R v Hillier [2006] HCATrans 655 (16 November 2006)

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R v Hillier [2006] HCATrans 655 (16 November 2006)

Last Updated: 16 November 2006

[2006] HCATrans 655

IN THE HIGH COURT OF AUSTRALIA

Registry No C1 of 2006

B e t w e e n -

THE QUEEN

Applicant

and

STEVEN WAYNE HILLIER

Respondent

GLEESON CJ
GUMMOW J
HAYNE J
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 NOVEMBER 2006, AT 10.04 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS P.J. DE VEAU, for the applicant. (instructed by Director of Public Prosecutions (ACT))

MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR W.P. LOWE, for the respondent. (instructed by Nelson & Co)

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal with two administrative matters before I proceed. The first concerns a chronology and a list of authorities. We slightly amended our written submissions and the second version did not but the first version did have a chronology and the list of provisions attached to it. I trust your Honours have those.

The second matter is that we have given to the Court and to our learned friends coloured versions as they originally appeared of the DNA profiling which appears in the materials. That appears in volume 2 at page 725 and a few pages following that. I have given your Honours that because in the evidence the colours are referred to. We have also added to these documents one thing on one of them, and that is to give the numbers such as D3, FGA, D8, D21 and so on which show the various locations that are referred to in the evidence. Could I say, if your Honours wish to go to these documents, you will see the sample number referred to in the second line immediately under the scale on top of the documents.

Your Honours, may I deal first with one aspect. Our learned friend’s submissions at paragraphs 3 and 39 to 45 appear to raise a point concerning the availability in a criminal appeal in the Australian Capital Territory of an unsafe and unsatisfactory ground. May we say, with respect, that it is not entirely clear what point is being sought to be made. I say that because in fact the respondent’s principal ground of appeal which was successful to the Court of Appeal was on that basis, namely, that the jury’s verdict was unsafe and unsatisfactory. You will see that in two places: first of all, in the notice of appeal, volume 2, page 907 in paragraph 2(a) and also in the majority’s reasons in volume 3 at page 1287, paragraph 2.

HAYNE J: Just a minor matter of detail, Mr Jackson. Was this the only appeal that the respondent made to the Court of Appeal? Was there an appeal against sentence as well as conviction, or was it conviction only?

MR JACKSON: Conviction only, I think, your Honour, yes. Might I also say, although I do not think I need to go to it, that the observations made in the Court in Conway v The Queen (2002) 209 CLR 203 at 220, paragraph 38, appear consistent with such a ground being available. We do not challenge the availability of the ground. Your Honours, a second matter concerns special leave. The respondent’s submissions also suggest in paragraph 46 that special leave will only be granted to the Crown in, it is put, very exceptional circumstances, referring to R v Benz.

Your Honours, a later decision of the Court dealing with that topic is R v Glennon [1992] HCA 16; (1992) 173 CLR 592. Could we refer your Honours - I can just simply give the references – to pages 595 to 596, Chief Justice Mason and Justice Toohey; 617 to 618, Justice Brennan and to 625, Justice Dawson agreeing with Justice Brennan where there appears to be a rather wider view taken of what might be treated as being appropriate circumstances for the grant of special leave.

HAYNE J: It would be necessary also to take account of R v Rogerson [1992] HCA 25; 174 CLR 268, would it not?

MR JACKSON: Your Honour, Rogerson was, I think, heard before but decided after Glennon. It is a decision which appears necessarily, as one might expect, to follow the approach taken in Glennon.

HAYNE J: His Honour Justice McHugh in, I think, a dissenting opinion reserved or thought it appropriate not to resolve the question of whether exceptional circumstances had to be shown in a Crown appeal.

MR JACKSON: Your Honour, may I say that the result, putting it in broad terms, seems to be that bearing in mind the nature of the proceeding there must be something which sufficiently affects the administration of justice to merit an appeal by the Crown. Could I come to the reasons why we would submit there is an appropriate case for the grant of special leave and may I say that those are stated in our written submissions in paragraphs 22 to 28.

Your Honours will see that the majority’s reasons in this case arrived at the conclusion on which they did by reliance upon a combination of factors which they said had not been clearly identified at the trial or at the appeal. Your Honours will see that in volume 3 at page 1290 in paragraph 86 at the bottom of the page, and it was said regrettably this combination of evidentiary factors does not seem to have been clearly identified either at the trial or on the hearing of the appeal, yet at face value it strongly suggests that someone else may have been responsible for the death of the deceased.

HAYNE J: Was it identified at all at trial or on appeal?

MR JACKSON: Your Honour, what was identified was the possibility in circumstances where it was said that the evidence admitted of the possibility that there was some other person, bearing in mind that this was really on the basis of saying the burden of proof had not been established, that a combination of factors suggested a possibility of some other person.

Now, the way in which the factors were identified, on the one hand, referred to as being in evidence and put together by the majority in the Court of Appeal was a quite different matter and that is the point I wanted to come to, if I may, your Honours, and it is this, that in consequence the majority took the view that there was – as they put in three different places in their reasons – that is paragraph 99, page 1295:

a disquietening possibility that such a person may have been admitted to the house and in some fashion caused her death.

Your Honours, that is the first reference. The second is at paragraph 100 where it was said there was a:

substantial possibility –

that is the top of the next page –

that someone else had been in the house at the time of her death -

Your Honours, in paragraph 106 they said:

there is a real possibility that another person was responsible for her death -

Your Honours, the point which we would seek to make, putting it very broadly for the moment, is that the proper approach which the court should have adopted was to consider the evidence which the jury might have accepted and which was consistent with their verdict, and to consider whether a jury might properly have convicted on that evidence. Your Honours, the observations of Justice McHugh and your Honour Justice Hayne in Gipp v The Queen 194 CLR 106 at paragraph 123 – it is a passage we have quoted in our written submissions at paragraph 25 – seem, with respect, not to have been followed.

HAYNE J: That was a dissenting opinion, was it not, in Gipp?

MR JACKSON: Your Honour, that is so, but in fact it is, in our submission, an appropriate course to be adopted. Now, your Honours, the approach which is then taken by the majority in this case, which is an approach to go through all materials – and I tried to identify matters which might together raise reasonable doubt, though not in a way ever put below – is an approach which, in our submission, alters the way in which appeals of this kind should be dealt with. Your Honours, one does have to bear in mind this was a case where the jury had various pieces of evidence which they were entitled to accept. They also had the advantage of hearing the respondent give evidence and they obviously did not accept his evidence.

Your Honours, may I go first to deal with the evidence that there was against the respondent and I will endeavour to do so in as brief a form as possible. This was a case where the evidence against the respondent was circumstantial. That does not mean that it was weak. Indeed, it was a case that was, in our submission, rather the opposite. An important starting point is the DNA evidence. That involves particularly the sample of the test which is described in the evidence as 15C7. The representation of it, if your Honours want to go there, can be seen in volume 2 at page 726 and is one of the copies that I gave your Honours before.

It was a representation of particular importance. It was taken from just below the deceased’s left – right pyjama collar which could be turned in or turned out. I said “left”, then “right”. The reason for my confusion on the matter is that there was in fact some confusion at the trial, but in the end it was clear it was the right side which could be turned in or out. It was the part immediately below the collar and the jury was actually shown the place from which it was taken. Could I go in that regard to the evidence of Ms Benson, who is a forensic scientist, in volume 1 at page 102. Your Honours will see about line 15:

tape lift number 7 is from the right side from the front on the inside of the pyjamas.

And inside being inside what part?---Inside as in the part that would be closest to your body when you were wearing them.

That goes through to about line 30 but it is in fact the part immediately below the collar which ordinarily would turn out, as the collar itself was turned out.

Strangling someone to death is of course neither an easy nor a pretty undertaking and a jury would be perfectly entitled to take the view that the place from which the DNA sample of 15C7 was taken was more or less where one would not be surprised to find some DNA reflecting the activity of the person carrying out the strangulation. It is at that point that the DNA evidence begins to cause difficulties – indeed, in our submission, significant difficulties – for the respondent.

They arise in this way. The DNA samples were taken from the deceased and from the respondent. The relevant sample from the deceased, the test is shown in volume 2, page 727. The relevant sample from the respondent is shown at page 728. What emerged from the analysis of the DNA in 15C7, the sample from near the collar, was that it demonstrated that it was consistent with the contributors to it having been (a) the deceased; and (b) the respondent.

There could be no doubt about the DNA of the deceased and the possibility of another person having the respondent’s DNA was somewhat remote. The evidence on that aspect, your Honours, is summarised by Justice Spender –and accurately, in our submission – in volume 3 at page 1322. I should say, your Honours, that the language used by the DNA experts, of whom there were three, is that a person cannot be excluded because on each of the charts that your Honours have there are 10 samples and when a person’s sample does not match the sample being tested in any one respect, out it goes. But the patois is that the person cannot be excluded and the possibilities of another person having the same DNA and two persons having the same DNA become very significantly high.

Your Honours will see at paragraph 202 at page 1321 that there is a reference to Ms Ristevska, who was one of the three witnesses. At paragraph 203 she said the profile was “a mixed DNA profile”. That is 15C1, not 15C7. But coming to paragraph 204 and 15C7, she said it “produced a mixed DNA profile that could come from two individuals”. There was a minor and a major contributor, and the deceased could not be excluded, the respondent could not be excluded.

Your Honours will see the evidence that is then contained in the next paragraph and what she is being asked about there is a matter to which I will come in a moment, and it is a possibility of transfer to sample 15C7 of some of the DNA of the children or a child of the respondent and the deceased which would itself carry with it some of the same DNA, and she said that if that had happened she would expect that person also to be a contributor, and that was not evident from the tests she had carried out.

