The State of Western Australia v Rayney
[2013] WASCA 219
•23 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RAYNEY [2013] WASCA 219
CORAM: WEINBERG AJA
WHEALY AJA
BUDDIN AJA
HEARD: 6-7 AUGUST 2013
DELIVERED : 23 SEPTEMBER 2013
FILE NO/S: CACR 264 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
LLOYD PATRICK RAYNEY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BRIAN MARTIN AJ
Citation :THE STATE OF WESTERN AUSTRALIA -v- RAYNEY [No 3] [2012] WASC 404
File No :INS 83 of 2011
Catchwords:
Criminal law - Respondent charged with wilful murder (and, in the alternative, manslaughter) of his wife - Respondent applied for, and was granted, trial by judge alone - Judgment of acquittal entered - Prosecution application for leave to appeal against acquittal under Criminal Appeals Act 2004 (WA), s 24(2)(e)(ii) - Circumstantial case - Whether trial judge failed properly to consider totality of the evidence, contrary to R v Hillier (2007) 228 CLR 618 - Whether trial judge's finding with respect to motive not supported by the facts trial judge found - Trial judge properly considered circumstantial case as a whole - No error in factual finding regarding motive - Leave to appeal granted but appeal dismissed
Criminal law - Consideration of nature of prosecution appeal against acquittal - Appeal to be by way of 'rehearing' pursuant to r 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Nature of 'rehearing' dependent upon legislative context and process of statutory construction - Appropriate measure of deference to be applied to findings of fact made in judge alone trial - Distinction between findings based upon credit and demeanour and those based upon inference - Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118 considered
Legislation:
Criminal Appeals Act 2004 (WA), s 24(2), s 24(2)(da), s 24(2)(e)(ii), s 33, s 33(2a)
Criminal Code (WA), s 278, s 280
Criminal Procedure Act 2004 (WA), s 118, s 119, s120
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25, r 33
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr D F Jackson QC & Ms A M Mitchelmore
Respondent: Mr B W Walker SC, Mr J D Edwardson QC & Mr A G Elliott
Solicitors:
Appellant: Director of Public Prosecutions (NSW)
Respondent: Adam Hills-Wright
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2006] WASCA 245
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Ascic v Bedworth [2013] WASCA 174
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Bevan v The State of Western Australia [2012] WASCA 153; (2012) 43 WAR 233
Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213
Brooks v The Queen [2012] VSCA 197
Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Butler v The Queen [2011] VSCA 417; (2011) 34 VR 165
Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39
Coates v The State of Western Australia [2009] WASCA 142
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Evans v The State of Western Australia [2011] WASCA 182
FB v The Queen [2011] NSWCCA 217
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Flora v The Queen [2013] VSCA 192
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gianoutsos v Glykis [2006] NSWCCA 137; (2006) 65 NSWLR 539
Henderson v Taylor, Information Commissioner (Qld) [2006] QCA 490; [2007] 2 Qd R 269
Ho [2002] NSWCCA 147; (2002) 130 A Crim R 545
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
Kurtic (1996) 85 A Crim R 57
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Morgan v The State of Western Australia [2011] WASCA 185
Moroney v Wojcicka [2003] ACTCA 15; (2003) 143 A Crim R 1
Murphy v Spencer [2013] WASC 256
NAD v The State of Western Australia [2013] WASCA 2
Nigro v Secretary to the Department of Justice [2013] VSCA 213
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
Power (1996) 87 A Crim R 407
R v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Cook [2004] NSWCCA 52
R v Court [2003] WASCA 308
R v Heyde (1990) 20 NSWLR 234
R v Heyes[2006] VSCA 86; (2006) 12 VR 401
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Lane [2011] NSWCCA 157
R v Margaria [2003] WASCA 253
R v Stevens [2010] SASCFC 1; (2010) 107 SASR 456
R v Twomey (No 2) [2011] EWCA Crim 8; [2011] 1 Cr App Rep 356
R v Willingham [2012] SASCFC 29; (2012) 112 SASR 278
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1
The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Rayney [2011] WASC 326
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Vu v New South Wales Crime Commission [2013] NSWCA 282
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
Table of Contents
Introduction
The proposed grounds of appeal
The notice of contention
Background facts
The State's case
A. Motive to kill
(i) Events prior to 2005
(ii) Events during 2005 - 2006
(iii) Events from January 2007 to 7 August 2007
(iv) Summary of the relationship evidence
B. Pre‑planning
C. Establishing that the deceased was attacked at home
(i) Did the deceased return home after boot-scooting?
(ii) The forensic evidence
D. Linking the respondent to the Kings Park gravesite
(i) Place card
(ii) Handkerchief
(iii) The respondent's capacity to have dug the grave
E. Proving that the deceased's car was abandoned at a time which would have allowed the respondent to make his way home before the children awoke
F. Demonstrating consciousness of guilt - the respondent's conduct from 8 August 2007 onwards
(i) Lies as consciousness of guilt
(ii) Other post‑offence conduct said to have demonstrated 'consciousness of guilt'
G. Evidence implicating others - the defence case
H. The defence submission as to cause of death
The nature of the appeal to this Court
A. The statutory provisions governing trial by judge alone and appeals against acquittal in this State
B. Prosecution appeals against acquittals in judge alone trials in this State
C. How should this Court approach a factual challenge to a finding in a judge alone trial?
D. The parties' submissions regarding the nature of the appeal
E. Resolution of the issue
Ground 1
A. The State's submissions
B. The respondent's submissions
C. Consideration
D. The trial judge's reasons
The first impugned passage - [549]
The second impugned passage - [552]
The third impugned passage - [657]
A. Detailed reasons for rejecting the State's case in relation to the first three impugned passages
B. The structure of the decision and conclusions
The fourth impugned passage - [1583]
Ground 1A
A. Background
B. The State's submissions
C. Consideration
Notice of contention
Orders
Appendix A
Table of Contents of the Judgment below
Appendix B
Statements in the decision below about the correct approach to take to circumstantial cases. The need to consider the 'totality of the evidence' or 'all proven facts'
JUDGMENT OF THE COURT:
Introduction
Lloyd Patrick Rayney stood trial before Brian Martin AJ, sitting as a judge alone,[1] charged with the wilful murder of his wife, Corryn Veronica Ann Rayney. After a trial lasting just over three months, he was found not guilty on 1 November 2012 of both wilful murder and the alternative charge of manslaughter. His Honour delivered extensive reasons for having arrived at that verdict: The State of Western Australia v Rayney [No 3][2012] WASC 404.[2]
[1] It is unnecessary in this judgment to set out in detail the reasons why the respondent was granted a trial by judge alone. Commissioner Sleight's reasons for granting the respondent's request for a judge alone trial appear in The State of Western Australia v Rayney [2011] WASC 326.
[2] Unless otherwise indicated, all paragraph references appearing in these reasons are to the judgment below.
The State of Western Australia has, pursuant to s 27 of the Criminal Appeals Act 2004 (WA), sought leave to appeal against the respondent's acquittal, and, in the event that leave is granted, an order that there be a new trial. For reasons that follow, leave to appeal should be granted, but the appeal itself is dismissed.
The trial judge found that Mrs Rayney was last seen alive at approximately 9.30 pm on Tuesday, 7 August 2007 when she left a boot‑scooting class held at the Bentley Community Centre. She died on the night of Tuesday, 7 August 2007, or in the early hours of Wednesday, 8 August 2007. Her body was buried that night in an area of bushland in Kings Park, a short distance from a sandy track leading off Lovekin Drive known as Wattle Track. She was buried in a shallow grave, approximately one metre deep at its deepest point. The grave was not discovered until Wednesday, 15 August 2007.
After a lengthy police investigation, the respondent was finally charged on 8 December 2010 with having wilfully murdered his wife. The charge was brought under s 278 of the Criminal Code (WA) (the Code). He was also charged, in the alternative, with manslaughter, contrary to s 280 of the Code.
The provisions of the Code governing unlawful homicide have since been amended, but as at August 2007 were in the following terms:
277.Unlawful homicide
Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be wilful murder, murder, manslaughter or infanticide.
278.'Wilful murder', definition of
Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder.
279.'Murder', definition of
Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -
(1)If the offender intends to do to the person killed or to some other person some grievous bodily harm;
…
is guilty of murder.
In the first case it is immaterial that the offender did not intend to hurt the particular person who is killed.
…
280.'Manslaughter', definition of
A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter.
Murder, as defined by s 279, was not charged on the indictment, nor was it listed in s 278 as an alternative offence as defined by s 10B of the Code. Consequently, pursuant to s 10A of the Code, murder was not available as an alternative verdict at trial.
The proposed grounds of appeal
The State proposed, if granted leave to appeal, to rely upon the following grounds:
1A.The trial judge's finding that the events leading up to 7 August 2007 were capable of supporting a case that, by that time, any motive on the part of the respondent to kill the deceased (if motive had ever existed) was no longer a consideration, was not supported by the facts his Honour found in relation to those events and the respective attitudes of the respondent and the deceased.
1.The trial judge erred in law in failing to apply the principles enunciated in R v Hillier (2007) 228 CLR 618 in relation to the assessment of circumstantial evidence in that his Honour would only consider matters which were suggestive of the respondent's guilt where there was other evidence which proved guilt. In taking that approach, his Honour failed to consider the circumstances as a whole.
2.The trial judge erred in law in finding that the fact that the deceased was attacked at, or in the near vicinity of her house, did not alone establish guilt, for the nature of the circumstantial case was that no fact alone established guilt.
3.The trial judge erred in law in concluding that the finding of the respondent's dinner place card near the burial site did not prove guilt for the significance of that fact was not assessed together with the other circumstances, in particular, it was not assessed together with the accepted fact that the deceased had been attacked at or near her home.
In its written submissions in support of leave, the State indicated that the matters the subject of grounds 2 and 3, although seemingly couched in terms requiring that a verdict of guilty should be substituted, were now to be regarded as merely particulars of ground 1, and if successful, as warranting nothing more than an order for a new trial. Indeed, the State said that those grounds would not be 'separately pursued'.
