The State of Western Australia v Rayney [No 3]
[2012] WASC 404
•1 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RAYNEY [No 3] [2012] WASC 404
CORAM: BRIAN MARTIN AJ
HEARD: 16-18, 24-27 & 30-31 JULY, 1-2, 7-10, 13-16, 20-22 & 27-29 AUGUST, 4-6, 10-12, 17-21 & 2628 SEPTEMBER & 2-3 & 18-19 OCTOBER 2012
DELIVERED : 1 NOVEMBER 2012
FILE NO/S: INS 83 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LLOYD PATRICK RAYNEY
Accused
Catchwords:
Criminal law - Wilful murder - Manslaughter - Trial by Judge alone - Circumstantial evidence - Turns on own facts - Not guilty
Legislation:
Criminal Code (WA), s 278, s 289
Result:
Not guilty
Category: B
Representation:
Counsel:
Prosecution : Mr J V Agius QC & Mr D W L Renton
Accused: Mr D J Edwardson QC & Mr A G Elliott
Solicitors:
Prosecution : Director of Public Prosecutions (NSW)
Accused: Timpano Legal
Case(s) referred to in judgment(s):
Martin v Osborne (1936) 55 CLR 367
Table of Contents
Introduction
Format of reasons
Legal principles
Background - relationship
May to 7 August 2007 - chronology of events
May 2007
June 2007
July 2007
Telecommunications interception and recording
July - August 2007
August 2007
Tuesday 7 August 2007
Summary - situation as at Tuesday 7 August 2007
Boot‑scooting - deceased's intention to go home
Wednesday 8 August 2007
Deceased's vehicle abandoned
Deceased's vehicle - damage
Conduct of accused after 7 August 2007
Conduct of accused - Wednesday 8 August 2007
Conduct of accused - after 8 August 2007
Conduct of accused - destroying hard drive
Conduct of accused - place card
Conduct of accused - legal professional privilege
Conduct of accused - summary
Police conduct
Caitlyn's Myspace page
Allocation of roles
Bartels/Cadden
Search warrant/media
29 August 2007 press conference - person of interest/suspect
Como - crime scene
20 September 2007 press conference
20 September 2007 - Ms O'Brien
Taxi driver inquiries
Mr McKenzie
30 May 2008
12 November 2009 - defamation proceedings
Seed pods - changing report
Incomplete audiovisual disc
Arrest of accused
Police conduct - summary
Gravesite - exhumation
Post-mortem examinations
Palynology
Cause of death - conclusion
7 August 2007 - did the deceased arrive home?
Coat
Caffeine
Foreign materials and damage to boots and clothing
Expert evidence
Boots
Boot‑scooting - Dale
Boots - Burnett
Boots - Vernon
Boots - O'Boyle
Boots - soil - Clarke
Boots - brick fragments - Clarke
Boots - soil - Fitzpatrick and Raven
Boots - soil - Dawson
Boots - brick particles - Fitzpatrick and Raven
Boots - paint - Collins
Jeans
Jeans - Clarke
Jeans - Fitzpatrick and Raven
Jeans - Collins
Shirt
Shirt - Clarke
Shirt - Fitzpatrick and Raven
Shirt - Collins
Bra
Bra - Fitzpatrick and Raven
Bra - Collins
Bra - Silenieks
Bra - submissions
Hair combings
Hair combings - Clarke
Hair combings - Fitzpatrick and Raven
Hair combings - Collins
Deceased's left palm - plastic
Deceased - soil and foreign materials summary
(1) Boots
(2) Jeans
(3) Shirt
(4) Bra
(5) Hair combings
(6) Left palm - green plastic
Fibres
Fibres - Collins
Liquidambar seed pods
Seed pods PAG56 - finding
Seed pods PAG56 - integrity
Body bag PAG57 - seed pod PAG57C
Seed pod PAG57C - conclusion
Seed pods PAG56 - conclusion
Seed pods PAG56 - source
Seed pods PAG56 - Clarke
Seed pods PAG56 - Fitzpatrick and Raven
Seed pods PAG56 - Collins
Seed pods PAG56 - summary
House at Como
Vehicles
Accused's vehicle
Deceased's vehicle
Deceased's vehicle - vacuumings
Deceased's vehicle - fingerprints
Deceased's vehicle - blood
Deceased's vehicle - DNA
Deceased's vehicle - wallet
Deceased's vehicle - accused's submissions
DNA - boots
DNA - body and gravesite
Gravesite - connecting the accused
Gravesite - place card
Gravesite - handkerchief
Opportunity
Conclusions
Verdict
BRIAN MARTIN AJ:
Introduction
Lloyd Patrick Rayney (the accused) is charged that on or about 7 August 2007 at Perth he wilfully murdered his wife, Corryn Veronica Ann Rayney (the deceased) contrary to s 278 of the Criminal Code (WA) (the Code). Further and in the alternative, he is charged with the crime of manslaughter contrary to s 280 of the Code in that on the same date and at the same place he unlawfully killed the deceased.
The deceased was last seen alive at approximately 9.30 pm on Tuesday 7 August 2007 when she left a boot‑scooting class held in the Bentley Community Centre. She died during the evening of Tuesday 7 August 2007 or in the early hours of Wednesday 8 August 2007 and 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. The grave was discovered on Wednesday 15 August 2007.
The accused and the deceased lived for many years in the matrimonial home in Como, a suburb of Perth (Como), and the children were raised at Como. The marital relationship deteriorated and by late June 2007 the accused and the deceased slept in separate bedrooms.
In general terms, it is the case for the State of Western Australia (the State) that the marriage had irretrievably broken down and the deceased was pressing the accused to vacate the house and provide information as to his financial affairs. Against this background the State alleged that the accused planned to kill his wife because of threats she had made to expose various matters relating to his personal affairs and to ruin him in his professional life as a barrister, and he carried out that plan during the evening of Tuesday 7 August 2007 after the deceased arrived home from boot‑scooting. Alternatively, if I am not satisfied that the accused planned in advance to kill the deceased, the State submitted I should find that the accused intentionally killed her during an argument late in the evening of 7 August 2007.
Broadly speaking, it is the case for the accused that however the deceased died, the accused was not involved in her death or burial. Alternatively, if I am satisfied that the accused buried the deceased, the accused submitted it is a reasonable possibility that the deceased died of natural causes and that he was not responsible for her death. If I should find that the accused was responsible for the deceased's death, the accused contended that the evidence is insufficient to prove wilful murder and that the appropriate verdict in those circumstances would be one of manslaughter.
For the reasons that follow I am not satisfied that the accused killed the deceased and I find the accused not guilty of wilful murder and not guilty of manslaughter.
Format of reasons
These reasons have been divided into broad sections dealing with various categories of evidence. First is a section explaining the legal principles that, as required by the law, I have applied in my consideration of the evidence and determination as to whether the evidence proves guilt or otherwise.
The second section deals with the history of the relationship between the accused and the deceased leading to Tuesday 7 August 2007 which was the date the deceased was last seen alive. It is the case for the State that the circumstances accompanying the breakdown of the relationship provided the accused with a motive to kill the deceased. On the other hand, it is the case for the accused that although there were difficulties associated with the marital discord, in the main those difficulties were in the past by 7 August 2007 and they were in the process of resolving outstanding issues. The accused submitted that by 7 August 2007 there was no reason for him to have killed the deceased and every reason to want her alive to care for the children who were his primary concern.
The third section of the reasons canvasses the evidence concerning the deceased's intention to go home when she left boot‑scooting and whether other evidence leaves room for doubt as to whether she headed for home. This section also deals with the abandonment of the deceased's car in Subiaco in the early hours of Wednesday 8 August 2007.
The fourth section discusses evidence concerning the conduct of the accused, including statements by him, after the deceased disappeared and following the discovery of her body. 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. The conduct relied upon by the State includes giving false evidence to a court in 2009.
In answer to the State contention, counsel for the accused submitted that in the complex circumstances that existed in the months following the disappearance and death of the deceased, the conduct of the accused was consistent with an innocent husband and father grappling with the tragic loss and trying to protect his children. Counsel submitted that I should not be satisfied that the accused gave false evidence, but if I am satisfied the accused gave false evidence, his conduct is readily explicable and does not support an inference that he was behaving like a guilty person.
The fifth section discusses evidence concerning the conduct of the police. It is the case for the accused that the police conducted a biased and narrowly focused investigation which concentrated upon the accused to the exclusion of a proper investigation which might have exposed evidence that another person or persons killed the deceased and buried her. Counsel submitted that the conduct of the police should cause me to doubt the integrity and reliability of a number of areas of evidence, particularly evidence concerning the finding of Liquidambar seed pods in the hair of the deceased and in the body bag into which her body was placed following exhumation. The finding of those seed pods and foreign materials within them is relied upon by the State to establish that the deceased was killed at the matrimonial home in Como and her body was dragged across the bricks in the front yard causing the seed pods on the ground to be caught up in her hair. It is convenient to examine evidence concerning the police conduct before discussing the seed pods and other evidence relied upon by the State as implicating the accused in the death and burial in order to assess the attack upon the integrity and reliability of that evidence.
The sixth section deals with the gravesite, exhumation, post‑mortem examinations and evidence relating to the cause of death. From this evidence, and the totality of the surrounding circumstances, the State submitted I should find that the deceased met a violent death. It is the case for the accused, however, that the evidence is incapable of proving a cause of death and does not exclude death by natural causes such as heart failure.
The next section discusses evidence upon which the State relied to establish that the deceased carried out her intention to return home on 7 August after boot‑scooting and was killed at home. This includes a discussion of evidence concerning foreign materials found on the deceased and her clothing from which the State sought to prove that the deceased was killed or rendered unconscious at Como. The State acknowledged at the outset of the trial that proving the deceased returned home during the evening of Tuesday 7 August 2007 is critical to proving its case against the accused. If it is a reasonable possibility that the deceased met with foul play somewhere other than Como, the State will have failed to prove that the accused was responsible for her death.