HAYNE J: I had read that and this is not consistent with what you have just put, so I raise it. I had read that as evidence suggesting the possibility of transference of the respondent’s DNA through his contact with the children followed by the child’s contact with the deceased. Is that - - -

MR JACKSON: Yes, that is what is being spoken about. That is a possibility.

HAYNE J: I see.

MR JACKSON: But what is being said – and I will come back to this part in a moment, your Honour – is that the evidence that the jury was entitled to accept was that if that had taken place, you would expect to see DNA which reflected a contribution from the child as well, and that did not appear to be the case.

CALLINAN J: Mr Jackson, is that why the language she has used - it is a partial level, is it? I did not quite understand that.

MR JACKSON: I am sorry, a partial?

CALLINAN J: A “partial level” in paragraph 203, the last sentence in paragraph 203.

MR JACKSON: Yes, your Honour.

CALLINAN J: That is what is meant by - I did not understand it.

MR JACKSON: It just seems to mean the sample, I think, your Honour, was not good enough to carry out the test properly, really, effectively to get an ultimate result.

CALLINAN J: In any event, what you have just put to Justice Hayne is what the situation is that there was no sample to demonstrate actual contribution by any child.

MR JACKSON: I put it before - - -

CALLINAN J: Direct contribution, perhaps.

MR JACKSON: Yes, your Honour. The way I put it before was to say, and I will come to the evidence on this point a little more specifically, but there was evidence that the jury was entitled to accept, both from the witness to whom I have just referred and also from another of the witnesses and, perhaps to a lesser degree, from the doctor called on the other side, Dr McDonald, that if there had been a transfer one would expect to see some of the child’s DNA augmenting the results.

Now, your Honours, what I was going to say then is if one goes on, staying at page 1322, you will see then that her estimate was that the mixed DNA profile was at 93 million times more likely if the two persons were the deceased and the appellant than the deceased and another person chosen at random from the general public and she excluded the children. You will see then in paragraph 207 a reference to Dr Roberts who was also called on behalf of the Crown. You will see in paragraph 208:

he said that indicated the presence of DNA from at least two people, one of which was male. The deceased was not excluded as the major source of the DNA in that sample. The appellant could not be excluded as being a contributor to the sample, and examination of all the peaks in sample 15C7 revealed that all of the peaks can be accounted for by either the deceased or the appellant.

His estimation, based on a couple of differences of view as to the size of a base sample and as to the degree to which one should allow for statistical errors, was that the sample order was 7.6 million. Your Honours will see that at the bottom of page 1322. Your Honours, one sees then in paragraph 209 the quotation from his evidence where he said:

In my opinion, in the absence of any other information about who could have contributed to this sample, I think the results provide extremely strong support for the proposition that the DNA on the pyjamas came from the deceased and the accused rather than from the deceased and the person chosen at random from the Caucasian population.’

Your Honours will see then he was asked again about secondary transfer and your Honours will see his answers there, but in particular the part that has been highlighted:

There is no indication of DNA from a third person in this mixture.

You will see then, your Honours, the evidence of Dr McDonald referred to in paragraphs 212 and following. You will see then at paragraph 214 he dealt with item 15C7:

He agreed that all of the peaks which appear on the DNA profile were accounted for by the DNA profiles of the accused and the deceased.

When it came to quantification, as it were, your Honours will see in the last few lines on page 1324 he said:

it could be anything from half a million to five million.’

Then at the top of the next page he was asked whether:

such a result would provide extremely strong support for the proposition that the mixture came from the DNA of the accused and the deceased compared with the DNA of the deceased and an unknown person, would it not?---If they’re the only possibilities that you’re given, yes it would be. Again I don’t necessarily follow the extremely strong but it’s certainly evidence that that’s the explanation, yes. And that’s a number, that’s you know, for I think most practical purposes, high.

I would invite your Honours to read the remainder of the paragraph. Your Honours, pausing at that point, the result of that evidence was that the jury was perfectly entitled to take the view that the possibility of another person other than the deceased or the respondent having contributed to the DNA was relatively remote.

Those matters are created, and it is submitted, yet create, a difficulty for the respondent and the difficulty arises from a number of matters. First, what was his DNA doing on and near the neck of pyjamas worn by her at the time she was strangled, and secondly, there was a combination of matters which militated against an innocent transfer of the respondent’s DNA to those pyjamas. Now, your Honours, in that regard one does need to bear in mind that the respondent had not been in regular personal contact with the deceased for some years.

GUMMOW J: This is paragraph 219 on 1326?

MR JACKSON: Yes, your Honour.

GUMMOW J: It seems to be important?

MR JACKSON: Yes. So that is the first thing, and in particular, your Honours, he had not been in contact with her in circumstances where his DNA would get onto the pyjamas. He had not been inside the house for a number of years, and as your Honours will see from his evidence at page 601 in volume 2, line 40, through to page 602, line 10, he was not in regular personal contact with her. Indeed, the relationship was not altogether happy at all.

Now, the pyjamas, your Honours, were purchased within some eight months before the victim’s death. Your Honours will see that referred to in paragraph 219, and there was an available inference that they were regularly washed which would make it unlikely, although perhaps possible, that any foreign DNA was of other than relatively recent origin.

Your Honours, could I just indicate where the evidence on that point about the DNA surviving may be found without perhaps necessarily taking your Honours to the passages. There are four passages, a Miss Ristevska, volume 1, page 147, line 25 to page 148, line 5, and also page 149, line 35 to 150, line 45; Dr Roberts, page 394, line 30 to 395, line 10 and Dr McDonald in volume 2, at page 639, lines 5 to 10.

Now, your Honours, to put it shortly at this point, it was perfectly open to the jury to take the view that the presence of his DNA in the place where it was found and at the time where it was found and on the pyjamas on which it was found was evidence which was quite significantly against him. It seems clear that those representing the respondent at the time recognised that that was so, and that as a practical matter – I am not talking about questions of ultimate burden - some explanation was called for which might provide a plausible reason why the respondent’s DNA was found where it was and when it was in15C7.

Now, your Honours, the explanation or hypothesis which was mooted was that of a secondary transfer, and in simple terms that involved the proposition that one of their children had been the carrier.

Now, your Honours, children of broken families move from parent to parent. The child hugs the parent from whom he or she is departing and picks up some of that parent’s DNA. The child hugs the parent to whom the child is going and in doing so may pass on to the other parent some of the first parent’s DNA. Now, your Honours, no doubt the possibility of secondary transfer in that fashion existed, but there were matters, both factual in the ordinary sense and technical, which the jury may well have thought made such a conclusion unlikely.

The factual matter was that it was essential that any such secondary transfer be onto the deceased’s pyjamas. The murder occurred on Monday night sometime after nine. The most recent transfer of the children had been on the Thursday morning before the murder and it involved the respondent delivering the children at school in the morning for that day. The relevant passage is it at volume 2 at page 583 at about line 25 in the respondent’s evidence. You will see 20 September the deceased came to pick up her children from school. The passage goes through to page 585 about line 35. The most relevant part commences about line 10 on page 585. Your Honours will see:

Presumably at the end of the school day on Wednesday Ana picked them up did she and took them back to her place?---I would assume so.

And they spent the night there?---On the Wednesday?

Yes?---No, no.

Thursday?---On the Thursday, yes.

And then on the Friday?---She would have delivered them to school.

And after school?---I believe she picked them up after school – no, we had had arrangements I think where I picked them up from school on that day, yes.

Your Honours, I am sorry. I think I gave your Honours the wrong page. It should be line 35 on page 584, “you brought them back on the Thursday morning”, he delivered them to school and then they went to school and they went to her place that night, in effect. So, your Honours, that was quite some time before the events in question.

Also, your Honours, there was an element of coincidence involved because the DNA transfer, if there had been one, would have had to have been to the exact spot in effect and onto the pyjamas themselves. That is a minor part, the last thing. But the second thing was that there was also a technical problem and the technical problem was that there was evidence which the jury were perfectly entitled to accept that if there had been secondary transfer, then, hardly surprisingly, you would expect to see some of the transferor’s DNA as well in 15C7. That is, if the supposed transferor was a child of the deceased and the respondent, the manifestation of that child’s DNA would be in increased peaks in the sample, but those peaks did not appear to be there.

Your Honours have seen the last parts of the evidence of that in the passages contained in Justice Spender’s reasons for judgment. May I take your Honours very briefly to where the evidence actually is in the material. It commences in volume 1. I wanted to go first to Ms Ristevska, then, having done that, to Dr Roberts, then to Dr McDonald, and I will do so as briefly as I can. If your Honours are seeking the evidentiary explanation of, for example, the chart which shows the results of 15C7, you will see that essentially dealt with at pages 131 through to 134 in the evidence of Ms Ristevska and to make that intelligible is why we have put the letters showing the various locations on those charts.

If I could go to page 137, about line 30, you will see in the question and answer commencing at line 25 she excluded that as an option, the possibility of transference, and you will see in the next answer commencing about line 40:

I would expect the profile from the carrier to also be evident in the evidence sample at higher levels . . . I would also expect that person to also be a contributor to the profile.

That goes on to the top of the next page where she said that was not evident from the tests she carried out. I think that goes through perhaps to about line 15 on page 138. At page 151 commencing about line 15, the passage goes through to page 152, about line 35. May I refer particularly to the top of page 152 where she said that Daniel, one of the children, if he had contributed:

you would expect his profile to be amongst this and certain areas or certain peak areas . . . to actually increase because of his presence.

She accepted the possibility that he might have been a contributor but said “possible but unlikely” at about line 14. Between lines 20 and 30 she said her results do not indicate that there could have been five contributors to it. If I could go to page 170, your Honours will see at lines 5 through to about 45 particularly the last few questions and answers on that page.