By reason of the nature of the State's proposed grounds and, in particular, its challenge under ground 1A to a significant finding of fact, it will be necessary to set out the prosecution case, along with his Honour's specific findings, in considerable detail.
The notice of contention
In response to the State's case, the respondent filed what purported to be a notice of contention, seeking to uphold the trial judge's verdict on grounds not relied upon by his Honour. Those grounds were:
1.The trial judge erred in not finding that the vehicle seen and heard by Mr McCreanor on 8 August 2007 at 5.20 am could not be excluded beyond a reasonable doubt as being the deceased's vehicle.
2.The trial judge erred in finding that the deceased returned to [the Rayney home] at about 9.45 pm on 7 August 2007.
3.The trial judge erred in finding that the deceased was attacked at [the Rayney home] or within the near vicinity.
We note at this point that Mr Walker SC, who appeared for the respondent on the appeal (though not at the trial itself), acknowledged that there was a real issue as to whether the notice of contention procedure, often utilised in civil appeals, was available in the context of a criminal appeal, and more specifically, an appeal from an acquittal in a judge alone trial.
The issue is of some importance, so far as this appeal is concerned. That is because, curiously, the legislation allowing for prosecution appeals against acquittal in judge alone trials enables the respondent to invoke what is generally termed the 'proviso'. We will consider later in these reasons whether, in a case such as the present, the 'proviso' subsumes the notice of contention procedure.
Background facts
Mr and Mrs Rayney were married in 1990. They lived for many years in Monash Avenue, Como. There, they raised their two children: Caitlyn, born in 1994; and Sarah, born in 1997.
The respondent was, as at August 2007, working as a barrister. He had previously occupied a number of roles in the law, primarily as a prosecutor. He had worked in the Office of the Commonwealth Director of Public Prosecutions in 1988 and 1989. He then took up a position with the Western Australian Crown Solicitor's Office. He worked in that role until 1992, when he was appointed a prosecutor with the Western Australian Office of the Director of Public Prosecutions. In 2003, he accepted a position as Senior Crown Counsel at the Office of the Director of Public Prosecutions in Bermuda. It was shortly after his return from Bermuda in June 2004 that he went to the private Bar. Mrs Rayney did not accompany her husband to Bermuda.
Mrs Rayney, too, worked in the law. As at August 2007, she was employed as a Registrar at the Supreme Court of Western Australia.
A number of witnesses gave evidence, at the trial, both as to the personalities of the respondent and the deceased, and as to the nature of their relationship. It is sufficient for present purposes to refer to three such witnesses only.
Ms Raelene Johnston is the respondent's sister. The substance of her evidence in relation to the respondent, as summarised by the trial judge, was that he was a 'quiet and measured person' [39]. She said that the respondent was not an angry man, and that it would be quite unusual for him even to raise his voice (ts 2805). She described the deceased as a 'very strong woman emotionally'. In her statement dated 11 August 2007, which was tendered at the trial, Ms Johnston said:
She [Mrs Rayney] is very controlled in everything that she says and does. She plays to her audience and knows what to say to certain people. She can adapt her style to suit different groups of friends and relative[s]… I know that she is a very determined person.
During cross‑examination, Ms Johnson added that Mrs Rayney 'used to exaggerate', use 'hyperboles', and make 'outlandish statements' (ts 2844).
Mrs Sharon Coutinho, the deceased's sister, also gave evidence regarding the relationship between the respondent and his wife. She described him as 'a quiet person' who 'didn't really get involved' (ts 2447). Her evidence as to the deceased's personality was similar to that given by Ms Johnston. Mrs Coutinho said that Mrs Rayney
was a very strong person, very opinionated, very thorough in everything she did, very family orientated, did everything for her kids (ts 2446).
Mrs Coutinho's husband, Mr Rohan Coutinho, also gave evidence on this subject. He described the deceased as 'pretty tough' and 'hardnosed', and added that she 'never held back her feelings' (ts 2497). He said that the respondent had a 'kind of a dual personality'. He described him as 'a bit of a charmer in public', and recalled an occasion on which he had been to a cocktail night during which the respondent had 'really worked the room'. In contrast, Mr Coutinho referred to a 'reserved' side to the respondent. He added that the respondent 'had the demeanour of … a person who had a very important position at the DPP' and that he 'was very guarded about his reputation' (ts 2497).
The evidence made clear, and the trial judge found, that relations between the respondent and his wife had been deteriorating for some time, and by about the middle of 2007, the marriage had irretrievably broken down.
The State's case
The case against the respondent was entirely circumstantial, both as to how the deceased met her end, and as to who was responsible. It was the State's case at all times that the respondent had acted alone, and had himself physically attacked the deceased.
In broad terms, the State contended that the respondent attacked his wife within minutes of her return home from boot‑scooting at about 9.45 pm. On the State's construction of events, he then secreted her body, possibly at the side of the house, because he anticipated Caitlyn's imminent return from a concert that she had attended earlier that evening.
The State argued that at around midnight, after his daughters were both asleep, the respondent retrieved his wife's body and placed it in the back seat of her car. He then drove to a secluded area within Kings Park. There, according to the State, he dug a shallow grave and buried her. Although he had intended to dispose of his wife's car, he had accidentally reversed over a bollard which blocked the entrance to the track off which he had dug the grave. This had caused damage to the sump of the car such that transmission oil leaked from it, and it soon became inoperable. The State argued that he was therefore forced to abandon the car some distance from Kings Park, in Kershaw Street, Subiaco. Left without any means of transport, he then returned to the Monash Avenue property by foot, a distance of about 7.8 km.
The State's case, as conducted at trial, had six central features. These were:
(a)By August 2007, the relationship between Mr Rayney and his wife had irretrievably broken down. Together with the fact that a meeting had been arranged for Tuesday night, 7 August 2007, and was regarded by Mrs Rayney as the 'deadline' for him to provide the financial records that she had been seeking, it followed that he had a powerful motive to kill her;
(b)The murder was cold‑blooded and had been carefully planned. It was not a spur of the moment killing;
(c)Mrs Rayney was attacked at her home, shortly after she returned from boot‑scooting, at a time when Mr Rayney was also present at the house;
(d)Mr Rayney could be linked by a place card bearing his name, and a handkerchief, to the Kings Park gravesite;
(e)The deceased's car was abandoned at a time which would have allowed Mr Rayney to make his way home before his daughters awoke; and
(f)Mr Rayney's conduct on 8 August 2007, and in the following months, was indicative of a consciousness of guilt on his part of having murdered his wife.[3]
[3] In its closing address, the State identified 'four main features' of the prosecution case. These were (i) the fact that the marriage between the deceased and the accused was bad, and had broken down; (ii) that the meeting arranged for Tuesday night 7 August 2007 involved a 'deadline' for the provision of financial records; (iii) the fact that the deceased returned home from boot-scooting, as arranged; and (iv) the combination of these factors together with post-offence conduct demonstrating consciousness of guilt established that it was the respondent who had killed his wife (ts 4031 - 4033).
The State contended that these factors, in combination, should be viewed as part of a chain of reasoning that left only one conclusion reasonably open, namely that the respondent had caused his wife's death. In other words, if one accepted that the deceased was attacked at her home, that fact, in combination with motive and everything that occurred thereafter, meant that the respondent was guilty of wilful murder.
We shall deal separately with each of these six 'strands' of the State's case in some detail, before turning to the submission, embodied in ground 1, that the trial judge did not, in the final analysis, consider them in their entirety.
We shall also consider, at this point, a number of features of the evidence led below which the defence argued pointed to someone other than the respondent having killed the deceased.
A. Motive to kill
As noted above, the evidence showed quite clearly that the respondent and the deceased were experiencing serious marital difficulties in the period leading up to her death. A substantial body of evidence was led in relation to this matter, from which the State ultimately sought to have the trial judge infer that, as at 7 August 2007, the respondent had a powerful motive to kill his wife.
Events prior to 2005
Mrs Coutinho's evidence as to the relationship between her sister and the respondent was that, for at least 10 years prior to her death, the deceased had complained to her about the relationship, and was 'not very happy' (ts 2447). She added that she noticed a positive change in the deceased's demeanour while the respondent was in Bermuda.[4]
[4] Mrs Coutinho's observations on this matter were supported by Ms Judith Hickey‑Janes, a friend of the deceased who said that she 'blossomed' when Mr Rayney went to Bermuda.
Further, and also prior to the respondent's move to Bermuda in 2003, the deceased had told her father that she did not trust her husband with respect to financial matters. She told him that there were financial problems [53].
There was also evidence that, early in 2000, the respondent had entered into a relationship with a woman with whom he shared an interest in gambling. That relationship continued until a few months before the respondent moved to Bermuda. The trial judge considered that the respondent's behaviour in that regard was direct evidence 'from which an inference could be drawn that he was not happy in the marriage' [49].
We interpolate that the evidence showed that, over the 10 years from 1997 to 2007, the respondent had gambled away $115,660.35.
Events during 2005 - 2006
There was scant evidence as to the history of the relationship throughout 2005 ‑ 2006. The general tenor of the evidence was that there were no signs of any significant matrimonial difficulties [61]. The respondent's personal assistant, Ms Shari Paradise, had, however, by 2006 formed the view that there were difficulties in the marriage. She said that she put her view to the respondent, and he had replied that she was 'quite observant' (ts 527).
Events from January 2007 to 7 August 2007
The trial judge set out, in considerable detail, the evidence bearing upon the relationship between the respondent and the deceased throughout this period. The following section of these reasons is intended to provide a summary of that evidence, and his Honour's conclusions.
By January 2007, the respondent had told his father-in-law that there were marital problems, and that his wife no longer loved him [62].
In April 2007, the respondent and the deceased travelled to Bali in a plane chartered by a client. They shared a villa, and appeared to be happy during that trip [63].
