The State of Western Australia v Edwards [No 7]
[2020] WASC 339
•24 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [No 7] [2020] WASC 339
CORAM: HALL J
HEARD: 95 DAYS BETWEEN 25 NOVEMBER 2019 & 25 JUNE 2020
DELIVERED : 24 SEPTEMBER 2020
FILE NO/S: INS 164 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRADLEY ROBERT EDWARDS
Accused
Catchwords:
Criminal law – Trial by judge alone – Three counts of wilful murder – Offences alleged to have occurred in 1996 and 1997 – Whether evidence establishes victims killed by the same person – Whether identity of the killer proven beyond reasonable doubt – Circumstantial evidence – DNA evidence – Fibre evidence – Propensity evidence – Whether intent to kill proven beyond reasonable doubt
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Count 6 – not guilty
Count 7 – guilty
Count 8 – guilty
Category: A
Representation:
Counsel:
| Prosecution | : | Ms C Barbagallo SC, Ms T M Payne, Mr B M Hollingsworth, Ms S J Bowman |
| Accused | : | Mr P D Yovich SC & Ms G M Cleary |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Mony De Kerloy |
Case(s) referred to in decision(s):
The State of Western Australia v Edwards [2018] WASC 419
The State of Western Australia v Edwards [2019] WASC 87
The State of Western Australia v Edwards [No 2] [2019] WASC 282
The State of Western Australia v Edwards [No 3] [2019] WASC 405
The State of Western Australia v Edwards [No 4] [2019] WASC 418
The State of Western Australia v Edwards [No 5] [2019] WASC 419
Table of Contents
Summary
Organisation of the reasons
Trial by judge alone
Charges
Pleas to counts 1 - 5
Terminology
Prosecution case
Defence case
Pre‑trial rulings
Relevant law (directions)
Presumption of innocence
Onus of proof
Standard of proof
Verdicts on the evidence
Publicity
Prejudice and sympathy
Right to silence
Police interview – exculpatory statements and credibility lies
Identification evidence
Propensity evidence
Motive
Multiple charges (separate consideration)
Cross‑admissibility of evidence
Lapse of time and lost opportunities
Credibility and reliability
Special witnesses, deceased witnesses, video link witnesses and witnesses whose statements were read in to evidence
Prior inconsistent statements
Circumstantial evidence
Inferences
Expert evidence
DNA evidence
Alibi and opportunity
Elements of the charges
Absence of a body
Alternative verdicts
Failure to cross‑examine (Browne v Dunn)
Admissions
Evidence
Background and opportunity
EB – evidence summary
Ian Berry – evidence summary
Susan San Juan – evidence summary
DF – evidence summary
Karen McInroy – evidence summary
CH – evidence summary
KM – evidence summary
Murray Cook – evidence summary
Brigita Cook – evidence summary
John Travis – evidence summary
John Philpott – evidence summary
CG – evidence summary
Michael Chivell – evidence summary
Conclusions – opportunity
Opportunity to commit the murder of Ms Spiers
Opportunity to commit the murder of Ms Rimmer
Opportunity to commit the murder of Ms Glennon
Telstra – employment, vehicles and uniforms
Paul Luff – evidence summary
Wayne Chivell – evidence summary
Jeffrey Cohen – evidence summary
Stephen Gray – evidence summary
Lynda Eldridge – evidence summary
Robert Kinnear – evidence summary
Francis Van Rullen – evidence summary
Tony Vomero – evidence summary
Later history of vehicles used by the accused
White Camry station wagon
White Holden Commodore station wagon
Schedule of agreed evidence for relevant vehicles
Conclusions – employment, vehicles and uniforms
Propensity evidence – Huntingdale, Hollywood Hospital and Karrakatta
Huntingdale offences
AH – evidence summary
EH – evidence summary
Hollywood Hospital offence
WD – evidence summary
Rick Marshall – evidence summary
Paul McEvoy – evidence summary
Lyn Millett – evidence summary
Karrakatta offences
KJG – evidence summary
Jennifer Grace – evidence summary
Noel Tsalis – evidence summary
Wayne Wookey – evidence summary
Marita Cattlin (Bosse) – evidence summary
LG – evidence summary
Conclusions – propensity evidence – Huntingdale, Hollywood Hospital and Karrakatta
Propensity evidence – Telstra Living Witness Project
Incident 1 – 1995
Rebecca Keamy
Incident 2 – 3 December 1995
Katrina Jones – evidence summary
Wendy Elliott – evidence summary
Incident 3 – 27/28 January 1996
Julie‑Anne Johnstone – evidence summary
Christine Herbert – evidence summary
Incident 4 – January 1996
Sahra Miller – evidence summary
Incident 5 – November/December 1996
Annabelle Bushell – evidence summary
Trilby Smith – evidence summary
Incident 6 – Christmas 1996
Natalie Clements (Young) – evidence summary
Rebecca Morse (Bushell) – evidence summary
Incident 7 – between November 1996 and January 1997
Jane Ouvaroff (Woods) – evidence summary
William Robinson – evidence summary
Conclusions – propensity evidence – Telstra Living Witness Project
Sarah Spiers – circumstances of her disappearance
Amanda Spiers – evidence summary
Emma Wates (McCormack) – evidence summary
Chelsea Palmer – evidence summary
Melanie Polain – evidence summary
Christine Hams – evidence summary
Priscilla Key (Pei) – evidence summary
Jaroslav Krupnik – evidence summary
Mark Laidman – evidence summary
Alec Pannall – evidence summary
John Daniell – evidence summary
Steven Cummings – evidence summary
Simon Yelland – evidence summary
Mosman Park screams
Judith Borrett (Garton‑Smith) – evidence summary
Robyn Peters (Drexel) – evidence summary
Jesse‑Marie Munro – evidence summary
Wayne Stewart – evidence summary
Conclusions – time and cause of death of Sarah Spiers
Jane Rimmer – circumstances of her disappearance
Jennifer Rimmer – evidence summary
Trevor Rimmer – evidence summary
Ellen Magditch – evidence summary
Clare McGuirk (Humphreys) – evidence summary
Sharon McColl – evidence summary
Sian Chapman – evidence summary
Lynda Donovan – evidence summary
Jarrod Turner – evidence summary
David Kluwen – evidence summary
Adam Rimmer – evidence summary
Wellard screams
Kenneth Mitchell – evidence summary
Judith Mitchell – evidence summary
Ian Sturcke – evidence summary
Cheryl Sturcke – evidence summary
Jane Rimmer – finding of her body
Tammy van Raalte–Evans – evidence summary
Michael Evans – evidence summary
Paul Langenbach – evidence summary
Kathryne O'Shea (Owen) – evidence summary
Jane Rimmer – post‑mortem examination
Karin Margolius – evidence summary
Clive Cooke – evidence summary
Alana Buck – evidence summary
Conclusions – time and cause of death of Jane Rimmer
Telstra knife
Steven Daventhoren – evidence summary
Tracey Bell – evidence summary
Alexander Angus – evidence summary
David Minchin – evidence summary
Robert Scully – evidence summary
Conclusions – Telstra knife
Ciara Glennon – circumstances of her disappearance
Denis Glennon – evidence summary
Caitriona Una Glennon – evidence summary
Neil Fearis – evidence summary
Abigail Davies (Webster) – evidence summary
Michael Young – evidence summary
Martine O'Neill – evidence summary
Monique O'Neill – evidence summary
James Connor – evidence summary
Jonathon Goyder – evidence summary
Margaret Rogers – evidence summary
Patricia Mullan (McNeill) – evidence summary
Ann Kennerly – evidence summary
Caroline Ellison – evidence summary
Lynette Steenholdt – evidence summary
Angela Rainbow – evidence summary
Phetchara Mombao – evidence summary
Troy Bond – evidence summary
Brandon Gray – evidence summary
Craig Porritt – evidence summary
Susan Robinson (Hurst) – evidence summary
Lisa Mighall – evidence summary
Ian Stanford – evidence summary
Karen Mabbott – evidence summary
Conclusions – Ciara Glennon's movements and the car that took her
Ciara Glennon – finding of her body
Jason Atkinson – evidence summary
Edward Besson – evidence summary
Charles Carver – evidence summary
Robert Hemelaar – evidence summary
Ciara Glennon – was her hair cut during an attack (RH17)
Barry Mott – evidence summary
Aleksander Bagdonavicius – evidence summary
Conclusions – was Ciara Glennon's hair cut during an attack (RH17)
Ciara Glennon – post–mortem examination
Karin Margolius – evidence summary
Clive Cooke – evidence summary
Alana Buck – evidence summary
Conclusions – time and cause of death of Ciara Glennon
Surveillance footage from Claremont
Justin Geary – evidence summary
DNA evidence
What the prosecution relies on
Nature of the DNA evidence
Collection of the relevant DNA samples (AJM40 and 42)
Adam McCulloch – evidence summary
Robert Macdermid – evidence summary
Michael Teraci – evidence summary
History of AJM40 and AJM42 at PathWest
Adam McCulloch – evidence summary
Laurance Webb – evidence summary
Scott Egan – evidence summary
Anna–Marie Ashley – evidence summary
Aleksander Bagdonavicius – evidence summary
Denise Downe – evidence summary
George Paton – evidence summary
James Stanbury – evidence summary
Renata Bardo – evidence summary
Scott Payn – evidence summary
Lucy Lemanski – evidence summary
Andrea Lea – evidence summary
Samantha Underwood – evidence summary
Testing done at ESR
Sally‑Anne Harbison – evidence summary
Possible opportunities for contamination
Possible sources of contamination – the kimono
Collection, movement and testing of the KJG exhibits
Adam McCulloch – evidence summary
Dianne Bickhoff – evidence summary
Mark Emmett – evidence summary
Amanda Barnard – evidence summary
Teresa Kurtis – evidence summary
John Ashworth – evidence summary
Betty Jo Francis (Thompson) – evidence summary
Martin Blooms – evidence summary
Aleksander Bagdonavicius – evidence summary
Anna-Marie Ashley – evidence summary
Laurance Webb – evidence summary
Scott Egan – evidence summary
Anti–contamination measures
Scott Egan – evidence summary
Quality issues at PathWest
Issue 1 – anal swab (AJM30)
Issue 2 – Rimmer HVS
Issue 3 – Glennon shaver (AW23)
Issue 4 – earring (CJC11)
Issue 5 – Rimmer hair mass subsample (VA6892)
Issue 6 – vegetation (RH9)
Issue 7 – vegetation (RH22)
Issue 8 – knife
Issue 9 – Rimmer fingernails (RH33 and RH34)
Issue 10 – RH21 twig B
Other issues – DNA register
Other issues – matrix
Other issues – ESR water control
Cellmark and the possibility of other DNA
Andrew McDonald – evidence summary
2008 analysis of AJM40 and 42
Carole Evans – evidence summary
Andrew Talbot – evidence summary
Interpretation of the results
Jonathan Whitaker – evidence summary
Susan Vintiner – evidence summary
Mitochondrial DNA
Conclusions – DNA evidence
Fibre evidence
What the prosecution relies on
Nature of the fibre evidence
ChemCentre
Fibre analysis
Fibre transfer
Characteristics of fibres
Recovery of fibres
ChemCentre processes
Fibre analysis at the ChemCentre
ChemCentre fibre database
2014 ChemCentre report
KJG – collection and history of critical fibres
AJM2 – black shorts
Jane Rimmer – collection and history of critical fibres
Rimmer hair mass
Ciara Glennon – collection and history of critical fibres
AJM33 – t-shirt
AJM54 – hair mass
The billy bucket
K1 pillbox
RH17 – lock of hair
1BPX-080 – collection and history of critical fibres
Possible sources – Telstra swatch and pants
Rees Powell – evidence summary
Liberty Wagner‑Chavez – evidence summary
Nilani Randeni – evidence summary
Michael Smith – evidence summary
Kathy Kostas – evidence summary
Ian Summerton – evidence summary
Possible sources – 1BPX-080
Collection and history of control fibres
Rees Powell – evidence summary
Craig Porritt – evidence summary
Antonio Laino – evidence summary
Comparative analysis of the fibres
Exclusion of other sources
KJG
Ms Rimmer – home and vehicles
Ms Rimmer – taxis
Ms Glennon – home, work and vehicles
Police uniforms
State Mortuary
The Continental Hotel
Other vehicles on the ChemCentre database
Interpretation of the results
Ray Palmer – evidence summary
General conclusions – fibre evidence
Conclusions – fibre evidence of KJG
Conclusions – fibre evidence of Jane Rimmer
Conclusions – fibre evidence of Ciara Glennon
Conclusions – fibre evidence of 1BPX–080
Arrest of the accused and his police interview
Alleged lies
Conclusions – alleged lies and denials
Homicide pattern analysis evidence
Deborah Cunningham – evidence summary
Stephen Perejmibida – evidence summary
Peter Clements – evidence summary
Conclusions – homicide pattern evidence
Defence evidence
Conclusions
Different courses of reasoning
Jane Rimmer and Ciara Glennon – first course of reasoning
Jane Rimmer and Ciara Glennon – second course of reasoning
Did the accused kill Ciara Glennon
Did he do so intentionally
Did the accused kill Jane Rimmer
Did he do so intentionally
Did the accused kill Sarah Spiers
Verdicts
HALL J:
Summary
This is a trial like no other. This is a trial like every other. Those apparently irreconcilable statements are both true.