Now, your Honours, Dr Roberts’ evidence was in the same volume at page 390, about line 35. The passage goes through to page 393, about line 5, but could I just say, if one goes, for example, to page 391, between about lines 30 to the end of that answer, where he said:

if the DNA from Mr Hillier was transferred by another person and deposited on the pyjamas. That’s similar to the secondary transfer scenario that I’ve described and I would expect that there would be a large amount of DNA from the intermediary person who carried that DNA and the small amount of DNA from the original source, Mr Hillier.

In the next answer he said:

There is no indication of DNA from a third person in this mixture.

Your Honours, his evidence also at page 393, about line 15 through to page 394, about line 40, there is a reference to the washing of pyjamas about line 43 on page 394, and finally in relation to his evidence, page 405, lines 15 to 25.

Your Honours, finally, Dr McDonald in his evidence in volume 2, page 638, lines 10 to 20, where he said there was a possibility of secondary transfer, and you will see also page 646, lines 15 to 20, and he said:

There is no prima facie evidence that more than two people contributed evidence to this. Or contributed DNA to this. However, a large number of people could be contributors.

Your Honours will see also the next question and answer. May I pause at that point? I have taken your Honours to the summary by Justice Spender of the evidence commencing at paragraph 202 of his reasons, but may I say, your Honours, simply this, that the jury, in our submission, was perfectly entitled to find in those circumstances that the DNA evidence raised a very strong case against the respondent.

GLEESON CJ: What do you say about paragraphs 72 and 73 on page 1287 in the reasoning of the majority?

MR JACKSON: Yes. Well, your Honour, if I could just deal with those paragraphs one by one in the first place, your Honour. If one goes to paragraph 72, what your Honours will see first of all – I am sorry, perhaps I will start with paragraph 73 which is really their conclusion. They say:

In short, the DNA evidence did not prove beyond reasonable doubt that the sample on tape lift 15C7 contained traces of the appellant’s DNA that had been left by him on the night in question.

Your Honour, if one subdivides that into parts, it seems perfectly apparent, we would submit, with respect, that the jury was able to find that the DNA of the respondent was on those pyjamas. The jury were perfectly entitled to find – indeed, any other finding, one would think, would be perverse - that she had been wearing those pyjamas on the night. One would expect to find that a person who had done to her what had been done by the murderer would have left some DNA in approximately that position, and the jury were also perfectly entitled to find on the evidence that there was nothing to indicate that that sample had any contribution from the children.

Now, once one made that finding, once the jury took those views, the position which then obtained was that it might be fine to say some of the things that are referred to in paragraph 72, the general observations about the way people behave, but one was left with a situation where they were people who were not in ordinary contact where his DNA was found in what, prima facie, was an incriminating place and, your Honours, the majority really overstate the position in the view that they take in paragraph 73. It is no doubt right to say that the DNA evidence by itself might not prove beyond reasonable doubt that he was there on the night, but it was not the only evidence in the case - - -

CALLINAN J: I was puzzled by the opening to paragraph 73, in fact, as if that necessarily had to be proved beyond reasonable doubt for a conviction to be sustained.

MR JACKSON: Quite, your Honour. One could imagine jurors taking the view that it was an important part of the case and that unless they were really satisfied that that was the result of the DNA that they would not convict, but at the same time it was not an element of the offence. It was part of the proof - - -

GLEESON CJ: It is necessary to consider also, is it not, paragraph 74, because that may raise a question of principle? Once a Court of Criminal Appeal accepts that evidence such as this provides substantial support for the Crown case, you then have the question: how substantial is that support having regard to the whole of the evidence, and the whole of the circumstances? Is that a question for the Court of Criminal Appeal or for the jury or for both?

MR JACKSON: Your Honour, one starts from the court of trial and, of course, dividing the functions of the court into two, the judge’s directions and the jury’s findings, but the function of the jury would have to be in the first place to see whether they are prepared to accept the evidence and what evidence. Now, if it be that they accept the evidence that the DNA on 15C7 was DNA of the respondent, to put it shortly, then they are entitled to take the view – depending on the other evidence in the case – that that was something which was of significant importance. That is part of the function of the jury to weigh the evidence, your Honour. That is why judges say so often when they come to dealing with the facts, “It is your view of these things, not mine, that matters”. It is a matter of weighing the facts.

Your Honours, when one comes to the Court of Appeal, the approach taken on the ground with which the Court is concerned is one that accepts that there is evidence which establishes a case in the prima facie sense that the jury could, if they accepted or found guilt, but that the court on appeal takes the view that the evidence was of such a character that it was unsafe. In dealing with that issue in the Court of Appeal, the court is entitled to look at what the evidence was, but where the evidence is fairly open to the jury taking a particular view then the Court of Appeal should not interfere with that, with respect. Your Honour, I am sorry, it is a rather long-winded answer but it does simply involve, with respect, a recitation of the respective functions of the trial jury and the Court of Appeal.

Your Honour, could I just say in relation to paragraph 75, that deals with another sample, 15C1. What appeared from that was that the sample was not as satisfactory for testing as 15C7, but there appeared to be possibly three contributors to it. Predominantly the deceased, possibly the respondent, and a third person’s DNA which was unidentified.

Could I just say where your Honours will find the evidence on that is best in three passages: Dr Roberts in volume 1, page 390, lines 1 to 20; Ms Ristevska in volume 1, page117, lines 1 to 30; and Dr McDonald in volume 2, page 635, line 15. He thought he could exclude the respondent but there were still three people. But, your Honours, the fact that it might not be possible to identify everyone on 15C1 does not take away from the fact that the tests of 15C7 were such that the jury was entitled to find that the respondent’s DNA was there. Your Honours, in addition to the DNA evidence - - -

HAYNE J: Just before you part from the DNA evidence, at paragraph 73 of the majority opinion at 1287 there is reference to Dr McDonald saying that “there was simply no basis” for an assumption that there were only two contributors to the sample. Where is that evidence?

MR JACKSON: That is, I think, the passage I gave your Honour, page 635. May I just check that, your Honour, just in case. I think it is page 635 or around there.

HAYNE J: Yes.

MR JACKSON: Your Honour, could I come back to that?

HAYNE J: Of course.

MR JACKSON: Your Honours, what I was going to go to then was to say that in addition to the DNA evidence there were two other aspects which were of particular importance in the case. May I describe then as, perhaps slightly inaccurately, one motive, the other opportunity.

As to motive, your Honours, the evidence demonstrated that the respondent, by reason of orders of the Family Court, had lost the right for their children to reside principally with him. You will see that referred to by the majority in volume 3 at page 1272 in paragraph 23 of that court’s reasons. Now, your Honours will see it was initially agreed the children would live with the respondent and the deceased would have access to them as arranged. There were terms of settlement in June 2000 and October 2000. The deceased sought orders requiring the children to reside with her. Then in June 2002 the Family Court made an order for the children to reside with the deceased and for the respondent to have access. The orders were stayed and there was a notice of appeal filed by the appellant on 6 September 2002, but the stay was lifted on 20 September.

Now, your Honours, that changed the custody arrangements which had been in place for the preceding three years. That is referred to on the next page, page 1274, lines 5 to 10. Without going into all the evidence on the question of motive which I will endeavour to summarise in just a moment, the view taken by the members of the majority was that there was a strong case on motive. Your Honours will see that referred to twice. At page 1275, paragraph 30 it was said:

the jury would have been entitled to have regarded this as a strong potential motive for murder albeit, perhaps, not one augmented by some of the factors suggested by the Crown.

They went on to say also in paragraph 32 on the same page:

In the present case, however, the evidence of motive had added weight because the death of the deceased occurred so soon after the order effectively staying the operation of the residence order had been lifted. The Crown made the obvious point that it seemed unlikely that the deceased was the victim of an unknown stranger, who coincidentally, decided to murder her less than a fortnight later.

Your Honours, so far as the evidence on motive was concerned, it amounted to – and I use the term “motive” perhaps a little loosely – these things, if I could simply summarise them for the moment: first of all, an escalation in the acrimonious relationship between the parents after their separation. That was contained in the evidence of the two witnesses Hardwick, Ms Wells, Ms Hofen and Ms Vaughan. There was evidence on the part of the respondent of a controlling and pedantic attitude towards the deceased’s contact and care of the children. That comes from the evidence of the two Hardwicks, Ms Wells and Ms Vaughan. There was a bitter custody dispute. That comes from generally the evidence of Ms Harmer, Ms Chase, Ms Vaughan, the Hardwicks and exhibit Y.

There was the timing to which I have referred and there was evidence of a demonstrated emotive angry response of the respondent regarding the outcome of the proceedings, particularly on the 20 September. That is the evidence of Ms Chase and Ms Paynter. There were expressions to others by the respondent that he did not have the finances arranged to take the proceedings further. Could I give your Honours a specific reference in that regard: Ms Hillier, volume 1, page 244, line 35 to page 245, line 5, and the evidence of the Paynter, volume 2, page 500, about line 40.

CALLINAN J: Mr Jackson, is that the full list of the motivational items?

MR JACKSON: I was going to say one further thing, your Honour. The further thing, your Honour, was a matter to which we have referred in our written submissions in paragraphs 41 to 43, and that is the inference available from the phone records that his endeavours in trying to get assistance for an appeal ceased over the weekend before the murder and were not pursued on either the Monday or the Tuesday, the Tuesday being the morning after the supposed death.

CALLINAN J: That is exactly the matter I wanted to ask you about. I think the Court of Appeal said, the majority said that matters had not been put that should have been put in relation to the telephone calls.

MR JACKSON: Yes, your Honour, that is - - -

CALLINAN J: Could I just ask you about this, Mr Jackson? At page 615 in volume 2, the prosecutor is cross-examining the respondent and at line 12 he says:

I won’t take you through them again because Mr Purnell drew your attention to them on the chart, but you rang a number of doctors –

and so on. They were doctors whom he had in mind perhaps to call, is that right? I just want to understand this.