Following discussion concerning foreign materials, the reasons deal with a number of matters such as blood, fingerprints, DNA, a handkerchief found in the grave and the question of opportunity. This is followed by the final section which deals with various matters relied upon by the State and the accused in support of their competing cases and my findings.
Legal principles
An application by the accused to be tried by judge alone was granted. The precise reasons for the granting of the application are irrelevant, but it is common ground that the investigation into the death of the deceased and the subsequent charging of the accused attracted extensive publicity and created an atmosphere within the broader community that was, at least potentially, prejudicial to the accused. I mention these matters by way of historical context only. The reasons for seeking a trial by judge alone and for the making of the order are irrelevant to my consideration of the evidence and to my decision.
The accused is presumed to be innocent of any crime unless the evidence led in this Court satisfies me to the appropriate standard that he is guilty of a crime. The burden of proving the accused's guilt rests upon the State. There is no burden upon the accused.
The State must establish the accused's guilt to my satisfaction beyond reasonable doubt. It is not enough for the State to show a mere suspicion of guilt, or even to show that the accused is probably guilty. The State must go further and prove guilt beyond reasonable doubt. To put it another way, if there is a reasonable possibility that the accused is not guilty, I must return a verdict accordingly.
In these reasons, whenever I use words or expressions such as 'proved' or 'I am satisfied' or 'I accept', I mean proved or satisfied or acceptance of evidence beyond reasonable doubt.
In order to prove that the accused committed any crime, the State must prove that by his actions the accused was responsible for the death of the deceased and responsible in the criminal law. Obviously, the State must exclude the possibility that someone other than the accused caused the death of the deceased. In addition, the State must prove that the deceased did not die of natural causes. If it is a reasonable possibility that the deceased died of natural causes, the accused is not guilty of murder or manslaughter. For example, if it is a reasonable possibility that the deceased died of a heart attack during a verbal argument with the accused, no crime would have been committed.
Since August 2007, the law governing unlawful killings has changed. As at 7 August 2007, s 277 of the Code provided:
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.
First, the State must prove that the accused killed the deceased. That is, the State must prove that by some act the accused caused the death of the deceased.
Secondly, the State must prove that the act of the accused which caused the death of the deceased was unlawful.
If the State proves that the accused unlawfully killed the deceased, in order to prove that the accused is guilty of wilful murder, the State must prove that at the time the accused killed the deceased he did so intending to cause the death of the deceased. This means that the State must prove that at the time the accused did the act which killed the deceased, he performed that act with the intention of causing the death of the deceased.
The indictment charges the crime of manslaughter in the alternative to wilful murder. This means that if I am not satisfied that the accused is guilty of wilful murder, I must consider whether, in the alternative, the State has proven that he is guilty of manslaughter. In the circumstances of this case, it is common ground that if I am satisfied that the accused unlawfully killed the deceased, but I am not satisfied that he did so in circumstances amounting to wilful murder, the State will have proved the crime of manslaughter.
The State did not present an eyewitness to the death of the deceased. In order to prove objective facts from which the State contended I should be satisfied that the accused is guilty of wilful murder or manslaughter, the State relied upon evidence of surrounding circumstances commonly known as circumstantial evidence.
Like direct evidence, circumstantial evidence can be good, bad or indifferent. 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.
The drawing of inferences from proven facts is different from speculation. There is no room in the criminal court for speculation or speculative theories. Inferences can only be drawn if facts proven by the evidence properly support the drawing of the inferences.
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. This principle and the approach to circumstantial evidence was described by Dixon CJ in Martin v Osborne (1936) 55 CLR 367 in the following terms:
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed (375).
In the context of circumstantial evidence, it is essential to apply strictly the burden of proof. It would be entirely inappropriate to start with a presumption of guilt and then consider whether the evidence is consistent with that view. This is a process commonly adopted in everyday life, but it must be avoided in the criminal court. The accused is presumed to be innocent unless the evidence positively proves guilt beyond reasonable doubt.
The accused exercised his right not to give evidence. No inference adverse to the accused can be drawn by reason of the fact that he chose not to give evidence.
As will appear in these reasons, I am satisfied that the accused engaged in discreditable conduct which included giving false evidence to a court and the illegal activity commonly known as telephone tapping. Evidence concerning these matters was not admitted to show that the accused is a person of bad character. The evidence is relevant for reasons later discussed and the use of the evidence is restricted to the purposes for which it is relevant. Importantly, the fact that the accused engaged in the discreditable conduct, and could be viewed as a person of bad character, cannot be used to reason that the accused is the type of person who might kill his wife or that by reason of his bad character he is likely to have killed her. Such reasoning would be unfair and is prohibited.
Throughout the trial and my deliberations, and in assessing the evidence and reaching my conclusions, I have applied these legal principles and other principles discussed in these reasons.
In the context of principles to be applied, I have also borne in mind that many of the statements tendered by consent contain material that is either inadmissible or can only be used for limited purposes. Two hundred and sixteen statements were tendered without the witnesses being called. An additional 107 witnesses were called to give oral evidence and statements of many of those witnesses were also tendered. The State and the accused are to be commended for agreeing on the tender of so many statements which reduced the length of the trial by many weeks. However, the process resulted in a tendency to allow irrelevant or unnecessary material to be included in the statements. Some of the material was presented in that form as a convenient way of putting facts not in dispute before the Court, but in other respects I have put aside obviously inadmissible material which found its way into evidence in this manner.
Background - relationship
The accused was born in Aden, Yemen in 1962. The family moved to Australia when the accused was aged about five years. After graduating in law the accused was admitted to practise law in 1984. He worked in the Office of the Commonwealth Director of Public Prosecutions in 1988 and 1989 before joining the Western Australian Crown Solicitor's Office in 1989. In 1992 the accused became a prosecutor in the Western Australian Office of the Director of Public Prosecutions (the DPP) where he worked until 2003 when he took up a position as Senior Crown Counsel at the Office of the Director of Public Prosecutions in Bermuda. The accused returned from Bermuda in mid‑2004 and, after a period as Consultant State Prosecutor, moved to the private bar to practice as a barrister.
The deceased was born in 1963 and came to Australia with her family from Uganda in January 1973. She studied law and after graduating, worked for the Commonwealth Government before being employed by the Western Australian Government. She was a Registrar of the Supreme Court of Western Australia at the time of her death.
The accused and the deceased were married in 1990. There are two children of the marriage; Caitlyn born in 1994 and Sarah born in 1997.
A picture of the personalities of the accused and the deceased, and of their marriage, was provided by a number of witnesses, but particularly by the accused's sister, Ms Raelene Johnston, and the deceased's sister, Mrs Sharon Coutinho, and her husband, Mr Rohan Coutinho.
Ms Johnston described the accused as a quiet and measured person who, despite the appearance of being detached, is sensitive. She said the accused has always been a very calm and reserved person who maintains his calm demeanour and appearance even in situations of stress. Ms Johnston said the accused is not an angry or violent person and it would be unusual for him to raise his voice. He reacts to circumstances in a considered way and does not become hysterical or excited.
Ms Johnston said the deceased was a 'very strong woman emotionally' and was very controlled in everything that she said and did. The deceased was able to 'play' to her audience and adapt her style to suit different groups of friends and relatives. Ms Johnston described the deceased as 'very particular about her professional reputation' and 'very sensible and responsible' with respect to her work. However, at times it was the deceased's manner of speaking to exaggerate and make outlandish statements. She had a tendency to use hyperbole.
Ms Johnston said that notwithstanding the breakdown of the marital relationship, at all times both the accused and the deceased were devoted parents to their children. Both wanted the best for the children. In the opinion of Ms Johnston, the accused believed it was fundamental to the well-being of the children that both parents be available to look after them. The accused recognised that he was unable to look after the children on his own.
As the relationship between the deceased and the accused became strained, Ms Johnston observed that the deceased began to make disparaging remarks about the accused and to say derogatory things about him in a public setting. The deceased was rude to the accused, but the accused would not argue back.
Mrs Coutinho described the accused as a quiet person who did not really join in conversation at family dinners. Rather, he would read the paper and not stay very long saying he was going to work. Mr Coutinho said the accused had a 'very good personality' and was 'a bit of a charmer in public'. He referred to a fancy dress cocktail party during which the accused, in the absence of the deceased, showed a different side to his personality by being charming to all the women. In the words of Mr Coutinho, 'he really worked the room that night'. Mr Coutinho said the accused changed completely when the deceased arrived. He went to the deceased's side where he stood and was quiet for the rest of the night. Mr Coutinho said the accused possessed the demeanour of a person 'who had a very important position at the DPP' and was 'very guarded about his reputation'.
Both Mr and Mrs Coutinho described the deceased as a very strong person. Mr Coutinho used the expression 'hardnosed' and said she never held back her feelings. Mrs Coutinho said the deceased was 'very opinionated' and very thorough in everything she did. She described the deceased as a very family orientated person who did everything for her children. This view of the deceased's devotion to her children was supported by the evidence of a close friend of the deceased, Ms Julie Porter, who said the deceased was 'absolutely child orientated' and the deceased's children 'came first'. Other friends spoke in similar terms of the deceased's devotion to her children. In her professional life the deceased was highly regarded.
The Chief Justice found her to be 'extremely conscientious, diligent and effective'.
As to the relationship between the accused and the deceased, Mrs Coutinho said that for at least 10 years prior to her death the deceased complained about matters relating to the relationship and was not very happy. According to Mrs Coutinho, when the accused went to Bermuda for work she noticed a change in the deceased who became 'very happy and very capable'. The deceased rose to the occasion of being with her daughters on her own and 'loved it'. Upon the return of the accused the deceased was not very happy and, in the words of Mrs Coutinho, 'she really just didn't want him there'.