It is a trial like no other because of the combination of its length, its size and the high degree of public interest. The events in question occurred more than 20 years ago but have haunted the memory of many people and troubled the public conscience. The disappearance and likely murder of three young women was in itself enough to cause wide concern. The fact that all three went missing from a popular nightlife area frequented by many young people inspired a real and pervasive sense of fear.
Whilst courts are almost always open to the public, this is often little more than a platitude. In this case attendance during the trial was strong and sustained. Further, publicity both before and during the trial was significant. Multiple reporters from various media outlets attended every day. Few trials have been so consistently reported or reported on in such detail. Scarcely any witness passed through the court without being the subject of comment. The axiom that justice must not only be done but be seen to be done was never more apt.
Over many years enormous resources were dedicated to the investigation of this matter. Vast quantities of evidence were obtained and witnesses interviewed. That has resulted in an unusually lengthy and detailed prosecution case. Prior to the trial there were 14 pre‑trial hearings over 19 sitting days. The prosecution brief consisted of 178 lever arch files in 44 boxes. The electronic version of the prosecution brief occupied multiple terabytes of computer database space. There were 95 trial sitting days over seven months, 10,828 pages of transcript, 240 witnesses who were either called or had their evidence read and 2,879 exhibits.
But this is a case like every other because, despite the unusual features I have referred to, the fundamental principles that apply to every criminal trial apply equally to this one. The courts do not deliver different standards of justice. Justice is dispensed without fear or favour, affection or ill‑will. The promise of equal justice before the law required that this trial, like all criminal trials, be conducted with care to ensure fairness to both the defence and the prosecution. The accused was presumed innocent, the State bore the onus of proof and the standard of proof was beyond reasonable doubt. Those principles are unqualified, immutable and uniform in their application. I have not been distracted by the public interest or publicity from the proper application of those principles.
Also, like every other criminal case, it involves the lives of real people. Whatever interest others may have, a criminal trial is not a performance put on for either their edification or entertainment. The victims were real people who had families that loved them and who deserve to be treated with dignity and respect. Also, as in every criminal case, there is an accused person who stands charged with serious offences and whose fate depends critically on the outcome of this trial. He, like every other accused person, is entitled to a fair trial conducted according to law.
The accused, Bradley Robert Edwards, is charged with wilfully murdering Sarah Spiers, Jane Rimmer and Ciara Glennon. In order to be guilty of such a charge it must be proven beyond reasonable doubt that the accused killed the named person, that the killing was unlawful and that the accused intended to cause death.
Sarah Spiers was last seen in Claremont in the early hours of the morning of 27 January 1996. She was an 18 year old secretary. She has never been seen again and there has been nothing to indicate that she is still alive. Though her body has never been found, the only reasonable conclusion is that she is dead.
Jane Rimmer was last seen in Claremont just after midnight on 9 June 1996. She was aged 23 years old and was employed as a childcare worker. Her body was located in Wellard on 3 August 1996.
Ciara Glennon was last seen in Claremont just after midnight on 15 March 1997. She was aged 27 years old and was employed as a solicitor. Her body was located in Eglinton on 3 April 1997.
I am satisfied that the evidence establishes that each of the victims was abducted and killed. The real issue is the identity of the killer or killers. In particular, the question in respect of each count is whether it has been proven beyond reasonable doubt that the accused is the killer.
The evidence of identity is circumstantial evidence and, in particular, forensic evidence relating to DNA and fibres. In order to prove the guilt of the accused that evidence must be capable not only of supporting an inference that the accused was the killer in each case, but also of excluding any reasonable possibility that anyone other than the accused could have been the killer. That evidence is strongest in respect of the killing of Ciara Glennon. There is also some forensic evidence in respect of the identity of the killer of Jane Rimmer. However, in the case of Sarah Spiers there is no forensic evidence at all.
There are two suggested courses of reasoning in respect of each charge. In respect of Ms Glennon and Ms Rimmer the first course of reasoning is to determine whether similarities between their cases justify a conclusion that they were killed by the same person and, if that conclusion is reached, to then rely on evidence from both cases to determine the identity of that killer. The second course of reasoning is to look at Ms Glennon's case first and, if the identity of her killer is proven, to then use that as propensity evidence in respect of the other charges. This course of reasoning would then turn to the case of Ms Rimmer to determine whether the evidence in that case, together with the propensity evidence, establishes the identity of her killer.
In respect of Ms Spiers the first course of reasoning is to determine whether similarities between her case and that of the other two justifies a conclusion that they were killed by the same person and to then rely on evidence from all three cases to determine the identity of that killer. The second course of reasoning is to use proof of the other cases as propensity evidence and to then consider whether that evidence, together with that relating specifically to Ms Spiers, establishes the identity of her killer.
I have prepared detailed reasons for the conclusions I have reached. This summary forms part of those reasons. The reasons will be published and be available to anyone who wishes to read them. It is sufficient at this point to state my conclusions.
In respect of Ms Glennon and Ms Rimmer I have reached the following conclusions as to the first course of reasoning:
1.there are significant similarities between the circumstances of their disappearances and deaths. Those similarities are that:
(a)both Ms Rimmer and Ms Glennon were young women;
(b)both attended venues in the Claremont area to socialise with friends and were last seen in that area before leaving on their own;
(c)both went missing in the early hours of a weekend morning;
(d)both went missing within a nine month period from June 1996 to March 1997;
(e)in both cases they were killed in a similar manner, that is by a sharp‑force injury to the neck;
(f)in both cases there were defensive wounds indicating that they had sought to defend themselves from an attacker armed with a sharp weapon;
(g)the bodies of both were deposited in semi‑rural locations on the outskirts of the Perth metropolitan area;
(h)the position of the bodies and the covering of them with plant material from surrounding vegetation; and
(i)both had fibres on them that were consistent with them having been in a VS Holden Commodore car that was habitually used by a Telstra employee;
2.those similarities establish beyond reasonable doubt that the same person killed both Ms Rimmer and Ms Glennon;
3.the evidence as to the identity of the killer includes the DNA evidence, the fibre evidence and the propensity evidence. Of these the DNA evidence is critical to the prosecution case. I am satisfied that the evidence establishes beyond reasonable doubt that the DNA of the accused was under the nails of Ms Glennon's left hand and that it got there in the course of a violent struggle that occurred sometime shortly before her death;
4.the fibre evidence establishes that each of Ms Rimmer and Ms Glennon were in a VS Holden Commodore car that was habitually driven by a Telstra employee in the time shortly before their deaths. I am also satisfied that the accused drove such a vehicle at the relevant times;
5.the propensity evidence of the Karrakatta incident, which is the only propensity incident that I have relied on for this purpose, establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area;
6.having regard to the DNA evidence, the fibre evidence and the propensity evidence I am satisfied beyond reasonable doubt that the accused was the killer of Ms Rimmer and Ms Glennon; and
7.the circumstances of the abductions and the nature of the wounds inflicted proves beyond reasonable doubt that the accused intended to kill each of Ms Rimmer and Ms Glennon.
The second course of reasoning in respect of Ms Rimmer and Ms Glennon leads to the same ultimate conclusions. Applying that course of reasoning I draw the following conclusions:
1.that Ms Glennon was last seen in Claremont in the early hours of 15 March 1997;
2.when last seen she was in the vicinity of a white VS Holden Commodore;
3.that Ms Glennon was killed by a person wielding a sharp instrument and inflicting a fatal injury or injuries to the neck;
4.that it has been established beyond reasonable doubt that the DNA of the accused was under the nails of Ms Glennon's left hand and that it got there in the course of a violent struggle that occurred sometime shortly before her death;
5.the fibre evidence establishes that Ms Glennon was in a VS Holden Commodore car that was habitually driven by a Telstra employee in the time shortly before her death. I am also satisfied that the accused drove such a vehicle at the relevant time;
6.the propensity evidence of the Karrakatta incident, which is the only propensity incident that I have relied on, establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area;
7.having regard to the DNA evidence, the fibre evidence and the propensity evidence I am satisfied beyond reasonable doubt that the accused was the killer of Ms Glennon;
8.the circumstances of the abduction and the nature of the wounds inflicted proves beyond reasonable doubt that the accused intended to kill Ms Glennon;
9.Ms Rimmer was last seen in Claremont in the early hours of 9 June 1996;
10.that Ms Rimmer was killed by a person wielding a sharp instrument and inflicting a fatal injury or injuries to the neck;
11.the fibre evidence establishes that Ms Rimmer was in a VS Holden Commodore station wagon that was habitually driven by a Telstra employee in the time shortly before her death. I am also satisfied that the accused drove such a vehicle at the relevant time;
12.the propensity evidence of the Karrakatta incident establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area. The additional propensity evidence of the killing of Ms Glennon establishes that that tendency developed to killing an abducted young woman using a sharp instrument and disposing of her body in a semi‑rural location;
13.having regard to the fibre evidence and the propensity evidence, including that relating to the killing of Ms Glennon, I am satisfied beyond reasonable doubt that the accused was the killer of Ms Rimmer; and
14.the circumstances of the abduction and the nature of the wounds inflicted proves beyond reasonable doubt that the accused intended to kill Ms Rimmer.