MR JACKSON: I think so. I think that is right, your Honour. Yes, that seems to be - - -

CALLINAN J: Because there is a possibility of an appeal pending. Whether evidence could have been received or not, we do not have to worry about. He obviously thought that evidence might be useful.

MR JACKSON: Yes.

CALLINAN J: Now, after that I think it is right to say that the prosecutor did not put directly to the respondent, “Well, you stopped making the telephone calls because you didn’t need to make them any more. The matter was ended”. That does not seem to have been put directly.

MR JACKSON: I accept that, your Honour.

CALLINAN J: Mr Jackson, it seems as if this was an issue that may have been raised by defence counsel because of that reference at line 12. Now, is that right?

MR JACKSON: Yes, your Honour, we have referred to this. In paragraph 43 of our written submissions we have a reference to this and what your Honours will see, at page 579, defence counsel asked the witness to go to the exhibit showing the list of phone calls and then he went through the list.

CALLINAN J: Was this done pre-emptively or – that is really what I am asking, I suppose?

MR JACKSON: Your Honour, it seems likely, and the fact was that exhibit AA was tendered.

CALLINAN J: Where do I find that, Mr Jackson?

MR JACKSON: It is in volume 2, your Honour. I just do not have the page at the moment.

CALLINAN J: I am just trying to understand how it came to be raised by defence counsel in the first instance. Page 693, Justice Gummow says.

MR JACKSON: It is page 693, but you will see, your Honours, at page 511 exhibit AA was tendered by the prosecution, by Mr Hastings. Now, in the few pages beforehand there is something setting out what is in them, because there are two sets of – exhibit Z is a call record relating to the deceased’s phone. That appears at page 506.

CALLINAN J: Was there any objection to the tender of either of these?

MR JACKSON: No. So you see then exhibit AA goes in and then your Honours will see a cross-examination of the witness – that witness, Mr Seppings – commencing at page 513. There is nothing really touching the matter there, and then it is when you come to page 579, when the respondent was giving evidence, that one goes to see the calls examined and that is towards the end of the examination-in-chief of the respondent as appears from page 583.

So he explains what the calls are and then, your Honours, one sees – and we have endeavoured to put this in paragraph 43 of our written submissions – what took place thereafter, and you will see that we have given some references; page 614, about line 45, the cross-examination by our side about the calls began in the context about his desire to retain the legal care of his children following the order of 20 September.

CALLINAN J: Cross-examination about funding an appeal, too, in the - - -

MR JACKSON: Yes, that is so, and that goes on to about page 617, about line 40 and that is the context in which the issue arose, and it goes on to page 617, but the more general issue goes on to page 619, lines 30 to 35. Your Honour, I can say immediately, the precise question was not put to him.

CALLINAN J: Mr Jackson, where did the trial judge deal with the telephone calls? You may not be able to tell me at the moment.

MR JACKSON: I will get your Honour the reference in the summing-up.

CALLINAN J: The submission seems to have been in the Court of Appeal that this came out of the blue in the prosecutor’s address, is that right, the inference that the jury were asked to draw from the cessation of the telephone calls? That was what was suggested, was it not?

MR JACKSON: If your Honour means in oral address, I am - - -

CALLINAN J: Yes, oral address.

MR JACKSON: May I check that. I am not certain that is quite so but I - - -

CALLINAN J: Do not worry now. I would just like to know, Mr Jackson, how it was dealt with by the prosecutor at the trial, how, if at all, it was dealt with by defence counsel, whether there were any objections or anything of that kind and how the trial judge dealt with it. Do not worry about it now, but if I could get references.

MR JACKSON: I suspect I will have to give your Honour the references a little later in the day. The other aspect with which I wanted to deal was the question of opportunity. The evidence was that the children had stayed with the respondent on the Friday and Saturday nights preceding the murder. They were to stay with him on the Monday night - that is in volume 2, the passage I went to before, page 583, line 20 to about 585, line 35 – but he arranged with his father for them to stay with his father and his wife overnight that evening. The version that he gave was that he did that because he had to go to a business meeting relatively early the next morning at the Hyatt Hotel in Canberra. Your Honours will see the evidence referred to in the reasons for judgment of the majority at page 1277.

GLEESON CJ: Was there any evidence as to whether the children had their own keys to the house?

MR JACKSON: Your Honour, the evidence in relation to keys, it may be said immediately, was confusing but, so far as the boy, Daniel, was concerned, it was said that he had a key in his drawer. The deceased’s parents had a key. The boy, Daniel, had a key. Precisely where he got it from was somewhat elusive. As to the daughter, no. The situation which remained was that there was no suggestion of a forced entry but at the same time it was not clear precisely how the person who committed the murder got into the premises.

GLEESON CJ: I was just wondering whether there was any evidence as to whether from time to time the children had to let themselves into the house.

MR JACKSON: The burden of the evidence seems to have been that the deceased did not want to give the children keys in case they gave them to the father. May I give your Honours a reference to that also.

CALLINAN J: Mr Jackson, in relation to what was or was not put, I suppose the prosecutor came closest to it in relation to the telephone calls at page 618, line 27. It certainly was not put directly but he was asked:

Was it the fact by the end of the week . . . that you were beginning to despair of your prospects on appeal?

That is the high point of what was put.

MR JACKSON: Yes, it is, your Honour. What does emerge from it is that the jury were entitled to find that he was endeavouring to.....up, if I can use that expression, an appeal in the week before, in the time before the death and then that stopped.

CALLINAN J: I suppose the evidence, leaving aside keys, of opportunity is at 620, line 21:

There’s nobody who can account for your movements, is there, on the evening of Monday 30 September?

MR JACKSON: Yes, your Honour. I have to say that that was true of many people.

CALLINAN J: Well, it is a great misfortune for a defendant to be put in that position but it must often happen, unfortunately.

MR JACKSON: Very frequently, your Honour, but it is simply part of the evidence. Your Honours, it is those three aspects of the case, if I can put it that way, the DNA, the motive and the opportunity, that are really the major parts of the case, but there were other aspects of it which also were capable of being regarded by the jury as incriminatory. May I deal with those briefly, your Honours.

One of them concerns the question of the damage to the respondent’s hands. Your Honours will see this referred to in our written submissions in paragraph 46. To put it shortly, the respondent on 1 November had provided fingerprints to the police pursuant to a court order. That appears in volume 1, page 351, lines 20 to 30. On 22 November he was seen by Dr Healsmith at the request of the police, who found that there was damage to his fingers which he estimated at being some three to five weeks old. I will come to evidence a little more specifically in a moment, your Honours. The Court of Appeal, in the majority, seem to have taken the view that the only damage was damage to his fingernails which they regarded as being inconsistent with the notion that he might have been trying to do something to make it more difficult to obtain satisfactory fingerprints from him.

The difficulty with that view is that the evidence from Dr Healsmith was that if one had dipped one’s fingers into some acidic or alkaline solution with a view to causing damage which might militate against taking fingerprints, then whilst there would be recovery to both parts of the hand the last parts to recover would be the fingernails and the damage to the other parts of the fingers might have gone within a few weeks. So what he saw was consistent with – and I will take your Honours to the passages in his evidence in a moment – in the weeks before he saw the respondent, the respondent having put his fingers into some solution that would cause damage to them. Your Honours will see that referred to in the evidence of Dr Healsmith in volume 1, page 308.

Your Honours will see he is sworn at page 308. At page 309 he describes there being, about line 10:

some redness on all the tips of all the fingers, there was redness, too, on the back of the tips of the fingers up to the last knuckle.

You will see that described through the remainder of that paragraph. He said then, between lines 30 and 35, that the features he had described did not extend:

beyond the first knuckle . . .

And was that common to all fingers on both hands?---Yes . . .

this was not was normal for the hands in any sense.

He said, your Honours, at page 310, between lines 10 and 15, the sort of substance which would most likely cause the condition would be:

chemical trauma and acid or an alkali . . . But immersion in some acid or alkali was the most likely explanation . . .

Because of the lack of extraneous and more widespread damage, my view was that it was most consistent with the fingertips having been immersed into a substance . . .

I would think that three to five weeks would be the timeframe of the injury.

Then, your Honours, he spoke in the next answer at the bottom of page 310 to the top of page 311, referring to the difference in the healing time of the fingernails and the remainder of the fingers. You will see, your Honours, in the next answer, he said the:

recovery of the flesh on the fingertips?---It was good. There was residual redness which I’d noted and the couple of fingers where there was still changes in the surface of the skin so that’s consistent with the healing being close to complete -

He refers to the slower nails in the next answer. Then, your Honours, he said at page 313, between lines 35 and 40, that:

The whole of the tip of the finger was abnormal to some degree.

Perhaps if I could just pause at that point. That was evidence which the jury was also entitled to take into account.

Your Honours, the deceased had an intimate relationship, although the two of them did not actually live together, with a man called Mick Koppie. He gave evidence. He denied any knowledge or any personal involvement. He and other people who gave evidence dismissed suggestions that the deceased was involved with any other person. There were exhaustive police inquiries made which did not demonstrate any other person as a possible killer. There was no evidence of any sexual conduct engaged in voluntarily or involuntarily by the deceased at the time and, your Honours, that was essentially the nature of the case.

GLEESON CJ: Was there any evidence of anything having been stolen from the house?

MR JACKSON: No. Your Honours, the view which the Court of Appeal appeared to adopt as a possibility was that there was some sexual misadventure, may have been perhaps an unknown lover. Can I refer your Honours to volume 3 at page 1232 – could I pause at this point to say this. Our learned friend’s submissions in paragraph 70 say that it was acknowledged by the Crown on the appeal that a relevant hypothesis was sexual misadventure or an unknown lover. The record of oral submissions on the appeal appears relevantly at page 1232, the passage commencing at line 3. It goes through to page 1234, about line 32. Your Honours, that is the highest at which that proposition can be put and all that was said essentially appears on page 1234.

