She gave evidence that the pyjamas, repackaged, were taken from search room number 1 on 9 October 2002. They were returned to the main exhibit area on 22 May 2003.

A number of matters emerged during the cross-examination of Mr Williams and Ms Dudley.

First, Mr Williams agreed that his memory of the events on Wednesday 2 October 2002 was “unreliable in parts”.

Secondly, both Mr Williams and Ms Dudley believed that, while at the deceased’s premises on Wednesday 2 October 2002, they wore gloves and changed them regularly. Mr Williams did not make a note of the occasions on which he changed his gloves and neither Mr Williams nor Ms Dudley were able to be specific as to all the occasions upon which they changed their gloves.

Thirdly, the deceased’s body was handled by Mr Williams, Ms Dudley and, later, Ms Johnson, and that handling included rolling her onto her side and then onto her back, undressing her by unbuttoning her pyjama top and removing her pyjama pants, and holding her pyjama top and later her head as shown in the video (exhibit D11). Neither Mr Williams nor Ms Dudley could be sure that Mr Chavasse did not assist in the rolling over of the body.

Fourthly, only Mr Williams had a key to search room 1, which was kept locked. The key to the room was kept in a drawer in Mr Williams’ office. The persons primarily concerned with gaining access to search room 1 from time to time were himself, Ms Dudley and Ms Johnson. However, Mr Williams said there were at least 9 to 12 other persons who could have gained access to search room 1 for the purpose of storing items there. No log or record was kept of the persons who went in and out of the room and their purpose in doing so.

Mr Williams said the following:

“I know there would be times where myself, Christa Dudley and Moira Johnson were not at work. Exhibits would come in, police would bring exhibits in. Forensic members would receive those items and if they chose to lodge them in search room 1 then they could gain access to that room.
By going to your drawer?‑‑‑Yes.”

Fifthly, when the pyjamas were laid out to dry in search room 1, the packaging in which they had been kept was probably left on the bench (Mr Williams), but may have been put on the floor (Ms Dudley).

Sixthly, the items collected from the accused’s premises on Friday 4 October 2002 (in particular, the toothbrush and razor) were placed in search room 1 as were tapelifts taken from his motor vehicle. The former were placed on a side bench (Mr Williams) or big plastic tubs (Ms Dudley).

Finally, at some stage between 3 October and 6 October 2002, Mr Williams and Ms Dudley examined the pyjamas with a polylight. No note of that examination was made.

I have already referred to Mr Chavasse’s evidence about whether he touched the deceased’s body (at [43]). I am disposed to think that he did not do so. That was his recollection at a time close to the relevant events and it was the best recollection of Mr Williams and Ms Dudley.

An important point to be noted about the evidence of Mr Williams and Ms Dudley is that the pyjamas were left to dry in search room 1 between 3 October and 6 October 2002. Other items taken from the deceased’s premises or seized from the accused’s premises (that is, tapelifts from a motor vehicle and a toothbrush, razor and plastic bag containing ash) were kept in sealed packages in the same room, probably in plastic tubs without separators. It seems to me that the weight of the evidence is that they were kept in plastic tubs.

It is convenient to follow through the handling of the pyjamas and the results of the DNA analysis. I will then return to summarise the other forensic investigations carried out by the AFP.

Dr Sarah Benson is a forensic scientist. She was an impressive witness and I accept her evidence. In 2002, Dr Benson was a member of the Chemical Criminalistics team, a section of the Forensic Division of the AFP. On 9 October 2002, Dr Benson’s team received a request to conduct hairs and fibre analysis of certain items taken or seized in connection with the investigation into the deceased’s death.

On 9 October 2002, Dr Benson collected certain items from the Field Services Laboratory cold room, or fridge. The evidence suggests that the items were stored in a tub designated the “Hardwick tub”. The items included the pyjamas and tapelifts of areas of the accused’s motor vehicle, and a key found in the vehicle. Dr Benson took those items to the Criminalistics Laboratory fridge where they were placed on the third shelf, left hand side. Dr Benson said that she probably did not wear gloves while performing this task. She said that she could not recall if she made more than one trip.

The plan was that samples would be taken from the pyjamas and examined for hairs and fibre. They would then be passed on to the Biology team for DNA analysis. Dr Benson discussed the plan with Ms Slazana Ristevska of the Biology team, and it was agreed that Dr Benson would take samples by tapelift from the neck region of the pyjama top.

On 11 October 2002, Dr Benson took the pyjamas to search room 2 within the Criminalistics Laboratory. On 14 October 2002, Dr Benson opened the packaging of the pyjamas which, at about this time, were designated 15A (pyjama pants) and 15B (pyjama top). Dr Benson visually examined the pyjamas and she took tapelifts. The locations from which the tapelifts of particular relevance were taken from the pyjama top are shown in the photograph which is exhibit AU. The tapelifts were stored for a time in search room 2. They were later put in containers and then into the Criminalistics Laboratory fridge.

The relevant tapelifts from the pyjama top were at that time designated items 15.1‑15.7. Apparent hairs taken from the pyjama top were designated items 15.8‑15.13. Other items created as a result of Dr Benson’s examinations were given different numbers.

On 16 October 2002, the pyjamas were repackaged. On the following day, the pyjamas, the tapelifts and hairs taken from the pyjamas were taken to examination room 4 within the Chemical Criminalistics Laboratory.

Dr Benson was asked to compare tapelifts from the accused’s vehicle, designated item 26A, with fibres which had come from the deceased’s pyjamas. That involved, among other things, an examination of tapelifts 15.1-15.7. The examination took place on 22 April 2002. The tapelifts from the accused’s vehicle, item 26A, were examined the following day. Both examinations took place in the Microscope Room. Dr Benson said that she may have accessed item 15.16 for comparison purposes. The tapelifts items 15.1‑15.7 were either stored in their plastic containers in the Microscope Room until 28 April 2003 when they were submitted to the Biology team, or returned to the Chemical Criminalistics Laboratory fridge for that period. Dr Benson could not remember which one of these alternatives had occurred.

The tapelifts items 15.1-15.7 were in containers, and, on 27 or 28 April 2003, they were packaged. The packages were then submitted to Ms Ristevska of the Biology team on 28 April 2003. It was at that point that the tapelifts were designated by the Biology team as items 15C.1-15C.7.

Ms Ristevska was, between late 2002 and June 2003, a senior forensic biologist employed by the AFP. She examined the tapelifts taken by Dr Benson. The tapelift labelled 15C.7 was taken from the front of the right lapel (when folded) of the deceased’s pyjama top. The result of the DNA analysis of 15C.7 was of a mixed DNA profile from a minimum of two individuals. The major component could have come from the deceased and the minor component could have come from the accused.