The deceased's attitude towards the respondent, as at mid‑2007, was disclosed in conversations she had with her father, and with Mr and Mrs Coutinho throughout the last six months or so of her life. The trial judge summarised the main features of Mr and Mrs Coutinho's evidence as to the contents of these conversations as follows:
[T]he deceased spoke to both her sister and brother-in-law and disclosed anger about the accused's gambling, infidelity and failure to provide her with his financial information. In relation to not being given access to the financial information despite repeated requests, Mrs Coutinho said the deceased was 'fuming'. The deceased made it plain to both Mr and Mrs Coutinho that she was gathering information to use against the deceased in court proceedings. Mr Coutinho spoke of an occasion when the deceased told them and her father that she intended to divorce the accused which, given Mr Da Silva's strong faith and belief that couples should work on their marriage rather than divorce, was a difficult occasion for the deceased [66].
In July 2007, the deceased told her father that she had asked the respondent to move out of their bedroom, and added that she had set up a separate room for him (ts 211).
There was also evidence as to the respondent's state of mind throughout this period. For example, Ms Linda Black, a barrister, and friend of the respondent, gave evidence that in mid‑2007 the respondent seemed a little 'down' (ts 2431).
A significant portion of the evidence on the state of the relationship between the respondent and the deceased comprised emails that had passed between them. A number of these emails were set out in full in the trial judge's reasons. It is sufficient, for present purposes, to note the recurring theme of the deceased's attempts to have the respondent provide her with his financial information.
During May 2007, the deceased sent a number of emails requesting such information. She spoke of joint finances and accountability, and the need to discuss financial matters with the family accountant.
On 7 June 2007, the deceased sent an email to the respondent saying that she was still waiting for him to provide his financial information. She said that she was seeking that information to 'protect hard earned assets for the sake of the family'. She sent further emails on 7 June 2007, in which she asserted that the respondent's secrecy did 'not speak of jointly run finances'.
To put these email exchanges into context, we note that, on 8 June 2007, the deceased met with the family accountant, Mr Peter Bodycoat. Mr Bodycoat said that that particular meeting took about 30 minutes. The deceased told him that the respondent had a gambling problem, and that she considered his gambling to be a breach of trust. She added that now that her husband was at the private Bar and earning significantly more money, she wanted to know what he was doing with it. She also told Mr Bodycoat of her suspicions that her husband was having an affair.
Mr Bodycoat met with the respondent on 18 June 2007. During that meeting, he told Mr Bodycoat that he did not intend to provide the deceased with the financial information that she was seeking, without explaining why. Mr Bodycoat discussed with the respondent the possibility that he deposit money into an account for the deceased. The respondent did not reject this proposal. Later in their conversation, the respondent said that he felt the deceased did not love him, and had only stayed with him for his money.
On 20 June 2007, the deceased sent another email to the respondent about financial matters. The trial judge observed that, in this email, she 'hinted' at the possibility of court proceedings, which would be professionally damaging to the respondent [94]. The respondent replied on that day, requesting her 'not to continue to misrepresent matters', and referred to her 'repeated efforts and threats to damage [his] career', which he described as 'disturbing' [94].
The following day, the deceased sent a further email in which she said that she would 'access [the financial information] by whatever means are available'. She then said that the respondent was either to provide full disclosure of financial information for the 2006‑2007 financial year, or she would make an application to the Family Court for the provision of that information, and the sale of all joint assets, with equal distribution of the proceeds.
On 22 June 2007, the respondent emailed the deceased stating that he had agreed to provide financial information for the year ending 31 June 2007, but that he had only agreed to do so because of her 'threats' to issue proceedings, and to damage him professionally.
The acrimonious email exchange continued over the following days. On 23 June 2007, the deceased asserted that the respondent was 'sly and evasive, and unable to be trusted'.
On 25 June 2007, acting on the advice of a barrister who specialised in family law, the deceased moved a bed into the study for the respondent to use, and sent him an email which said that due to his 'deceitfulness' he was no longer to sleep in the same room as her. She also referred, in that email, to the respondent having slept in the same bed as their children.
In that regard, we note that the respondent telephoned a work colleague and friend, Ms Clare O'Brien, in either late June or early July 2007, and told her that his wife had been saying things about him which were not true, such as that he had been sleeping in his daughters' beds at night. He asked Ms O'Brien if she thought there was an explanation for his wife's allegations. She replied that it looked as though the deceased was attempting to set up an email trail to put pressure on him in relation to divorce proceedings. In this context, the trial judge was satisfied that 'the [respondent] took very seriously the possibility that the deceased might make allegations about his behaviour which would threaten his legal career' [123].
The trial judge summarised the evidence as to how matters stood at the end of June 2007, and in the first few days of July 2007, as follows:
The end of June and the first few days of July 2007 were marked by a number of emails from the deceased to the accused which reflect a growing frustration and bitterness on the part of the deceased. She expressed a belief that the accused would drag matters out as long as possible and that it would be a 'bitter battle'. The emails also reflect her determined attitude that she 'could never' have the accused back and that she thought he was concealing gambling losses [136].
During early July 2007, the deceased told several witnesses that the respondent was gambling, and was desperate to avoid having his finances revealed. She told a friend that it would be 'torture' for the respondent 'not knowing who knows what'. Her state of mind was clearly revealed in an email to her sister of 6 July 2007, in which she said the respondent was 'the most intolerably, lazy, dirty, wasteful, manipulative, incompetent and deceitful person [she had] ever come across'.
Also on 6 July 2007, the respondent's solicitors sent an email to the deceased's solicitors, stating that the respondent would collate the financial information necessary to provide financial disclosure and provide it to the deceased 'in a timely way'.
On 9 July 2007, the deceased sent an email to the Commonwealth Bank advising that she and the respondent had been separated as from 25 June 2007. The Bank then sent the respondent an email noting the separation. He replied on 11 July 2007 that he had not notified the Bank of a separation, but did not deny that that had occurred.
Email exchanges between the respondent and the deceased continued throughout mid‑July 2007. In the trial judge's words, they 'reflect[ed] ongoing disagreements and strong ill feeling' [162].
On 13 July 2007, the respondent again met with Ms O'Brien. He told her that he had given up trying to salvage the marriage, and that he hated his wife - a matter to which we will return.
We note that, during this meeting with Ms O'Brien, the respondent asked her about home security or home surveillance. The trial judge found that this enquiry 'began the process which put the accused in touch with the friend of Ms O'Brien's brother, Mr Timothy Pearson, who installed telecommunications recording equipment at Como' [174]. We will return to this aspect of the evidence later in our reasons.
The following day, the respondent sent the deceased an email, which again referred to the topic of him having slept in his daughter's bedroom. He wrote: '[y]our thinly veiled insinuation disgusts me. How dare you' [173].
On 27 July 2007, the respondent had dinner with Ms Maria Soares, a friend of the family, and her husband, while the deceased was in Melbourne with Caitlyn and Sarah for the weekend. The respondent said that he was still hopeful of a reconciliation between himself and his wife. On 29 July, the respondent rang Ms Soares and asked whether she and her husband could facilitate such a reconciliation by acting as mediators.
The trial judge summarised matters as they stood at the beginning of August 2007 in the following way:
By August 2007 it was well known within the accused's family that the marriage had irretrievably broken down. The accused had informed his family that he and the deceased would be separating and he told Ms Johnston that she was free to tell people about the separation. Ms Johnston said that although the accused resisted separation in the early stages, by August 2007 he was resigned to the fact that the marriage had broken down and a separation would occur. To Ms Johnston, the accused was sad about the fact that the marriage was irretrievable and sad for the welfare of the girls because their parents would be separated. He wanted to be involved in the lives of the girls as much as he could [227].
The trial judge found that, by this time, the respondent's attitude to the separation, and to the resolution of issues between himself and the deceased, had changed [229]. In support of that conclusion, he referred to the evidence of Ms Johnston that, in early August 2007, the respondent had told her that he was 'happy with the legal advice that he was getting and he was following that' and that he and Mrs Rayney 'were both accepting of the fact that this was going to be resolved … [i]t was in the hands of lawyers and it would proceed' (ts 2819).
The trial judge also relied, in this regard, upon the evidence of Mr William Carr, the solicitor advising the respondent in the matrimonial dispute. Mr Carr said that the respondent appeared 'disappointed' that the marriage had ended as it had, but that he appeared to accept that he would have to provide full and frank disclosure, following separation.
The deceased's state of mind at this time is apparent from an email that she sent her solicitor, Ms Gillian Anderson, on 3 August 2007. Among other matters, she said that she was 'not prepared to be on the back foot anymore' in her dealings with the respondent, and that 'he [the respondent] needs to feel the heat'. She also asserted that the respondent had openly had an affair, and had engaged in 'shameless womanising' while in Bermuda. She added that he had been 'less than honest over many years'.
On 4 August 2007, the deceased discussed matters with a longstanding friend, Ms Janine Gillett. She told Ms Gillett that she thought the respondent was gambling again, and that he had been involved with other women. She added that the respondent wanted to be appointed silk, and that she would 'do everything in her power to see that he didn't get it'.[5] During this conversation, the deceased appeared to Ms Gillett to be 'very angry'. Ms Soares' evidence, however, was that the deceased appeared 'really happy and bubbly' on that same day.[6]
[5] Exhibit 337, statement of Ms Janine Gillett, dated 15 December 2009, 3.
[6] Exhibit 329, statement of Ms Maria Soares, dated 4 October 2007, 5.
On 5 August 2007, the deceased appeared 'very happy and upbeat' at a children's soccer game. She told a friend that she had decided to change to a male lawyer who was 'tougher' [225].
On 6 August 2007, the deceased again emailed Ms Anderson. Among other matters, she said that the respondent '[was] feeling the pressure and wanted to talk to me this morning'. She added that he 'may be getting his head around the idea of moving out', and that '[t]he word "subpoena" seems to have had tremendous impact'.