Your Honours, the whole question of sexual misadventure appears to have been a construct by the majority in the Court of Appeal. It is based on, for example, a number of things. There was some evidence, although the handcuffs themselves were not in evidence, that a pair of handcuffs, in apparently their original packing, had been found in a cupboard and there was some evidence that there were some marks around the top of the bedhead which might be not inconsistent with someone putting handcuffs on the end of the bed.

There was some evidence of some bruising on the deceased’s wrists, and I will come to that in a moment, but it is not too surprising in the case of someone who had been strangled, one would think, and there was some reference to the DNA of an unknown male perhaps on 15C1. What is said to be footprints in the soot turned out to be a footprint from the deceased’s father, and the Court of Appeal also referred to other evidence consistent with the presence of a third person at the relevant time.

GUMMOW J: There was an ashtray, was there not, in the bedroom?

MR JACKSON: Yes, there was an ashtray in the bedroom, your Honour, which did not have on it the fingerprints of the respondent and had not otherwise been tested for other people’s fingerprints, apart from a couple of people. Now, your Honours, could I say that the majority set out these factors at paragraph 99 on page 1295 in volume 3. Your Honours, may I say a couple of things about them. First of all, the evidence on these points, in our submission, could really give rise to no such inference. Dealing first with the handcuffs, the entirety of the evidence concerning the handcuffs is set out by Justice Spender in his reasons in volume 3 at page 1301 at paragraphs 120 to 127.

HAYNE J: I am sorry, can I just take you back to where you were immediately before that? If you go back to 99 at 1295, does the majority there take some but not all of the facts demonstrated in evidence and say that those facts viewed in isolation from other facts proved in evidence were not inconsistent with the conclusion that there was a third person there and that that third person, in some fashion unspecified, caused her death?

MR JACKSON: Your Honour, I am not certain about the number of negatives – I am sorry - - -

HAYNE J: It seems to take a part of the evidence and say if you look at only that part of the evidence you might get to a conclusion.

MR JACKSON: Your Honour, that appears to be exactly what they are saying. That is because if one sees what is said in paragraph 29 and what immediately precedes it, that is what they seem to be saying; those features raise the disquieting possibility, but that is only part of the evidence and why - your Honours, this is a jury a case – why was not the jury entitled to say, “We look at the evidence. Having looked at the evidence this is what we see, these are the parts that we regard as matters that are significant”?

HAYNE J: But if you chop up any circumstantial case into little bits and then test the little bits against certain hypotheses you may get to one conclusion.

MR JACKSON: Of course, your Honour. I am sorry, your Honour, I do not mean to say “of course” in a dismissive fashion, with respect. What I am seeking to say is that one has cases that are circumstantial. Now, the various parts of circumstantial evidence will have different weight. Sometimes minor things are very important. They add that frisson, as it were, that turns a case that might have otherwise been a weak case into an important one, but if one looked only at the facts, leaving that part aside, then it would be a case where one would say it was unsafe and unsatisfactory, but one does have to look at the lot. What the Court of Appeal in the majority has done here is to take all the parts, all these factors they really construct themselves, and say, “Put those all together - you get a disquieting possibility” and so on.

Now, your Honours, may I just say in relation to some of the aspects that they rely on that the evidential foundation for them is particularly weak, if I can use that expression. I was going to say that is manifest if one looks at the situation concerning the handcuffs and the marks on the bed head dealt with by Justice Spender dealing with the whole of the evidence on the point at paragraphs 120 to 127.

Your Honours will see from those passages in paragraph 121, Mr Williams, the crime scene investigator, went back. He said

that some of the black powder coating from the bed head had been removed at some stage. Just in small areas.’

In relation to that removal being by having the handcuffs on the bed head you will see on page 1302 about line 29 and following he said:

My opinion that the marks that we left with our – with handcuffs in our test – they couldn’t be brought out from the other marks that we saw on the bedhead, couldn’t – the – the use of handcuffs couldn’t be excluded as having caused those – those marks.

Then he was pressed about what that meant in the next few lines. Mr Dougan, paragraph 123, said at the bottom of the page:

I believe there was a set of handcuffs seized and I was property holder from a premises -

The handcuffs, as he understood it, came from the deceased’s premises. You will see then Mr Koppie said he was not aware she had handcuffs. Paragraph 125, Detective Sergeant Innes said the handcuffs:

were located by members of the team, yes.

And were they taken originally?---No, not initially, no.

Why not?---Because they were in their original packing and within the – in the cupboard and they appeared to be unused.

Your Honour, that is really an extraordinary base on which to develop a theory of some kind of sexual experimentation, the fact that there is second-hand evidence of a pair of handcuffs apparently in original packing being found.

HAYNE J: The proposition that I was exploring with you might be articulated in this fashion and it is one that no doubt your opponent would not need to grapple with. It is that you do not demonstrate doubt about the acceptance of an explanation of all the evidence by demonstrating that some of the evidence, when considered separately, would be consistent with other possibilities.

MR JACKSON: Yes, your Honour, we would accept that. As to the other matters, may I deal with them very briefly because I wish to refer to what we have said about them in our written submissions. Your Honours will see paragraph 48 of our written submissions dealing with a footprint in the soot. The majority - and I would refer particularly to paragraph 49 as well - took the view that there was no evidence at trial explaining that the footprint may have been left by the father of the deceased. In fact, there was evidence to which we refer of crime scene investigator, Gareth Williams, that a comparison was made with the deceased’s father which showed he had a similar sole pattern to the unexplained footprint in the bedroom.

The majority in the Court of Appeal relied on – and I am dealing with the 40,000 line of credit in paragraph 50 of our written submissions – the course of events in the Court of Appeal was, with respect, unusual. The respondent was represented by senior and junior counsel and then he wanted to make his own submissions after that and he handed up a bundle of written submissions and a bundle which also contained various documents. One of the documents in it consisted of some tendered bank records which had the effect that one view might be taken that it was an available line of credit of $40,000 which he had.

The material that he put was not just submissions but also matters that were not otherwise in evidence and it was objected to as not being evidence that should be taken into account. Your Honours will see that written submissions were put in on our part in the matter - I think they are at page 1144 – objecting to that occurring.

GLEESON CJ: But the new matter was not relied on by the majority in their reasoning, was it?

MR JACKSON: The 40,000 was, your Honour. That is at volume 3, page 1273, about line 40, “bank records were tendered”.

HAYNE J: That is to be understood as tendered in the Court of Appeal?

MR JACKSON: Yes. It is a most peculiar event to have occurred and we objected to it, but it is not the major part of the case. We have made our submissions in paragraphs 50 and 51 on that. Your Honours will see we refer also in paragraphs 57 and 58 to the material about door chains and deadlocks and we make the complaint there, with respect, that the majority was wrong in taking the view that a key may have been required to lock the premises on leaving. We also make the complaint in paragraph 58 that the majority erred in assuming that both doors were fitted with chains and by inferring that they were used by the deceased on the night.

GLEESON CJ: I was not clear from reading the reasons of the majority whether they thought that the handcuffs in question were used on the night or on some other occasion, but it appears on page 1297 in paragraph 105 where they refer to the apparent use of handcuffs making it “difficult to reconstruct what actually occurred on the night in question” that they were hypothesising that the handcuffs had actually been used on the night.

MR JACKSON: Your Honour, we would say, with respect, fantasising. There is absolutely no evidence in support of that. It is just a most extraordinary thing because a pair of handcuffs – the evidence, all hearsay. The only evidence was that a pair of handcuffs, apparently in their original case, were found in the cupboard and a pair of police handcuffs might have made a mark on the top of the bed head if they had been used. To adopt a view from that that this woman had been, somehow that evening, as Justice Spender said, dressed in the particular but quite comfortable, apparently, pyjamas she was wearing, had been engaged in some sexual activity of that kind is absolutely bizarre, with respect.

Your Honours, there a number of other matters with which we have dealt specifically in our written submissions. May I indicate to your Honours where they are. I do not wish to add to them orally. In particular, paragraph 34, the bruising to the wrists. In particular, your Honours, the only evidence about it was that there was some bruising present. There was no cross-examination of the doctor of any relevant kind. Your Honours, we referred to the evidence about the unidentified hairs in paragraph 35 and the fingerprints in paragraph 36. Your Honours, those are the matters I wish to address orally. There are a couple of matters on which we have said we would give your Honours some further material.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Tehan.

MR TEHAN: Your Honours, this application should be refused because, firstly, it is a Crown appeal against an acquittal where no question of general importance or error in principle is raised. Secondly, the appeal is against a finding of fact by an intermediate court that a jury verdict was “unsafe and unsatisfactory”. As such, it seeks to simply replace the opinion of this Court on matters of fact for that of the court below.

The appellant, in essence, raises two issues. Firstly, did the Court of Appeal apply the correct test for consideration of the unsafe and unsatisfactory ground; to which our answer is yes. Secondly, did the Court of Appeal erroneously receive material not the subject of evidence; to which our answer is no. As to the first issue, it is apparent in our submission that the Court of Appeal applied the test set down by this Court in M v The Queen. The majority referred to the test at a number of points, in particular paragraphs 356 and 104 of their judgment.

The test, of course it is trite to say, requires that the appellate court undertake an independent assessment of the evidence before the trial court. This the Court of Appeal did. The test is not whether there was sufficient evidence before the jury to convict, indeed the test is predicated upon the proposition that, notwithstanding there was sufficient evidence to convict, was it open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In referring to the evidence and the inferences to be drawn from it, the appellant’s submissions, with respect, appear to complain that there simply was sufficient evidence for the jury to convict.

The principal basis, it would seem, for the Court of Appeal to find the verdict unsafe was that in its opinion the probative force of particular pieces of evidence, viewed individually and cumulatively, lacked the strength the Crown contended for. In our submission, that is a proper basis for finding a verdict unsafe, and in a circumstantial evidence case, which of course this was, it is appropriate for the Court in applying the test set down in M v The Queen to consider whether the jury, acting reasonably, could have rejected as a rational inference that a person other than the respondent killed the deceased.