Ms Ristevska said that she would have expected to see a contribution of DNA from a child if, in fact, the accused’s DNA came to be on the pyjamas by secondary transfer. She did not see that. Ms Ristevska calculated a likelihood of 93 million in relation to 15C.7, that is to say, a comparison of the profile of the deceased and the accused and the deceased and an unknown donor. Ms Ristevska said it was possible, but unlikely, that Daniel Hillier or his sister could have contributed to the DNA found on 15C.7. Ms Ristevska confirmed that none of the children’s clothing, that is, the clothing of Daniel Hiller and his sister, was tested for DNA.

In February 2009, the tapelift labelled 15C.7 was retested. In May 2009, further tapelifts were taken from the pyjama top (15B) and these tapelifts were the subject of DNA analysis. These further tapelifts included tapelifts taken from the area of the pyjama top from which the tapelift labelled 15C.7 had been taken. This further testing was carried out by Dr Simon Walsh or under his supervision.

Dr Walsh is the Co-ordinator of Criminalistics and Identification Sciences within Forensic and Data Centre’s portfolio of the AFP. Dr Walsh is highly qualified in the area of the analysis of biological material for DNA purposes. He has supervised DNA analysis in over 2,000 criminal cases and given expert testimony in Court on more than 50 occasions. Dr Walsh prepared a report which summarised the work done prior to his involvement and then the recent work done by him or under his supervision. Dr Walsh noted that DNA reference samples were taken from 42 persons including the deceased, the accused, family members, friends such as Ms Wells and Mr Koppie, police officers and other officers.

Dr Walsh explained the likelihood ratio as a ratio of two probabilities and one of those probabilities is favoured over another.

Dr Walsh said that, in May 2009, 16 tapelifts were taken from the pyjama top for DNA analysis and that they were assigned the numbers 15B.1-15B.16.

Dr Walsh gave his opinion in relation to tapelifts forming the 15C.1 to 15C.7 series. I start with 15C.1. This is a sample taken from the front right collar of the pyjama top. Dr Walsh said:

“A mixed DNA profile from a minimum of three individuals was obtained. This profile can be separated into major and minor components. The major component could have come from Ana Hardwick.
Due to the complexity of the mixture, the source of the minor components cannot be determined.”

Dr Walsh explained that, due to the complexity of the minor component, he could not say who the contributor of the minor component may or may not have been. It may have been the accused or his children or Ms Wells or the deceased or her parents. Not all of the DNA comprising the minor component could be explained by reference to these persons. Dr Walsh agreed in cross-examination that there was no credible evidence as to who the minor contributors may or may not have been. He agreed that there were alleles in 15C.1 which did not accord with any of the known or elimination samples.

Dr Walsh expressed the following conclusions in relation to 15C.7 which, as I understand it, was the only tapelift of the 15C.1 to 15C.7 series which was retested:

“Results: A mixed DNA profile from a minimum of two individuals was obtained. This profile can be separated into major and minor components. The major component could have come from Ana Hardwick. The minor component could have come from Steven Wayne Hillier.
Likelihood Ratio: The evidence is at least 4.4 million times more likely if the observed mixed DNA came from Ana Hardwick and Steven Hillier than from Ana Hardwick and an unknown unrelated male chosen at random from the ACT general population.
Weight of Evidence: Extremely strong support.

Dr Walsh explained that, at the locus designated D7S820, alleles 8, 9, 11 and 12 were found with 8 and 9 of about the same height and 11 and 12 also of about the same height. The deceased’s DNA profile at that locus is 11 and 12, and the accused’s profile is 8 and 9. Daniel Hillier’s DNA profile at that locus is 8 and 11, and his sister’s DNA profile at that locus is 9 and 12. Dr Walsh said that because 8 and 9 were similar heights, he assumed they had come from a single contributor, that is to say, the accused. Dr Walsh said it was significant that his analysis of 15C.7 produced the same results as those determined by Ms Ristevska.

In cross-examination, Dr Walsh agreed that the tapelifts of the pyjama top forming the 15B.1-15B.16 series corresponded to the original tapelifts forming the 15C.1-15C.7 series as follows:

1. 15B.1 and 15B.2	1. 15C.1, 15C.4 and 15C.7
2. 15B.3 and 15B.4	2. 15C.2, 15C.5 and 15C.6

Significantly, Dr Walsh said that, in relation to 15B.1, there was no observation of DNA that could have originated from the accused, and, in 15B.2, only the deceased’s profile was observed. In other words, testing did not reproduce a profile consistent with the accused when re-sampling took place in 2009.

Dr Walsh said that a recently devised test which targets variable markers on the Y‑chromosome only is called the Y-STR DNA analysis. The test may enable a conclusion to be drawn that certain DNA has come from a male or any of his paternally related male relatives. In the case of the tapelift 15B.4 (said to have been taken from the inside/outside surface of the left lapel of pyjama top), a Y-STR analysis produced the result that the accused, Daniel Hillier and all paternally related male relatives could not be excluded as the source. Dr Walsh said that the profile (Haplotype) had not been observed in a population database consisting of 465 ACT Caucasian males.

Dr Walsh was asked about contamination and indirect transfer and, in particular, the possibility of those things occurring in the circumstances of this case. It is convenient at this point to summarise his evidence about those matters. Dr Walsh was asked about secondary transfer, being the transfer of A’s DNA to C or an object, such as a pyjama top, via an intermediary. He said that there was no direct evidence that it had not occurred. There was indirect evidence that secondary transfer – skin to skin contact where one expects to see some of the intermediary’s DNA – had not occurred because the peaks 8 and 9 were at about the same height. Dr Walsh said:

“My interpretation is that it is a safe assumption that this is a two person mixture but it would be very difficult to exclude given that the minor component is present in lower proportions to the major component. It would be - still be very difficult to exclude and I perhaps wouldn’t be prepared to exclude the possibility that one of the children may be masked in the minor component.”

Dr Walsh was asked about the possibility of the accused’s DNA being transferred from an item in a sealed bag to pyjamas laid out to dry. He said that without physical contact between the two it was highly unlikely and would be unexpected. Furthermore, it would not readily occur even if the item was not sealed.

Dr Walsh referred to studies of the possibilities of secondary transfer by van Oorschot and Jones, and Lowe and others. Dr Walsh said that it was found that there were good shedders of DNA and bad shedders. The studies found that B could transfer A’s DNA to C without transferring any of his or her DNA if the contact between B and C occurred very soon after the contact between A and B. After about 30 minutes, it became less likely that A’s DNA would be found without some contribution of B’s DNA.