On that same day, the deceased spoke with another friend, Ms Julie Porter. She told Ms Porter that she was going to tell people about the respondent's gambling, and that she had threatened to subpoena all of his clients to find out what they had paid him. She said that the respondent had told her that he would provide the information to her by the following Wednesday or Thursday (namely 8 or 9 August 2007), but that she had told him that if she was not satisfied with the financial disclosure by Tuesday, then she would send out subpoenas on Thursday.[7] She said that the respondent had then asked her not to do that, and assured her that he would have all the information for her by Tuesday night.
[7] Exhibit 323, statement of Ms Julie Porter, dated 17 July 2008, 9 - 10. The deceased did not tell Ms Porter why, specifically, she chose Thursday as the date on which the subpoenas would be issued.
On 7 August 2007, the deceased spoke to various people, including Ms Porter, and told them that the respondent wanted to discuss matters at 9.30 pm that night.
(iv) Summary of the relationship evidence
What emerges from this history is that the deceased sought access, over a lengthy period, to the respondent's financial records. What also emerges is that the respondent believed that his wife was prepared to embarrass him professionally, and that she was willing to use her position as a Registrar of the Supreme Court for that purpose.
The trial judge ultimately found that by July 2007, at the latest, 'the accused knew that the marriage had irretrievably broken down'. He added that 'the deceased had reached that point significantly earlier in 2007' [67].
Having considered the relationship evidence, his Honour made a number of findings which appear at [318]. These findings are set out later in our reasons at [535].
B. Pre‑planning
Closely related to the proposition that the respondent had a powerful motive to kill his wife was the State's contention that her murder had been carefully planned, and was accordingly premeditated.
The State did not have to limit its case in that way. It chose to do so. Right at the outset of the trial Mr Agius QC, who appeared as prosecutor, made it clear that the State's case should be seen primarily as one of premeditated murder, with the planning having extended over perhaps several days.
So much is apparent from Mr Agius' opening address:
[T]here is some evidence that the accused may have been planning to kill his wife from as early as 5 August 2007 (ts 150).
…
We have charged wilful murder on the basis that it is our case that this was a deliberate murder (ts 189).
…
The first [possible circumstance] was the death was premeditated in the sense that it was planned for the evening in question (ts 190).[8]
…
The injuries that we point to are head injuries which of themselves bespeak of concussion and the lack of an opportunity to respond. And it's because of the very nature of the head injuries that we would argue that this is likely to have been a planned murder, a murder which disabled her capacity to respond immediately, that disabled her ability to scream or prevaricate or to defend herself in any way and for that reason it was planned and that as soon as possible she was struck when she was unknowing, murdered and put out of the way. Time was an imperative and stopping her from making noise was an imperative. And that is part of our argument, that this was a planned murder (ts 191).
[8] Mr Agius also raised the issue of premeditation when he posited, as one possible circumstance whereby the place card bearing Mr Rayney's name was left near the gravesite, that it had been dropped by Mr Rayney while he was there to 'scope the task of locating [the deceased's] burial site' (ts 133).
Mr Agius did refer, in passing, to the possibility that, rather than being a planned murder, this might have been a spontaneous killing. So much appears from another part of his opening:
The second [possible circumstance] is that the murder was not specifically planned but occurred during the course of an argument that erupted during the meeting (ts 190).
…
The alternative argument is still an argument that leads to conviction for murder, and that is that if during their confrontation at home that night it had become apparent to Corryn that he was not going to provide whatever it was that he'd promised he would provide, then it was likely that there would be a significant confrontation and that that could lead to physical assault (ts 192).
It can be seen that Mr Agius only faintly advanced the alternative scenario of a spontaneous attack in his opening. By the time closing submissions came to be made, this alternative possibility was no longer pressed. The case had become one of premeditated murder, or nothing. Mr Jackson QC, who appeared for the State on the appeal, very properly conceded that this was so (appeal ts 15).
Mr Jackson proffered the following explanation as to why the State may have chosen to proceed upon the narrow basis that this was a planned killing. He pointed to the fact that the grave in which the deceased was buried must have been dug with the use of a shovel, or similar implement. Whoever dug the grave must have had the foresight to bring such an implement with them, whether before attacking the deceased, or en route to Kings Park. Despite the most extensive of police searches, no such implement was ever located.
The evidence was that the deceased had lent a neighbour certain 'gardening tools' (including a 'couple of shovels') that were usually kept at the Monash Avenue property. As at 7 August 2007, these had not been returned (ts 844, 2554). In addition, there was evidence that Tuesday 7 August 2007 was 'bin night' on Kershaw Street. Mr Agius suggested, for that reason, that the shovel might have been thrown away by whoever attacked the deceased, and that this would explain the failure to account for it (ts 119).
On any view, however, the State did 'nail its colours to the mast', and conduct the trial on the basis that this was a planned execution. Indeed, Mr Jackson added that the State case was 'murder or nothing really' (appeal ts 16). As Mr Agius had done, he disavowed any reliance upon the alternative verdict of manslaughter.
Mr Agius obviously appreciated that the decision to run the case on the basis that it involved a planned killing faced certain significant difficulties. In his opening, he sought to confront those difficulties directly. He said:
It may be said against us that if the accused planned to kill his wife it's unlikely that he would have done so in the circumstances where one child was asleep upstairs and another child was expected home some time later that evening. That's an obvious argument that one must expect in this case (ts 190).[9]
[9] Mr Agius, somewhat unconvincingly it might be thought, advanced an argument to the effect that 'part of [Mr Rayney's] alibi' would be that it would be an 'unlikely time for him to commit the murder' when a child was present in the house (ts 191).
To illustrate just how much of a problem the idea that this had been a premeditated killing presented for the State, it is useful to refer to the evidence bearing specifically upon this issue led at trial.
It will be remembered that the State's case was that the respondent had attacked his wife at the family home in Monash Avenue. On that premise, he had tucked his younger daughter, Sarah, into bed at approximately 9.00 pm, about three quarters of an hour before the deceased was expected home from boot‑scooting. His elder daughter, Caitlyn, had gone to a concert with school friends. She had been taken to the concert by Ms Shana Russell, a friend of the deceased's. The State's case depended upon there having been a sufficient interval following the deceased's return at about 9.45 pm, and Caitlyn's return from the concert, for the respondent to have killed his wife after she came home from boot-scooting, and to have concealed her body, temporarily, somewhere nearby.
For obvious reasons, Mr Agius did not suggest that the respondent would have embarked upon a plan to murder his wife after Caitlyn had returned from the concert. As Mr Edwardson QC, who appeared for the respondent at trial, (and with Mr Walker on the appeal) noted, it would have been highly unlikely for him to have proceeded with his plan to murder his wife if Caitlyn might, literally at any moment, have returned home from the concert. For that reason, Ms Russell's evidence as to the timing of the concert, and when she expected to have Caitlyn home, assumed very great significance in the trial.
On 30 January 2009, some 18 months or so after the attack upon the deceased, Ms Russell signed a written statement which was tendered at trial. She said that after she arrived at Monash Avenue to collect Caitlyn, she had sat for a time at the dining room table and spoken with the respondent. She had left Monash Avenue at about 7.15 pm, with Caitlyn, and two of Caitlyn's friends (one of whom was Ms Russell's daughter). Importantly, she said that she had been told that the concert was 'meant to finish' between 10.00 pm and 10.15 pm, and that she had returned Caitlyn to Monash Avenue at some time between 10.40 pm and 11.00 pm.
Ms Russell in her statement, made no mention of having told the respondent what time the concert would be likely to have ended. Matters became complicated when, although she initially confirmed, in her oral evidence, that the contents of that statement were true and correct (ts 2877), she went on, under cross‑examination, to give a fuller account of events.
The transcript reveals the following exchange between Mr Edwardson and Ms Russell:
And before you went to that concert you had an understanding, didn't you, that the concert was to finish at about 9.30---Yes, somewhere round there.
And can I suggest to you that before you left with the girls, Lloyd specifically asked you what time it would end and you told him about 9.30---Yes.
That occurred though before, as we see in paragraph 72, you actually contacting the Holiday Inn at approximately 8 or 8.30 to find out when in fact the concert would end---Yes. If they had a better idea.
Right. And you were told, weren't you, that it was going to start later; therefore, it would finish about 10.15 and 10.30---Yes.
But you didn't convey that update about the timing of the end of the concert back to Lloyd Rayney, did you---No (ts 2885).
Junior counsel for the State, who had the carriage of this witness, chose not to re‑examine Ms Russell regarding the answers that she gave to Mr Edwardson in cross‑examination. That was so despite the fact that those answers were potentially extremely damaging to the State's case. The issue of what weight, if any, should be accorded to Ms Russell's evidence was therefore never fully explored.
Mr Agius, in his closing address, acknowledged that Ms Russell had not been re-examined on this issue (ts 4115), but offered no explanation. He sought, nonetheless, to rely upon her written statement, in preference to the answers given in cross‑examination. He submitted that the trial judge should entirely reject her account of having told the respondent that the concert was expected to finish at about 9.30 pm. He provided no justification for that submission, save, implicitly, that her answers went beyond what she had initially said in her statement. He obviously appreciated the damage that those answers might do to the State's case, insofar as it was one of planned and premeditated murder.
Mr Edwardson, on the other hand, submitted that the trial judge could not exclude, as a reasonable possibility, that Ms Russell had told the respondent, as she said in evidence, that the concert was expected to finish at about 9.30 pm. He added that the likelihood that she had done so was enhanced by Caitlyn's evidence to the effect that it was her understanding, on the day in question, that the concert was to finish at about that time.
Caitlyn's evidence was also potentially damaging to the State's case in another respect. According to Caitlyn, she had asked her parents for permission to attend the concert. Her mother had said that she could go, but only if her father also agreed. She said that the respondent gave permission 'reluctantly', and only on the basis that Ms Russell had told him that the concert would finish at about 9.30 pm (ts 2956). Indeed, according to Caitlyn, it was a condition of her being permitted to attend the concert that it be over at about that time.