A friend of the deceased, Ms Judith Hickey‑Janes, said the deceased 'blossomed' when the accused went to Bermuda and 'never looked better'. She described the deceased as 'miserable' when the accused returned from Bermuda.
Ms Hickey‑Janes also said the deceased was 'nasty' to the accused, not by abusing him, but by disregarding him and being abrupt. The accused never responded to comments by the deceased. Mr Coutinho said the deceased never held back her feelings and would push the accused by having a go at him. While the accused would respond verbally, he did not retaliate in the way Mr Coutinho thought he should. While Mr Coutinho was not comfortable with the way the deceased spoke to the accused, on the other side he formed the view that the accused's lack of retaliation was, in a sense, a way of provoking the deceased.
Early in 2000 the accused commenced a sexual relationship with a woman with whom he shared an interest in gambling. That relationship continued until a few months before the accused moved to Bermuda 2003. The accused's behaviour in engaging in a sexual relationship outside the marriage is direct evidence of the accused's conduct from which an inference could be drawn that he was not happy in the marriage.
In connection with the state of the relationship between the deceased and the accused, and how that relationship deteriorated, the State led evidence of oral statements by both the accused and the deceased, together with email communications between them, from which the State submitted I should draw inferences as to the states of mind of the accused and the deceased.
Leaving aside the special rules that apply to admissions by the accused against his interests and lies, if any, told by the accused, oral and written statements by the accused and the deceased are not evidence of the truth of the assertions made in those statements. However, such statements are capable of being used as evidence of the state of mind of the maker of the statements. They are capable of being viewed as reflecting the beliefs and attitudes of the accused and the deceased. Unless I have expressly stated otherwise in these reasons, I have used evidence of oral and written statements by the accused and deceased in this limited manner as bearing upon their states of mind to the extent that those states of mind are relevant to the issues I am required to determine.
During the accused's relationship with the other woman I have mentioned, the accused told the woman that his sexual relationship with the deceased had ended with the birth of their second child in 1997. The accused said he and the deceased slept in separate rooms. In her statement the woman said the accused never spoke nicely about the deceased and would say that he and the deceased argued and did not get along.
Prior to the accused travelling to Bermuda, the deceased told her father, Mr Ernest Da Silva, that she did not trust the accused with respect to financial matters and there were financial problems. This conversation is not evidence of the existence of financial problems, but it is evidence of the deceased's state of mind and, in particular, her attitudes and beliefs with respect to financial matters and the role of the accused.
While the accused was in Bermuda, emails exchanged between the accused and the deceased disclose that the deceased had been unhappy in the marriage before the accused went to Bermuda and believed that the accused had been unfaithful and had engaged in a breach of trust. Emails sent by the deceased on 8 and 22 October 2003 speak plainly in this regard. In addition, it is apparent from the deceased's emails that she believed the accused's gambling was a problem and had caused financial difficulties for the family. Notwithstanding this background, I am satisfied that during 2003 the deceased was hopeful that she and the accused could work things out and possessed the attitude that if the accused made an effort, she would give him one more chance.
The accused's sister knew the accused had 'always bet' on the horses and understood his betting was common knowledge among family and friends. However, she was unaware that his gambling had been a problem for many years. The evidence establishes that the accused was gambling from at least the second half of the 1990s. In that period he was seen to be betting on the horses, but not collecting, at a hotel in Broome. The deceased's father, said in evidence I accept that he observed the accused and another man betting on the horses and he made a remark about the fact that the accused was not collecting any winnings in contrast to the other man who appeared to be making collections. In response the accused told his father‑in‑law that he just backed the longer odds.
The accused and the woman with whom he had a sexual relationship outside the marriage also gambled together. They regularly met at lunchtimes in a TAB and, in her words; the accused would 'often ... lose his money and race off to an ATM and withdraw more money to gamble'. She describes the accused's gambling during the course of their relationship as 'problematic'.
The accused operated an account with the TAB from 19 July 1997 until the account was closed as an 'unused account' in December 2007. The last transaction on the account occurred with a withdrawal of $1.25 on 28 November 2000 which left the account with a zero balance.
On 19 July 1997 the account had an opening balance of $45,567.50. During the period 19 July 1997 to 28 November 2000, the accused sustained a total loss of $68,860.35.
There is no evidence as to what gambling, if any, the accused undertook in Bermuda. Back in Perth, on 1 April 2006 he opened an account with Centrebet which he operated until he closed it on 5 July 2007. In the space of a little over a year the accused made 12 deposits totalling $46,800 and did not make any withdrawals.
Through the TAB and Centrebet accounts, over ten years from 1997 to 2007 the accused lost $115,660.35.
During 2005 an email from the deceased to a friend suggests the deceased believed that the situation within the marriage seemed to have improved. During 2006 the relationship seemed normal to those who attended two functions which were also attended by the accused and the deceased, but at a dinner in 2006 for members and staff of the accused's chambers, the accused's personal assistant, Ms Shari Paradise, formed the view that things did not look too good between the accused and the deceased. When she subsequently mentioned this view to the accused, he responded to the effect that she was quite observant.
The accused's father died in January 2007. Subsequently the accused rang his father‑in‑law, Mr Da Silva, and told him there were marital problems and the deceased did not love him any more. He sought Mr Da Silva's advice as to what to do. Mr Da Silva responded that he had two beautiful girls and he should do whatever it takes to make sure he continued living with the deceased and bringing up the girls. Like other conversations, this conversation does not prove the truth of the assertions made by the accused, but it is evidence of the accused's belief that there were problems and the deceased did not love him.
In April 2007 the accused and the deceased travelled to Bali in a plane chartered by a client. They shared a villa and appeared to be happy. However, prior to travelling to Bali, without the knowledge of the deceased, the accused had taken the trouble to record secretly at least one of his conversations with the deceased which suggests some suspicion or unhappiness on his part. Some time after the trip, the deceased later told a female friend who she had met in Bali that there were marriage problems and she and the accused were sleeping in separate rooms. The deceased said she believed the accused had gambled their financial savings and they were having financial issues. These statements by the deceased to her friend reflect her belief that there were problems in the marriage and that the accused had lost money gambling.
Notwithstanding the difficulties in the marriage, the deceased and the accused were, individually, devoted to their children and they kept up appearances to some of their friends. For example, the family was friendly with a couple with whom they interacted on a regular basis and watched football matches together. The daughters of the families were friends. Even up to 5 August 2007 that couple did not see any evidence of unhappiness or anything untoward in the relationship between the deceased and the accused. The wife of the couple gave evidence that as at 5 August 2007 she was unaware that the deceased and the accused were separated.
The true attitude and belief of the deceased was disclosed to her father when she spoke to him in mid‑2007 about problems within the marriage. She said she was not prepared to live with the accused.
During the last six months of the deceased's life, Mr and Mrs Coutinho became aware of the deteriorating marital situation. Without going into detail, the 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.
From the evidence to which I have referred, together with events, numerous email exchanges and other conversations which are discussed later in these reasons, I am satisfied that by July 2007, at the latest, the accused knew that the marriage had irretrievably broken down. The deceased had reached that point significantly earlier in 2007. In addition, as the evidence to which I will refer demonstrates, the atmosphere and communications between the deceased and the accused became increasingly hostile and acrimonious and included threats by the deceased to expose the accused's gambling and infidelity and to damage him professionally. At no time, however, did the deceased suggest to anyone that the accused had used, or threatened to use, any physical force against her. None of the witnesses ever saw the accused behave aggressively toward the deceased. Nor was there ever any hint of a threat of physical violence by the accused.
May to 7 August 2007 - chronology of events
The State has advanced a case that the breakdown of the marriage, together with demands by the deceased for financial information and threats of exposure, created a strong motive for the accused to kill the deceased. It is necessary, therefore, to examine in some detail, and in an approximate chronological order, the circumstances leading to the disappearance of the deceased on Tuesday 7 August 2007. An examination of the circumstances in this way assists in understanding the evolving and changing situation between the deceased and the accused.
The evidence includes events and oral statements by both the deceased and the accused, together with a large volume of email correspondence, most of which emanated from the deceased. As I have said, oral statements and emails sent by the deceased and the accused are capable of reflecting their states of mind and, in particular, their attitude and beliefs. The emails sent by the deceased to the accused are also evidence of information being conveyed to the accused about the deceased's state of mind from which, in conjunction with other evidence, an inference could be drawn as to the accused's belief about the deceased's state of mind. In particular, the information conveyed to the accused in the deceased's emails is capable of leading to an inference as to the accused's belief about the likelihood of the deceased behaving in particular ways and taking actions to which she referred in the emails. In these circumstances it is necessary to discuss the emails emanating from both the deceased and the accused, but I will not canvass every email that has been tendered in evidence.
May 2007
During May 2007 the deceased sent emails to the accused seeking financial information for taxation purposes. In an email of 29 May 2007 the accused asked '[w]hy do you need to know this information?'. It is not necessary to discuss the details of the response except to observe that the deceased spoke of joint finances and accountability and the need to discuss financial matters with the family accountant.
Ms Linda Black is a barrister who became a friend of the accused while they were both working at the office of the DPP. She described the accused as 'very quiet' and 'the opposite of a moody person'. She said the accused always looked and acted the same and was a very calm, private and nice person. Ms Black spoke of the accused's 'calm and controlled' demeanour and personality in a particularly stressful matter involving an inquest into the death of a prominent Western Australian person. Ms Black has never seen the accused angry and he did not ever express any ill‑will about the deceased. In Ms Black's words:
[H]e expressed concern about the impact of Corryn's behaviour on the children, but in the same context, would often say, 'She was my first love'. And there was clearly that - from what he said, that was that tangling of upset that things had deteriorated but still loving her at the same time (ts 2442).
In about May 2007 Ms Black and her husband attended a dinner at the Como home and at that time she was not aware of any friction between the deceased and the accused. It was later when the accused spoke about the difficulties within the marriage.