Those findings lead me to conclude that the accused abducted Ms Rimmer on the early morning of 9 June 1996 in Claremont. He used his work vehicle, a VS Holden Commodore station wagon, to drive her from the area. It is not possible to determine exactly how he managed to get Ms Rimmer into the car. He then drove her to Wellard.
At some point a violent struggle ensued. Ms Rimmer was able to scream but the accused had a knife or other sharp object, which he used to attack her. She tried to fend off the attack and incurred a defensive injury to her wrist. The accused then, with intent to kill, stabbed or slashed her with the sharp instrument, causing one or more fatal injuries to her neck. Given the screams it is likely that this struggle occurred at Wellard.
The accused removed Ms Rimmer's clothing and disposed of her body in Wellard. He either took or concealed the clothes. He chose a semi‑rural location and put her body on the ground before covering her with vegetation he gathered from the surrounding area. His intention in so doing was to minimise the chances of her being found and his offence being discovered.
The findings also lead me to conclude that the accused abducted Ms Glennon on the early morning of 15 March 1997 in Claremont as she was walking home. He again used his work vehicle, a VS Holden Commodore station wagon, to drive her from the area. It is not possible to determine exactly how he managed to get Ms Glennon into the car.
At some point a violent struggle ensued in which Ms Glennon scratched or clawed at the accused, thereby getting some of his DNA under her nails. The accused had a knife or other sharp object, which he used to attack her. Ms Glennon tried to fend off the attack and incurred a defensive injury to her arm. The accused then, with intent to kill, stabbed or slashed her with the sharp instrument, causing one or more fatal injuries to her neck. Given the pattern of blood soaking on her clothes it is likely that the fatal wound or wounds was inflicted at Eglinton.
The accused then disposed of the body of Ms Glennon in bushland at Eglinton. He chose a semi‑rural location and put her body on the ground before covering her with vegetation he gathered or broke off from surrounding trees and bushes. His intention in so doing was to minimise the chances of her being found and his offence being discovered.
In respect of Ms Spiers I have reached the following conclusions as to the first course of reasoning:
1.there are some similarities between the circumstances of Ms Spiers' disappearance and death and that of Ms Rimmer and Ms Glennon. Those similarities are:
(a)that Ms Spiers, Ms Rimmer and Ms Glennon were all young women;
(b)that all attended venues in the Claremont area to socialise with friends and were last seen in that area before leaving on their own;
(c)that all went missing in the early hours of a weekend morning;
(d)that all went missing within a 14 month period, from January 1996 to March 1997; and
(e)that they were all abducted and killed;
2.those similarities are of a more general nature and are far fewer than those that exist as between Ms Rimmer and Ms Glennon. They do not allow a conclusion to be reached beyond reasonable doubt that the person who killed Ms Rimmer and Ms Glennon must necessarily be the same person as killed Ms Spiers. A possibility or even probability in that regard is not enough to support a conclusion beyond reasonable doubt; and
3.accordingly, on the first course of reasoning, evidence as to the identity of the killer of Ms Rimmer and Ms Glennon cannot assist in identifying the killer of Ms Spiers.
As regards the second course of reasoning in respect of Ms Spiers I have reached the following conclusions:
1.Ms Spiers was last seen in Claremont in the early hours of 27 January 1996;
2.she must have been abducted and killed, but the circumstances in which she was taken and how she died are unknown;
3.there are inconsistencies in the evidence of the Mosman Park screams that prevent a conclusion that those screams were Ms Spiers. However, even if they were they can only be explained by her abductor luring her into the car and taking her to her intended destination in a manner that is inconsistent with the Karrakatta propensity evidence;
4.the evidence in regard to a car seen near a telephone box in Mosman Park does not permit a conclusion to be drawn that it was the source of the screams or that it was a car of the same make or model as that driven by the accused at the time;
5.this leaves only the propensity evidence, being the Karrakatta evidence and the evidence of the killings of Ms Rimmer and Ms Glennon. The Karrakatta evidence establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area. The killing of Ms Rimmer and Ms Glennon establishes that the tendency developed to killing abducted young women using a sharp instrument and disposing of the body in a semi‑rural location; and
6.the propensity evidence makes it more likely that the accused was the killer of Ms Spiers but it cannot prove it beyond reasonable doubt in the absence of any other evidence as to the identity of her killer.
Based on those findings, the verdicts must be as follows:
1.On count 6, the charge of wilful murder of Sarah Spiers: not guilty.
2.On count 7, the charge of wilful murder of Jane Rimmer: guilty.
3.On count 8, the charge of wilful murder of Ciara Glennon: guilty.
Organisation of the reasons
These reasons are organised so as to deal with the issues in the following order:
1.principles relating to trial by judge alone;
2.charges that were the subject of the trial;
3.pleas of guilty to counts 1 ‑ 5;
4.terminology;
5.prosecution case;
6.defence case;
7.relevant legal principles applicable to this trial;
8.admissions made by the accused;
9.evidence – which is broken up into the following subject areas:
(a)background of the accused and his opportunity to commit the alleged offences;
(b)employment of the accused, the vehicles he drove and the uniforms he wore;
(c)Huntingdale, Hollywood Hospital and Karrakatta propensity evidence;
(d)Telstra Living Witness Project propensity evidence;
(e)evidence relating to the disappearance of Sarah Spiers;
(f)evidence relating to the disappearance of Jane Rimmer and the finding of her body;
(g)evidence relating to the disappearance of Ciara Glennon and the finding of her body;
(h)DNA evidence;
(i)fibre evidence; and
(j)other evidence (arrest and interview of the accused, homicide pattern evidence and the defence evidence);
10.conclusions; and
11.verdicts.
Trial by judge alone
The State applied for an order under s 118 of the Criminal Procedure Act 2004 (WA) that the trial of the charges be by judge alone without a jury. The accused consented to that application. On 1 November 2018 Corboy J made the order sought by the State. That decision was made having regard to four factors: the extent of pre‑trial publicity; the likely length of the trial; the graphic and disturbing nature of the evidence to be adduced; and the technical or complex nature of expert evidence proposed to be presented in the trial.
As regards publicity his Honour referred to a real risk that such publicity had permeated the public consciousness in a way that could not be adequately addressed by directions to a jury. It would be disingenuous of me to suggest that as the trial judge I am unaware of the nature and extent of such publicity. I am also aware of the risk that publicity can have an unconscious effect on a person. However I have endeavoured to minimise that risk by recognising it, making a conscious effort to only have regard to the evidence and by ensuring that my reasoning is comprehensively recorded in this written judgment.
The law and procedure to be applied in a trial by judge alone are provided for by s 119 and s 120 of the Criminal Procedure Act. Those sections provide as follows:
119.Law and procedure to be applied
(1)In a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
(2)In a trial by a judge alone, the judge may view a place or thing.
(3)If any written or other law –
(a)requires information or a warning or instruction to be given to the jury in certain circumstances; or
(b)prohibits a warning from being given to a jury in certain circumstances,
the judge in a trial by a judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial.
120.Judge's verdict and judgment
(1)In a trial by a judge alone –
(a)the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b)any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
(2)The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
(3)The validity of a trial judge's judgment is not affected by a failure to comply with subsection (2).
I recognise that a judge sitting alone does not have the advantage that a jury has in being able to engage in a group discussion. The ability of a jury to engage in a free exchange of views and the discipline of having to formulate, articulate and defend propositions in a such an environment can assist to clarify thinking. On the other hand, unlike a jury, a judge sitting alone can engage with counsel, test submissions and ask questions as to how issues raised by the evidence can be resolved.
Juries bring a collective wisdom and experience to the resolution of cases, but judges are in the business of making decisions and often have to do so in the context of a complex body of evidence. Trial judges have consistent and continuous experience of fact‑finding and of making decisions that demand an objective and dispassionate mind. A judge will often be required to put to one side inadmissible evidence (of which he or she is cognisant) in assessing credibility or deciding other disputed issues. Another example is having regard to an item of evidence for one purpose and yet disregarding it in relation to another contentious issue within the same case. The experience gained by a trial judge over time in relation to a wide range of fact‑finding methods can be a peculiar advantage.
Charges
The indictment in this matter contains eight charges. Those charges are as follows:
(1)On 15 February 1988 at Huntingdale Bradley Robert Edwards broke and entered the dwelling-house of [EH], with intent to commit an offence therein
And that the offence was committed in the night.
(2)On the same date and at the same place as in Count (1), Bradley Robert Edwards unlawfully deprived [AH] of her personal liberty.
(3)On 12 February 1995 at Claremont and elsewhere Bradley Robert Edwards unlawfully detained [KJG].
(4)On the same date as in Count (3) at Karrakatta Bradley Robert Edwards sexually penetrated [KJG] without her consent, by penetrating her vagina with his penis
And that Bradley Robert Edwards did bodily harm to [KJG]
And that Bradley Robert Edwards did an act which was likely to seriously and substantially degrade or humiliate [KJG].
(5)On the same date and at the same place as in Count (4) Bradley Robert Edwards sexually penetrated [KJG] without her consent, by penetrating her anus with his penis
And that Bradley Robert Edwards did bodily harm to [KJG]
And that Bradley Robert Edwards did an act which was likely to seriously and substantially degrade or humiliate [KJG].
(6)On or about 27 January 1996 at Claremont and elsewhere Bradley Robert Edwards wilfully murdered Sarah Ellen Spiers.
(7)On or about 9 June 1996 at Claremont and elsewhere Bradley Robert Edwards wilfully murdered Jane Louise Rimmer.
(8)On or about 15 March 1997 at Claremont and elsewhere Bradley Robert Edwards wilfully murdered Ciara Eilish Glennon.
On 21 October 2019 the accused entered pleas of guilty to the first five counts. Those counts will be referred to in more detail later in these reasons. The trial only concerned counts 6 ‑ 8.
Pleas to counts 1 - 5
As mentioned, on 21 October 2019 the accused entered pleas of guilty to counts 1 ‑ 5 on the indictment. Counts 1 and 2 relate to offences that occurred in Huntingdale on 15 February 1988. Counts 3 ‑ 5 relate to offences that occurred in Karrakatta on 12 February 1995. On the making of those pleas convictions were recorded and sentencing in respect of those offences was deferred until the completion of the trial.
The making of the pleas relieved the prosecution of any obligation to prove those offences, however the conduct that constituted the offences was relied on as propensity evidence. I had previously ruled that this evidence was admissible as propensity evidence. There was an issue as to what facts were admitted regarding these offences and what facts needed to be formally proved by the prosecution. The defence declined to agree a statement of facts. In the end it was accepted that the pleas could be taken as proving only the essential elements of the offences and that, in the absence of specific admissions, it was necessary for the prosecution to adduce evidence to prove other facts relating to those offences.
Terminology
In these reasons I have referred to a large number of police officers and described the work they did some time ago. Some of those officers are still members of WA Police; others have moved on to different roles. For the most part when giving an account of evidence that they gave at the trial I have referred to them by their current title. However, when giving an account of things that were done at the time I have generally referred to these witnesses by the title that they held at the relevant time, particularly when they are referred to by another witness.
WA Police has had various names since 1988. Throughout these reasons I refer to the organisation as WA Police regardless of what official name that organisation may have had at any particular time. Similarly, both the ChemCentre and PathWest have had a number of name changes. For simplicity I have referred to both organisations by their current names in these reasons.