Of critical importance was Caitlyn's evidence that the respondent had refused her permission to stay over at her friend's house after the concert because it was a school night (ts 2956).
Mr Edwardson submitted that the effect of Caitlyn's evidence was to put an end to any realistic suggestion that the deceased's murder had been premeditated. It 'beggars belief', he argued, that the respondent would 'plan and consider executing his wife in the home that he occupied with his two children' (ts 4149), particularly so, when both his daughters were home, and one, at least, was likely to have been awake.
The trial judge addressed the question of premeditation, and the effect of Ms Russell's evidence, in his reasons for judgment. He said:
In acceding to the time of 9.30 pm [in cross-examination] Ms Russell was relying on her memory. Even her statement is dated over two years after the events. I do not know with any certainty what time Ms Russell gave to the accused, but it is at least a reasonable possibility that it was 9.30 pm [290].
His Honour went on to say:
[I]f the accused planned to commit the crime at home, when Caitlyn asked during the previous evening if she could go to the concert on the night when the accused had planned to kill the deceased and stay over at the Russell's, it might have been expected that he would have jumped at the opportunity to have her out of the house all night. Instead, the accused insisted that Caitlyn come home after the concert and do her homework. In this way, on the State case the accused deliberately limited his opportunity to commit the 'perfect' crime to about an hour at the most. He also knowingly and unnecessarily created the need to hide both the deceased's car and her body until Caitlyn went to sleep [1541].
It is important to note that the trial judge did not, as Mr Agius submitted he should, reject the evidence given by Ms Russell in cross‑examination. It was not submitted before us that his Honour had been bound to do so. Nor, for that matter, did he reject Caitlyn's account of the circumstances surrounding her being permitted to attend the concert (although he had some doubts as to other aspects of her testimony).
Accordingly, one of the lynchpins of the State's case, namely that the respondent had planned for some time to murder his wife, was undermined, at least to some degree, by the evidence given by two witnesses whose testimony his Honour was entitled to accept.
C. Establishing that the deceased was attacked at home
It was a key aspect of the State's case that the deceased was attacked at Monash Avenue. Indeed, the trial judge described proof of that matter as an 'essential step in the chain of evidence upon which the State relies to prove guilt' [1552].
The evidence regarding the place where the attack occurred can broadly be divided into two categories:
(i)evidence tending to establish that the deceased returned home following boot-scooting in Bentley; and
(ii)forensic evidence that connected the deceased to the Monash Avenue property, and established that certain 'artefacts' had attached to her body in such a way that suggested she had been rendered immobile at that address.
Did the deceased return home after boot-scooting?
The first proposition - that the deceased returned home after boot‑scooting - was strongly challenged by the defence. By way of background to that challenge, it is useful to refer to Caitlyn's evidence that her mother would, on occasion, not come home directly from boot‑scooting. Caitlyn said:
Sometimes she would go out [after boot‑scooting]. Not often, but sometimes she might meet people to have a chat with them and that sort of thing. Yeah, it - it wasn't particularly often, but it did happen. And otherwise, especially, say, on a Thursday night, she used to come home. Because I would be watching The Footy Show, and she used to watch that with me sometimes. But that was normally on a Thursday (ts 2954).
The defence case regarding this matter was based in large part upon the evidence of Senior Constable Darrel McLeod, and features as one of the aspects of the notice of contention. Senior Constable McLeod provided a written statement to police on 19 September 2007, in which he said, relevantly:
On this particular evening [7 August 2007] I remember seeing a female person who I believe to be the RAYNEY woman who was murdered. I now believe it was RAYNEY because of newspaper and television news bulletins I had seen after this night.
…
I am unsure of the exact time however it would have been at one of two time slots. It was either at around 9.25 pm or between 10.40 to 11.30 pm.
…
[T]he location I saw her [given a 9.25 pm timeframe] would be on Albany Highway between the corner of Rushton Street and McMillan Street, Victoria Park.
…
[T]he location [given the later time frame]… would be on Albany Highway between Rushton Street and Mint Street, Victoria Park
…
The female I observed and now think may have been Mrs RAYNEY was dark skinned, Indian/Pakistani looking wearing black knee high boots with a 3 to 4 inch heels [sic]. She wore tight jeans or dark pants which were tucked into her boots and a brown long sleeve cowboy shirt with tassels.
…
She was with two other people, a male and a female.
…
It appeared they had just come from a coffee shop, restaurant or a bar because there was a lot of activity in the area where they were. It wasn't a quiet area and I just got the impression that the group had just left somewhere.
Plainly, if Senior Constable McLeod's evidence were to be accepted, the State's case against the respondent would have fallen away entirely. Mr Agius therefore sought to discredit this purported sighting. He referred first to the difficulties associated with identification evidence generally. He then noted that, as Senior Constable McLeod was driving at the time, he must, inevitably, have been distracted.
Mr Agius also submitted that Senior Constable McLeod's description did not fit that of the deceased in several key respects. In his statement, he described the person he saw as having her jeans or pants 'tucked into her boots'. That description did not accord with evidence as to Mrs Rayney's dress given by others who had attended the boot‑scooting class that night. Further, his description of the person he saw as wearing 'black knee high boots' was significantly at odds with the known fact that the deceased's boots were 'calf height' [335].
Despite these difficulties, Mr Edwardson submitted that Senior Constable McLeod's description had been detailed, was credible, and ought to be accepted. It showed that the deceased, rather than going straight home from boot‑scooting, had instead gone to Victoria Park, where she was seen in the company of others. At the very least, Mr Edwardson submitted, it meant that the trial judge could not 'be satisfied beyond reasonable doubt that [the deceased] came home' (ts 4175).
The trial judge ultimately concluded that when the deceased left boot‑scooting she fully intended to go home at once. He noted that while the deceased occasionally went out after boot-scooting, this was 'not a common occurrence' [342].
His Honour rejected Senior Constable McLeod's purported sighting of Mrs Rayney. After referring to the evidence given by others who attended boot‑scooting that night as to what the deceased was wearing, he said:
Identification in the circumstances under consideration is a notoriously difficult area of evidence in the criminal court. Mr McLeod was driving a motor vehicle and had only a very short opportunity to view the three persons to whom his attention was drawn. Those persons were together in an area of activity under less than ideal lighting conditions at night. A photograph of the deceased and her description had received significant publicity. Honest witnesses like Mr McLeod make mistakes [338].
The question of the deceased's movements after boot‑scooting was also addressed at trial through evidence of the odometer reading on her car when it was discovered in Kershaw Street, and the same reading at the time the car was refuelled at 1.00 pm on 5 August 2007. During that period, it appeared that the car had travelled some 158 km. The difficulty with that reading, from the State's perspective, was that Detective Sergeant Keith Williams had endeavoured to retrace the movements of Mrs Rayney's vehicle after it had refuelled, by tracking receipts for purchases and other evidence as to where the deceased had driven. He calculated that she had travelled 148.7 km during the relevant period. An analyst employed by the Western Australian Police arrived at a nearly identical figure.
In closing argument, Mr Edwardson sought to emphasise the 9 km discrepancy that apparently existed between the odometer figure and that calculated by Detective Sergeant Williams. He submitted that this was in fact explicable on the basis that the deceased had driven from boot‑scooting to Victoria Park, thereby confirming Senior Constable McLeod's apparent sighting.
Mr Agius, however, submitted that the reconstruction was not necessarily accurate, being based on the assumption that the route travelled by Detective Sergeant Williams was in fact that taken by the driver of the deceased's car.
The trial judge accepted Mr Agius' submission on this point. His Honour said:
The exercise undertaken by Mr Williams resulted in the failure to account for a small number of kilometres compared with the total distance travelled. Bearing in mind that the additional kilometres could easily have been travelled if the deceased had not taken the shortest route, or the person who drove to Kings Park had taken a longer route, or a combination of both, I have ignored the retracing exercise as too uncertain to be of any useful assistance [347].
As has been observed, there was also evidence to suggest that the respondent and the deceased had agreed to meet on the evening of 7 August 2007. If that were so, it was plainly open to infer that the deceased had in fact gone directly back home after boot‑scooting. The relevant evidence as to her state of mind in that regard was revealed in a series of emails between her and the respondent in the days and weeks preceding her death, and in her comments to, among others, Ms Porter on 7 August 2007.
Another aspect of the evidence bearing upon the deceased's intention to return home immediately after boot‑scooting concerned the discovery of her wallet inside her car, under a towel in the right rear foot well. The trial judge observed that its discovery was 'somewhat of a mystery', given that he had found that the deceased did not take it with her into the Bentley Community Centre on the night in question [1439].
The State submitted that there were two possible explanations for the presence of the wallet in the car. First, the deceased may have arrived home from boot-scooting, retrieved the wallet from the house, and taken it to the car. Second, someone else with access to the house may have picked up the wallet and put it in the car.
In closing submissions, Mr Agius elaborated upon that second alternative. He submitted that the respondent might have
deliberately put the purse into her car before disposing of the deceased's body so as to support a suggestion or an inference that she had returned home after boot-scooting but that she'd gone out again. The accused had no choice but to accept the overwhelming likelihood that many people would know she intended to come home to meet with him after that boot-scooting class. There was no disputing that. He had to embrace it and he embraced it in his explanation speaking about the purse to police, saying it would be unusual for her to take it, knowing that it was in the car, knowing that if and when the car was found, it would be found and that that would be a plank in an argument that he could run, or at least an inference that would be difficult to get over, that she did in fact return home (ts 4042).
Mr Edwardson was highly critical of this submission. He submitted that the finding of the wallet in the car was consistent with the deceased either having plans to go somewhere after boot-scooting, or the view that the wallet was left in the vehicle after the deceased purchased the evening meal.
On the issue of the wallet, the trial judge found that the State's contentions amounted to pure speculation [1444]. With respect, that observation was plainly correct.
Mr Agius also relied in this regard upon the presence of the deceased's black coat on her bed on the morning of 8 August 2007. He submitted that the deceased had worn this coat to boot-scooting, and must therefore have put it on the bed after she returned home.