In about mid‑2007 the accused seemed a little 'down'. Ms Black asked if everything was okay and, initially, the accused shrugged his shoulders and said he was fine. A few weeks later she asked again if he was okay and he told her that things were difficult between him the deceased. The accused expressed a concern about the children not getting embroiled in any conflict and they talked about protecting the children at all costs. The accused told Ms Black that he and the deceased were moving toward a point where they would probably prefer to separate, but said children needed a mum and dad in their life and he wanted to do the best for the children.
Throughout their discussions the accused's overriding concern was the welfare of the children. This was evident during a number of conversations.
Additional conversations are discussed later in these reasons.
June 2007
In about June 2007 a friend of the deceased told her of rumours that the accused was involved with another woman. Also in about June 2007 the accused had the conversation with Ms Paradise during which Ms Paradise suggested he should try for full custody. The accused replied in the negative saying he would never take the children away from their mother as they needed their mother.
On 5 June 2007 the deceased sent an email to the accused concerning an appointment with the family accountant on 8 June regarding a reorganisation of family financial arrangements. She requested that the accused ask 'Lisa' to provide 'a complete record of statements for the 06/07 financial year asap'.
On 7 June 2007 the deceased sent an email to the accused saying that she was still waiting on the information she had sought in advance of the appointment on the following day. She wrote:
You asked for the reason I need the information. The reason is self‑evident. To protect hard earned assets for the sake of the family.
The accused responded the same day with a brief email in the following terms:
Corryn
Your e‑mails appear to indicate that you want a financial settlement with me. Is this correct?
Lloyd.
The deceased sent an additional three emails to the accused late in the afternoon of 7 June 2007. In substance, she asked the accused what his difficulty was in providing the information and asserted that his 'secrecy' did 'not speak of jointly‑run finances'.
On 8 June 2007 the deceased met with the family accountant, Mr Peter Bodycoat. Two statements of Mr Bodycoat were tendered by consent and counsel for the accused did not seek to cross‑examine him.
Mr Bodycoat said the meeting took about 30 minutes. In his words, 'Corryn just sat down and let it all go'. The deceased told him that previously the accused had a gambling problem and, three to four years ago, had lost in the order of $20,000. It was an issue of breach of trust and now the accused was earning significantly more money the deceased wanted to know what he was doing with it. She said the accused had not been providing disclosure to her about his income. Mr Bodycoat explained that although they were joint clients, he could not provide that type of information to the deceased without the accused's knowledge.
With respect to financial matters, the deceased expressed concern about dealing with investment properties they owned jointly and, in particular, in relation to an almost completed development of three units. Mr Bodycoat suggested that perhaps the accused could put a monthly sum into an account to deal with development matters, but this was totally unsatisfactory to the deceased.
The deceased also spoke about the accused staying out late at night, saying he was playing bridge. The deceased implied she did not believe this and said she thought he might be having an affair, but if the accused provided full disclosure of his income she did not care what he was doing in his own time. She asked Mr Bodycoat to mediate or act as a go‑between because the relationship had broken down to the extent that communication between her and the accused was not possible as it would lead to a screaming match. The deceased also spoke about not letting the accused attend a function unless he committed to giving her the information she wanted.
After the meeting Mr Bodycoat communicated with the accused by email advising him that having met with the deceased that morning, he felt that a chat over the telephone between the accused and Mr Bodycoat might 'alleviate her concerns'. He invited the accused to give him a call.
The accused and Mr Bodycoat met on 18 June 2007. They began with a conversation of a general nature about the accused's work and how things were going. Mr Bodycoat described the subsequent conversation about the issues between the deceased and the accused in the following terms:
58.When the conversation moved to the issues Corryn had raised I asked Lloyd why he wouldn't give her the information. Lloyd remained very calm and explained he would not give her the information. Lloyd didn't offer any explanation as to why.
59.I was careful how I chose my words and told him I thought she may be entitled to it. Lloyd flatly said, no. Implying she had no right to it.
60.I said words to the effect that he was the lawyer, indicating he would know the law relating to whether he would have to disclose matters to Corryn.
61.I then mentioned that if things went through to a separation he would be obliged to provide the information.
62.He said basically, if it happens it happens.
63.I understood from this Lloyd was not going to voluntarily disclose anything to Corryn.
64.I then had a discussion with Lloyd on a personal level. I made the point that surely if things were as bad as they seemed it must be difficult on the children and everybody, including him.
65.I made the point that it must be hard, to put up with the stress of the situation, it would have an effect on all aspects of his life.
66.I questioned if he would be better moving into a unit, having a place nearby, so he could have time with the children, be close to the school, and have his own space.
67.Lloyd indicated this was not going to happen, that he had no intention of leaving the marital home.
68.Lloyd went on to tell me that he felt he could not leave Sarah. He explained that Corryn liked Caitlyn and treated her differently to Sarah.
69.He told me about an incident that occurred recently where Sarah had called Lloyd at work and told him that Corryn had got mad and had left without taking her to school and she would have to find her own way to school.
70.Lloyd left work and returned home to collect Sarah and drop her to school.
Mr Bodycoat said he discussed with the accused the possibility of him putting money into an account for the deceased. The accused did not reject this proposal and Mr Bodycoat got the feeling that the accused would have been happy with it.
During the conversation the accused explained that he felt the deceased did not love him and added that he felt she had never loved him and had only been with him for the money. The accused told Mr Bodycoat that he had always loved the deceased and still did.
Mr Bodycoat did not mention to the accused the allegation by the deceased that the accused had a gambling problem.
As to the accused's demeanour through the meeting, Mr Bodycoat gave the following description:
Throughout the entire conversation Lloyd remained fairly emotionless. He was like a flat line, he didn't get excited or show any emotion.
Following the meeting Mr Bodycoat rang the deceased. He told her of his proposal that the accused could place money into an account, but his proposal was not acceptable to the deceased. Mr Bodycoat expressed the deceased's attitude:
Simply speaking, Corryn had advised me that all she wanted was full disclosure of Lloyd's financial affairs. There was no compromise to her position. She wanted to know what he had been earning.
During the telephone conversation Mr Bodycoat told the deceased that the accused did not want to give her any of his financial information whatsoever unless he was ordered to do so by a court.
Between 12 and 15 June 2007 the deceased and Ms Johnston exchanged emails concerning an investment property. An email of 15 June 2007 written by the deceased discloses at least frustration with the accused in connection with the disclosure of financial matters. That communication also discloses a determination on the part of the deceased to obtain the information:
Whatever Lloyd decides, he still needs to make full disclosure of the present position. He can make that as hard or as easy as he wants, but he cannot evade it. And the longer he tries, the harder it becomes for him. I can think of no good reason why he would want to cause the harm he has.
In an email to the accused on 20 June 2007, the deceased asserted that Mr Bodycoat had told her that the accused would not provide her with the financial information she had sought in the absence of a court order. In this email the deceased hinted at the possibility of court proceedings damaging the accused professionally:
The only reason I would not seek an order is to save you the embarrassment. To put me to the trouble and cost of getting the order which we both know I would get, will not be a good look for you. It will be very public and damaging to you professionally.
Please provide me with the information tonight.
The accused responded late on 20 June 2007. His email began with the statement '[p]lease don't continue to misrepresent matters'. He stated that her assertions were not an accurate account of what he said to Mr Bodycoat and that he had put two alternative proposals, each of which Mr Bodycoat said were fair and fair to the deceased. The accused wrote that he had not heard back from Mr Bodycoat who had said he would get back to the accused after he had spoken to the deceased.
If the unchallenged evidence of Mr Bodycoat is accepted, the accused's response of 20 June 2007 was not true.
In his email of 20 June 2007 the accused referred to the threats by the deceased to damage his career:
Your repeated efforts and threats to damage my career are disturbing. For example, I would appreciate it if you did not turn on the lights and abuse me at all hours of the night when I am asleep, as you have done so often in the past when you know that I am in court the next morning.
…
For a very long time you have told me that you want your freedom, are only interested in the money I earn and want me to leave our home. Each of these things was and still is hurtful. The present matter is being used by you to achieve that purpose.
Your behaviour towards me has become increasingly worse.
On 21 June 2007, the deceased sent a lengthy draft response to a friend which, a little over half an hour later, she sent to the accused. It began:
Lloyd
Stop your nonsense. This response is self serving, and plainly so. Don't embarrass yourself further.
The email reflects a determination on the part of the deceased to obtain the financial information she had requested from the accused:
Peter [Bodycoat] told me clearly that you will not give me disclosure of your business figures, and that I would have to obtain Court orders to get that information. He told you that you were obliged to provide them and you refused and said I would have to pursue them in Court. That is your choice.
If that is your position, so be it.
You are bringing a lot of irreversible harm to a lot of people. I trust you have weighed that up and made your decision wisely.
I cannot tolerate this position on for one more minute. I have had enough of your attempts to obscure the issue. It is a simple one, unless there be any confusion I will restate my position. I have not seen lawyers as you keep trying to find out. I don't need to. This is a very simple issue, and I am quite capable of dealing with it myself.
When you proved yourself to be unable to handle joint funds, I told you that for as long as we remained married, it will be on the basis that I would manage the finances. That was non‑negotiable in the year 2000 as it is now. Nothing will change that position.
When you went into business on your own, I told you that I would always need full disclosure. That was non‑negotiable in 2005 as it is now. Nothing will change that position. I also told you that I would not allow any joint assets to be at risk, or in any way subject to the vagaries of your business enterprises. Insurance is not sufficient coverage.
…
Somehow you seem to think that your finances are a bargaining tool. If you need a Judge to tell you that they are not, so be it …
…
Whatever financial information you are concealing from me, I will access by whatever means are available. You can make that as difficult or as easy as you like.
…
Enough is enough. I am set out the options for you, so that we are all clear on them. Presumably you have thought about your position and made your decision. Let me know what it is and I will see to the arrangements.