The use of some acronyms has been unavoidable. In the section of the reasons dealing with DNA I have used an acronym to describe the UK organisation Forensic Science Service (FSS) and the Institute of Environmental Science and Research (ESR), which is located in New Zealand. I have adopted acronyms used by police and scientists who gave evidence: LCN for Low Copy Number testing and PCR for polymerase chain reaction. Likewise in the section on fibres I have used MSP for microspectrophotometry and UV for ultraviolet. The acronym PPE for personal protective equipment was also used by a number of witnesses; it is a term that is now widely used and I have adopted it.
I have also used some acronyms commonly used by WA Police, including DECU for the exhibit storage office at the old police headquarters on Adelaide Terrace, known as the DNA and Exhibits Coordination Unit, EMU for the Exhibit Management Unit, which the exhibit storage location at the WA Police Midland facility and SME for security movement envelopes. I have used PTS when referring to the police property tracing system.
I have also used some terms particular to these matters, including Operation Macro or Macro Task Force, the name given to the police investigation into the disappearance and suspected murders of Ms Spiers, Ms Rimmer and Ms Glennon. That investigation expanded in scope to incorporate other related matters and, to the extent it is relevant, such changes may be referred to in the reasons. The terms the Wellard scene and the Eglinton scene are used to describe the locations where, respectively, the bodies of Ms Rimmer and Ms Glennon were located.
There are suppression orders in place in respect of the identities of some of the witnesses. Where applicable I have used initials to refer to those witnesses. The suppression orders have been made available to representatives of the media to avoid any breaches.
Prosecution case
The prosecution case is that the similarity of the circumstances relating to the disappearance of the three victims, Sarah Spiers, Jane Rimmer and Ciara Glennon, establishes that they were killed by the same person.[1]
[1] ts 966.
The State says that the killer preyed upon the fact that many young people enjoyed going out in Claremont to have a night out and a few drinks in the company of their friends. The fact that three young women disappeared from the streets of Claremont created what was described as an enigma of the dark. That is to say that there was a mystery as to who had taken the three victims. The State's case is that there is one killer and that that killer is the accused.[2]
[2] ts 828.
The manner and place of disposal of the bodies of Jane Rimmer and Ciara Glennon is said to be consistent with the killer's intention that they would never be found. The finding of those bodies has enabled forensic connections to the accused to be discovered. The fact that the body of Sarah Spiers has never been found creates an absence of forensic connection to her killer but that, according to the State, simply means that her killer's identity must be proven in other ways.[3]
[3] ts 827 ‑ 8.
The State's case is that Sarah Spiers was abducted and killed after spending a night out in Claremont on the night of Australia Day 26 January 1996. Ms Spiers called a taxi at 2.06 am on 27 January 1996 and said that her destination was Mosman Park. A taxi was despatched to pick her up but by the time the taxi arrived she was no longer at that location. A short time later a series of screams were heard in the Mosman Park area. Two of the witnesses who heard the screams observed a light‑coloured station wagon parked near a telephone box.[4]
[4] ts 829 ‑ 32.
Ms Spiers has not been heard of or seen since that time. She has made no contact with her friends, family or acquaintances. There has been no access to her bank accounts and she has not been recorded as having left the country. The State's case is that the only reasonable inference is that Ms Spiers is deceased and that she was killed in the early morning of 27 January 1996.[5]
[5] ts 834.
Jane Rimmer went out with friends on the evening of 8 June 1996. Towards the end of the evening, at around 11.53 pm, she was waiting with her friends to get a taxi home. Whilst waiting Ms Rimmer left the group to go for a walk and was absent when one of her friends managed to flag down a taxi. Her friends directed the taxi to drive down Bay View Terrace in Claremont and to stop near where Ms Rimmer was standing. Her friends enquired whether she wished to leave with them, however she declined. The last sighting of Ms Rimmer was soon after. Her whereabouts and location remained a mystery until her body was discovered on 3 August 1996 at Wellard. Screams had been heard in that area on the early morning of 9 June 1996.[6]
[6] ts 838, 840 ‑ 1.
The prosecution case is that Ms Rimmer was murdered by the accused and her body disposed of in Wellard. A Telstra issued knife was found on a nearby road. The prosecution alleges that fibres found in Ms Rimmer's hair correspond to fibres from a vehicle of the type being driven by the accused at that time and that other fibres correspond to fibres from Telstra uniforms such as those worn by the accused at the relevant time. The prosecution say that the post‑mortem examination supports an inference that Ms Rimmer was killed by a cutting of the neck and that she attempted to defend herself, thereby receiving a defensive injury to a forearm.[7]
[7] ts 842, 844, 849 ‑ 51, 949, 962.
Ciara Glennon went out for drinks in Claremont with some work colleagues on the evening of 14 March 1997. Ms Glennon left The Continental Hotel on foot and alone shortly before midnight with the intention of returning home. She was seen walking down Bay View Terrace and then along Stirling Highway. Some witnesses report seeing a woman fitting her description in close proximity to a white VS Holden Commodore station wagon. The prosecution case is that that car was being driven by the accused and that Ms Glennon accepted a lift or was abducted by him in a 'blitz attack'.[8]
[8] ts 853 ‑ 5, 857, 862, 950.
The State says that in the early hours of the morning of 15 March 1997 Ms Glennon was killed and her body disposed of in bushland near Pipidinny Road in Eglinton. The prosecution case is that Ms Glennon's body was found in a similar location, and concealed in a strikingly similar manner, to that of Ms Rimmer. In both cases the bodies were disposed of in bushland and had been covered with branches and vegetation apparently torn from nearby trees and shrubs. In the case of Ms Glennon measurements were taken of the height of some of the trees from which branches had been torn. Some were up to 2 m from the ground, which the prosecution say indicates that the individual who did this must have been a fairly tall person. The State's case is that the post‑mortem examination supports a conclusion that Ms Glennon was killed by a cutting wound to the neck and that she also incurred defensive wounds to a forearm, like Ms Rimmer.[9]
[9] ts 865, 871 ‑ 3, 962.
The prosecution relies upon DNA extracted from the fingernails of Ms Glennon. A mixed sample was analysed and found to include DNA that is consistent with that of the accused to a high degree of probability. They also rely on fibres found in Ms Glennon's hair and t‑shirt, which correspond to those from a car of the type driven by the accused at the relevant time and Telstra uniforms worn by him at that time.[10]
[10] ts 888, 898, 932 ‑ 4, 951.
The State's case also relies on propensity evidence. It is the State's case that on 15 February 1988 the accused man broke into a house in Huntingdale in the middle of the night. He there attacked a young woman in her bed whilst she was sleeping. He attempted to stuff a stocking into her mouth. When he fled he left behind a silk kimono which had DNA on it. That kimono was seized and held in police storage for the next 18 years. The accused's conduct in respect of the Huntingdale offences is said to demonstrate a propensity on his part to attack vulnerable women who are effectively strangers to him, from behind and without warning, using force to physically restrain them and using some type of fabric or material in or over their mouths to stifle sound. It is also said that the accused's conduct in the Huntingdale offences is demonstrative of offending that was calculated, methodical and predatory. The State says that these offences were sexually motivated and showed a preparedness on the part of the accused to commit brazen offences to satisfy his own desires. The State also says that the fact that the accused was at the time of these offences living with his parents and working full time undermines any suggestion that he could not or would not offend or could not do so undetected if he was living with another or others or working full time hours.[11]
[11] ts 915, 945.
The State also relies on an offence committed on 7 May 1990 at Hollywood Hospital. On this occasion the accused attacked a woman unknown to him without warning and unprovoked. He grabbed her from behind, forced a piece of cloth or fabric over her mouth and dragged her backwards towards a toilet cubicle. She struggled, fought him off and broke free. The accused was apprehended at the time and pleaded guilty to a charge of common assault. The State says that his conduct in this regard again demonstrates a propensity on his part to attack vulnerable women who are effectively strangers to him, from behind and without warning, using force to physically restrain them and using some type of fabric or material in or over their mouths to stifle sound.[12]
[12] ts 945 ‑ 6.
The State also relies on the offending conduct known as the Karrakatta offences. On 12 February 1995 the State alleges that the accused drove a Telstra van to Rowe Park in Claremont in the early hours of the morning. He there waited in darkness, prepared and ready to attack, subdue, abduct and sexually assault a female stranger. The 17‑year‑old victim was walking alone and intoxicated through the park when the accused attacked her. He grabbed her from behind without warning and forced her to the ground. He tied her wrists together behind her back using cord he had brought with him which the State says was already knotted into improvised handcuffs. He forced cloth or fabric into her mouth. He then carried her to the van he was using and put her in the back. He bound her feet and put a hood over her head. He drove her to an isolated part of Karrakatta Cemetery where he twice sexually penetrated her with force sufficient to cause her injuries. He dropped her into some bushes and returned to his car. The State alleges that the accused left his semen in the victim. The accused has admitted committing these offences by his pleas of guilty to counts 3, 4 and 5. The State says that this conduct demonstrates a propensity on the part of the accused to attack vulnerable women who are strangers to him from behind and without warning using force to physically restrain them and using some type of fabric or material in and over their mouths to stifle sound.[13]
[13] ts 946.
The State's case is that the accused possesses or possessed such a tendency and that this is borne out by each of the sets of offences alone. That is, the Huntingdale offences, the Hollywood Hospital offence and the Karrakatta offences are each in themselves said to establish this tendency. However when viewed collectively it is said that the propensity is irrefutably established. Further the accused's repeated exhibition of that tendency in 1988, 1990 and 1995 establishes that the tendency was entrenched and long‑standing. Further the State says that the accused's conduct in the Karrakatta offences demonstrates a more particular tendency; that is, a tendency to violently attack and abduct vulnerable women leaving the Claremont nightlife precinct in the early hours of a weekend morning.[14]
[14] ts 946.
The State also relies on a series of incidents that is referred to as the 'Telstra Living Witness Project'. The State's case in this regard is that the accused, at some point during the mid‑1990s, started driving around Claremont and Cottesloe after dark offering lifts to young women who were seemingly alone. Some of those women accepted the lift and arrived safely at their destination. Others declined the lift or accepted it together with a friend. Three others, the State says, never made it to their intended destination and became the victims of the alleged murders.[15]
[15] ts 947.
The State's case is that the accused drove around the periphery of the Claremont nightlife area in a Telstra vehicle likely wearing his Telstra uniform picking off potential victims. It is said that this conduct both created and presented opportunities for the accused to find and select his victims even though the method by which Ms Spiers, Ms Rimmer and Ms Glennon were abducted is unknown. The State says this does not detract from the probative force of the propensity evidence because the accused exhibited this tendency in circumstances very similar to the circumstances in which Ms Spiers, Ms Rimmer and Ms Glennon were abducted and also to the circumstances in which the victim of the Karrakatta offences was abducted. The common underlying features between the Karrakatta offences and the Claremont murders are said to be:[16]
1.that each victim was taken suddenly from the periphery of the Claremont nightlife precinct having just left that precinct;
2.each was attacked within a 25 month period;
3.each was attacked in the early hours of the morning on a Saturday or Sunday;
4.each was attacked during or close to the period that a male driver in a Telecom or Telstra vehicle had been seen driving in or around the Claremont area offering lifts to women who were seemingly on their own;
5.each victim was aged between 17 and 27 years of age and was of a small build and fair complexion;
6.each victim was vulnerable in that they were alone, on foot and affected by alcohol; and
7.each of the four victims was driven away from the area.