More than 25 boot‑scooters gave evidence (either in the form of written statements, oral evidence, or a combination of both) regarding the deceased's appearance on the night of 7 August 2007. The trial judge summarised the evidence in some detail. He noted that only two of these witnesses claimed to have seen the deceased with a coat [849]. Ultimately, his Honour was 'far from satisfied' [869] that she had been wearing a coat when she arrived at boot‑scooting. This evidence, therefore, in his Honour's view, went nowhere.
On the issue of the deceased's movements after she left boot‑scooting, the trial judge found that the State had established that she had in fact returned directly home. He said:
I am satisfied that the deceased left the Bentley Community Centre at approximately 9.30 pm. At that time of night, and barring unforeseen impediments, the deceased would have arrived home at about 9.45 pm or a little earlier.
Counsel for the accused suggested that it was 'truly exceptional' that no one saw the deceased outside the boot-scooting hall. I do not agree. The deceased did not talk to anyone as she was leaving and there was no occasion for others to take any notice of what she did or where she had parked. Similarly, I do not regard the deceased's failure to say goodbye as untoward. She was likely to have been preoccupied with the meeting that she thought was about to occur. The CCTV footage is unable to assist because it was focussed in the wrong area.
As I have said, I am satisfied that the deceased and the accused had arranged to meet during the evening of 7 August 2007 after the deceased returned home from boot scooting. I am satisfied that the deceased was very keen to meet with the accused after boot-scooting. In addition, there is no suggestion from the many witnesses at boot-scooting or the numerous friends of the deceased who gave evidence that they knew of any intention on the part of the deceased to go out socialising rather than going straight home. All the indications to friends were to the contrary of that suggestion. Repeatedly during that Tuesday the deceased told her friends she was looking forward to the meeting and this was the tenor of her conversation with Ms Russell at the Tavern late that afternoon.
…
The deceased was not carrying her mobile telephone when she entered the Bentley Community Centre and rarely used it. She was not equipped with the means to make social arrangements by telephone while at boot‑scooting and none of the numerous witnesses suggest that she used a mobile telephone that evening.
There is simply nothing in the evidence to even hint at a change of plan up to the point at which the deceased left boot-scooting at about 9.30 pm. The weight of convincing evidence is entirely the other way.
I am satisfied that when the deceased left the Bentley Community Centre she was intending to travel home [325] - [332].
The forensic evidence
The trial judge's finding that the deceased intended to go directly home after she left the Bentley Community Centre led, ultimately, in conjunction with a significant body of forensic evidence, to the conclusion that she had in fact done so.
As noted above, the State's case was predicated entirely upon the deceased having been attacked at home. To make good that case, the State depended in large measure upon a body of forensic evidence which it submitted showed that certain 'artefacts' had been lodged on the deceased's body and in her clothing, in such a way as to suggest that she had been immobilised at the time these items had attached themselves.
(a) Seed pods
During the post‑mortem on 17 August 2007, two Liquidambar seed pods were found embedded in the deceased's hair. The evidence was that there had been, in August 2007, a large Liquidambar tree growing in the front yard of the Monash Avenue property. While Liquidambar trees are common across suburban Perth, there was only one such tree located in Kings Park. That was about 1.9 km from the burial site. The State submitted that the distance between that tree and the gravesite was such that it could not have been the source of the seed pods found in the deceased's hair.
The trial judge noted the evidence regarding certain of the characteristics of Liquidambar seed pods. His Honour said:
The seed pods grow to about 2 1/2 cm in diameter, perhaps a little smaller than a golf ball. They do not shatter when they fall from the tree. They possess velcro like hooks on the tips of the 'beaks' which are capable of hooking into the fur of animals. In this way the seed pods can become part of the dispersal mechanism. They are prickly and considered undesirable for lawns because the prickles hurt if trodden on in bare feet.
The seed pod capsule itself is too large for birds in and around Perth to pick up and spread by dropping or to digest. They are not prone to be spread far once on the ground or when blown off a tree. It is one of the characteristics of Liquidambar seed pods that they generally shed within the drip line of the tree and do not disperse more than a few metres outside the drip line because they are heavy and do not possess the normal buoyancy structures that wind dispersed material possesses. The same factors apply once the seed pods have hit the ground, particularly if caught in leaf and other litter [1157] - [1158].
The State placed considerable reliance on these two seed pods (exhibited in police records as PAG56, and in the evidence at trial as exhibit 612) in order to demonstrate that the deceased's hair must have come into contact with the ground at the Monash Avenue property.
The defence response was to suggest that the seed pods may have been planted by the police. Mr Edwardson submitted that the trial judge ought to have serious reservations as to whether they had, in fact, been in the deceased's hair when her body was removed from the grave. Of course, the respondent did not positively have to persuade the trial judge that the seed pods had been planted. It would have been sufficient, for his purposes, merely to show that it was reasonably possible that this had occurred (ts 4238).
A great deal of evidence was led as to how the two seed pods came to be located. Significantly, there was in evidence a video of a preliminary examination of the body on the evening of 16 August 2007. Present during that examination were Dr Gerard Cadden, the pathologist who carried out the post‑mortem, Dr Alana Buck, a forensic anthropologist, and a number of police officers. Importantly, the two seed pods (and a third to which we shall shortly return) were not detected during that inspection, a matter Mr Edwardson raised during cross‑examination of Dr Cadden:
MR EDWARDSON: … [O]ne can quite clearly see you going through carefully the scalp of the deceased---That is correct.
As we can see in these stills---The - the footage was played by you.
Yes---Yes.
And you looked at it---Correct.
And you were asked to consider how it could be that you would not have seen or been able to identify three golf ball-sized pods in the hair of the deceased given the way in which you examined her head on 16 August 2007, were you not---I was asked that, yeah.
And there's no doubt when one looks at the footage, is there, that you are literally checking the entire scalp of the deceased---That's correct.
And you're looking to see whether there are any injuries associated with the scalp of the deceased---That's correct.
…
MARTIN AJ: Mr Edwardson was about to suggest to you that there was no way - if the pods had been in the hair on the 16th, that there was no way you could have missed them on the 16th at the preliminary examination. What do you say to that---When one uses the term 'no way'---
Well, that's what - that's how his question started, so I'm - I'm just picking it up------Yes. Yes.
- - - because I interrupted him---Yes.
You - you answer that as best you can---I would find it difficult to accept that I was - having done that that night, I would find it difficult to accept that I was unaware that these items were in her hair. And I - well, I can confirm that I was unaware that they were in her hair until I raked through her hair the following day. So I - the - the - the general premise that it is difficult to miss them, I accept. I - I find that difficult to accept (ts 3436 ‑ 3437).
Mr Edwardson submitted that the inspection of the deceased's body on 16 August 2007 had been anything but cursory. Had the seed pods then been present, they would undoubtedly have been discovered by Dr Cadden as he 'raked' through the deceased's hair. In relation to the suggestion that they may have been planted by police, Mr Edwardson noted Dr Cadden's evidence that he was not constantly present, alongside the body, throughout the post-mortem on 17 August 2007.
Associated with that argument was a general attack by Mr Edwardson regarding the procedure adopted by the police with respect to the PAG56 seed pods. That attack was based largely upon the failure of the police to have had the pods photographed in situ. A senior forensic investigations officer present during the post-mortem gave evidence that she did not consider it necessary to stop Dr Cadden removing the seed pods from the deceased's hair long enough for them to be photographed (ts 720). It was submitted that the failure to photograph the pods in situ did not accord with normal police procedures [1173] - [1174], (AB 1392). Moreover, and to make matters worse, the seed pods had not been photographed next to an evidence label so that they could be properly identified.
In response to this attack upon the integrity of the evidence concerning these seed pods, Mr Agius submitted that it was 'simply irrational and illogical to conclude or even to surmise that the seed pods were introduced by police' (AB 1347). He submitted that, at the time the post-mortem was conducted, the police had 'no idea' what it might reveal as to the identity of the perpetrator. Accordingly, the police would have had nothing to gain by planting Liquidambar seed pods in the deceased's hair. Indeed, Mr Agius went further, and submitted that the evidence clearly established that the police were unaware, as at 17 August 2007, that there even was a Liquidambar tree in the vicinity of the Monash Avenue property. Moreover, the fact that the police had conducted an extensive search for Liquidambar trees around Perth, after the two seed pods were discovered, of itself negated the suggestion that they had been 'planted' in order to implicate the respondent (AB 1347).
The trial judge set out in elaborate detail all of the evidence relating to the discovery of the PAG56 seed pods [1159ff]. After doing so, he rejected the contention that they had been planted by the police [1346]. In support of that conclusion, his Honour, having viewed the video of the preliminary inspection conducted on 16 August 2007, observed that, in his view, Dr Cadden could easily have missed the seed pods during the course of his initial inspection. That was because her hair was 'thick, matted and full of vegetation and soil' [1346].[10] He noted that although photographs of the deceased's hair were taken on the day of the post‑mortem itself (while the seed pods were undoubtedly present), it was not possible, even when those photographs were magnified, to see any sign of the pods [1346].
[10] Mr Walker invited us to view the video for ourselves. We have done so. In our view, the result is inconclusive. We agree with the trial judge that what it shows does not preclude the possibility that the seed pods were in the deceased's hair at the time of the preliminary inspection.
The trial judge accepted the State's submission that Kings Park had not been the source of the two seed pods found during the course of the post‑mortem. He noted, however, that that finding alone did not mean that the Liquidambar tree at Monash Avenue was the actual source of those seed pods [1360]. In order to ascertain more precisely where they came from, his Honour had regard to a substantial body of forensic evidence which had been led by the State.
An important witness for the State was Mr Richard Clarke, a research mineralogist. Mr Clarke examined the seed pods and located substantial amounts of sandy soil containing, amongst other matter, brick particulate, along with various hairs and fibres.