Dr Walsh was asked about the risks of contamination. In an important passage of evidence, he said:

“It’s certainly not best practice to have an item of clothing from a deceased and a parent - a potential victim to a crime - an item of clothing in an exhibit room open and unpackaged on a work bench where there are officers bringing in, albeit packaged, where there are officers bringing in items from an accused or a suspect’s premises?---I don’t consider that to be best practice. In my opinion if an exhibit needs to be exposed in order to dry there needs to be careful consideration in terms of where that exhibit is - is out - is laid out in order to dry and the sorts of things that I think should be considered would be the access to that area and what other items or objects may or may not be brought in in or out of that area.
It should be - an item of clothing in those circumstances should be quarantined. Should be separately contained while it’s drying?---That would eliminate the risk or minimise the risk of any cross-contamination whilst it is exposed.
Yes. So in a fume cabinet?---Typically we would utilise fume cabinets for example or search rooms that, in themselves, are separate from the main laboratory or within the limited access areas of our laboratory.
Once again, you see, it’s very difficult in a sense to actually - to prove, to show what would happen - what happened by way of potential contamination in a room where there’s an exhibit open and drying where other officers are bringing exhibits from an accused’s premises, wouldn’t it?---Yes.
See that’s why it’s necessary to adopt practices to reduce the risk of it occurring?---Yes, I think that that’s important.
It’s going to be very difficult particularly for a person reviewing the situation some years later to establish exactly what occurred in that room at that time when an exhibit is left drying whilst other exhibits are being brought from an accused’s premises into the room?---Yes, it is. And as you’ve pointed out it opens the possibility that that there are other explanations for the result we’re observing.
Which is of great concern also, I would suggest, when you can’t reproduce it, when you re-sample, when you re-tape lift in 2009?---The - yes, I mean as we’ve discussed earlier there are other reasons why that may be the case.
Must be?---However, it may support the suggestion that you’re putting forward that the initial sampling was as a result of a contamination event.”

Dr Walsh said of the research that it was almost impossible to encompass the various possibilities that might apply in real life. He also said that it was almost impossible to know how long DNA might remain on a particular object, for example, an item of clothing.

As to indirect transfer, Dr Walsh said:

“Where the items, you know, items that - well, the children themselves, and also items of their possessions are transferring from one party to the other and coming into contact with both?---Yes, so in those circumstances, be reasonable to expect that all parties who are coming in contact either with each other or with shared items would have the potential to leave some DNA on those items.
And transfer them without the intermediary leaving any deposit of their own DNA?---We’ve seen that that’s possible.
You see, what I suggest to you is this, that in the circumstances of this case, from a scientific point of view, you wouldn’t be able to exclude as a reasonable possibility secondary transfer from the accused to the deceased via one of the children or their objects?---I would be unable to exclude that as a possibility.
…
As we’ve discussed, the evidence that I’m here to present is the DNA profiling evidence, and that in itself, in and of itself, has only a limited capacity to assist in making an assessment of the sorts of scenarios that may lead to someone’s DNA being found in a particular place on a particular object. Some of those things are, most of those things that might lead to assisting us are circumstantial things, but I don’t have any real capacity to comment on the basis of my evidence. Sometimes, things within my evidence such as the amount of DNA may be a useful guide, and I might use that, and have used that in the past, to assist in assessing one proposition over another. In this particular case, I don’t believe that the DNA results provide me with anything that could be used to comprehensively exclude or favour one of those propositions above another.”

Dr Walsh accepted that he could not exclude as a reasonable possibility that the DNA deposit at 15C.7 came to be on the deceased’s pyjama top by way of indirect transfer through the children.

Dr Henry Roberts is a highly qualified forensic scientist. He was also asked to express opinions in relation to the DNA analysis of the 15C.1-15C.7 series. Dr Roberts calculated a likelihood ratio of 7.6 million in relation to the DNA profiles at 15C.7.

Dr Roberts said that, if the accused’s DNA at 15C.7 had got there by secondary transfer he would have expected to find a small amount from the accused, a larger amount from the intermediary and an even larger amount from the deceased. He could find no indication of a third person’s DNA at 15C.7. He said that, if one looked at the locus D7S820, there are four alleles, 8, 9, 11 and 12. The accused has 8 and 9 in his profile, and the deceased has 11 and 12. Daniel’s profile includes an 8 or a 9, but not both, and his sister’s profile includes an 8 or 9 but not both. Dr Roberts said:

“If there was a significant quantity of DNA from one [sic] the children combined with a smaller quantity of DNA from their father, then the peak that’s present in the child’s profile should be bigger than the peak that’s present not in the child’s profile but in the father’s profile. However the 8 and the 9 are very similar in height, so there’s no evidence for an extra contribution to either the 8 or the 9, which therefore would negate the suggestion that there is a larger amount of DNA from [sic] either of the children in this mixture.”

Dr Roberts considered the possibility of transfer through one of the children to be very unlikely. He said:

“I think it’s very unlikely. I would have expected to find a large amount of DNA from either child in this sample. And in addition, if one imagines a child embracing their mother, hugging their mother, I would expect to find the child’s DNA on other areas of the pyjamas as well. I looked at the other samples which were lifted from the pyjamas and could find no clear indications of a contribution from either Daniel or [his sister] on any of the samples on the pyjamas. So the other samples don’t indicate that the children deposited detectable amounts of DNA on the pyjamas and that kind of boosts my confidence that there isn’t a significant quantity from [sic] DNA from either Daniel or [his sister] in sample 15C7.”

Dr Roberts agreed that he could not rule out the possibility of contributions by Daniel Hillier or his sister. He also agreed that the minor contribution at 15C.7 was very small.

Dr Roberts said that he would not expect DNA to be detectable on an item of clothing after it is properly washed.

Dr Roberts agreed that there is a contributor of DNA at 15C.1 who has not been identified. The evidence supports the suggestion that it is not the accused.

Dr Roberts referred to a study about transference. If the contact between A to B was skin to skin, one would expect, unless the secondary transfer took place within half an hour, to find B’s DNA on C (whether C be an object or person). The position would or might be different where a large amount of biological material was transferred from A to B.

Dr Roberts said it was unlikely for DNA to be transferred between objects without contact. One way it could happen is if dry biological material is folded or rubbed and flakes of that material break off.