[16] ts 947, 952.
The State also says that the Karrakatta offences show that the accused had the skills and ability to be able to subdue, restrain, bind, hood and gag a victim, carry her to and conceal her in his car without the victim being able to scream out, raise an alarm or defend herself. The accused's demonstrated ability to do this is said to support the State's contention that he had the requisite skill and ability to subdue and abduct Ms Spiers, Ms Rimmer and Ms Glennon.[17]
[17] ts 953.
The State also says that the accused's commission of the Karrakatta offences shows that he was able to commit this offence undetected whilst living with his first wife and whilst maintaining full time employment. This is said to undermine any suggestion that the accused would not or was incapable of committing the Claremont murders undetected because of work or family commitments.[18]
[18] ts 953.
The State also relies on the Huntingdale and Karrakatta offences to show that the accused repeatedly lied during his electronically recorded interview with police on 22 December 2016. In particular by denying knowledge of his involvement in relation to the Huntingdale and Karrakatta offences and claiming to have no idea where Rowe Park was (being the park from which the Karrakatta victim was abducted). He also claimed to have never been to the Karrakatta Cemetery at night or the early hours of the morning and distanced himself from this area by claiming that he had only been to the cemetery from about 2008 onwards.[19]
[19] ts 954.
The State also relies on answers given by the accused during the interview in which he denied familiarity with the Claremont area and stated that he had only attended that area from about 2009 onwards. This particular statement was initially relied on as being a lie that evidences consciousness of guilt. That is, a lie which the accused told because he feared that the truth would implicate him in the offences alleged. This was the only lie which the prosecution relied on for this purpose. However, that position was abandoned at the conclusion of the trial. Nonetheless the prosecution continue to rely on this and other lies for the purposes of credibility. That is, lies that can be used in assessing whether the denials of responsibility given and claims of innocence made by the accused in the interview should be accepted or give cause to doubt his guilt.[20]
[20] ts 954 ‑ 5, 10219 ‑ 20.
The State says the propensity evidence enhances the weight to be attached to the fibre evidence and the DNA evidence. The propensity evidence undermines the plausibility of any innocent explanation for that other evidence. It is also said to bolster the integrity of the DNA evidence by making any possible suggestion of contamination or an adventitious match unlikely.[21]
[21] ts 955 ‑ 6.
The State's case as opened also relied on evidence of motive. It was suggested that the evidence was capable of supporting an inference that when the accused experienced emotional turmoil in his life he was motivated to attack women who were strangers to him. There was said to be evidence that the accused was in a state of emotional upset at a time proximate to each of counts 6, 7 and 8. However, at the conclusion of the State's case the prosecutor accepted that the evidence was incapable of establishing this motive and this aspect of the prosecution case was abandoned.[22]
[22] ts 957, 9859.
In regard to the Telstra Living Witness Project evidence the State's case is that the five[23] incidents relied upon involved a lone male driver who was the accused. In order to prove this aspect of the case the State relies upon the following:[24]
1.the description of the lone male driver as being broadly consistent with that of the accused man at the time;
2.the identification of the vehicle as being a Telstra vehicle, or the association of the vehicle with that particular type of work, in circumstances where the accused man worked for Telstra and had access to a range of Telstra vehicles;
3.that on the last three occasions the vehicles as described were consistent with the vehicle the accused man was allocated for work and private use at that time, being a 1996 VS Holden Commodore station wagon;
4.that in respect to one incident the place where the pick‑up occurred is the same location from which the victim of the Karrakatta offences was abducted in February 1995;
5.that during his interview with police the accused admitted that he would frequent the Ocean Beach Hotel in Cottesloe in the late 1980s and this association and interest in this particular area is relevant to the three of the incidents; and
6.the evidence pertaining to the Karrakatta offences, which the State says demonstrates that the accused man was driving a Telstra vehicle in the early hours of the morning around the Claremont area on that occasion waiting for an opportunity to arise so that he could offend.
[23] In closing submissions, the State relied on only four of these incidents; ts 10157.
[24] ts 959.
The State says that if it is established that the accused was the driver on one, some or all of the instances relied upon by the State that this evidence is relevant in two ways; first as propensity evidence and second as circumstantial evidence.[25] In respect of the first basis the State contends that the evidence demonstrates a tendency that the accused had to drive around the Claremont and Cottesloe area in his Telstra vehicle in the lead up to, and during, the alleged offending period, offer lifts to women who were seemingly alone and vulnerable and to drive them away from the area. This evidence when considered in combination with other evidence to be adduced at trial is said to significantly increase the likelihood that the accused man was the assailant in the Claremont murders in that it:[26]
1.renders it more probable that the accused was the person who drove each of Ms Spiers, Ms Rimmer and Ms Glennon from the Claremont area and that he did so in his work vehicle;
2.enhances the veracity of the automotive fibre evidence and the proposition that the fibres came from the accused's work vehicle;
3.enhances the veracity of the Telstra clothing fibre evidence and the proposition that the fibres came from Telstra pants and in particular the accused's Telstra pants;
4.bolsters the integrity of the fingernail DNA evidence as well as rebutting any suggestion of contamination and any suggestion of any adventitious DNA profile match;
5.undermines the plausibility of any innocent explanation advanced by the accused regarding how the relevant fibres came to be in Ms Rimmer's hair, Ms Glennon's hair and on Ms Glennon's t‑shirt; and
6.undermines the plausibility of any innocent explanation advanced by the accused regarding how the accused's DNA came to be on, under or about Ms Glennon's fingernails.
[25] ts 959.
[26] ts 959 ‑ 60.
As to the second basis on which the State says that the Telstra Living Witness Project evidence is admissible, it is said to be a piece of circumstantial evidence going to proof of the identity of the offender as regards opportunity to commit the offences and the means by which the accused was able to get the victims into the car. It is said to provide an explanation as to why and how the victims may have been more willing to get into his vehicle voluntarily and why the accused would be less likely to draw attention to himself if he was in a work vehicle. It is also said to demonstrate that the accused operated on the periphery of the Claremont nightlife area and explains why he may not be captured on CCTV footage which was primarily recording in the heart of that precinct. In short, the Telstra Living Witness Project evidence combined with the Karrakatta offences assists by explaining how the three murdered women came into contact with the accused man, how the accused man was able to lure them into his vehicle and how he was able to attack and subdue them efficiently.[27]
[27] ts 960.
The State says that the principal fact in issue in respect of each of counts 6, 7 and 8 is the identity of the assailant. The State suggests that the case should be approached by first considering counts 7 and 8. There are said to be two possible courses of reasoning to concluding that the accused was the assailant on these counts. The first of those courses necessitates a conclusion based on the factual and circumstantial similarities that they were both committed by the same person. Upon reaching that conclusion evidence in respect of either of those offences could be used to establish identity.[28]
[28] ts 961.
The second course of reasoning involves considering the evidence as to one of those two counts in isolation and determining if the offence is proved beyond reasonable doubt. If so satisfied evidence of that offence can be used as propensity evidence in determining the identity of the assailant on the other count. The State says that both courses of reasoning are open on this case and both will lead to the same conclusion; that is, that the accused is the assailant on both counts 7 and 8.[29]
[29] ts 961.
As to the first course of reasoning the State says that there are a number of striking similarities between the facts and circumstances of counts 7 and 8, in particular:[30]
[30] ts 961 ‑ 3.
1.the geographical proximity: Jane Rimmer and Ciara Glennon had both been participating in nightlife activities in the Claremont precinct on the nights they disappeared. They were both last seen on the periphery of that precinct. Jane Rimmer was socialising with friends at The Continental Hotel on the night of Saturday 8 June 1996 and the last confirmed sighting of her was at about 12.04 am on 9 June as she stood outside The Continental Hotel in Bay View Terrace. Ciara Glennon was socialising with friends at The Continental Hotel on the night of Friday 14 March 1997 and the last sighting of her was at about 12.20 am on Saturday 15 March 1997 as she stood on the southern side of Stirling Highway apparently talking to someone in a vehicle;
2.the relatively close temporal proximity: the offences occurred nine months apart;
3.the time and day of the week: both victims were last seen alive in the early hours of the morning on a day of a weekend;
4.the age and appearance of the victims: the victims were of a similar age and appearance. They were aged 23 and 27 years. They were both of small build and fair complexion with blonde hair;
5.the vulnerability of the victims: each of the victims had consumed alcohol in the hours before they disappeared and when last seen each of them was either standing or walking alone in or near the Claremont nightlife precinct seemingly making their way home and looking for or waiting for transportation away from the precinct;
6.the manner of death: although the bodies of Ms Rimmer and Ms Glennon were in a decomposed state when found, both women had defects to their necks consistent with having had neck injuries inflicted on them, that is, having had their throats cut;
7.other injuries: each of Ms Rimmer and Ms Glennon had injuries to a forearm which were consistent with having been inflicted by a blade or sharp edged instrument. The State says that an inference can be drawn from the location of those injuries that they were defensive wounds sustained during the commission of these offences;
8.the timing of death and disposal of the bodies: Ms Rimmer and Ms Glennon were each murdered and their bodies disposed of within hours after their disappearance from Claremont;
9.the manner of the disposal of the bodies: the bodies of both victims were disposed of in a strikingly similar manner. Each was placed on the ground in bushland and covered by branches torn from nearby trees;
10.the location of the disposal sites: the disposal sites of the bodies of Ms Rimmer and Ms Glennon are approximately the same distance from Claremont; the former south of Claremont and the latter north of Claremont. At those sites the remains of the victims were found a short distance from a dirt track which itself was only accessible via a gravel road;
11.the connection to a 1996 VS Holden Commodore: fibres present in the hair of Jane Rimmer and fibres present in the hair of Ciara Glennon have been identified as coming from a 1996 VS series I Holden Commodore or the equivalent Toyota Lexcen. Additionally Ciara Glennon was last seen talking to someone in a car described as a white late model VS Holden Commodore station wagon. Telstra records indicate that the accused was allocated such a vehicle for work and private use at the time Jane Rimmer was last seen and at the time Ciara Glennon was last seen; and
12.the connection to Telstra technician clothing: a fibre present in the hair of Jane Rimmer and fibres present in the hair and on the shirt of Ciara Glennon have been identified as having come from pants or shorts manufactured for Telstra and issued to its technicians, including the accused, from mid‑1993.
The State says that there is an inescapable inference, given the circumstantial evidence referred to, that Ms Rimmer and Ms Glennon were abducted and murdered by the same person. If so, evidence in respect of either of those two offences can be used to establish the identity of that person. The evidence as to identity relied upon by the State is as follows:[31]
[31] ts 963 ‑ 4.
1.the fingernail DNA evidence;
2.the automotive fibres in both Jane Rimmer and Ciara Glennon's hair;
3.the Telstra clothing fibres in both Jane Rimmer and Ciara Glennon's hair, on Ciara Glennon's shirt, on KJG's shorts and in the vehicle used by the accused when it was discovered 22 years later;
4.evidence that the accused had been issued with relevant items of blue clothing prior to the Karrakatta offences;
5.that Ms Glennon was seen talking to someone in a car matching the description of the accused's Telstra car at the time (being the make and model of car from which the automotive fibres came);
6.the accused's propensity to attack and abduct young women leaving the Claremont nightlife area as established by the commission of the Karrakatta offences;
7.the accused's propensity to violently attack women not known to him in a particular manner as established by his commission of the Huntingdale, Hollywood and Karrakatta offences;
8.the Telstra knife found near where Jane Rimmer's body was left; and
9.the accused's conduct in the Telstra Living Witness Project evidence.