The trial judge set out Mr Clarke's conclusions in the following way:
In the view of Mr Clarke, while the fine fraction associated with the yellow sand from the larger seed pod possessed mineralogical characteristics consistent with a soil sample from Como, those characteristics were inconsistent with the soil from the gravesite area at Kings Park.
As to brick particles, from the soil associated with the seed pods and the exhibit bag Mr Clarke extracted a fragment of brick which, on analysis, he found to possess a mineralogical composition consistent with a sample from one of the groups of bricks at Como [1368] - [1369].
Professor Robert Fitzpatrick, Chief Research Scientist with the Commonwealth Scientific and Industrial Research Organisation (CSIRO), and Mr Mark Raven, another CSIRO employee, also examined the PAG56 seed pods. Mr Raven happened to have had many years' experience in soil mineralogical analysis. Their conclusion, as summarised by the trial judge, was that 'the majority of [the] soils [recovered] fit the classification of man made soils which is the same classification for the soil at Como' [1371]. Further, they found that one fragment of brick which had been recovered 'compared well' with brick samples from one of the Monash Avenue group of bricks.
Mr Peter Collins, an experienced chemist and research officer, was another important witness for the State. Although he had not personally examined the PAG56 seed pods, he had analysed a red paint fragment that had earlier been removed by Mr Clarke. He found that the appearance and composition of the paint fragment corresponded with the appearance and composition of the red top coat from the concrete footsteps to the shed at the side of the Monash Avenue property [1374].
At the conclusion of his reasons, the trial judge found that the PAG56 seed pods came from the Liquidambar tree at the Rayney home. Further, having regard to the nature and character of the pods themselves, he was satisfied that the deceased was 'in difficulty and on the ground when the seed pods became attached to her hair' [1571] - [1572].
A great deal of argument at trial was directed to the discovery of a third seed pod, exhibited in police records as PAG57C, and in evidence at trial as exhibit 613. The State claimed that this third seed pod had been found on 3 December 2007 in the empty body bag into which the deceased's body had originally been placed.
In essence, the State's contention in respect of this third seed pod mirrored that advanced in relation to the two other seed pods previously located. It argued that the third pod also linked the deceased's body to the Monash Avenue property, and showed that she must have been attacked at that location.
Mr Edwardson's argument in respect of the third seed pod also related to its evidentiary integrity. He submitted that this third pod, as well as the other two, must have been planted by police.
The trial judge summarised the difficulty associated with the evidence concerning the third seed pod as follows:
The primary difficulty for the State with respect to this seed pod emanates from the evidence of Dr Cadden, which I accept, that a third seed pod was dislodged at the time he found the two seed pods PAG56. At that time the body bag had already been removed from under the deceased's body and the body was lying on a green sheet. No-one collected a third seed pod as an exhibit at the post-mortem examination and no record was made of the finding of a third seed pod.
The only reasonable possibilities are that the third seed pod fell unnoticed onto the sheet or the floor. If the seed pod fell onto the sheet it could have been collected by technicians when cleaning up, perhaps when the body was removed for washing, and put into the body bag before the body bag was sealed in an exhibit bag. However, if the seed pod fell onto the floor it would have been swept up and placed in the rubbish. In this second situation, either the seed pod found in the body bag in December 2007 was loose in the bag at the time of the post-mortem and was not seen at that time, or there was no seed pod in the body bag and it was later 'planted' in the bag for 'discovery' in December [1292] - [1293].
Mr Edwardson raised a series of questions about the search of the body bag months after the deceased's body had been recovered. The police officers responsible for carrying out that search, Sergeant Natasha Rogers and Senior Constable Michael Lamb, explained that they had been attempting to locate a missing contact lens belonging to the deceased. That explanation, the defence submitted, was unreal and 'gratuitous'.
Ultimately, the trial judge determined that he would not rely upon the third seed pod as establishing any link between the deceased and the Monash Avenue property. His Honour's reasoning was as follows:
The combination of these factors, considered in conjunction with the proven attitude of some investigators to the accused, has led me to have significant doubts about the reliability of the evidence concerning the finding of seed pod PAG57C in the body bag. I cannot make a finding as to how the seed pod came to be in the bag, but the possibilities discussed earlier have not been excluded. In addition, the evidence demonstrates that contamination of the exhibit is a real possibility. My doubts are such that I cannot rely on the evidence concerning the finding of the seed pod in the body bag and, as a consequence, I cannot rely on any of the evidence concerning artefacts in the seed pod. I have put this evidence aside and ignored it [1338].
Both the notice of contention procedure as set out in the Rules, and the 'proviso' as set out in s 33(2a), as applied in this context, go to the 'saving' of an acquittal. Certainly, the matters raised in the notice of contention would all be highly relevant if this Court were to consider whether or not to apply the 'proviso'. The only apparent purpose of the notice of contention procedure would be to spell out arguments which would, in any event, be made during argument on the 'proviso' question. This would be needlessly repetitive, and serve no useful purpose in an appeal of this kind.
In making these observations, we are conscious of the fact that one respondent to the appeal in Burke sought to invoke the notice of contention procedure, and that the Court of Appeal made orders dismissing the notice of contention in that case. Indeed, Buss JA (with whom Martin CJ and Mazza J agreed) had regard to both the notice of contention, and the 'proviso'. Buss JA's approach is evident in the following passage of his reasons:
Subject to my consideration of Mr Hondros's notice of contention and the possible application of the 'proviso', the State succeeds in its appeal against the trial judge's decision that Mr Hondros had no case to answer on count 1 [218].[80]
[80] In any event, Buss JA concluded that both grounds of Mr Hondros' notice of contention were without merit [316] ‑ [334].
These are all points of a somewhat technical nature, which are unlikely to have any practical significance when dealing with the actual merits of any given case.
In any event, and for the sake of completeness, we should say that we are satisfied that the points raised on the 'notice of contention' are all devoid of merit. As these points do not bear upon our decision, we can dispose of them summarily.
The first point on the notice of contention concerned the trial judge's decision to prefer Mrs Durrant's evidence to that of Mr McCreanor. More particularly, it concerned his Honour's failure to find that the vehicle seen and heard by Mr McCreanor could not be excluded, beyond a reasonable doubt, as having been the deceased's vehicle [404]. We are satisfied that his Honour's decision on this matter was entirely justifiable. There were obvious reasons to reject the proposition that the car Mr McCreanor saw was that of the deceased. Most prominent was the fact that the car he observed was travelling at about 70 km per hour - a speed which the deceased's car could not, at that stage, remotely have achieved.[81]
[81] The deceased's vehicle had been leaking transmission fluid for some time before it would have passed Mr McCreanor's house. Mr Wade Zanetti, a mechanic who gave evidence concerning the deceased's car, said that the effect of a loss of transmission oil was 'like trying to have an outboard motor out of the water trying to drive the boat … without the water there. … You've got no momentum' (ts 419).
The second point concerned the trial judge's finding that the deceased returned to the Monash Avenue property at about 9.45 pm on 7 August 2007. We have set out the evidence on this matter in considerable detail earlier in our reasons [100] ‑ [119]. That evidence comprised material going to the deceased's intention to return home, as well as forensic evidence in the form of artefacts such as soil, paint and brick particles which were found on the deceased and in her clothing and attached to her boots. Also prominent in this regard was the discovery of two Liquidambar seed pods in the deceased's hair - a fact which was to be considered in the context of there having been a Liquidambar tree in the front lawn of the Monash Avenue property. We consider that his Honour was correct in rejecting the hypothesis that these two seed pods had been 'planted' by police.
The totality of the evidence satisfies us that the trial judge was right to find that the deceased returned to Monash Avenue following boot‑scooting on 7 August 2007. As against the cogency of that evidence, there were obvious frailties in Senior Constable McLeod's purported identification of the deceased in Victoria Park.
The third point concerned the trial judge's finding that the deceased was attacked at the Monash Avenue property or nearby. The evidence on this point appears at [98] ‑ [194] of our reasons. In our view, the forensic evidence relating to the artefacts found on the deceased's body and clothing, as well as the two seed pods located in her hair, pointed overwhelmingly to the deceased having been attacked at or close by the Monash Avenue property. We agree with the trial judge's observation that had the deceased been physically able to remove the seed pods, she would have done so [1354]. The evidence of screams heard by residents of units adjacent to Kings Park did not tell against that conclusion. It was plainly open to conclude, as his Honour did, that the screams had nothing whatever to do with the deceased. Further, the finding that the deceased was alive at Kings Park did not preclude a finding that she had been subjected to an attack, of a not immediately lethal nature, at Monash Avenue.
Accordingly, if it were necessary to do so, we would dismiss the notice of contention.
Orders
As noted earlier, the State sought leave to appeal under s 27 of the Criminal Appeals Act. Section 27(1) provides that '[t]he leave of the Court of Appeal is required for each ground of appeal'. Section 27(2) provides that '[a]fter an appeal is commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'. Section 27(4)(b) provides that the Court may decide whether to grant leave 'before or at the hearing of' the appeal, or 'when giving judgment on' the appeal.
Read literally, s 27(2) would require this Court to refuse leave to appeal once it has concluded that neither of the two grounds that were pressed has been made out. That is because the language of the section is expressed in the present tense, in terms that appear intractable. The legislature has chosen to use the word 'has'. It is difficult to see how a ground of appeal that the Court has considered, and rejected, 'has a reasonable prospect of succeeding'.
Nonetheless, as we understand the position, a practice has developed in this State of this Court sometimes granting leave to appeal, but dismissing the appeal. Often this is done when the application for leave is heard alongside the merits of the appeal, but the Court of Appeal is ultimately unconvinced that the grounds have been made out.
In these circumstances, the Court is disposed to the view that the points raised by the State are sufficiently arguable to warrant the grant of leave, though in the ultimate analysis, the grounds should be rejected.
Accordingly, the orders of the Court are as follows:
1.Leave to appeal against the judgment of acquittal entered below is granted.
2.The appeal is dismissed.