Dr Roberts agreed that items should not be left unpackaged in a room where there are other items that could come from a suspect’s premises. Dr Roberts said:

“It would be most disturbing, wouldn’t it, to have an item of clothing from a deceased opened and unpackaged in a room that had other items that related to an accused premises being deposited in that room during that time?‑‑‑Yes I agree. That should not occur.
First of all, DNA can be carried into that room from the accused premises on the outside of packaging?‑‑‑Yes.
DNA can be brought in by officers who had attended the accused’s premises?---Yes.
It could even come in on their shoes, can’t it?---Yes.
Particularly if they’d been in bathrooms and the like?---Yes.
Bathrooms are often the source of, a rich source of DNA deposits, where there’s a wet, particularly where there’s wet areas that may contain saliva or sweat or the like?---Yes.
…
And people that attended the accused’s premises could not only bring in DNA deposits on the outside of packaging from those premises, but also walk it in?---Yes.
And there’s a real risk of cross-contamination with items from a deceased’s premises that aren’t properly packaged in that room?---Yes.”

Dr Roberts agreed that it would be a breach of procedure in Victoria for items from a deceased and items from an accused to be stored together in the same room unless both were packaged.

It is clear from Dr Roberts’ evidence that he considers that it is difficult to be definitive. There are many variables, there are many different scenarios and only limited research about secondary transfer has been undertaken.

Dr Roberts said that, if the intermediary was an object, then one would only expect to find A’s DNA.

Under cross-examination, Dr Roberts elaborated on his evidence as to the results found at the location from which the sample 15C.1 was taken. He said that the results show a mixture of DNA from at least three individuals, “and one of those individuals is not any of the people that had been tested in the material that was available to me”.

The AFP also carried out hairs and fibre analysis. That was done by Dr James Robertson. Dr Robertson is a forensic scientist who has been the general manager and head of AFP Forensic Services since 1989.

In 2003, Dr Robertson examined fibres and hairs as part of the investigation into the deceased’s death. As far as fibres are concerned, he examined tapelifts from the pyjamas and tapelifts from the deceased’s vehicle. Four mauve or purple coloured fibres found on the tapelifts from the accused’s vehicle could have come from the pyjamas. However, the pyjamas were a common type of article and the colours would also be common in similar types of garments. As far as hairs are concerned, Dr Robertson examined hairs from the crime scene, hairs from items relating to the deceased, hairs from the deceased and a number of known hair samples from the accused. Dr Robertson said all of the recovered hairs were clearly different to the known scalp hairs of the accused and could not have come from him.

In giving evidence before me, Daniel Hillier was very antagonistic and uncooperative. He continually answered questions by saying he could not remember, and I formed the clear impression that he was not trying to give his best recollection of events. For reasons set out earlier, I granted the Director’s application under s 38 of the Evidence Act to question Daniel Hillier as though cross-examining him.

It was put to Daniel Hillier by the Director that, during the interview by the police on 9 October 2002, Daniel Hillier said he took keys out of his mother’s drawer about a week before the school holidays to make her angry. He said that would have been on or about Monday 23 or Tuesday 24 September 2002, and that he took them from a drawer in her room. He said he put them in his sock drawer. He wanted to make his mother angry because it was “fun sometimes”. Daniel Hiller said he did not tell anyone he put the keys in his sock drawer. He did not try the keys to see what they opened. In evidence before me, Daniel Hillier said he could not remember giving this information. He said he probably asked his mother for a set of keys.

The Director put to Daniel Hillier that, during the interview, he said his mother asked him if he had any keys after she had come home on one occasion and found a drawer open. He said he did not tell anyone he had the keys and that he did not take them out of the house. In evidence before me Daniel Hillier said he could not remember giving this information.

Daniel Hillier was asked questions in cross-examination about the interview but again he said he could not remember the questions or answers.

Daniel Hillier gave evidence at the first trial. He was 13 years of age at the time. He said he asked his mother for a set of keys about a month before she died. His mother said no. He said with respect to the keys the police found in his sock drawer that he had found them over the back fence on the ground about a week before his mother died. He did not try the keys out or tell anyone, including his father, that he had the keys. Sometime before his mother died, she asked him whether he had been to one of her drawers which she had found open. He said he had no knowledge his mother was going to change the locks nor did he tell anyone that his mother was going to change the locks to her premises. Daniel Hillier acknowledged that he wrote the following note:

“Michael ring Friday time someone answered mum’s drawer open night Saturday Austin Powers talk Washington before play piano”

He said he thought the note meant the drawer was left open on Saturday and that he had been told that by his mother. He said he just made a note of it.

It is very difficult to know what to make of Daniel Hillier’s evidence. As I have said, he was very antagonistic and uncooperative when he gave evidence before me. He was very young when he was interviewed by the police and when he gave evidence at the first trial. I can safely infer from the evidence that, not long before her death, the deceased raised with Daniel Hillier the fact that she had found an open drawer which she could not explain. It is likely that at some stage Daniel Hillier had possession of the fourth set of keys and that the deceased was unaware of this fact. There is no direct evidence that the accused asked or suggested to Daniel Hillier that he obtain the keys, or that Daniel Hillier gave the accused the fourth set of keys.

If the accused was the murderer, he must have gained access to the deceased’s premises and he must have done so without forcing any of the doors or windows. As I have said, it is possible, but unlikely, that the deceased let him into the premises and it is possible, but fairly unlikely, that he overpowered the deceased if and when she stepped outside. The fact that Daniel Hillier had possession of the fourth set of keys at some stage is a matter to be taken into account, but it must be remembered that there is no direct evidence that the accused obtained the fourth set of keys from him. There is a further difficulty and that is that, as I understand the evidence, the fourth set of keys would not unlock the screen doors. The evidence of Ms Wells was that the deceased was in the habit of locking the screen doors.

DNA evidence

The evidence of Dr Walsh and Ms Ristevska supports a finding beyond reasonable doubt that a DNA profile consistent with that of the accused was found in the tapelift labelled 15C.7. That tapelift was taken by Dr Benson from an area on the deceased’s pyjamas, being the outside (when folded) of the front right lapel of the pyjama top. The biological material which contained the DNA profile has not been identified.

The evidence of Dr Walsh supports a finding beyond reasonable doubt that it is at least 4.4 million times more likely if the observed mixed DNA profile came from the deceased and the accused than from the deceased and an unknown unrelated male chosen at random from the ACT general population.

The accused conceded in his closing submissions that, given the retesting of the original 15C.7 sample in 2009, “there is now strong support for the existence of the accused’s DNA in the sample referred to as 15C.7”. That conclusion is inevitable in light of the evidence.