Application of this test, that is, the circumstantial evidence test, does not require that an accused person can only succeed upon appeal if two inferences, one guilty and one innocent, equally open. As this Court has said in Knight v The Queen there are no degrees of consistency of guilt or innocence concerning inferential reasoning. In that case the Court said that if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance. The Court of Appeal, in our submission, properly applied that test.

HAYNE J: When the jury came to undertake its task at the accused’s trial, did its task involve, amongst other matters, two particular aspects: first, the jury’s assessment of what, if anything, was to be drawn from the accused’s evidence and the validity it attached to the denials he made in the box of his involvement. That is one aspect, and the second aspect, did the jury have to assess for itself what it made of the evidence given by the DNA experts and to at least some extent choose between aspects of the evidence given by some of those experts?

MR TEHAN: If I could answer the first matter first, your Honour. In our submission, the jury obviously had to make an assessment of the now respondent’s evidence in coming to the decision that they did. That gives rise to consideration of what I was just about to say, and that is that what does a Court of Appeal do when an accused has given evidence on oath in denial of a charge and obviously the jury by its verdict have rejected that evidence?

In our submission, the correct approach was in fact the approach adopted by the majority here, and that was that they could not act upon the respondent’s evidence at all unless it was simply uncontradicted. That reality, of course, did not mean that the finding that they made that the verdict was unsafe was not open to them, nor did of course a finding that the jury must have rejected the accused’s evidence necessarily mean proof of the reverse, in other words, that he was the killer.

There are cases, and M v The Queen, in particular page 500, and Knight v The Queen, in particular page 504, are two examples of cases where the accused did give evidence on oath and in both cases this Court observed that the jury by its verdict must have rejected the evidence of the accused, but in any event the Court has found that the verdict was unsafe.

HAYNE J: On the basis in M, for example, that there were matters which cast doubt upon the prosecution case.

MR TEHAN: Yes, exactly, your Honour, and that seems to have been the words the prosecution case used also in Tran - - -

HAYNE J: Maybe, but here did the Court of Appeal go further than concluding that there were other hypotheses which had not been excluded?

MR TEHAN: Yes, your Honour, and we will demonstrate that in due course when we turn to the aspects of the evidence, because a fair reading of the analysis undertaken by the Court of Appeal was to properly set out the applicable test and to apply it by undertaking an independent assessment of the evidence. That independent assessment of the evidence left one with the conclusion that in their view the particular pieces of evidence lacked the probative force that the Crown contended for, not only individually, as I said earlier, but also collectively. Now, the second matter that your Honour raised, I am not quite sure of its exact terms now.

HAYNE J: Well, did the jury have to make some choice between the DNA evidence?

MR TEHAN: Yes, some choice between the DNA evidence. The jury had to consider the whole of the evidence. It would have been open for the jury, I suppose, to have preferred the evidence of one over another expert. We do not know the process of reasoning that the jury went through. That is one of the difficulties that these sorts of cases present. In short terms, we would say that, yes, they could choose between experts.

Now, to return to where I was, the major criticisms which appear to be advanced against the findings by the Court of Appeal majority are, as I said earlier, firstly, that there was sufficient evidence to convict, which of course is not the test and, secondly, that the court favoured inferences which were against the Crown case. Again, it may be trite, but it is, of course, the statutory duty of the Court of Appeal, pursuant to section 37N(2) of the Supreme Court Act, to draw inferences from the evidence, and that is exactly what they did, with respect.

In any event, our submission is that the criticisms advanced against the majority’s opinion concerning a number of aspects of the evidence do not do justice to the true application of the M v The Queen test in a circumstantial case as applied by the majority. We want to take the Court to a number of matters. The first of those is motive, opportunity and access to the premises. It was said in final address by the Crown Prosecutor that the respondent had divested himself of his children to kill his wife. The evidence in fact was that the respondent had dropped the children off at his parents’ house, had remained, I think, with his parents until around 8.30 that night, had come home and could not remember exactly what he did, but he obviously went to bed, and he was awoken at five to six the following morning in order for a meeting with business associates at the Hyatt Hotel in Canberra which was to take place at 7 o’clock.

There was no evidence that the respondent was aware of the proposed change of locks, nor was there evidence that he had access to keys found in his son Daniel’s draw. Indeed, the judge correctly, in our submission, told the jury that they may think the Crown could not prove the respondent was able to make unforced entry to the premises. It is difficult to see how the jury could have come to the verdict which it did if they obeyed that last direction, with respect, and the aspect of access to the premises was very important because it gave rise to consideration of whether there was a reasonable hypothesis that the deceased may have admitted another by consent.

GLEESON CJ: That hypothesis is really just the reflex of a conclusion of not guilty, is it not?

MR TEHAN: Well, it is the reflex.

GLEESON CJ: It was accepted on all hands that the victim was murdered and whoever had gained access to the house had not forced an entry. So the proposition that she was murdered by someone else she had admitted to the house is simply the corollary of the proposition that your client was not guilty, is it not?

MR TEHAN: It is, your Honour, but it was a vital consideration here, in our submission, for making an independent assessment of the whole of the evidence in a circumstantial case. What we say is that much of the criticism levelled against the approach of the majority is unjustified because the nature of the case was such that the majority had to focus upon that matter because he had no access to the premises. All the evidence indicated that the deceased would not have admitted him at all and, therefore, this question of keys and locks and who had keys and what doors were locked became a matter of real importance, whether she was likely to admit another.

We know that, for example, she would leave the premises in a situation where Mike Koppie was able to come after, I think, his basketball games and visit her. There was evidence as to whether she was likely to have smoked a cigarette outside the premises. There was evidence of her being in the habit of using the door chain on the front door, the wire on the rear door, the locks on the security doors. All of those matters were very important on the issue of opportunity and access to the premises, in our submission, and were correctly analysed by the majority.

HAYNE J: But, Mr Tehan, questions of sexual misadventure are utterly irrelevant to any of those questions, are they not? Indeed, sexual misadventure was explicitly discarded by counsel appearing for the accused at trial, was it not?

MR TEHAN: In the end it was.

HAYNE J: In the end or not, it went to the jury on the basis that theories of sexual misadventure were explicitly rejected by the defence. That is at page 847 in the final address.

MR TEHAN: That is true. I am aware of what he said.

HAYNE J: Yes. Well, what is the Court of Appeal’s repeated and extended reference to handcuffs, sexual misadventures and the like got to do with anything?

MR TEHAN: I will come to that in due course, your Honour, but can I just answer it in this way for the moment, that it is in the light of their being a reasonable hypothesis that a person other than the respondent killed the deceased. That is the way in which it is put. It was not completely said to be totally irrelevant by the Crown on appeal and our friend has pointed to those pages where there was some discussion between his predecessor and the Bench. The relevance of it was, your Honour, in the context of what we are saying about access to the premises and the possible admission of someone by consent.

That is the important thing. Remembering, for example, that there were little pieces of evidence like the finding of a half a bottle of wine, some Melbourne Bitter stubbies in the rubbish bin. All of those sorts of things suggested the possibility that a person other than the respondent was admitted to the premises on this night with the consent of the deceased.

Now, I go back to some of the other matters which raise the possibility of another person. The first of them is the bruising to the wrists. The evidence of Dr Burke at volume 1 application book, page 15 at line 18 was that there was bruising to the outer aspect of the right forearm wrist of two centimetres, that there was bruising to the outer aspect of the left wrist of four centimetres, that there were no bruises underneath the knuckles and that the bruising to the wrists was recent.

The Crown in the court below never put it to the jury that this evidence was consistent with a struggle. Now in this Court, for the first time, that suggestion is made. Indeed, it is the submission of the appellant now that it was open for the jury to infer that the bruising was as a result of struggle, rather than by any use of handcuffs. As I said, that was not advanced on trial. There was no injury to the knuckles consistent with a struggle and, in any event, it is inconsistent with the evidence that there was no forced entry. This is just one aspect of the material suggesting another person and maybe an unknown lover. It is, in our submission, an unusual thing to find in a woman’s bedroom, handcuffs.

CALLINAN J: There will be many cases where there will be some loose ends. That does not mean that there has or has not been proof beyond reasonable doubt. It may be impossible to explain certain things, but whether they are significant or not depends upon all manner of things. It can cut both ways, that is what I - - -

MR TEHAN: I think that is right, your Honour. I accept that.

CALLINAN J: I do not know whether it helps either party. It may be just an unexplained fact at the end of the day pointing neither to guilt nor innocence.

MR TEHAN: Yes, I accept that, your Honour. It may not necessarily amount in the jury’s mind to much, but the evidence was there and upon a fair assessment and evaluation of all the evidence – and I am dealing now simply with the bruising to the wrist, but that gives rise then to the handcuffs and other matters – it was capable of the assessment that there was the possibility of another other than the respondent.

GLEESON CJ: The Court of Appeal did not consider death by sexual experimentation some form of reasonable hypothesis, did they? I am looking at paragraph 22 on page 1272. They dealt with the case on the basis that this was a case of murder, did they not?

MR TEHAN: They did, your Honour, yes.

GLEESON CJ: So whoever was, on the hypothesis that we are examining, consensually admitted to the premises evidently did not engage in any sexual act with the victim and did not steal anything from her, that person killed her.

MR TEHAN: Yes, save for this proviso, that it could be murder during the course of unusual sexual activity. That was open. Indeed, that is one scenario. The use of the handcuffs explaining the recent marks on the bed – and they were recent because Mike Koppie did not see any marks on the bed consistent with the use of handcuffs on the bed end, the marks to the wrists which were recent, again consistent with the use of handcuffs, and other matters to which I now turn: the presence of unidentified hairs.