Appendix A
Table of Contents of the Judgment below
Introduction.............................................................................................................................. 6
Format of reasons..................................................................................................................... 7
Legal principles......................................................................................................................... 9
Background - relationship....................................................................................................... 12
May to 7 August 2007 - chronology of events....................................................................... 19
May 2007........................................................................................................................... 19
June 2007............................................................................................................................ 20
July 2007............................................................................................................................ 35
Telecommunications interception and recording............................................................... 41
July - August 2007.............................................................................................................. 48
August 2007........................................................................................................................ 51
Tuesday 7 August 2007...................................................................................................... 62
Summary - situation as at Tuesday 7 August 2007............................................................ 70
Boot-scooting - deceased's intention to go home............................................................... 77
Wednesday 8 August 2007..................................................................................................... 85
Deceased's vehicle abandoned........................................................................................... 86
Deceased's vehicle - damage.............................................................................................. 90
Conduct of accused after 7 August 2007............................................................................... 95
Conduct of accused - Wednesday 8 August 2007.............................................................. 96
Conduct of accused - after 8 August 2007...................................................................... 120
Conduct of accused - destroying hard drive..................................................................... 137
Conduct of accused - place card...................................................................................... 138
Conduct of accused - legal professional privilege............................................................ 146
Conduct of accused - summary........................................................................................ 152
Police conduct...................................................................................................................... 155
Caitlyn's Myspace page.................................................................................................... 156
Allocation of roles............................................................................................................ 156
Bartels/Cadden................................................................................................................. 157
Search warrant/media....................................................................................................... 158
29 August 2007 press conference - person of interest/suspect........................................ 159
Como - crime scene.......................................................................................................... 159
20 September 2007 press conference............................................................................... 160
20 September 2007 - Ms O'Brien..................................................................................... 163
Taxi driver inquiries......................................................................................................... 164
Mr McKenzie................................................................................................................... 166
30 May 2008................................................................................................................... 167
12 November 2009 - defamation proceedings................................................................. 168
Seed pods - changing report............................................................................................. 170
Incomplete audiovisual disc............................................................................................. 171
Arrest of accused.............................................................................................................. 172
Police conduct - summary................................................................................................ 174
Gravesite - exhumation........................................................................................................ 175
Post-mortem examinations................................................................................................... 177
Palynology............................................................................................................................ 191
Cause of death - conclusion................................................................................................. 194
7 August 2007 - did the deceased arrive home?.................................................................. 196
Coat.................................................................................................................................. 197
Caffeine............................................................................................................................ 203
Foreign materials and damage to boots and clothing........................................................... 204
Expert evidence................................................................................................................ 205
Boots................................................................................................................................. 207
Boot-scooting - Dale..................................................................................................... 207
Boots - Burnett............................................................................................................. 209
Boots - Vernon............................................................................................................. 211
Boots - O'Boyle............................................................................................................ 214Boots - soil - Clarke...................................................................................................... 216
Boots - brick fragments - Clarke.................................................................................. 226
Boots - soil - Fitzpatrick and Raven............................................................................. 227
Boots - soil - Dawson................................................................................................... 230
Boots - brick particles - Fitzpatrick and Raven............................................................ 233Boots - paint - Collins................................................................................................... 235
Jeans.................................................................................................................................. 240
Jeans - Clarke............................................................................................................... 240
Jeans - Fitzpatrick and Raven...................................................................................... 240
Jeans - Collins............................................................................................................... 241
Shirt.................................................................................................................................. 243
Shirt - Clarke................................................................................................................ 243
Shirt - Fitzpatrick and Raven....................................................................................... 244
Shirt - Collins............................................................................................................... 244
Bra.................................................................................................................................... 245
Bra - Fitzpatrick and Raven......................................................................................... 245
Bra - Collins.................................................................................................................. 248
Bra - Silenieks............................................................................................................... 250
Bra - submissions.......................................................................................................... 255
Hair combings................................................................................................................... 257
Hair combings - Clarke................................................................................................ 257
Hair combings - Fitzpatrick and Raven....................................................................... 259
Hair combings - Collins................................................................................................ 259
Deceased's left palm - plastic........................................................................................... 262
Deceased - soil and foreign materials summary............................................................... 262
(1) Boots................................................................................................................ 262
(2) Jeans................................................................................................................. 264
(3) Shirt.................................................................................................................. 264
(4) Bra.................................................................................................................... 265
(5) Hair combings................................................................................................... 265
(6) Left palm - green plastic................................................................................... 266
Fibres................................................................................................................................ 268
Fibres - Collins............................................................................................................. 268
Liquidambar seed pods........................................................................................................ 270
Seed pods PAG56 - finding............................................................................................. 271
Seed pods PAG56 - integrity........................................................................................... 294
Body bag PAG57 - seed pod PAG57C............................................................................ 301
Seed pod PAG57C - conclusion....................................................................................... 314
Seed pods PAG56 - conclusion........................................................................................ 315
Seed pods PAG56 - source............................................................................................... 319
Seed pods PAG56 - Clarke............................................................................................... 320
Seed pods PAG56 - Fitzpatrick and Raven...................................................................... 322
Seed pods PAG56 - Collins.............................................................................................. 323
Seed pods PAG56 - summary........................................................................................... 323
House at Como..................................................................................................................... 324
Vehicles................................................................................................................................ 325
Accused's vehicle.............................................................................................................. 325
Deceased's vehicle............................................................................................................ 327
Deceased's vehicle - vacuumings................................................................................. 327
Deceased's vehicle - fingerprints.................................................................................. 328Deceased's vehicle - blood............................................................................................ 329
Deceased's vehicle - DNA............................................................................................ 334
Deceased's vehicle - wallet........................................................................................... 337Deceased's vehicle - accused's submissions.................................................................. 339
DNA - boots......................................................................................................................... 341
DNA - body and gravesite.................................................................................................... 342
Gravesite - connecting the accused...................................................................................... 343
Gravesite - place card....................................................................................................... 343
Gravesite - handkerchief.................................................................................................. 344
Opportunity.......................................................................................................................... 346
Conclusions.......................................................................................................................... 359
Verdict.................................................................................................................................. 369
Appendix B
Statements in the decision below about the correct approach to take to circumstantial cases. The need to consider the 'totality of the evidence' or 'all proven facts'
| Location in reasons | Statement |
| [10] | 'The State contended that viewed in its entirety over some months, the accused's conduct was demonstrative of implication in the death and burial of the deceased and inconsistent with the conduct of an innocent husband whose wife had met with foul play' |
| [27] | 'I am required to decide what facts I find are proven by the evidence and then to determine what inference or inferences I am prepared to draw, and to draw beyond reasonable doubt, from the proven facts. I am required to consider all of the proven facts together and to determine whether those facts in their entirety leave a reasonable doubt or lead me to a conclusion beyond reasonable doubt that the accused is guilty of either wilful murder or manslaughter' |
| [29] | 'The reliance by the State on circumstantial evidence requires that I consider the possibility that the proven facts do not necessarily point to guilt. A verdict of guilty cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty. Guilt must not only be a rational inference, but it must be the only rational inference that the proven facts enable me to draw' |
| [320] | 'However, the existence of a motive is not positive evidence of guilt. It is only one piece of circumstantial evidence to be weighed in the light of all the evidence' |
| [357] | 'The totality of the evidence satisfies me that at Kings Park the deceased was not in a state which would have permitted her to scream.' |
| [636] | 'When considered in conjunction with the totality of the accused's conduct, the State urged that the accused's false claim [to legal professional privilege] and evidence demonstrates a consciousness of guilt of the killing of the deceased' |
| [657] | 'At best for the State, if the accused's conduct is viewed as more consistent with the conduct of a person who was involved in the death of the deceased than an innocent husband and father, it is a piece of circumstantial evidence to be considered in conjunction with all the other such evidence. It is not in itself evidence pointing positively to guilt and cannot be used to plug a gap if positive proof of guilt is missing' |
| [666] | 'If anything, notwithstanding the accused's discreditable conduct in telling lies and giving false evidence, when properly analysed the totality of the evidence tends to support the opposite conclusion' |
| [785] | '[A] determination in this regard [whether haemorrhages were caused during life or after death] is not to be made by considering the medical evidence in isolation from the totality of the circumstances' |
| [829] | 'The question as to whether the evidence proves a particular cause of death is to be determined by reference to the totality of the evidence. While the medical evidence, considered in isolation, is not able to identify conclusively a cause of death, that evidence considered in conjunction with other circumstances might be sufficient to lead to a conclusion as to a cause.' |
| [1008] | 'The presence of the brick particles in association with the boots is another piece of circumstantial evidence to be considered in conjunction with the rest of the evidence, and in particular in conjunction with evidence relating to other artefacts found on the boots and the deceased' |
| [1353] | 'From the totality of the evidence to which I have referred, I am satisfied that the seed pods were in the hair of the deceased when she was removed from the grave and that they remained in her hair until discovered by Dr Cadden on 17 August 2007 in the manner he described' |
| [1359] | 'The totality of the evidence satisfies me that wherever and however the seed pods became attached to the deceased's hair, attachment did not occur through contact between the deceased's head and the ground in the vicinity of the burial site at Kings Park.' |
| [1360] | 'Standing alone, the fact that there was a large Liquidambar tree growing at the deceased's home which, at that time of year, had shed seed pods is only one piece of circumstantial evidence to be put into the mix of proven circumstantial facts' |
| [1585] | 'This is why the law guards against miscarriages of justice by requiring a particular approach to circumstantial evidence that leaves no room for doubt that the burden of proof has been discharged' |
| [1588] | '[A] verdict of guilty based on circumstantial evidence can only be returned if the proven facts are inconsistent with any reasonable hypothesis other than that the accused is guilty. Guilt must not only be a rational inference, it must be the only rational inference that the proven facts enable me to draw.' |
| [1589] | 'As to a possible alternative, the totality of the evidence, including the forensic evidence, does not exclude a sexually motivated assault in the front yard or on the verge.' |
18
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