The email then set out two alternatives identified as options A and B. In substance, the accused was either to provide full disclosure of financial information for the financial year 2006 ‑ 2007 and a written plan to be agreed for future investments on a joint basis, or the deceased would make an application to the Family Court for the provision of the financial information and sale of all joint assets with equal division of the proceeds. Option B also involved complete separation of financial interests. The email continued that for the sake of the children, the deceased would endeavour to make it possible for both of them to live at Monash Avenue for as long as possible, but it would depend on 'how it goes'. The deceased observed in the email that everyone's life would be much happier if they were not to live together, but it would be a 'huge upheaval' for the girls and for that reason she was reluctant to separate. The deceased added that she would not allow the children to live in the 'war zone' that currently existed.
The deceased's email also asserted that it was the accused who had created the crisis and that she had no ulterior motive in using the situation to 'extricate' the accused from the house. The email continued:
I don't work in roundabout ways. What I say is what I mean. No more, no less.
The email concluded in the following terms:
Now all you have to say is A or B and it will happen. On either option we will both need a further meeting with Peter [Bodycoat] as soon as possible.
Tomorrow, I suggest.
Corryn.
On Friday 22 June 2007 the deceased sent an email to Mr Bodycoat stating that it appeared that she and the accused had reached agreement in relation to the provision of financial information for the financial year ending 1 July 2007. She asserted that the accused had told her that he would provide the information to her over the weekend.
Later on 22 June 2007 the accused wrote to the deceased stating that he had agreed to provide the financial information to her because of her 'threats' to take Family Court proceedings and potentially 'embarrass and damage' him professionally. He stated that he thought she might only be able to obtain financial information through the court if she commenced proceedings for property settlement. The email continued that he needed the deceased to clarify whether she was seeking the information in order to negotiate a property settlement and severance of their financial relationship or because of a desire to know his financial circumstances for whatever reasons she possessed.
The deceased responded a short time later stating that her email had been 'VERY VERY clear'. She asserted that as they were in a joint financial relationship, the accused was obliged to provide her with all the financial information and it was for that reason she sought it 'amongst all the other reasons' she had written about. She added:
If you're going to mess me about, just say so now. You know very well your financial obligations.
How does it look professionally for you to behave in this way. It leaves me with no comfort as to what behaviour you are capable of in a business sense.
The acrimonious tenor of the email exchanges continued with an email from the deceased to the accused on Saturday 23 June 2007. The deceased spoke of the financial relationship and alleged that the accused had told Mr Bodycoat that he had no intention of providing her with the information and he was happy to string her along, 'enjoying the benefits', but knowing that he was intending to conceal his financial information. She said she would make an appointment to see Mr Bodycoat on Monday and hoped he could attend.
The deceased's email asserted that the accused had shown he was 'sly and evasive, and unable to be trusted'. The tenor of her email was assertive and determined.
Shortly after 9.00 am on 25 June 2007 the deceased sent an email to the accused's sister and copied him into the email. The email commenced with the accused's name as if it was addressed to him and asserted that he had told the deceased that morning that he would not give her the information she had been seeking and he would see a lawyer. The deceased asserted that the accused had told her he had not seen a lawyer and asked her if she could suggest a lawyer as he did not know any family lawyers. The email continued:
You knew that you had made arrangements to see one, and your deceitfulness prevented you from telling me that you had.
Why are you behaving in such a deceitful, dishonest manner? You have your career and your family to protect. Why jeopardise it all?
When you see Peter Dowding, please take everything I have written to you. Please tell him that I suspect you are gambling. Please tell him that I will not be bought off, and I will protect everything for the sake of the children.
...
You just remain silent when I ask you reasonable questions. Why can't you speak for yourself. Why such weakness of character. Whatever you have done will become known, how much worse that you have tried to conceal it.
During the morning of 25 June 2007 the deceased telephoned a barrister practising in the family law jurisdiction, Mr Rodney Hooper, seeking advice. They had a conference that morning during which the deceased spoke of issues within the marriage that were of concern to her. In particular she mentioned gambling losses and her inability to gain financial information from the accused. Mr Hooper explained the requirement for full and frank voluntary disclosure under the Family Law Rules and advised the deceased that subpoenas could be issued if a party did not make such disclosure.
The deceased told Mr Hooper that the accused had refused to leave the home and, on occasions when she had asked him to sleep in another room, he had slept in the same room as one of the children which she found 'unsettling'. The deceased told Mr Hooper there was another room in the home used as a study that could be set up as a bedroom and he suggested she prepare that room as a bedroom and tell the accused to sleep in that room until such time as he moved out.
The deceased acted immediately on Mr Hooper's advice. During 25 June 2007 she enlisted the aid of Ms Porter to help her move a bed into the study. She told Ms Porter that the accused would sleep in the study and said she had discovered he had been to a lawyer for the purpose of preventing her from gaining access to his financial information.
The movement of the bed to the study was carried out while Caitlyn was home. She was very upset and concerned that people would find out about the separation.
At about 2.41 pm on 25 June 2007 the deceased sent another email to the accused which referred to her leaving for work early and subsequent events concerning the children that the deceased asserted had occurred. These allegations were subsequently denied by the accused in an email of 26 June 2007.
The deceased's email stated that given 'recent developments' and, 'foremost', the accused's 'deceitfulness', he was no longer to sleep next to her. It also asserted that the previous night she had asked him to leave the bed when it was clear he was not going to provide her with the requested information, nor give her any reason for his refusal. The email continued:
It is not appropriate that you share a bed with either of our girls on a continuing basis. It is entirely inappropriate. So I have made up a bed for you in your study.
The topic of the accused sleeping with the children of the marriage raised in the email from the deceased of 25 June 2007 was a topic about which the accused spoke with a work colleague and friend, Ms Clare O'Brien, during a telephone conversation in late June or early July 2007. The accused telephoned Ms O'Brien and spoke to her about significant marriage difficulties. This call came as a surprise to Ms O'Brien because approximately six weeks earlier she and her fiancé had attended a lunch at the matrimonial home in Como and she had been impressed by the rapport between the accused and the deceased. She described the atmosphere as very welcoming, warm and cordial and said that the accused and deceased obviously entertained regularly as the dinner was very much a team effort. There was no inkling at the lunch of any matrimonial difficulties. From the perspective of Ms O'Brien, her impressions were emphatically contradicted by the accused's statements in the conversation.
The accused said he was ringing Ms O'Brien as a courtesy. He wanted to let her and a few others know that he was having significant marriage difficulties. He told Ms O'Brien that the deceased had been sending emails to his work saying things that were not true which included reference to him sleeping in the girls' beds at night. He said he was receiving emails about supposed conversations which had not occurred. According to Ms O'Brien, the accused asked her what she thought might be the deceased's purpose, to which Ms O'Brien replied that it looked as though the deceased was setting up an email trail for the purpose of applying pressure in relation to divorce proceedings into which they were venturing. In the course of the conversation the accused said that the allegations were ridiculous as he had already been relegated to a back room.
Ms O'Brien suggested that this situation was just too serious and the accused should move out of the matrimonial home. She conveyed to the accused that if the rumour got about concerning what the deceased was saying, it would affect his career negatively. The accused responded along the lines that it was the deceased who did not wish to see him and she could move out.
In that conversation the accused said the allegations about sleeping in the girls' beds were ridiculous as he had already been relegated to a back room, but I note in the accused's email of 26 June 2007, the accused wrote:
It is hypocritical to pretend that it was me who causes distress to our children when you are the culprit. On Monday night you woke [a child] and me up at 11.40 pm to abuse me and to demand that I give you the mobile and home phone numbers for Raelene and Bradley [the accused's sister and brother in law]. You then left and returned to [the child's] bedroom a further 3 times to insult me. Your behaviour was so awful that [the child] pleaded with you to stop but you would not. It must truly be a frightful thing for a [age] year old to be repeatedly woken by her mum abusing her dad.
Returning to the email exchanges, at 1.48 pm on 26 June 2007 the accused sent an email to the deceased asserting that she had removed the post office box key from his key chain. He sent a further email at 2.02 pm concerning the removal of the safe deposit key from his key chain. At 2.27 pm the accused sent a third email to the deceased saying:
Please stop using emails to misrepresent what happens and to produce written accounts for your own future benefits.
The email from the accused dealt with the occasion on which the deceased left for work early and then referred to a telephone call the previous morning. The accused asserted that during the call he was subjected to a 'torrent of anger and abuse' which was what he had come to expect. He wrote that the deceased needed to 'evaluate' her behaviour.
During June the deceased asked the accused whether he wished to attend a Supreme Court dinner. The accused indicated he wanted to attend, but the deceased took the attitude that he would not be able to attend if he had not disclosed the financial information she was seeking. Against that background, at 2.36 pm on 26 June 2007, the accused sent a lengthy email which began in the following terms:
Corryn
I would like to make something clear from my perspective.
Your behaviour to me has often been abusive, spiteful and harassing. It has been tolerated by me for the sake of the children and in the hope that you may change but you have not and you are becoming progressively worse. However, there are three matters which should not be tolerated. The first and second matters concern Caitlyn and Sarah the third my legal career.
The next paragraph concerned the deceased announcing to the accused that she would inform the children that he could no longer live at home. The accused objected to that suggestion and said that if they reached the stage where they were not to live together, the only 'decent thing' to do would be to discuss the matter jointly with the girls.
As to the issue of his legal career, the accused wrote:
As to the third matter, yesterday morning you demanded that I bring a print out to one of your staff before court. You said that if I did not do so, I would not be allowed to come to Andrew Beech's public welcome at the Supreme Court. When I said that I would not do so, you told me that you would have one of the associates or ushers ask me for the print out when I tried to enter the court. You told me that I would be greatly embarrassed by the event. I think the threat was despicable. I have asked you before and am asking you again, please do not try and harm my career or reputation, or use your position at the court to achieve that end.