The Director must prove beyond reasonable doubt that the accused’s DNA was deposited on the deceased’s pyjamas during his presence with the deceased at or about the time of her death. It must exclude as a reasonable possibility that the accused’s DNA came to be on the tapelift labelled 15C.7 by contamination. It must also exclude as a reasonable possibility that the accused’s DNA came to be on the deceased’s pyjamas by indirect transfer or by contamination.

The accused submits that it is not for him to prove that contamination or indirect transfer has taken place. He submits that the onus is on the Director to exclude those matters as reasonable possibilities. That submission is correct.

The Director submits that any possibility of contamination or indirect transfer is a mere theoretical possibility and does not rise to the level of a reasonable possibility.

The question raised, namely, whether it can be excluded as a reasonable possibility that the accused’s DNA came to be on the deceased’s pyjamas or in the sample 15C.7 by reason of contamination or indirect transfer is a difficult one. It is a question to be determined by reference to all of the facts relevant to the issues of contamination and indirect transfer.

I can exclude as a reasonable possibility, direct transfer by reason of primary and consensual contact between the accused and the deceased’s pyjamas. As I have said, the relationship between the accused and the deceased was a bitter and acrimonious one. The accused had not been in the deceased’s house for some years. The deceased purchased the pyjamas from Target at Tuggeranong Hyperdome on 10 February 2002. The pyjamas had been put on the floor for sale in late January 2002.

I will refer to the two means whereby the accused’s DNA may have come to be part of the sample 15C.7 other than by primary contact between the accused and the deceased’s pyjamas as indirect transfer and contamination. In the reasons which follow, “indirect transfer” means the indirect transfer of the accused’s DNA to the deceased’s pyjamas prior to her death and “contamination” means the transfer of the accused’s DNA to the deceased’s pyjamas after her death or the transfer of the accused’s DNA to the tapelift labelled 15C.7.

In this case, indirect transfer was also referred to as secondary transfer. The expert evidence suggests that indirect transfer may also involve further stages, namely, transfer through a series of persons or objects. Dr Robertson said that, as a matter of common sense, tertiary transfer was less likely than secondary transfer. For the purposes of the discussion which follows, I will refer to secondary transfer whilst acknowledging that transfer may involve further stages.

The evidence in this case was directed to secondary transfer and two possible scenarios. The first scenario involves the transfer of person A’s biological material containing his or her DNA to a second person, person B, who in turn transfers it to object C. The second scenario involves the transfer of person A’s biological material containing his or her DNA to object B and then a transfer to object C. Object B could be an item of clothing or a toy or other object.

The facts which are relevant to the possibility of contamination or indirect transfer are as follows:

1. The accused and the deceased shared custody of Daniel Hillier and his sister. That meant that, at various times, the children were with the accused at his house and elsewhere, and, at other times, were with the deceased or at her house. Items of clothing and, I think it reasonable to infer, toys and other items would have been transported between the two houses.

2. The deceased last saw the children on the morning of Friday 27 September 2002. That was the last day of the school term, and the accused collected the children at the end of the school day. The deceased had custody of the children on the Thursday night 26 September 2002, and the accused had custody of them on the previous night.

The deceased had no contact with the children between the Friday morning 27 September 2002, and the time she met her death on the evening of Monday 30 September 2002, or the early hours of Tuesday 1 October 2002.

3. The deceased was a neat and tidy person, and she washed items of clothing regularly. Ms Wells said that she washed items of clothing if not every day, then every second day. Mr Koppie also gave evidence of the deceased’s neat and tidy habits and her regular washing of items of clothing. The photographs and video taken by forensic officers and police officers show a neat, tidy and clean interior in the deceased’s premises. Not surprisingly, there was no evidence as to when the deceased last washed her pyjamas, or the method she adopted in doing so.

4. I have already referred to the evidence of Drs Robertson, Roberts and Walsh concerning contamination and secondary transfer. At the risk of some repetition I will now summarise the combined effect of the evidence so that the basis for my conclusions are clear. Their evidence was to the effect that secondary transfer is possible. Dr Walsh said that it was impossible to know how long a person’s DNA might remain on an object, for example, an item of clothing.

Dr Robertson said that very limited research had been carried out on secondary transfer, and that there was a very limited understanding of secondary transfer. He said that secondary transfer was not fully understood and perhaps never will be. Dr Robertson said that, if secondary transfer involved the first scenario and transfer onto person B’s body, then one would expect to see some of their DNA on the pyjamas. He said that that was less likely in the case of the second scenario. I infer that it may depend on what the object is and there may be a difference in terms of likelihood if the object is an item of clothing worn by B. Dr Robertson said that the smaller the amount of DNA found, the more circumspect one needed to be as to how it came to be where it was found.

5. Dr Roberts and Dr Walsh referred to studies which have been carried out dealing with secondary transfer. Both referred to the studies carried out by van Oorschot and Jones on the one hand, and Lowe and others on the other. Dr Roberts said that, if the hypothesis is that secondary transfer has occurred by the first scenario, then it will nearly always be the case that some of B’s DNA will also be found. He referred to circumstances where that might not be the case. The studies of van Oorschot and Jones, and Lowe and others showed that there may be no transfer of B’s DNA where the primary and secondary contact had occurred within a very short period of time. The period of time he referred to was half an hour to an hour. As time elapsed, it was more likely that some of B’s DNA would also be found and, in fact, more of B’s DNA would be found. He said that the position would be more complicated if A transferred a large amount of biological material to B, and he gave the example of “A giving B a sloppy kiss”. Dr Roberts agreed that there were many permutations and variables.

Dr Walsh said that trace DNA was DNA from a source other than an observable bodily secretion such as blood, semen or saliva. Trace DNA is DNA where the substrate that was the source of the DNA cannot be assigned. One source was epithelial cells which make up the skin or surface of the body. Dr Walsh was asked about secondary transfer and the likelihood of B’s DNA not being found on C. He agreed with Dr Roberts that the studies showed that timing was important. He also referred to the fact that some people are what he called “good shedders” of biological material containing DNA whilst others are “poor shedders”. Dr Walsh was asked about studies showing the transfer of DNA by a gloved hand rummaging in a handbag and then touching a balloon. As I understand it, he agreed that there may be no DNA of the person who has touched the balloon because that person was wearing gloves. He was also asked about studies carried out by the FBI, where subjects wearing laundered clothing were found to contain DNA from unknown people, which could not be explained by those subjects. Dr Walsh was also asked about studies carried out on wallets which had been stolen.