There were several hairs collected from the bed and examined under a Polilight. The deceased’s hairs were excluded. Evidence was referred to by a Mr Innes of Dr Robertson, who was not called to give evidence, that the hairs were not those of the respondent or the deceased. The hairs which were gathered, it appears from the evidence, included hairs on the collar, top and pants of the pyjamas, on the bed and in the bedroom. None of those hairs were those of the respondent or the deceased. That is at volume 1, application book page 105. Indeed, the hairs on the collar of the pyjamas, volume 1, application book 352, were said to be dissimilar to the respondent.

It is the appellant’s submission that there were no other tests excluding the proposition that those hairs might have come from an innocent source. Indeed, the appellant, with respect, speculates in his submissions that the hairs could have come from either Mike Koppie or the children. Again, that submission was never a submission put to the jury.

Indeed, the majority correctly state at paragraph 85 of their judgment that it was not suggested that any of the hairs came from Koppie. Indeed, the extraordinary thing about this submission is that the Crown could have done further exclusionary tests, but they did not. They could have done tests to positively exclude the very people that they now say the hairs could belong to, such as the children or Koppie. They did not, and the submission, in our respectful submission, is one which really amounts to a reversal of the onus of proof suggesting that there is some onus on the defence.

CALLINAN J: Was there cross-examination of the investigating detective about that?

MR TEHAN: About other tests?

CALLINAN J: About the failure to make other tests.

MR TEHAN: I think it was left, your Honour, simply on the basis of the deceased and the accused being excluded. No, I do not think there was, your Honour. I do not think there was. So it is simply one fact, but an important fact, that might suggest the presence of another person, particularly the finding of hairs inconsistent with those of the accused/respondent on the actual pyjamas of the deceased.

Another matter is the fingerprints on the ashtray and other items on the table. There is an ashtray, there is a lighter and I think also a packet of cigarettes. The evidence is set out at paragraph 37 of our friend’s submissions and, baldly, the appellant now submits to this Court, again inconsistently with what was put in the court below, that, to quote their submissions, “the evidence suggests that obvious and innocent handlers of the items may have been responsible” such as Mike Koppie, parents, children or other friends. The criticism is made that the majority have simply opted for the more sinister view of this evidence.

How does that stand, this Court might well ask, with what Mr Hastings, who was our friend’s predecessor, said in the court below in opening the case for the Crown at volume 3, application book page 1005, line 44:

it will be suggested by the prosecution that those items –

referring to the items of the ashtray, the cigarette packet and the lighter –

may have been put there by the person who killed Ana Hardwick to give the impression that the fire was accidentally commenced . . . in order to disguise the true nature of the circumstances in which she died –

It was the Crown case that those fingerprints were probably the prints of the killer. They were not the prints of the respondent. It is simply inconsistent with the way the case was put by the Crown in the court below to now tell this Court that they could be the prints of persons such as children – how they could be the prints of the children on the ashtray or the cigarette lighter or the cigarette packet is perhaps farfetched or Mike Koppie or, indeed, so the submission goes so far, other parents visiting or other friends visiting the premises.

These prints were said to have a sinister connotation by the Crown. It is our submission that the fact that there may be two inferences available and a Court of Criminal Appeal acts upon one which is more favourable to the accused in coming to an ultimate conclusion that a verdict is unsafe does not indicate error. Yet that is the criticism which is made against the majority on this score. Remembering, as I said earlier, that the statute binds the Court of Appeal to engage in the inferential exercise - - -

GUMMOW J: What statute?

MR TEHAN: The Supreme Court Act.

GUMMOW J: Which section?

MR TEHAN: Section 37N(2) provides, your Honour, that “The Court of Appeal may draw inferences of fact from that evidence”, referring, of course - - -

GUMMOW J: The problem with the – and it is rather unsatisfactory, really. The Territory has not got itself a proper criminal appeal provision after all these years. It is most unsatisfactory, really.

MR TEHAN: The relevant date is 14 October 2002 and the jurisdiction was actually taken away from the Federal Court - - -

GUMMOW J: That was not in a satisfactory form either, as Chamberlain revealed so many years ago. When we talk about applying provisos and so on, what proviso to what?

MR TEHAN: Yes, exactly, your Honour.

GUMMOW J: Is the only foundation of the Court of Appeal’s criminal jurisdiction section 37E(2)(a)(ii), namely:

The following matters may be brought before, and heard by, the Court of Appeal:

(a) appeals in relation to the following judgments:

. . .

(ii) other judgments of the court –

Is that it? I just need to be clear about this. It is an extremely unsatisfactory state of affairs, plus section 37O(1)(d) and (e).

MR TEHAN: Yes, and section 20, of course.

GUMMOW J: But they are at large. They do not say on what grounds.

MR TEHAN: No, true enough, your Honour.

GUMMOW J: Our task really is to achieve a result which is the result the Court of Appeal should have achieved if they have fallen into some sort of error. We need to know what the criteria were for their appellate exercise and how they misapplied it, otherwise we are nowhere.

CALLINAN J: Section 37O does not mention in terms, does it, a verdict or a sentence? It mentions judgment.

MR TEHAN: Yes. What section is that, your Honour?

CALLINAN J: Section 37O. I cannot find any provision.

MR TEHAN: Yes, that is right, your Honours.

HAYNE J: Section 37O(1)(d) talks about:

to set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered –

something the Court of Appeal did not do.

CALLINAN J: I do not have (d). I do not have it. Section 37O, I do not have it.

GUMMOW J: Section 37O says the Court of Appeal has powers to do things but it does not say what conditions the exercise of the power.

MR TEHAN: No. In (e) it does say “to order a new trial, with or without jury, on any appropriate ground”.

CALLINAN J: Well, I have an incomplete copy of the judgment. I do not have that. Would you provide me with a complete copy of the Act, please?

MR TEHAN: Yes, we will, your Honour. The dictionary section of the Supreme Court Act defines “judgment” simply as - - -

GUMMOW J: Where do we see that? Where do we see the definition of “judgment”?

MR TEHAN: It is in the dictionary.

GUMMOW J: Well, we do not have that either.

CALLINAN J: I have that but I do not have the others.

MR TEHAN: That “includes any decree, order or sentence”. That is why, your Honour, we raised this question which may not be a live question of the aspect of the unsafe ground. I mean, I hear what my friend says about that. It happened to be the ground in the court below, but of course it is obvious enough that this legislation is quite different from the normal criminal appeal legislation that one sees in States.

GLEESON CJ: What is the point about it that you are seeking to make?

GUMMOW J: He is trying to explain to me what the Court of Appeal regarded themselves as doing in the light of the relevant jurisdictional powers.

MR TEHAN: Yes, your Honour. I am not seeking to make any point, really, about it. I am simply trying to - - -

GUMMOW J: So that we know what our task is, and I do not at the moment. This phrase “unsafe or unsatisfactory” starts floating across the stage, but attached to what? It is attached to the ordinary criminal appeal provisions as a gloss on it. There is nothing here on which it can gloss.

MR TEHAN: Yes, and that is why we said exactly what we did. Remembering what Chief Justice Mason had said in M v The Queen at page 492.

GUMMOW J: That says it is a gloss, does it not?

MR TEHAN: No, his Honour was dealing with the question of what it means to make a finding that a verdict is dangerous or unsafe - - -

GUMMOW J: Yes, but at 492 he says:

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence –

which is a recapitulation of the statutory text just above it –

it frequently does so expressing its conclusions in –

this gloss.

MR TEHAN: His Honour goes on to say that:

In reaching such a conclusion –

that a verdict is unsafe –

the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1). The question is one of fact –

That is what motivated us to say what we did at the outset and to refer the Court, if we could, to what this Court said in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 509:

It has been repeatedly affirmed by this Court that it is not a court of criminal appeal and that it will not grant special leave to appeal in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice . . . this Court is merely being asked to substitute for the view taken by the Court of Criminal Appeal a different view of the evidence and of the effect of the summing up.

With the greatest of respect to our learned friends, that is exactly the exercise that the appellant is contending for in this application. That is what it amounts to. That in one way or another they are saying that the majority of the Court of Appeal should not have preferred inferences or conclusions which were adverse to the Crown position. That is really what this amounts to.

GUMMOW J: What the Court of Appeal thought they were doing appears at paragraph 106 on page 1297, which the Chief Justice mentioned earlier. Whether they had a statutory mandate to do that, I do not understand. You had better explain it to me.

MR TEHAN: In due course I will come to that.

GUMMOW J: The Court of Appeal said:

In our view, there is a real possibility that another person was responsible . . . the factors to which we have referred lead us to conclude that a miscarriage of justice may well have occurred.

Where did they get all that from, except out of some folklore that comes from reading cases on other statutes?

MR TEHAN: With respect, your Honour, that is simply a statement which has to be seen in context. It has to be seen in the context that at a number of points in their judgment the court previously correctly cite and apply M v The Queen. Indeed, in the preceding paragraph at - - -

GUMMOW J: I know you keep talking about M v The Queen. M v The Queen was an appeal from where?

MR TEHAN: The New South Wales Court of Criminal Appeal, I think.

GUMMOW J: Exactly. We have already looked at the section set out at page 492.

MR TEHAN: Yes.

GUMMOW J: All right. It does not exist in the ACT.

MR TEHAN: Yes.

GLEESON CJ: You have to read paragraph 106, which is the conclusion of their judgment, together with paragraph 3, which is the introduction of their judgment, do you not? What they did in paragraph 106 was answer the question they posed for themselves in paragraph 3. In paragraph 3 they asserted a jurisdiction to:

set aside a jury’s verdict on the ground of its own misgivings as to whether the evidence had been sufficient to exclude any reasonable doubt –

They then spend the next 103 paragraphs examining the evidence and in paragraph 106 they express their own misgivings and set aside the verdict.