I hope you agree with me on these three matters. I strongly prefer that we try and sort things out amicably. It is in everyone's interest to do so. I am not interested in a war of e‑mails but I hope you understand why these three matters are important.
Lloyd
I am satisfied that the accused took very seriously the possibility that the deceased might make allegations about his behaviour which would threaten his legal career. It is the case for the State that the accused harboured an ambition to be appointed as senior counsel (formerly Queen's counsel) and, eventually, to be appointed a judge.
As to the importance to the accused of his reputation, the State led evidence from Ms O'Brien that in a mentoring role to her in her early days at the DPP the accused expressed to her the importance of her reputation as a lawyer, particularly as a lawyer at the DPP. He advised Ms O'Brien that a good reputation takes time to build and it was necessary to make every effort to ensure that the reputation was not adversely affected. The accused told Ms O'Brien that particularly as a prosecutor, although not on duty 24 hours a day, it is always necessary to keep reputation in mind in the context of personal behaviour.
In the same context, the accused told Ms O'Brien it was very important not to have any black marks against your name or even an investigation of a complaint to the Legal Practice Board. He emphasised that reputation is the key.
Ms O'Brien was very grateful for the advice. She understood it as referring to ethical conduct underpinning the actions of a legal practitioner, including actions in personal life.
As to the accused's ambitions, Ms O'Brien said he aspired to being called to the bench. She recalled that the accused joked about being the first black judge in Western Australia, the joke being his reference to himself as black. In her words, the aspiration was a 'reality'. This conversation would have occurred in the first couple of years that she was at the DPP being somewhere between 1994 and 1996. The accused was not one to talk about his aspirations and the comment was made to her in relation to the importance of keeping a good reputation.
Ms O'Brien said the accused did not ever say anything to her concerning any negative impact on his reputation that might occur from anything the deceased had said or done or might say or do. She was the one who made the comment to him that if a rumour got out about what the deceased was saying it could negatively affect his career. She could not recall any response to that observation.
It is clear that the accused was proud of his reputation and believed he possessed the qualities necessary to succeed in his profession. By letter of 31 August 2004 he applied to the former Chief Justice for appointment as senior counsel. A reply in 2004 is not in the Supreme Court file, but on 30 November 2005 the Chief Justice wrote that he was unable to approve an appointment 'at this time'.
Returning to communications and other events, in late June 2007 email exchanges occurred concerning investment units and financial matters. On 27 June 2007 the deceased wrote to Mr Bodycoat asserting that the accused had 'chosen to see a lawyer to find a way to keep his financial information from me'.
On 26 June 2007 the deceased first consulted a solicitor, Ms Gillian Anderson. She gave Ms Anderson her view of the relationship with particular reference to financial matters and the accused's gambling. The deceased told Ms Anderson that the accused was weak and unfaithful, and had gambled their money which she hated. She said that if the accused provided the proper financial disclosure she would try and continue with the marriage for the sake of the children.
At their first meeting on 26 June 2007 the deceased told Ms Anderson that she did not regard herself as separated from the accused. Subsequently she told others and the accused that the separation had occurred on 25 June 2007, being the day she moved put a bed in the accused's study for him to use.
Ms Anderson subsequently drafted a letter to be sent to the accused and forwarded it to the deceased on 27 June for approval, but as a result of email exchanges with the deceased it was not sent until 2 July 2007.
Late in the afternoon of 26 June 2007 the deceased and her friend, Ms Shana Russell, met at a tavern while their children were at a dancing class. Ms Russell and other witnesses said the deceased rarely consumed alcohol. For the first time the deceased told Ms Russell that she had asked the accused to move out of the house. She loved the house and did not want to move from it. Over the next few weeks Ms Russell and the deceased talked about the marital situation and the topics included the deceased's suspicion that the accused had been gambling and how he was secretive about his financial affairs. The deceased was concerned to know how much money was involved the accused's gambling rather than the fact of the gambling itself.
On 28 June 2007 the deceased sent an email to Ms Anderson stating that she had come to a decision that 'the priority' was now to get the accused out of the house. The deceased asserted that it was obviously important to the accused to conceal whatever it was he wanted to conceal and she was thinking that she should just send her email and not the letter Ms Anderson had drafted the day before. She suggested she could bring an application and apply for disclosure. The deceased asked what Ms Anderson thought of this idea.
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.
The deceased's lack of trust in the accused about financial matters was also reflected in a conversation with a friend at Mandurah over a weekend in July. She told her friend that the accused was keeping a separate bank account and hiding money from her. She said she could no longer trust him.
In this period, in response to an email from the deceased asking whether he knew anything about someone being in her office and moving her ornaments around, notwithstanding that the email included the statement 'I very much doubt that you would do such a thing', the accused replied that 'of course' he did not enter her office and did not know anything about it. He added:
You appear intent on trying to use your position at the court to embarrass me.
In another email during this period the accused asked the deceased to 'stop making snide comments' in her emails.
During June 2007 the deceased spoke with a friend, Ms Kim Sarre, with whom she had become close in the 12 months preceding her death. The deceased told Ms Sarre that she had asked the accused for a divorce because he had been gambling again and she could not live with that for the sake of the children's future. As she did with other friends, the deceased told Ms Sarre that she had been seeking financial information from the accused for some time and spoke about the relationship and moving the accused into a spare room. The deceased said she wanted the accused to leave the house so she could get on with her life with the girls. She also spoke about the accused having had an affair with another woman.
Commencing in February 2007, the deceased had been receiving regular physiotherapy treatment which continued until Monday 6 August 2007. Toward the end of June 2007 the deceased told her physiotherapist that she and the accused were separating and she had decided the relationship was finished. The physiotherapist expressed shock and said he had no idea, after which the deceased told him of a number of matters which included the accused's gambling and her concern that the accused would lose the house because of his gambling. She expressed the view that the accused was 'capable of anything'.
July 2007
On 2 July 2007 the deceased's solicitor delivered the letter, drafted 27 June, to the accused. The letter advised that they were solicitors for the deceased and that she had instructed them to write to him 'in relation to concerns she has about your joint finances'. After relaying instructions about joint finances, the letter asserted that the deceased had requested that the accused provide her with financial information but he had declined to do so. The letter continued:
You are aware of Corryn's strong feeling that she regards full and frank financial disclosure between you as a fundamental element of your relationship.
The letter then sought provision of documents and financial information for the period 1 July 2006 to the date of the letter. The information sought included statements as to gross income received and business expenses, together with copies of all accounts, statements and credit card statements. It also sought an undertaking that in future the accused would provide copies of his bank accounts and the other information sought on a monthly or other agreed periodic basis. The letter concluded that the information was sought by 4.00 pm on 5 July 2007.
On 4 July 2007 the accused wrote to the deceased saying that he did not want to expose Caitlyn to more of the deceased's 'deliberate abuse' and wanted to resolve all issues through discussion. He added it was 'difficult' when the deceased was aggressive and abusive to him in front of the children.
In this period the deceased exchanged a number of emails with the accused's sister in which she said that if the accused was 'ill' he needed to get help. The reference to 'ill' was clarified in the emails as a reference to an addiction to gambling. Queried by the accused's sister that she was making a 'very big assumption', on 4 July 2007 the deceased wrote:
I won't know for sure until I see what he has been doing with his finances. But he is fighting doggedly to hide them, to the extent that he has lost his marriage over it. He has been advised that I would have to commence proceedings to get disclosure of his financials, and he has told our accountant that he would not disclose until then. Perhaps he was counting on me not taking that step. Every day he is not found out is a good one for him.
However, I cannot wait assuming that he has done nothing wrong. His conduct speaks otherwise. I have to protect whatever I can whilst I can.
In the context of his history, I feel I have to assume that that is the problem.
Once it becomes obvious he knows that I would not accept it, so he has ever incentive to drag it out.
I can't think of any other reason, and it is not for want of asking ‑ that he would behave this way.
I don't think anyone would do any different.
On 5 July 2007, the day after the deceased wrote the email to the accused's sister about the accused 'fighting doggedly' to hide his finances, the accused closed his betting account with Centrebet.
Ms Johnston was shown the email exchanges about the gambling and had a vague memory of them. She said that she could not recall speaking to the accused about this issue and, because the deceased had a tendency to exaggerate, thought she would not have raised it with the accused.
Emails were exchanged between the deceased and the accused on 5 July 2007 and the deceased spoke with Ms Porter's husband, Mr Michael Halls, about the marital situation. They talked for about an hour. She repeated that she wanted the accused to leave the house, but he had refused. She said the house was no longer her place of comfort or sanctuary.
Significantly as to the deceased's state of mind, she told Mr Halls that she wanted to expose the accused over his gambling, womanising and failure to disclose income to her. She said she wanted to bring the accused down. She expressed the view that his womanising and gambling would not be good for his reputation. She also said she planned to tell the children, family, friends and the church. She was going to let everybody know.
Late in the afternoon of 5 July 2007, the deceased sent an email to a friend in which she expressed the thought that it would be 'torture' for the accused 'not knowing who knows what'. She said it was better left that way. The email then continued:
WE are going to do him slowly.
The deceased and the accused jointly met Sarah's teacher on 5 July 2007 for a standard end of semester discussion. During the meeting, to the accused's surprise, the deceased told the teacher that she and the accused were separating. She said they were living under the same roof, but were essentially separated. Neither the deceased nor the accused displayed any emotion other than surprise exhibited by the accused.
The deceased's state of mind with respect to the accused is further illustrated by the following email sent to her sister on 6 July 2007:
He keeps very quiet and plays the victim. He is too afraid he might let something slip, I suppose.
He has always painted me as the wrongdoer, all the while being the most intolerably, lazy, dirty, wasteful, manipulative, incompetent and deceitful person I have ever come across. He left his apartment in Bermuda so dirty that they wrote to him and told him that 'he wouldn't know what clean was'. And this man thinks he will care for my children!