6. Both Dr Roberts and Dr Walsh examined the DNA profile for sample 15C.7. Their attention was directed to what is known as the D7 locus (D7S820). They were asked whether the results at that locus indicated whether secondary transfer by means of the first scenario was likely. Both said that secondary transfer by way of the first scenario was unlikely. The accused’s profile at the D7 locus is 8 and 9, and the deceased’s profile at the D7 locus is 11 and 12. Daniel Hillier’s profile at the D7 locus is 8 and 11, and his sister’s profile at the D7 locus is 9 and 12. The peaks 8 and 9 were even, or fairly even. Both Dr Roberts and Dr Walsh considered that this indicated that the accused was the contributor because, had one of the children contributed, they would have expected to see a difference in the peaks. Dr Walsh considered that, in the circumstances, it was possible that the children’s DNA was masked by the results at the D7 locus. As I understood his evidence, he said that sometimes the amount of DNA will enable the scientist to determine whether secondary transfer of the type envisaged by the first scenario had taken place. That was not possible in this case.

7. Dr Roberts said that, save for a case where the biological material is dry and is flaked off, it is difficult for DNA to be transferred without prolonged contact with the transferred item. Nevertheless, he said that DNA can be transferred by means of packaging, shoes, and the like. He said that it is very important that items be properly packaged when they are not being examined. He said that DNA is not visible and therefore it is not possible to know whether contamination has occurred.

Dr Walsh said that it was unlikely that DNA would be transferred from the outside of exhibit bags to the pyjamas without physical contact.

8. Dr Walsh was asked about the significance of the fact that the accused’s DNA could not be found when a further tapelift sample was taken in 2009. He said that may have come about because all of the accused’s biological material containing his DNA was removed by Dr Benson when she performed her tapelift in October 2009. However, he also said:

“It may support the suggestion that you’re putting forward that the initial sampling was as a result of a contamination event.”

9. Dr Roberts and Dr Walsh agreed that the sample 15C.1 contained insufficient information to include or exclude the accused as a contributor. However, the DNA of an unknown person was detected.

10. The deceased’s body was touched or handled on a number of occasions during the afternoon of Wednesday 2 October 2002. The body was rolled onto its side and then onto its back. The pyjama top was unbuttoned and the deceased’s torso exposed, and the pyjama pants were fully removed. The deceased’s head was held and her pyjama top rearranged at one point as shown in the video. Those touching the body during the course of the afternoon were forensic officers, Ms Johnson, Mr Williams and Ms Dudley.

I am satisfied that Mr Dougan did not touch the body. I think it unlikely that Mr Chavasse touched the body.

I am satisfied that Ms Johnson, Mr Williams and Ms Dudley wore gloves during the course of the afternoon. I am satisfied that they changed their gloves from time to time. It is impossible to make any finding as to how often they changed their gloves and in what circumstances. They may not have done so on every occasion on which they handled a different object. They may not have changed their gloves on each occasion immediately before they handled the deceased’s body.

The defence suggested that the accused’s DNA may have been generally in the house and may have been picked up by one of the forensic officers and transferred to the deceased’s pyjamas. In my opinion, this possibility is most unlikely. The accused had not been in the house for some years and the deceased was particular about her house being neat, tidy and clean.

The defence submits that the accused’s DNA may have been on particular objects associated with the children which may have been handled by one of the forensic officers. I think that is unlikely, as the focus of the investigation by the forensic officers was the deceased’s bedroom. There is no direct evidence that they came into contact with any object or thing obviously associated with the children.

11. I do not think that there is any reasonable possibility of contamination of the deceased’s pyjamas from the time the funeral directors arrived to remove the deceased’s body to the point on the following day when, at the autopsy, the deceased’s pyjamas were removed and placed in two paper bags. I have already referred to the evidence of Messrs Martin and Mann, and Sergeant Dougan.

12. The deceased’s pyjamas were placed in search room 1 on the evening of 3 October 2002. They were taken out of their packages and laid on a table or bench to dry. At about 12.30 pm on Sunday 6 October 2002, the deceased’s pyjamas were repackaged and placed by Ms Dudley in a coolroom in the laboratory area. During the time the deceased’s pyjamas were laid out to dry in search room 1, there were other exhibits in the room, some of which included items seized from the accused’s premises. As I understand the evidence, these items included tapelifts from the accused’s motor vehicle and may have included a toothbrush, a razor and a plastic bag. These items seized from the accused were packaged and the packaging was sealed.

There is no direct evidence that the packaging containing the items seized from the accused came into physical contact with the deceased’s pyjama top. However, it is possible that persons other than Ms Johnson or Mr Williams or Ms Dudley entered search room 1 between 3 October and 6 October 2002. Mr Williams said that there were 9 to 12 persons who could have gained access for the purpose of storing items in the room. There is no log or record of persons who went into search room 1, or of their purpose in entering the room.

I have already referred to the evidence of the experts as to whether unpackaged items should be stored in the same room as other items relevant to the case. Plainly, that situation is to be avoided because of the risk of contamination.

13. When Ms Benson collected the pyjamas and the tapelifts taken from the accused’s car, it is likely they were stored in a tub designated “the Hardwick tub”. She took the items to the Chemical Criminalistics Laboratory fridge where they were stored in a particular place. It appears that they were stored together from time to time. The tapelifts 15C.1 to 15C.7 may have been stored in the Microscope Room from 22 April to 28 April 2003. The tapelifts from the accused’s vehicle were examined in that room on 23 April 2002 and were stored there for some days. The evidence of Dr Walsh establishes that three items were contaminated in the course of the investigation by police officers or forensic officers.

I have considered all of the above circumstances carefully. I do not think that the possibility of contamination of the sample labelled 15C.7 can be excluded as a reasonable possibility. In reaching that conclusion, I have had regard to all the circumstances, but of particular importance, is the fact that the results of the analysis of 15C.7 could not be replicated when further tapelifts were taken in 2009. That fact, as Dr Walsh said, provides support for the possibility of contamination.

It is not strictly necessary for me to consider whether, if the accused’s DNA was on the deceased’s pyjamas before the sample labelled 15C.7 was taken, it is a reasonable possibility that it was there by reason of contamination or indirect transfer. The events at the crime scene and the laying out of the pyjamas in search room 1 raise contamination as a possibility. In addition, and significantly, there is the evidence of the presence of the DNA of an unknown person at the site of the sample labelled 15C.1. If that person was not involved in the deceased’s death, then the fact that the DNA of an unknown person was found on an item of clothing, such as a pair of pyjamas which were regularly washed, illustrates the possibilities of contamination or indirect transfer. It is reasonable to infer that the number of persons who would have come into contact with the deceased’s pyjamas were limited and it will be remembered that DNA reference samples were taken from a relatively large pool of 42 persons. Again, I have considered the matter carefully. I cannot exclude contamination or indirect transfer as a reasonable possibility.