As to the second course of reasoning the State suggests that the approach should be to first consider the evidence as to identity in count 8 in isolation. The State says that the evidence in relation to that count is capable of proving beyond reasonable doubt that the accused was the person who murdered Ms Glennon. The evidence relied upon in this regard is as follows:[32]
1.the fingernail DNA evidence;
2.the automotive fibres in Ciara Glennon's hair;
3.the Telstra clothing fibres in Ciara Glennon's hair and on her shirt;
4.evidence that the accused had been issued with relevant items of clothing prior to the Karrakatta offences;
5.that Ms Glennon was seen talking to someone in a car matching the description of the accused's Telstra car at the time;
6.the accused's propensity to attack and abduct young women leaving the Claremont nightlife area as established by the accused's commission of the Karrakatta offences;
7.the accused's propensity to violently attack women not known to him in a particular manner as established by his commission of the Huntingdale, Hollywood and Karrakatta offences; and
8.the accused's conduct in the Telstra Living Witness Project evidence.
[32] ts 964.
The State says that if it is proved beyond reasonable doubt that the accused committed count 8 then the evidence of that offence can be used as propensity evidence in considering whether the accused committed count 7. In this regard the evidence as to identity in respect of count 7 would be:[33]
1.the automotive fibres found in Jane Rimmer's hair;
2.the Telstra clothing fibre found in Jane Rimmer's hair;
3.identical fibres being present in the accused's vehicle when it was examined in early 2017;
4.the Telstra knife found on Woolcoot Road;
5.the propensity evidence derived from count 8 including all of the similar facts and circumstances between counts 7 and 8;
6.the accused's propensity to attack and abduct young women leaving the Claremont nightlife areas established by the Karrakatta offences;
7.the accused's propensity to violently attack women not known to him in a particular manner, as established by his commission of the Huntingdale, Hollywood and Karrakatta offences; and
8.the accused's conduct in the Telstra Living Witness Project evidence.
[33] ts 965.
As to count 6, the State accepts that there is no forensic evidence as to identity in respect of the killer of Ms Spiers. However it is said that there is some other evidence as to identity in respect of count 6 which means that there is again two possible courses of reasoning to determine the identity of the assailant on this count. The first course of reasoning relies on a conclusion that, due to the factual and circumstantial similarities of the three offences, they were all committed by the same person. If that conclusion is reached then evidence in respect of any of the three offences can be used to establish identity. The State says that the following evidence supports a conclusion that the same person abducted and murdered Sarah Spiers as the other two victims:[34]
1.the geographical proximity;
2.the close temporal proximity: all three offences occurred in a 14 month period;
3.the time of day and week: all three victims were last seen alive in the early hours of a morning on a Saturday or Sunday;
4.the age and appearance of the victims: all three victims were of small build, a fair complexion and blonde hair and were aged between 18 and 27 years; and
5.the vulnerability of the victims: each of the victims consumed alcohol in the hours before they disappeared and when last seen each of them was standing or walking alone in or near the Claremont nightlife precinct seemingly making their way home.
[34] ts 965 ‑ 6.
The State also asserts that during the period 1 January 1994 to 31 December 1997 only three women went missing from the Claremont area, being the three victims. This fact in combination with the strikingly similar facts and circumstances of their disappearance is said to compel a conclusion that the assailant on each occasion was the same person. However, this aspect of the prosecution case relied on homicide pattern evidence and was effectively abandoned at the end of the trial.[35]
[35] ts 966 ‑ 8, 10239.
The evidence that is said to compel the conclusion that the person who committed count 6 is the accused, is as follows:[36]
1.all of the evidence previously referred to in respect of counts 7 and 8;
2.the description of the car seen in Mosman Park at the time of the screaming incident, which is consistent with the accused's Telstra car at the time; and
3.the Telstra Living Witness Project evidence.
[36] ts 969.
The second course of reasoning in respect of count 6 involves considering the evidence as to one of the other two counts, either count 7 or 8, in isolation and determining if it is proved beyond reasonable doubt that the accused was the assailant in that count, then using that as propensity evidence. The State concedes that although there is some evidence as to identity on count 6 it is not strong in isolation. The State submits that it is open to consider the evidence as to either count 7 or count 8 in isolation or in combination with each other (if satisfied that one offender committed those two offences) and determine beyond reasonable doubt that the offender was the accused in respect of count 7 or 8 or both. If so satisfied it is said that the evidence of either count 7 or 8 or both could then be used as propensity evidence to determine the identity of the assailant in count 6. That propensity evidence could then be considered in conjunction with the other evidence that goes to identity on count 6 to determine if that count is proven to the requisite standard. If that line of reasoning is followed the identity evidence previously referred to would be relied upon and to it would be added the propensity evidence of counts 7 or 8 or both. It is said that as propensity evidence the evidence of counts 7 or 8 or both is very strong given the underlying similarities in facts and circumstances between the three offences.[37]
[37] ts 969 ‑ 70.
Defence case
Senior counsel for the accused said that the defence to the charges is simple – it was not him. It is not suggested that any of the deaths was other than an unlawful killing. The real issue is the identity of the offender.[38]
[38] ts 973.
The defence notes that the State relies on evidence that can be divided into four categories: DNA evidence, fibre evidence, propensity evidence and other evidence. In relation to DNA evidence the defence says that the ultimate questions are:[39]
1.whether the only conclusion that can be drawn is that the DNA found on the analysis of AJM40 and 42 (the fingernail DNA) was the DNA of the accused; and
2.whether that DNA got there during a struggle between Ms Glennon and the accused that ended with her death.
[39] ts 973 ‑ 4.
The defence suggests that the second question is an indispensable step in proof of the State's case and that if that step cannot be taken the accused cannot be convicted in respect of count 8. Further, if it is not possible to be satisfied beyond reasonable doubt of the accused's guilt of count 8 then it is not possible to be so satisfied about counts 6 or 7.[40]
[40] ts 974.
The defence accepts that the mixed DNA profile extracted from the sample obtained from AJM40 and 42 (the fingernail DNA) is consistent with a two person profile, the contributors to which are Ms Glennon and the accused. The defence also accepts that the likelihood of a chance match between the male component of that mixed profile and the accused's profile is very low, however the defence says that there are a number of reasons why there should be doubt as to how the accused's DNA formed part of that sample.[41]
[41] ts 975.
The defence does not advance a specific alternative explanation but they do suggest that there is evidence that indicates a real risk of contamination. The factors that the defence point to are as follows:[42]
[42] ts 974 ‑ 7.
1.that the material analysed was not fingernail scrapings but clippings. These clippings were taken as part of the post‑mortem examination procedure. That part was not videorecorded as other parts of the examination were. Further there was difficulty obtaining a sample of one of the nails (AJM40) because it was close to the quick;
2.AJM40 was initially assessed by PathWest scientists as being debris that was not suitable for testing;
3.that assessment occurred in the context of PathWest carrying out low copy number testing of other exhibits in 2003, testing that was carried out despite the laboratory not being accredited to do that type of testing;
4.when the relevant samples were sent to FSS in the UK in 2008 the samples were prepared for testing by a scientist who no longer has any memory of what he did. He is only able to refer to what he is likely to have done by reference to usual procedures;
5.the DNA in question is trace DNA which was collected and stored in the 1990s when the state of knowledge and the protocols in handling such samples were much less sophisticated than was later the case; and
6.there is a possibility of cross‑contamination with other exhibits that did have the accused's DNA on them. In this regard the defence rely upon the following examples of contamination:
(a)intimate swabs collected from Jane Rimmer when analysed at PathWest in 1996 produced no DNA profile. However they were later analysed again in 2017 by the UK laboratory Cellmark. The later analysis disclosed an almost complete DNA profile matching that of a male PathWest scientist who was involved in preparing those swabs for DNA analysis at the time of the earlier testing;
(b)an intimate swab collected from Ciara Glennon identified as AJM30 yielded no results when PathWest analysed it in 1997. However when later analysed at Cellmark a DNA profile was obtained in which 17 of the 19 components matched another PathWest scientist. That scientist had been involved in testing the exhibit between 1997 and 2001;
(c)fingernail samples from Jane Rimmer identified as RH33 and 34 were found and combined and analysed at Cellmark in 2017 or 2018. A mixed DNA profile was obtained; the major component of which matched Ms Rimmer's profile. The minor component was subjected to Y chromosome analysis and was found to be consistent with the profile of a male PathWest scientist, although there was no documentation that this scientist had been involved in processing these exhibits. The explanation is that the layout of the examination area at the time of processing would have allowed for the scientist in question to be in the vicinity of the items during examination and processing and therefore represents a possible source of contamination; and
(d)a swab from a branch located on top of Jane Rimmer's body was examined in 2002 and given exhibit number RH21. This yielded a partial profile that was later found to match the profile of a victim of a completely unrelated crime. Samples relating to that unrelated victim were processed in the laboratory some days either side of this sample. PathWest reached a conclusion in 2007 that this was not a finding of evidentiary value; but in 2009 the exhibit was still being considered, though rejected for possible further testing.
Whilst the defence accepts that the scientific literature suggests that the chance of contamination in a laboratory is usually remote, secondary transfer has been known to occur and is documented. In circumstances where other incidents of contamination are known to have occurred, and to have been undetected for some period, the defence says that it is necessary to consider just how remote the chance was here and whether it can be safely ruled out.[43]
[43] ts 977 ‑ 8.
As regards the fibre evidence, the defence case is not that there is a dispute about the classification of fibres as corresponding or similar. Rather the defence argument is focussed on the uniqueness or otherwise of the fibres, in particular whether it can be safely said that they can only have come from the sources that the State claims. Further there is an issue as to how the fibres got where they were found. Questions of continuity and possible contamination are raised. That applies not merely in the laboratory but also to the activities of the deceased women on the nights and days of their deaths. The defence refer in particular to the fact that at the time of her disappearance Ms Glennon was wearing a jacket that had earlier been thrown on the floor of the hotel and then picked up by a colleague who wore it for a period before she retrieved it. The impact of these events on the finding of fibres in Ms Glennon's hair and on her clothing may be of significance, recognising that the jacket was not ultimately found.[44]
[44] ts 978.
The defence also put in issue the process of collection, storage, handling and examination of the exhibits. The defence case is that there are large gaps in the chain of continuity of important exhibits. There is an issue as to exhibit handling, recording and forensic processing protocols and whether they were always satisfactory.[45]
[45] ts 979.
The evidentiary significance of the fibre findings is also a live issue. The State seeks to draw the cases together by focusing on a relatively small number of common fibres and the sources that they say these fibres come from. The defence questions how many fibres constitute a statistically significant number for the purpose of linking the accused with a given exhibit. Questions as to how many fibres in total were collected, how many of those fibres were chosen for examination, how the ones chosen were selected and how many of those might be said to support the State's case as opposed to how many might either take it nowhere or even perhaps contradict the State's case, are raised.[46]
[46] ts 979.