He has not made a single decision in our married life - apart from to buy rubbish and hire gym equipment that he is too lazy to use. I am determined that he will not benefit from anything I have done. He has been too busy leading a double life. This is what Julie [a friend] puts his constant sleeping affliction down to.
Yes, we will do him slowly.
I'm keeping my mouth shut and putting together all the information. The fool will suffer badly for dragging it out. The longer he waits, the more information I will have.
The email from the deceased to her sister was sent shortly after 9.30 am. About two hours later the deceased's solicitors emailed to her a letter they had received from a solicitor acting for the accused. That solicitor wrote that he had advised the accused that there was no obligation on spouses, who had not separated, to provide the other with ongoing financial disclosure. The letter stated that notwithstanding this position, the accused would collate the information and provide it to the deceased 'in a timely way', but it was not likely to be available for at least the next 14 ‑ 21 days. The letter also stated that, 'at this stage', the accused did not see the need to provide the deceased with the undertaking she had requested.
The letter also requested that the deceased refrain from sending copious emails and from engaging in an abusive and aggressive manner towards the accused, particularly in front of the children. There were allegations about the behaviour of the deceased and the letter asserted that the accused had 'no intention' of vacating the home until child and financial issues had been resolved.
It appears that the deceased read the letter and, within a short time, responded to her solicitors in an email stating '[s]mall stuff' and '[e]asily dealt with'. About an hour later the deceased sent an email to a friend about information she had given to Sarah's teacher. In that email she said that she now realised from the letter sent by the accused's solicitor that the accused 'would feel it closing in on him'. The email included other uncomplimentary remarks about the accused.
One fact emerges from that sequence of events upon which counsel for the accused relied. When the vehicle was losing power and revving, the driver chose to drive into Kershaw Street. The accused knew Kershaw Street well because Ms Black had lived in that street and the accused had regularly picked Ms Black up at home to take her to play Bridge. Significantly from the accused's perspective, he was aware that legal practitioners who knew him well lived in Kershaw Street. If the accused had buried the deceased and was faced with the problem of power failing and the vehicle making a noise because it was revving without gaining power, at the least it is surprising that he chose to drive into Kershaw Street.
An essential step in the chain of evidence upon which the State relies to prove guilt is proof that the deceased was attacked at home. This position requires a finding that the deceased arrived home from boot‑scooting at approximately 9.45 pm. It is in the period from the deceased's arrival home to the return of Caitlyn with Ms Russell at between 10.40 pm and 11.00 pm that the State contended the accused killed the deceased. A difficulty for the State in this regard is the absence of any witness who saw the deceased or her vehicle at Como after boot‑scooting and the absence of any witness who saw or heard anything suspicious at the house during the evening of Tuesday 7 August 2007.
No evidence was located during the detailed examinations of the house and yard to suggest that Como was the site of an attack upon the deceased. Given the circumstances discussed earlier, this is a significant gap in the State evidence. The only evidence advanced by the State to prove an attack at Como is the forensic evidence concerning damage to the deceased's boots and the presence of soils and artefacts on the boots, the deceased and her clothing. The State submitted these features can only be explained by an attack at Como and a dragging of the deceased's body across the brick paving at the front of Como.
The forensic evidence established that soil lay on top of and between the paving bricks at Como. Particles of brick, paint and plastic were spread across the paving and caught in the soil. The particles emanated from the paving bricks and painted surfaces around the house, and many of them were extremely small. Due to their size and nature, these particles were very mobile. They were easily picked up in daily traffic and transferred from one locality to another. Footwear is an example of a means of transfer and the presence of particles in both vehicles is evidence of both mobility and the fact of transfers from the ground to the vehicles. In these circumstances it is to be expected that at any time clothing and footwear of members of the family and visitors would contain some of these particles. The same can be said of soil from the home environment.
The mobility of these types of particles also means that they were capable of being transferred by passing traffic to localities other than Como. In the reverse direction, such particles would almost invariably be transferred from other localities to Como. Similarly, soils can move both ways. Weather conditions can also result in movement within a locality and transfer to other localities.
As to the soil and particles (artefacts) found on the deceased and her boots, which on analysis were found to be consistent with soils and artefacts found at Como, I am satisfied that at least some of that material emanated from Como. Counsel for the accused did not contend otherwise. However, the soil and artefacts at Como were not unique to Como. The soil at Como was a sandy type of soil that was very common across Perth. The evidence did not narrow down the areas that were a potential source of the soil on the deceased's boots. The bricks at Como were recycled bricks in respect of which there had been a market in Perth for many years prior to 2007. Some of the paints at Como were very common, while one was derived from 9,553 litres of a base used to produce six other paints sold between June 2003 and January 2004.
The other aspect of the presence of soil and artefacts on the deceased and her boots and clothing concerns the assumption underlying much of the State approach that they must have been deposited on the one occasion when the deceased was attacked at Como. This is a dangerous and misleading assumption that is not supported by the evidence. To the contrary, the evidence established that the artefacts were very mobile and it is highly likely that artefacts would be present on the deceased, particularly on her boots, from moving around the property on earlier occasions.
Bearing in mind these qualifications, it is necessary to approach the interpretation of this forensic evidence with caution. There are many possibilities that must be considered and excluded before the State case can be made out.
Beginning with the boots, it is unlikely that the soil became attached to the toes at a locality other than Como. The combination of the type of soil and artefacts is persuasive. It appears that the deceased kept her footwear clean, but findings as to the occasion on which the soil became attached, and the mechanism by which attachment occurred, are left to inference. The State contended it occurred when the deceased was dragged at Como, but common experience shows that soil can become attached to the pointy toes of the type under consideration by walking across a soft soil surface. The amounts involved were small, particularly on the right toe, and on each toe the soil was lodged on the top of the sole against the leather upper at the very point of the toe.
The dragging contemplated by the State case has the deceased either face down and pulled by her arms or hands, or being held partially upright facing the assailant and dragged forward. If dragging by either of these methods occurred on the brick paving, damage to the toes would be expected and such damage is absent.
As to the damage to the outer side of the heels and the scuffing of the leather above the heels, if they were caused when the deceased was dragged across the brick paving, they could not have been caused at the same time. The straight striations in the heels are inconsistent with the circular and directionless scuffing. In addition, the State advanced the theory that the deceased was dragged while on her back and the striations to the heels were caused as her feet splayed outwards. This dragging event could not have caused the soil to attach to the toes of the boots. In respect of only the boots, therefore, the State case involves at least two dragging events.
The case for the State assumes that all the damage to the boots was caused during the evening of Tuesday 7 August 2007. This proposition struggles to find support in the evidence and is contradicted by evidence that I find both reliable and persuasive. As I have said, Professor Vernon was an impressive witness and I accept his opinion that the damage to the heels and leather uppers is consistent with normal wear and tear. Professor Vernon's evidence does not exclude the possibility that the deceased was dragged across the brick paving thereby causing some of the damage, but I accept his opinion that a single dragging event of short duration with the deceased on her back would not cause all the damage found on the heels and leather uppers. This view is supported by my conclusion that a gouge in the heel with a quartz grain embedded in one end was not caused when the deceased was dragged backwards and, significantly, the quartz grain did not remain embedded in the end of the gouge while the deceased was dragged backwards. This finding entirely negates the theory advanced by Mr Clarke that the quartz grain scored the brick paving while the accused was dragged backwards, thereby causing the brick dust found in the gouge.
Three brick particles and brick dust in the damaged areas could have come from Como. However, the evidence does not exclude the possibility that some or all of this material might have been deposited on an earlier occasion. In addition, regard must be had to the fact that the boots were found loose in the rear of the deceased's vehicle. Whether the boots were taken off before or after the deceased was placed in the rear seat is unknown. The possibility of transfer within the vehicle of some or all of the material has not been excluded.
This brief overview is sufficient to demonstrate that there are many uncertainties associated with the evidence concerning the boots. These uncertainties are compounded when this evidence is considered in conjunction with the State contention that the artefacts in the bra became embedded when the deceased was dragged by her legs or feet. Such a dragging event could not cause the soil to attach to the boots; nor could it cause the damage to the boots. It follows that the State case necessarily involves three dragging events which does not sit well with the absence of any signs of dragging in the soil or moss on the paving at Como. This is particularly relevant in view of the presence of moss as an artefact which the State submitted came from Como.
As to the deceased's body and clothing, although the State relied on the totality of all artefacts found, the primary focus was on the bra and the deceased's hair. The jeans produced few artefacts which could easily have been the result of a secondary transfer within the deceased's vehicle. No artefacts from Como were found on the shirt.
The soil and artefacts embedded in the bra clearly demonstrate an unusual contact between the bra and those items. The deceased would not have worn her bra to boot-scooting in the dirty condition in which it was found and the soil from the grave was not the source of the artefacts. The difficult question is whether a transfer of material in the deceased's vehicle is excluded.
While numerous red fragments were seen in the rear clasp and shoulder strap areas, they were very small and tended to migrate into the fabric when attempts were made to recover them. Only one brick particle was analysed and it was found to be a close match with a fragment from a particular Como brick. Two paint fragments could have come from Como, but another did not match any sample from Como.
While it is important not to lose sight of the total picture, very few fragments are relied upon with respect to the bra. The deceased was manoeuvred into the rear seat and across it. The potential for transfer of material from the seat is obvious and it has not been excluded. It would be dangerous to adopt the State assumption that all the material in the bra must have become embedded in the bra when the deceased was dragged on her back at Como.
The State also relied on small scratches to the clasp of the bra. I regard these as too minor to support the State contention. If the scratches point in any direction, it is away from the State contention. They are smaller than might be expected if the deceased was dragged in the manner suggested by the State. The absence of artefacts in the shirt, and the absence of injuries on the deceased's back that might be expected to result from dragging, also tend to point away from such a dragging event. The combination of this missing evidence is significant in a case so heavily reliant on forensic material and inferences.