In the circumstances, the Director has not established beyond reasonable doubt that the accused’s DNA found in sample 15C.7 was on the deceased’s pyjamas, or, if it was there, it was not there by reason of contamination or indirect transfer.

The consciousness of guilt evidence

The Director asks me to find that the accused caused damage to his hands in October 2002 and that he did so to avoid providing a sample of his fingerprints to police. The Director submits that the accused did this because his fingerprints would or may establish his guilt and that he was conscious of his guilt.

As I understand it, the Director’s case is that the accused immersed his hands in a vessel containing caustic soda or a similar substance. The accused gave evidence that he damaged his hands while attempting to clean a motor vehicle engine or a driveway or both without wearing gloves.

A chronology and a summary of the important evidence is as follows:

§ On 14 October 2002, Detective Innes wrote to Mr David Lardner, a legal practitioner, who was acting for the accused at that time. He asked, among other things, if the accused was prepared to provide a sample of fingerprints to police. Mr Lardner sent a response dated 16 October 2002 to Detective Innes. In essence, he said that the property seizure records held by police illustrated that the police would already have a sample of the accused’s fingerprints. He asked Detective Innes for an explanation as to why further samples of the accused’s fingerprints were required. He indicated that if the police provided a reasonable explanation for their request then the accused would provide a sample of his fingerprints. Mr Lardner’s letter states that he obtained his client’s instructions possibly on the morning of 16 October 2002, but more likely on the morning of 15 October 2002.

§ On 1 November 2002, Constable Horrocks took, among other things, a sample of the accused’s fingerprints. A video of the procedure was taken (exhibit T). Constable Horrocks was able to obtain a sample of the accused’s fingerprints. However, he noticed that the accused’s fingernails appeared to have come away and that they were growing back unevenly. The accused said his fingers were painful. The accused said that he had been doing some cleaning and the chemicals he had been using had made his fingernails drop away.

§ On 18 November 2002, the accused went to see his general medical practitioner, Dr Anthony Meyer. He complained of, among other things, damaged fingernails. The accused denied having been exposed to chemicals or solvents. Dr Meyer diagnosed a possible fungal infection, but the accused was not interested in further investigation of this possibility. He obtained a referral to a dermatologist, Dr Paul Freeman. For a reason which is not explained the referral is dated 28 October 2002. Dr Meyer also gave the accused a certificate which reads as follows:

“This is to certify that I have examined Steven Hillier’s hands. He has dystrophic nails, possibly due to exposure to chemicals. There is no evidence of damage to his terminal phalanges.”

It is puzzling to say that the damage is said to have been possibly due to exposure to chemicals in view of what the accused is alleged to have said.

§ In November 2002, the accused was seen by two dermatologists. Pursuant to an order under the Crimes (Forensic Procedures) Act 2000 (ACT), Dr Mark Healsmith examined the accused’s hands on 22 November 2002. There is a video of that examination (exhibit 2). Dr Healsmith said that the injuries to the accused’s hands were “more consistent” with the fingertips being immersed in something than the accused’s hands being splashed. The latter would have produced scattered injuries. Immersion of the fingertips in an acid or alkali was the most likely explanation. Dr Healsmith considered the injuries had occurred three to five weeks before his examination of the accused’s hands. Under cross-examination, Dr Healsmith was asked if he could exclude the cause of the injuries being the cleaning of paving with a small bristle scrubbing brush and a caustic mixed with water. He said that he could not, although he considered it unlikely.

§ Dr Freeman examined the accused’s hands on 26 November 2002. The accused gave a history of cleaning oil off pavers on 29 October 2002 using caustic soda mixed with water. Dr Freeman said that the injuries he observed were consistent with the accused’s account because although a caustic mixture would damage any part of the hand with which it came into contact, most of the injuries to the skin would have healed by the time he saw the accused.

In addition to these events, the accused gave various accounts of how he had damaged his hands. A summary of the evidence is as follows:

1. Probably in November 2002, he told Ms Christine Evans, he had damaged his hands scrubbing the engine of a motor vehicle he was cleaning. The vehicle was one he had borrowed while his vehicle was held by the police.

Ms Evans had noticed damage to the accused’s hands 12 to 18 months before October 2002 which the accused said had occurred when he used chemicals to clean the house.

2. On 3 November 2002, the accused told Ms Janice Mundy that he had hurt his hands cleaning something and had burnt them. He said he could not use gloves because the police had taken his gloves. He told Daniel Hillier that he was cleaning some equipment. After Ms Mundy recounted a story of being injured using caustic soda to clean something off the driveway, the accused agreed that he had been using caustic soda.

3. On about 7 November 2002, the accused told Ms Belinda Falkingham that he had damaged his fingers and nails when cleaning with caustic soda and without wearing gloves.

4. Mr Craig Burmann lent his Mazda 323 to the accused after the accused’s vehicle had been seized by police. He did not notice anything different about the vehicle when it was returned to him. He gave evidence that the vehicle always leaked oil and that there was a problem with the oil breather which meant there was oil around the engine.

5. Mr Thomas Smith was a director of the business AMAA Finance. Messrs Polkinghorne and Lucerne were the other directors. Mr Smith heard the accused say he had damaged his hands cleaning something with a caustic substance. He said the conversation took place sometime between 8 October 2002 and 15 October 2002.

On 4 December 2002, Mr Williams examined the engine of the motor vehicle the accused had borrowed from Mr Burmann. The engine did not appear very clean (exhibit G).

The accused gave evidence that, 12 to 18 months before October 2002, he damaged his nails cleaning his garage floor using a mixture of caustic soda and water, and without wearing gloves. He said that the injuries to his hands which occurred after the deceased’s death were the result of him cleaning up an oil spill in the engine of the motor vehicle he had borrowed from Mr Burmann. The oil spill occurred at his parents’ house. The accused said that the oil spill occurred about two weeks before his fingerprints were taken by Dr Healsmith on 1 November 2002 and that at the time it occurred he was not aware that the police were seeking his fingerprints.

Action by an accused person after a crime has been committed may reveal a consciousness of guilt on his part. The action may consist of conduct or it may consist of statements made by the accused. Many forms of conduct may reveal a consciousness of guilt. An obvious example is flight from the crime scene where the tribunal of fact must be satisfied of the fact that the accused did flee from the scene and that he did so because he was conscious of his own guilt. Where statements are in issue, the tribunal of fact must be satisfied that the accused has told a lie, that the lie is a material lie and that it was told out of a consciousness of guilt.