The significance of this evidence is that it is inconsistent with Ms Cook's recollection that 27 January 1996 was a very hot day and that the accused assisted her husband in attempting to fix the air‑conditioner at their house before they both went to work together at Dumas House. This raises a question as to whether Ms Cook's recall of these events is reliable. This has to be viewed in the context that Mr Travis's records show that the accused commenced work at 8.00 am but that Mr Cook did not commence until 10.00 am, making it unlikely that they arrived at work together. A more detailed analysis of this evidence appears earlier in these reasons.
Conclusions
Different courses of reasoning
I am satisfied that the evidence establishes that each of the victims was abducted and killed. The real issue is the identity of the killer or killers.
The evidence of identity is strongest in respect of the killing of Ciara Glennon. There is also some forensic evidence in respect of the identity of the killer of Jane Rimmer. However, in the case of Sarah Spiers there is no forensic evidence at all. The prosecution case on count 6 critically depends on establishing that the person who killed Ms Glennon and Ms Rimmer must also have killed Ms Spiers or that those two other killings provide propensity evidence that together with other evidence is sufficient to establish that the accused killed Ms Spiers.
There are two suggested courses of reasoning in respect of each charge. In respect of Ms Glennon and Ms Rimmer the first course of reasoning is to determine whether similarities between their cases justify a conclusion that they were killed by the same person and, if that conclusion is reached, to then use evidence from both cases to determine the identity of that killer. The second course of reasoning is to look at Ms Glennon's case first and, if the identity of her killer is proven, to then use that as propensity evidence in respect of the other charges. This course of reasoning would then turn to the case of Ms Rimmer to determine whether the evidence in that case, together with the propensity evidence, establishes the identity of her killer.
In respect of Ms Spiers the first course of reasoning is to determine whether similarities between her case and that of the other two justifies a conclusion that they were killed by the same person and to rely on evidence as to identity from all of the cases to establish the identity of her killer. The second course of reasoning is to use proof of the other cases as propensity evidence and to then consider whether that evidence, together with that relating specifically to Ms Spiers, establishes the identity of her killer.
In respect of all courses of reasoning the Karrakatta propensity evidence is relevant evidence to the issue of identity which has significant probative value. The probative value derives from the nature of the proven tendency, that is, a tendency to violently attack and abduct young women from the Claremont area. However, the weight to be accorded to that evidence is different in each case due to similarities or differences that exist.
In particular, in the case of Ms Rimmer the additional factor of a proven sexual motivation lends the Karrakatta evidence added weight. I have considered whether that additional factor makes a difference to the outcome, that is, whether the conclusions in respect of Ms Rimmer would be different if a sexual motivation for her killing was not proven, and come to the conclusion that it does not. The same outcome is reached on the evidence whether or not the sexual motivation is proved.
In the case of Ms Spiers, the additional factor, that (on the prosecution case) she must have been lured into the vehicle and given her desired destination and that the pretence of taking her to that destination must have been maintained until the suburb of her destination was reached, is a difference with the Karrakatta incident that reduces the weight to be given to that evidence.
Jane Rimmer and Ciara Glennon – first course of reasoning
In respect of Ms Glennon and Ms Rimmer I have reached the following conclusions as to the first course of reasoning:
1.there are significant similarities between the circumstances of their disappearances and deaths. Those similarities are that:
(a)both Ms Rimmer and Ms Glennon were young women;
(b)both attended venues in the Claremont area to socialise with friends and were last seen in that area before leaving on their own;
(c)both went missing in the early hours of a weekend morning;
(d)they both went missing within a nine month period from June 1996 to March 1997;
(e)in both cases they were killed in a similar manner, that is by a sharp‑force injury to the area of the neck;
(f)in both cases there were defensive wounds indicating that they had sought to defend themselves from an attacker armed with a sharp weapon;
(g)the bodies of both were deposited in semi‑rural locations on the outskirts of the Perth metropolitan area;
(h)the position of the bodies and the covering of them with plant material from surrounding vegetation was similar; and
(i)both had fibres on them that were consistent with them having been in a VS Holden Commodore car that was habitually used by a Telstra employee;
2.those similarities establish beyond reasonable doubt that the same person killed both Ms Rimmer and Ms Glennon;
3.that the evidence as to the identity of the killer includes the DNA evidence, the fibre evidence and the propensity evidence. Of these the DNA evidence is critical to the prosecution case. I am satisfied that the evidence establishes beyond reasonable doubt that the DNA of the accused was under the nails of Ms Glennon's left hand and that it got there in the course of a violent struggle that occurred sometime shortly before her death;
4.the fibre evidence establishes that each of Ms Rimmer and Ms Glennon were in a VS Holden Commodore car that was habitually driven by a Telstra employee in the time shortly before their deaths. I am also satisfied that the accused drove such a vehicle at the relevant times;
5.the propensity evidence of the Karrakatta incident, which is all that I have relied on for this purpose, establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area;
6.having regard to the DNA evidence, the fibre evidence and the propensity evidence I am satisfied beyond reasonable doubt that the killer of Ms Rimmer and Ms Glennon was the accused; and
7.the circumstances of the abductions and the nature of the wounds inflicted proves beyond reasonable doubt that the accused intended to kill each of Ms Rimmer and Ms Glennon.
Jane Rimmer and Ciara Glennon – second course of reasoning
The second course of reasoning in respect of Ms Rimmer and Ms Glennon leads to the same ultimate conclusions. Applying that course of reasoning I draw the following conclusions:
1.that Ms Glennon was last seen in Claremont in the early hours of 15 March 1997;
2.when last seen she was in the vicinity of a white VS Holden Commodore;
3.that Ms Glennon was killed by a person wielding a sharp instrument and inflicting a fatal injury or injuries to the neck;
4.that it has been established beyond reasonable doubt that the DNA of the accused was under the nails of Ms Glennon's left hand and that it got there in the course of a violent struggle that occurred sometime shortly before her death;
5.the fibre evidence establishes that Ms Glennon was in a VS Holden Commodore car that was habitually driven by a Telstra employee in the time shortly before her death. I am also satisfied that the accused drove such a vehicle at the relevant time;
6.the propensity evidence of the Karrakatta incident, which is all that I have relied on, establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area;
7.having regard to the DNA evidence, the fibre evidence and the propensity evidence I am satisfied beyond reasonable doubt that the accused was the killer of Ms Glennon;
8.the circumstances of the abduction and the nature of the wounds inflicted proves beyond reasonable doubt that the accused intended to kill Ms Glennon;
9.Ms Rimmer was last seen in Claremont in the early hours of 9 June 1996;
10.that Ms Rimmer was killed by a person wielding a sharp instrument and inflicting a fatal injury or injuries to the neck;
11.the fibre evidence establishes that Ms Rimmer was in a VS Holden Commodore station wagon that was habitually driven by a Telstra employee in the time shortly before her death. I am also satisfied that the accused drove such a vehicle at the relevant time;
12.the propensity evidence of the Karrakatta incident establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area. The additional propensity evidence of the killing of Ms Glennon establishes that that tendency developed to killing the abducted young woman using a sharp instrument and disposing of the body in a semi‑rural location;
13.having regard to the fibre evidence and the propensity evidence, including that relating to the killing of Ms Glennon, I am satisfied beyond reasonable doubt that the accused was the killer of Ms Rimmer; and
14.the circumstances of the abduction and the nature of the wounds inflicted proves beyond reasonable doubt that the accused intended to kill Ms Rimmer.
Did the accused kill Ciara Glennon
For the reasons I have given I am satisfied beyond reasonable doubt that the accused was the killer of Ms Glennon. I find that he abducted her on the early morning of 15 March 1997 in Claremont as she was walking home. He used his work vehicle, a VS Holden Commodore station wagon to drive her from the area. It is not possible to determine exactly how he managed to get Ms Glennon into the car.
At some point a violent struggle ensued in which Ms Glennon scratched or clawed at the accused, thereby getting some of his DNA under her nails. The accused had a knife or other sharp object, which he used to attack her. Ms Glennon tried to fend off the attack and incurred a defensive injury to her arm. The accused then stabbed or slashed her with the sharp instrument, causing one or more fatal injuries to her neck. Given the pattern of blood soaking on her clothes it is likely that the fatal wound or wounds was inflicted at Eglinton.
The accused then disposed of the body of Ms Glennon in bushland at Eglinton. He chose a semi‑rural location and put her body on the ground before covering her with vegetation he gathered or broke off from surrounding trees and bushes. His intention in so doing was to minimise the chances of her being found and his offence being discovered.
Did he do so intentionally
Any conclusion as to intention must be based on an inference drawn from the circumstantial evidence. The intention of a person can be inferred from their actions. In this case the relevant actions, based upon my factual findings, are as follows:
1.that the accused abducted Ms Glennon, that is, that he held her against her will (either after using deceit or violence to get her into his car);
2.that the accused was armed with a sharp implement;
3.that there was a violent struggle in which Ms Glennon sought to defend herself from the accused and in the course of which she incurred broken fingernails and an injury (or injuries) to her right arm;
4.that the accused inflicted one or more wounds to the neck of Ms Glennon that were sufficient to cause her death; and
5.that the area of the neck where the wound or wounds were inflicted is one that includes major arteries and veins such that a sharp‑force injury to that area is highly likely to cause a life‑threatening injury.
Based on these findings in my view the only reasonable inference is that when the accused struck Ms Glennon with the sharp instrument he intended to kill her.
Did the accused kill Jane Rimmer
For the reasons I have given I am satisfied beyond reasonable doubt that the accused was the killer of Ms Rimmer. I find that he abducted her on the early morning of 9 June 1996 in Claremont. He used his work vehicle, a VS Holden Commodore station wagon to drive her from the area. It is not possible to determine exactly how he managed to get Ms Rimmer into the car. He then drove her to Wellard.
At some point a violent struggle ensued. Ms Rimmer was able to scream but the accused had a knife or other sharp object, which he used to attack her. She tried to fend off the attack and incurred a defensive injury to her wrist. The accused then stabbed or slashed her with the sharp instrument, causing one or more fatal injuries to her neck. Given the screams it is likely that this struggle occurred at Wellard.
The accused then removed Ms Rimmer's clothing and disposed of her body in Wellard. He chose a semi‑rural location and put her body on the ground before covering her with vegetation he gathered from the surrounding area. His intention in so doing was to minimise the chances of her being found and his offence being discovered.
Did he do so intentionally
As with Ms Glennon, any conclusion as to the intention of the accused when he killed Ms Rimmer must be based on an inference drawn from the circumstantial evidence. The intention of a person can be inferred from their actions. In this case the relevant actions, based upon my factual findings, are as follows:
1.that the accused abducted Ms Rimmer, that is, that he held her against her will (either after using deceit or violence to get her into his car);
2.that the accused was armed with a sharp implement;
3.that there was a violent struggle in which Ms Rimmer sought to defend herself from the accused and in the course of which she incurred an injury (or injuries) to her left wrist;
4.that the accused inflicted one or more wounds to the neck of Ms Rimmer that were sufficient to cause her death; and
5.that the area of the neck where the wound or wounds were inflicted is one that includes major arteries and veins such that a sharp‑force injury to that area is highly likely to cause a life‑threatening injury.
Based on these findings in my view the only reasonable inference is that when the accused struck Ms Rimmer with the sharp instrument he intended to kill her.