Two features associated with the deceased's hair require careful attention. The small pellet of soil suspended in the hair combings contained artefacts consistent with Como being the source, but the soil was likely to have come from the grave. There were also brick and paint fragments in the debris which could have come from Como. I am satisfied that the artefacts did not come from Kings Park, but the question remains as to whether the car is excluded as a source.
As to the seed pods trapped deep in the deceased's hair, I am satisfied that Kings Park was not the source. I am also satisfied that the car was not the source. It is highly unlikely that such prickly objects found their way onto the rear seat to be picked up in the deceased's hair. Bearing in mind the artefacts in the seed pods, and having regard to other artefacts associated with the deceased consistent with coming from Como, I am satisfied that Como was the source of the seed pods. Como for these purposes includes the roadside verge in the immediate vicinity of the house.
Further, having regard to the nature of the seed pods, I am satisfied that the deceased was in difficulty and on the ground when the seed pods became attached to her hair and that she was not able to remove them.
Across the boots, clothing and the body of the deceased, the totality and consistency of artefacts, including the seed pods, has satisfied me that they came from Como. While individually the artefacts are not unique to Como, and the possibility cannot be excluded that the combination might exist at another locality, it is unlikely in the extreme that the deceased was waylaid on her way home to Como and was forcibly taken to another locality which, by coincidence, possessed the same combination of soil and artefacts as Como.
In reaching this conclusion I have not overlooked the presence of artefacts that were not present in samples from Como. In itself the presence of unexplained artefacts is not unexpected. First, although the sampling at Como was extensive, the entire yard was not sampled and artefacts could easily have escaped sampling. Secondly, artefacts foreign to Como could have become attached to the deceased at other localities in innocent circumstances.
There are a number of unknown elements associated with the presence of artefacts from Como on the deceased and her boots and clothing. Some of the artefacts could have been in place before the deceased left boot‑scooting. While I reject the suggestion that all of the artefacts were the result of transfer within the deceased's vehicle, some of them could have become attached in that manner. Although the seed pods point strongly to the deceased being in difficulty on the ground in the yard or on the verge and unable to remove them, that fact alone does not sustain the State case as to a secreting of the body and the draggings of the body associated with the sequence of events postulated by the State.
I am satisfied that an attack of some type occurred at the house or within the near vicinity but, while obviously significant, that fact alone does not prove that the attacker was the accused. If the deceased was attacked and immediately silenced before she got inside, and if Sarah was asleep and the accused was in the family area or to the rear of the house, it is probable that the accused would not have been aware of what was happening.
In order to justify the next step of implicating the accused in the attack, the State constructed a scenario to fit with the known movements that night and the 'window of opportunity' between the deceased's arrival home at about 9.45 pm and the return of Ms Russell and Caitlyn at between 10.40 pm and 11.00 pm. This is the scenario that includes the accused attacking the deceased, dragging her body in the process of hiding her and later dragging her to the vehicle.
A major problem for this scenario is the absence of any evidence to support it. This lack of evidence is coupled with the absence of any sign of dragging through the soil and moss at Como when, if the events postulated by the State occurred, some signs of dragging or disturbance, particularly in the moss, would almost certainly have been left. In addition, I am far from persuaded that the soil, artefacts and damage to boots and clothing point to a dragging event.
Put shortly, the scenario created by the State is a critical step in the process of implicating the accused in the attack upon the deceased. There is no evidence at Como that implicates the accused and no evidence to support the State scenario. The evidence tends to contradict the State scenario. In these circumstances, the State case in this crucial area of the crime scene does not rise above speculation advanced in an endeavour to fill a very significant gap in the State evidence.
As to other possibilities, the accused's car would have been in the driveway when the deceased arrived home from boot‑scooting. The deceased regularly parked her car in the street. The evidence to which I have referred raises the possibility of a sexually motivated attack on the deceased. Such an attack on the driveway or the verge could account for the damage and artefacts. In other words, the damage and artefacts are capable of being explained through an attack by someone other than the accused and in a manner inconsistent with the State scenario.
The State contended it is so highly unlikely that someone would attack the deceased outside her home that such a possibility should be rejected. Ordinarily the community hopes that such events do not happen, but on occasions the community is shocked to learn that such attacks do occur. More importantly, the question for the Court is not whether it is likely that someone would attack the deceased outside her home at 9.45 pm at night. Nor is the Court asked to decide who killed the deceased if it was not the accused. The task given by law to the Court is to decide whether the evidence proves beyond reasonable doubt that the accused killed the deceased.
Apart from the place card, the other evidence relied upon by the State is, at best, neutral. The history of the relationship could have led to a motive to kill the deceased, particularly if the deceased was home and became angry enough to threaten the accused's future career as a barrister because the accused failed to produce the financial information. However, the evidence tends to suggest that the accused accepted that he would have to provide the information and leave the house. Both the deceased and the accused wanted to resolve the outstanding issues without the involvement of lawyers and each was reflecting relief and a positive frame of mind.
Similarly, for the reasons discussed, the accused's behaviour after 7 August cannot support an inference that he behaved like a person who had killed his wife. The accused's conduct in illegally recording home telephone conversations demonstrates that he was desperate to know what the deceased was planning. His lies on oath are discreditable, but they are not indicative of a consciousness of guilt related to killing the deceased. As I have said, a different view might be taken of some of these matters if the other evidence establishes guilt, but in the absence of such other evidence, this evidence leaves open inferences consistent with innocence.
As to the place card, the presence of the place card close to Wattle Track so soon after the deceased was buried tends to link the accused to the gravesite. There is no evidence that the accused visited Kings Park in innocent circumstances after the dinner on 28 July 2007 and before Ms Roberts found the place card on 11 August 2007. The accused took the place card from the dinner and there is no evidence that he put it into the deceased's vehicle. An inference is open that the accused dropped the place card while in the vicinity of the gravesite in the early hours of Wednesday 8 August in connection with the burial and that he subsequently lied about which car he was driving because he knew the card implicated him in a killing which he carried out.
Notwithstanding that such an inference is open, it does not follow that the State has proven guilt. Sometimes an apparently incriminating piece of evidence has an innocent explanation that is not obvious; sometimes an apparently implausible explanation is true. Human affairs are not like jigsaws cut to size and shape. Strange events happen for odd reasons. Mysteries emanating from evidence given in criminal cases remain unsolved. The criminal law is replete with examples of miscarriages of justice caused in cases reliant upon circumstantial evidence, particularly when the heart of the case rests on the interpretation of forensic evidence. The cautious approach of Professor Dawson to the interpretation of forensic materials is well justified. 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.
Although the evidence proves that the deceased was attacked at the house property or on the verge, as I have said there is a lack of logic in several areas of the case for the State. This includes the high improbability that the accused planned to commit the 'perfect' crime in the house while a child was asleep and in such a short period between the deceased arriving home and Ms Russell and Caitlyn returning from the concert; that the plan required the accused to hide the deceased's body and vehicle and later retrieve the vehicle and manoeuvre the body into the vehicle in the front yard of the house; and that the plan require the accused to leave the children alone in the house while he disposed of the deceased's body and made his way back to Como.
Significantly, there is a complete absence of evidence from within or outside the house to support the State contention that the crime was committed by the accused. To implicate the accused the State relied on the interpretation of forensic evidence which, on careful analysis, does not support the scenario constructed by the State. Further, as I have said, the absence of signs of dragging and the absence of dragging injuries to the deceased's back combine to contradict the State scenario.
There is an added difficulty for the State in its total reliance on circumstantial evidence. As I have said, 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. In this regard the forensic evidence upon which the State relied so heavily fails to reach the requisite standard. It neither proves the State case nor excludes a possibility consistent with the accused's innocence.
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. The minor damage to boots and clothing, and the presence of soil and artefacts, are consistent with a sexually motivated assault causing the deceased to be on the ground struggling. The injuries to the deceased's intervertebral discs are consistent with an attack from behind and injury to the rear of deceased's head is consistent with a blow to the back of her head or her head striking the ground. If the deceased was attacked from behind she could have been deprived of the opportunity of making a noise or attempting to defend herself.
The accused does not have to prove an alternative to the State case. I mention this possible alternative to explain that in addition to failing to prove its scenario, the State has failed to disprove an alternative explanation consistent with the accused's innocence.
These inadequacies in crucial areas of the case for the State exist regardless of whether the State relies on a planned killing or a spontaneous killing in the course of an argument. The scenarios constructed by the State remain without a foundation in the evidence and are contradicted by the lack of dragging marks and injuries.
Finally, as to the events after Caitlyn went to sleep, the case for the State is plagued by improbabilities and uncertainties at each step. It is unnecessary to repeat the details of the dreadful and exhausting course of behaviour that the State attributed to the accused. It is sufficient to observe that if the accused engaged in such a course of conduct, it is highly improbable he would not have exhibited some sign, however slight, of the effects of the night's arduous and traumatic events. Experienced police officers, one of whom was specifically looking for signs, failed to detect any sign suggestive of the accused having been involved in the activities inherent in the factual scenarios upon which the State case relies.
The case for the State is beset by improbabilities and uncertainties. Crucial evidence is lacking and the absence of evidence tells strongly against the State. Endeavours by the State to fill critical gaps and explain away improbabilities are primarily no more than speculation without foundation in the evidence.
The accused has engaged in discreditable conduct including knowingly arranging for illegal telephone interception, making a false declaration and deliberately giving false evidence to a court while on oath. The evidence raises suspicion; in some instances quite strong suspicion. But discreditable conduct does not prove guilt, and suspicion, even strong suspicion, falls well short of proof beyond reasonable doubt.
Verdict
For these reasons I am not satisfied that the accused killed the deceased. I find the accused not guilty of wilful murder and not guilty of manslaughter.
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