The Director’s case before me was that the accused damaged his hands by deliberately immersing them in a powerful chemical substance. The defence case was that the accused had damaged his hands accidentally. The Director’s case was that the accused had told lies about how he had damaged his hands and that those lies were separate and independent evidence of a consciousness of guilt. I have already indicated my approach in relation to that contention (at [23]).

I note at the outset that, on any view, if the accused deliberately damaged his hands by immersing his hands in a chemical substance he did so in circumstances in which he knew or could anticipate that such conduct would cause him considerable pain either immediately or shortly thereafter.

As I have said, there was medical evidence on the question of how the injuries were caused to the accused’s hands. That evidence was given by Dr Healsmith and Dr Freeman and related to two theories, namely, immersion of the hands in a chemical substance and accidental contact in the course of a cleaning operation. I have read that evidence carefully. Of itself, the medical evidence does not enable a conclusion to be drawn beyond reasonable doubt that the injuries were caused by the immersion of the accused’s hands in a chemical substance. I have looked at the videos taken on 1 November 2002 and 22 November 2002. I am not able to draw any conclusions from the videos which go beyond the oral evidence.

The Director points to other evidence that supports the conclusion that the accused damaged his hands deliberately. First, there is the coincidence of timing. To my mind, the most likely conclusion as to when the accused damaged his hands is that provided by the evidence of Dr Freeman who recorded, on speaking to the accused, that he said that he injured his hands shortly prior to 1 November 2002. The other evidence is imprecise and I do not accept the accused’s statement as to when he injured his hands. Shortly prior to 1 November 2002, the accused would have known that the police were seeking a sample of his fingerprints. Secondly, the accused himself said that he had damaged his hands in a similar way some 12 to 18 months before October 2002 when using a chemical substance to clean his property. There is force in the proposition advanced by the Director that, in light of that evidence, it is unlikely he would be so foolhardy as to attempt a similar exercise without gloves. Thirdly, there is evidence of Dr Meyer that the accused denied that his injuries had resulted from being exposed to chemicals or solvents. As against this, Dr Meyer’s certificate refers to the possible cause of the injuries as exposure to chemicals. Finally, there is the fact that the accused did not provide one clear and consistent explanation of how his injuries had been caused. The inconsistencies are in one sense not particularly marked but they are there. Furthermore, it is hard to accept that a competent mechanic, as the accused apparently was, would spill oil in the manner he described.

The defence points to other evidence which it suggests means that I cannot be satisfied beyond reasonable doubt that the accused caused his injuries deliberately. First, the defence points to the fact that the injuries did not prevent samples of his fingerprints being taken. I think that circumstance is quite neutral as the question is what the accused might have sought to achieve, not what he did achieve. Secondly, the defence points to the fact that the accused did not seek to delay the taking of samples on 1 November 2002. That appears to be the case. Thirdly, the defence points out that the accused in his solicitor’s letter did not refuse under any circumstances to provide samples of his fingerprints. That is relevant but it is not decisive because the response is qualified and may have been formulated to “buy time” in order to carry out conduct which would mean that a sample of fingerprints could not be taken. Fourthly, the defence points to what it claims are two important considerations. The Director’s case, as put in closing submissions, is that the accused wore gloves at the time he murdered the deceased. There is a substantial body of evidence that gloves were worn by the person involved in the deceased’s death, having regard to the absence of trace evidence at the crime scene. The defence contends that, if the accused was the murderer, he would know he had nothing to fear from providing a sample of his fingerprints. Again, there is force in that contention, but it is not decisive because a person wearing gloves may consider that at some stage during his involvement with the deceased, the disarming of the smoke alarms and the setting of the fire, he might have left a fingerprint. The defence pointed to the fact that the police had a number of the accused’s items and obtaining his fingerprints would have been relatively easy. This was a point made in his solicitor’s letter of 16 October 2002. This is a matter to be given some weight, although it is far from decisive.

The Director put the submission that the accused might have damaged his hands not only to avoid samples of fingerprints being taken, but also to avoid any trace evidence being found. In my opinion, this latter argument stands or falls with the argument concerning samples of the accused’s fingerprints. There is a further answer and that is that the police were seeking samples of fingerprints and DNA by way of a buccal swab.

On the evidence I have summarised, I am not satisfied beyond reasonable doubt that I should draw the inference that the accused deliberately immersed his hands in a chemical substance. In those circumstances, I cannot be satisfied that the damage to the accused’s hands arose from a consciousness of guilt. It follows also that I cannot be satisfied that his various statements were lies told out of a consciousness of guilt.

Conclusion

As I have said, the significance of the DNA evidence to the Director’s case means that the DNA evidence must be proved beyond reasonable doubt. For the reasons I have given, it has not been proved beyond reasonable doubt. At least in circumstances where the DNA evidence must be excluded from consideration, the consciousness of guilt evidence must be proved beyond reasonable doubt. For the reasons I have given, that evidence has not been proved beyond reasonable doubt.

The evidence of motive and opportunity is insufficient to establish the guilt of the accused beyond reasonable doubt. There is an inference consistent with innocence reasonably open on the evidence. In any event, there is reasonable doubt when all the evidence is considered and in particular the following. First, the uncertainty as to how the accused could have gained access to the deceased’s premises. Secondly, the evidence which suggests (not proves) the presence of an unknown person. I have in mind the results of the tests of the tapelift labelled 15C.1, the discovery of the Melbourne Bitter beer bottles and the conversation about which Detective Innes gave evidence. I make it clear that I am not finding that there was another person involved; that is not my task. The evidence is relevant to whether, in all the circumstances of the case, the guilt of the accused has been proved beyond reasonable doubt. Thirdly, I take into account the evidence that the accused continued to take steps with respect to his appeal at or about the time the deceased was murdered. I note that the complexion an item of evidence bears often depends on the other evidence in the case. In other circumstances, one might be satisfied that the steps taken were simply a ruse. The difficulty here is that the other evidence is not so compelling that that conclusion can be drawn.

In the circumstances, with respect to the charge on indictment that Steven Wayne Hillier murdered Ana Louise Hardwick between 30 September 2002 and 2 October 2002 at Canberra in the Australian Capital Territory, I find the accused not guilty. A verdict of acquittal must be entered.
I certify that the preceding two hundred and sixty seven (267) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate:
Date: 16 April 2010

Counsel for the Crown:  Mr J White with Mr J Lawton
Solicitor for the Crown:  Director of Public Prosecutions for the ACT
Counsel for the defendant:  Mr D Dalton SC with Mr D Carroll
Solicitor for the defendant:  Sam Hegney Solicitors
Dates of hearing:  1-5, 9-12, 15-18, 22-24 March 2010
Date of judgment:  16 April 2010