Did the accused kill Sarah Spiers
It was an admitted fact that Sarah Spiers is dead. That admission did not involve any acceptance of knowledge of the circumstances of her death on the part of the accused. It was merely an acceptance of a fact which was readily capable of proof. The evidence clearly supports that conclusion. There was evidence that Ms Spiers disappeared on the morning of 27 January 1996 and has not been seen since. She has not operated bank accounts, contacted her family or travelled overseas. The only possible conclusion is that she is dead and that she died on or about the date she disappeared.
I am also satisfied that she was abducted and killed by some person. There is no other satisfactory explanation for her disappearance and the absence of her body. Accident would not readily explain the absence of a body. Suicide can be discounted as there is nothing to indicate that she had any thoughts in that regard. The circumstances can only be explained by her having been killed and her body concealed. Thus, as with all of the counts, the principal issue is identity. The question is, has it been proved beyond reasonable doubt that the accused killed Sarah Spiers?
There is no evidence specific to the disappearance of Ms Spiers that is capable of proving that the accused was her killer. The absence of a body means that the prosecution case is significantly more limited than in the case of Ms Rimmer and Ms Glennon. Facts known in respect of the other victims, such as how they were killed, where and how their bodies were disposed of and what the forensic evidence from their bodies indicates as to the identity of their attacker, are absent in the case of Ms Spiers.
The prosecution case on the first course of reasoning depends on the State being able to prove that the same person killed all of the alleged victims. The State relies on a number of broad factual similarities between the disappearance of Ms Spiers and that of Ms Rimmer and Ms Glennon. The issue is whether these similarities are sufficient to prove the prosecution case on count 6 beyond reasonable doubt. The prosecution case on count 6 on this course of reasoning critically depends on the prosecution being able to prove that the only reasonable inference is that the person who killed Ms Rimmer and Ms Glennon also killed Ms Spiers. The points of similarity must be sufficiently cogent and compelling as to exclude any other reasonable possibility. That is, it must be proven that there is no reasonable possibility that someone other than the accused murdered Ms Spiers.
In respect of Ms Spiers I have reached the following conclusions as to this course of reasoning:
1.there are some similarities between the circumstances of Ms Spiers disappearances and death and that of Ms Rimmer and Ms Glennon. Those similarities include that:
(a)all of Ms Spiers, Ms Rimmer and Ms Glennon were young women;
(b)all attended venues in the Claremont area to socialise with friends and were last seen in that area before leaving on their own;
(c)all went missing in the early hours of a weekend morning;
(d)they all went missing within a 14 month period; and
(e)they were all abducted and killed;
2.those similarities are of a more general nature and are far fewer than those that exist as between Ms Rimmer and Ms Glennon. They do not allow a conclusion to be reached beyond reasonable doubt that the person who killed Ms Rimmer and Ms Glennon must necessarily be the same person as killed Ms Spiers. A possibility or even probability in that regard is not enough to support a conclusion beyond reasonable doubt;
3.accordingly, evidence as to the identity of the killer of Ms Rimmer and Ms Glennon cannot assist in identifying the killer of Ms Spiers on the first course of reasoning.
The prosecution case on the second course of reasoning depends on the State being able to prove that the accused is the killer of Ms Rimmer and Ms Glennon. That is a necessary but not sufficient condition for the proof of count 6. That is to say, on this course of reasoning the accused could not be convicted of count 6 unless he is found guilty of counts 7 and 8, but proof of those counts may not in itself be enough to prove his guilt on that count. If those counts do no more than show that the accused has a propensity to abduct and kill young women then that may make it more likely that he is the killer of Ms Spiers. But it may not be enough to prove that he is the killer to the criminal standard of proof. To be convicted of this count it must be proven that he is beyond reasonable doubt the killer. Evidence that proves identity in this way must amount to more than proof that the accused has a tendency to kill, it must be capable of identifying the accused as the killer of this alleged victim.
The prosecution case in respect of count 6 relies on the evidence of the Mosman Park screams. For reasons I have given earlier, there is significant doubt as to whether these screams were those of Ms Spiers and the evidence relating to the screams contains a number of important inconsistencies. Furthermore, if it is accepted that Ms Spiers went missing from Stirling Road between 2.06 am and 2.15 am and that it is her screams that were heard in Mosman Park then this is not consistent with a 'blitz attack' such as that upon KJG. Mosman Park is not adjacent to Claremont and the only fact that could link the screams to Ms Spiers is that it is known from the call to the taxi company that she was seeking to travel to Mosman Park that night. It must follow from this that the screams could only be Ms Spiers if she gave her destination to the driver of the car, believing that she would be driven there. If the State's case is that Ms Spiers was lured into the car under the pretence of being given a lift and gave Mosman Park as her destination then this creates an obvious inconsistency with the Karrakatta offences, the immediately preceding propensity incident that the State relies on (putting aside the Telstra Living Witness Project incidents for the moment). That is, this is a very different method than was used in Karrakatta.
There is also a question as to whether this methodology is consistent with what is known of the murders of Ms Rimmer and Ms Glennon. Although it is established that the accused is responsible for their deaths and that he used his Telstra vehicle to abduct them, it is not known how they each came to be in the car. That is, there is no direct evidence that they were lured into his vehicle on the pretence of being offered a lift. The Wellard screams might be thought to have some similarity, however there is an obvious difference – Wellard was not Ms Rimmer's intended destination: it is the place she was killed. Accordingly, the Wellard screams do not necessarily imply the same methodology as the State suggests must have been employed in the case of Ms Spiers (that is, a luring into the car on the pretence of being offered a lift). The defensive wounds to Ms Rimmer and Ms Glennon are consistent with each woman having had some opportunity to resist before they were killed, but more than that it is difficult to say. It would be speculative to suggest that they must have each been lured into the car and later attacked.
The description of the car seen by Mr Stewart in Mosman Park at best only identifies a pale coloured Toyota station wagon. The evidence is insufficient to support a finding that the screams came from that car or that it was the Telstra vehicle that was being driven by the accused at that time.
The Telstra Living Witness Project witnesses do not assist because it is impossible to conclude that the same person was responsible for all of the incidents or that the person who was the driver in any of them was clearly the accused. This position does not improve if this evidence is only considered at a later stage (that is, after it is proved by other evidence that the accused is responsible for the murders of Ms Rimmer and Ms Glennon) because, whilst in light of conclusions in respect of counts 7 and 8, it may be more likely that the accused was engaged in conduct like that described by the Telstra Living Witness Project witnesses, there remains the problem that a number of the descriptions of the driver are plainly inconsistent with the accused. The prosecution cannot choose to rely on only some of the incidents and ignore others that are inconsistent with its case. It needs to explain the inconsistencies. If those inconsistencies leave open the possibility that someone else was offering lifts or 'prowling' in the area in a white vehicle late at night then the ability of this evidence to implicate the accused is effectively lost. This is because for the inference to be open that the accused was the driver in any of the incidents the prosecution must exclude as a possible inference that it could be someone else. That possibility cannot be excluded given those descriptions of the driver which are plainly inconsistent with the accused.
This means that if the State's case in respect of count 6 relies upon Sarah Spiers being lured into the vehicle then this is a characteristic that cannot be connected by the known evidence to any other proven incident involving the accused. This tends to show how little is known of the details of Ms Spiers's abduction and death. It also highlights that what is known does not uniformly point to the same perpetrator.
This means that on the second course of reasoning the only evidence as to identity that remains is the propensity evidence. That means the Karrakatta propensity evidence and also the evidence as to the killings of Ms Rimmer and Ms Glennon.
The propensity established by counts 7 and 8 is similar to that proven by the Karrakatta offences, but has important additional elements. In particular it is a propensity to abduct and kill lone young women walking away from the Claremont area on a weekend evening and then dispose of their bodies in semi‑rural locations in a distinctive manner. The similarities with the disappearance of Ms Spiers are that she was alone in the early hours of the morning in Claremont and was abducted and, as I have found, killed. As to how she was abducted and killed and how her body was disposed of nothing is known. I have already referred to the fact that, assuming the Mosman Park screams were Ms Spiers, they indicate differences in the methodology used to abduct her but there are substantial difficulties in coming to a conclusion that the screams were in fact her.
The propensity established by counts 7 and 8 makes it more likely that the accused was the killer of Ms Spiers, but that propensity evidence alone cannot establish his guilt of count 6. However likely it is that a person who killed two other women in the same area in similar circumstances also killed Ms Spiers, what is required in a criminal trial is proof beyond reasonable doubt. There must be some evidence to show that the accused not only had such a tendency but acted upon it on this occasion. The prosecution accepted that something more was required and pointed to the Telstra Living Witness Project evidence and the Mosman Park screams evidence. However, as I have already found, that other evidence is incapable of implicating the accused.
There are other factors that weigh against the prosecution case on count 6. The most important of these is the evidence regarding opportunity. The evidence is that the accused would have had very limited opportunity to abduct Ms Spiers, kill her and dispose of her body in a manner similar to that of Ms Rimmer and Ms Glennon. Ms Spiers was abducted sometime between 2.15 am and 2.30 am on the morning of 27 January 1996 and the accused attended work in West Perth at 8.00 am. This would afford the accused only between five and six hours to commit the offence and dispose of the body. Although not impossible, this is a tight time frame and reduces the likelihood that the accused is responsible.
The prosecution has failed to establish beyond reasonable doubt that the accused killed Ms Spiers. The evidence of his propensity to kill may make him a likely suspect, or even the probable killer, but it does not exclude the real possibility that some other person killed her. If an inference consistent with innocence is open then the accused cannot be found guilty.
To summarise, as regards the second course of reasoning in respect of Ms Spiers I have reached the following conclusions:
1.Ms Spiers was last seen in Claremont in the early hours of 27 January 1996;
2.she must have been abducted and killed, but the circumstances in which she was taken and how she died are unknown;
3.there are inconsistencies in the evidence of the Mosman Park screams that prevent a conclusion that those screams were Ms Spiers. However, even if they were they can only be explained by her abductor luring her into the car and taking her to her intended destination in a manner that is inconsistent with the Karrakatta propensity evidence;
4.the evidence in regard to a car seen near a telephone box in Mosman Park does not permit a conclusion to be drawn that it was the source of the screams or that it was a car of the same make or model as that driven by the accused at the time;
5.this leaves only the propensity evidence, being the Karrakatta evidence and the evidence of the killing of Ms Rimmer and Ms Glennon. The Karrakatta evidence establishes that the accused had a tendency to violently attack and abduct young women from the Claremont area. The killing of Ms Rimmer and Ms Glennon establishes that the tendency developed to killing the abducted young woman using a sharp instrument and disposing of the body in a semi‑rural location; and
6.that evidence is incapable of proving beyond reasonable doubt that the accused is the killer of Ms Spiers.
Verdicts
On count 6, that on or about 27 January 1996 at Claremont and elsewhere the accused wilfully murdered Sarah Ellen Spiers, I find him not guilty.
On count 7, that on or about 9 June 1996 at Claremont and elsewhere the accused wilfully murdered Jane Louise Rimmer, I find him guilty.
On count 8, that on or about 15 March 1997 at Claremont and elsewhere the accused wilfully murdered Ciara Eilish Glennon, I find him guilty.
There will be a judgment of acquittal on count 6 and judgments of conviction on counts 7 and 8.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ALA & KR
Associates to the Honourable Justice Hall23 SEPTEMBER 2020
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