MR TEHAN: Yes, but the language used, with respect, your Honour, is the language of M v The Queen. It is the language of applying the unsafe verdict test to circumstantial evidence as put in cases such as Knight. In our submission, there is nothing wrong about that - - -

GLEESON CJ: Does that mean that whenever a Court of Criminal Appeal reviews the evidence and says to itself, “On that evidence we wouldn’t have convicted”, they have a duty to set aside the jury’s verdict?

MR TEHAN: No, it does not, your Honour, because it does not mean that the court can simply do no more than replace its opinion for that of the jury. That is why, with respect, the authorities refer to the undertaking of an independent assessment of the evidence and an evaluation by the court itself of the evidence.

GLEESON CJ: Yes, but you undertake that to what end, for what purpose – for asking whether you agree with the jury’s verdict?

MR TEHAN: For the purpose of answering the question as to whether or not the verdict is a safe one.

GLEESON CJ: For the purpose of answering the question whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused, which is a different question, is it not, from whether if you had been sitting on the jury you would have returned a verdict of guilty?

MR TEHAN: Yes, it is, I accept that.

GLEESON CJ: What is the difference?

MR TEHAN: That is what I was trying to answer, your Honour. The difference, in our submission, is that in one case you are simply replacing. You are doing no more than a simple replacement of your view for the verdict of the jury, whereas in the other case there is an independent assessment undertaken with a view towards deciding whether it was open for the jury to convict.

GLEESON CJ: That first sentence in the passage from M quoted in 3, which comes from a judgment of Sir Garfield Barwick in an earlier case, has the potential to obscure the difference that we have just been discussing, does it not?

MR TEHAN: It does. Was your Honour thinking of Chief Justice Barwick’s judgment in Ratten v The Queen?

GLEESON CJ: I think so. It is referred to on page 494 of M. He said:

“It is the reasonable doubt in the mind of the court –

that is the Court of Appeal –

which is the operative factor.”

MR TEHAN: Yes. There was a view that that opinion was incorrect and M v The Queen came to the view that perhaps it did not matter too much because a reasonable doubt which a Court of Appeal holds will, generally speaking, be a reasonable doubt which a jury ought to have held. So that is the resolution of it.

GLEESON CJ: What is the difference between saying that then and saying, “If I, the judge of the Court of Criminal Appeal, had been sitting on the jury, I would have said not guilty; therefore, the appeal must be allowed.”?

MR TEHAN: Viewed in that way, your Honour, there may be little difference in reality. I was trying to come to terms with those authorities, one of which I think is in the judgment of Justice Brennan in one of these many cases on the unsafe ground where his Honour said that a Court of Criminal Appeal faced with an unsafe ground cannot simply replace its opinion but, viewed in the way your Honour - - -

GLEESON CJ: Whether Justice Spender’s criticism was justified or not – and that is what we are here to consider - that was essentially the basis of his dissenting judgment.

MR TEHAN: Yes, it was. I mean, in the context of a circumstantial evidence case, if in fact the Court of Criminal Appeal come to the view that there is a significant possibility that a person other than the respondent killed the deceased, then that is the end of the matter. That is it. That solves what the courts say at 105 and 104, in those paragraphs, because that is what they are saying, “We have a view that there is a significant possibility that an innocent man might have been convicted”.

Now, courts of criminal appeal in a circumstantial evidence case have applied that test for many years, and no one is suggesting that that test is wrong. That is why we say at the end of the day that there is nothing special about this case either, and there has to be something special about it because it is a special leave application. There has to be a matter of principle or a matter of general importance for the Crown to be granted leave to appeal against an acquittal.

HAYNE J: .....its reference to the interests of justice aspect of section 35A, interests of justice generally or interests of justice in the particular case.

MR TEHAN: Yes, but every case, your Honour – and we have been able to find 10 which have come before this Court since its inception, and we will give the Court those references if the Court is minded to know them - - -

GLEESON CJ: Thank you.

MR TEHAN: In fact, could we take the liberty of handing up – and it is only a very short analysis of the cases, of what the 10 cases are, the first of which was Attorney-General v Jackson in 1906.

GLEESON CJ: Thank you.

MR TEHAN: But in each of those cases there was a matter identified by this Court, independently of simply restoring the conviction, if you like, which was of general importance. Take, for example, Glennon, pre-trial publicity. Take, for example, even the case of The King v Wilkes where Sir Owen Dixon said that this sort of application by the Crown is a rare thing and a discretionary exercise to be exercised only in exceptional circumstances. That was a case where the claim was concerning unsafety, but the particular unsafety alleged was inconsistent verdicts. This is simply a case, and the only case we can find, quite frankly, where the Crown have come to this Court arguing, “We want you to come to a different” - - -

GUMMOW J: The DPP actually. They prosecute in the name of the Crown, which is a conceit on their part given by statute.

MR TEHAN: Thank you, your Honour. We want you to overturn this order and to simply restore the conviction.

GLEESON CJ: Anyway, you were taking us through the basis of the misgivings.

MR TEHAN: I was taking the Court to the aspects or evidence which suggested the presence of a person other than the respondent and they are the bruising to the wrist, the unidentified hair and the fingerprints on the ashtray and other items. Can I now turn to the DNA evidence and in essence what we say is this, that the experts did concede the possibility of secondary transfer.

GLEESON CJ: We are now dealing with 15C7?

MR TEHAN: Yes, 15C7. One is tempted to ask this. If the respondent was the killer, if he did strangle his wife, one would expect his DNA to be all over the pyjamas.

CALLINAN J: Did the police take or test some gloves from your client? I thought I saw a reference to some gloves somewhere.

MR TEHAN: There is an inference that that was the case, your Honour, because he himself said when he was cross-examined about the issue of putting his hand or hands in the caustic soda as to why he did not use any gloves and I think his evidence was along the lines of he did not have any available because the police had taken them. I think that is right, your Honour. We will check that for your Honour.

CALLINAN J: So there was some evidence that he had had some gloves and it came from him?

MR TEHAN: In that way, your Honour, yes, I think there probably was, but I will check that.

GLEESON CJ: I think in relation to your question, why was not the respondent’s DNA all over the deceased’s pyjamas, there was some evidence that in fact they tested all over her pyjamas.

MR TEHAN: Yes.

HAYNE J: Does not the proposition carry with it innumerable pre-suppositions about the manner of strangulation, how it was effected?

MR TEHAN: With some suppositions, your Honour.

HAYNE J: Not unimportant among which would be questions of comparative size and strength of assailant and victim?

MR TEHAN: Yes, those sorts of things, your Honour, but the reality is that what it came down to is that the mix – this was a mix of DNA, the 15C7, was that because – and we set this out in our submissions, but because there was the presence of the 14 allele, for that reason the respondent could not be excluded. That was the effect of the evidence, but it certainly did not exclude the possibility of secondary transfer, and can we say these matters concerning the criticisms made against us.

The first thing that has been mentioned is the location, the 15C7 on the pyjamas. It was only in one place and it was in a small amount. It is consistent with there being a secondary transfer, that it is only in one place and in a small amount. It is true that there had been no movement for eight days but so what, the DNA does not necessarily degrade. There was no evidence that the pyjamas had been washed during that period of seven days.

It is said that there was no DNA of the children present. We would submit that the DNA of the children cannot be excluded and we will give the Court references to the evidence concerning that matter: Ms Ristevska at application book volume 1, page 152, lines 1 to 13; Mr Roberts at - - -

GUMMOW J: It was possible but unlikely, I think.

MR TEHAN: Possible but unlikely, that is true. Mr Roberts at application book volume 1, 393, lines 16 to 20 cannot rule out that there was a contribution by the children:

There could be a small quantity of DNA from either or both of them.

Again, Mr Roberts at page 399, line 38 and page 400, line 2 cannot exclude the possibility. Mr McDonald at page 646, lines 29 to 35 could not exclude the possibility of the children being contributors to 15C7 and page 647, line 38 to page 648, line 1, where he said that he would expect there to be transference of the respondent’s DNA in a situation of shared custody. In our submission, the presence of DNA from the children simply cannot be excluded because their profiles are there; they are represented in the mix.

Once one accepts or leaves open that possibility, then it puts paid to the argument that for the secondary transfer theory to get up you would expect the DNA of the children because it is there, or at least the possibility that is there cannot be excluded because the mix is dealing with the parents. That is the fundamental thing, the mix is dealing with the parents and only a small quantity from the respondent.

GUMMOW J: Is there any evidence of any DNA testing at all around the neck of the deceased?

MR TEHAN: No, they did not take swabs.

GUMMOW J: I see.

MR TEHAN: There was evidence that they did not take swabs around the neck. We would submit that the theory or scenario of secondary transference in the context of this case cannot be excluded and that the majority’s findings on this score, in particular at paragraphs 70, 71, 72 and 73 at pages 1286 and 1287, were completely open, with respect, to the Court of Appeal.

GUMMOW J: What evidence was there about this door lock that appears at page 763 in a photograph, about its locking from inside?

MR TEHAN: Page 763, your Honour?

GUMMOW J: Yes, picture 4. That looks like a lock that locks from the inside.

MR TEHAN: Yes, that is the lock to the front door.

GUMMOW J: And the back door, where do we see that?

MR TEHAN: The back door, your Honour, is right towards the end of these paragraphs. The back door is at page 801, photograph 42. Your Honours will see the wire hanging down there. It does not have a chain lock, the back door, but there is a white wire hanging down. That is the back door.

GUMMOW J: I am just worried about the nature of the lock. That is all. That looks like a lock that locks on the inside too.

MR TEHAN: Yes, your Honour.

HAYNE J: Was there any evidence about, when the body was found, whether the tumblers on the locks shown at 763 and at 801 were locked or unlocked, that is, whether the inside opening device could be operated without a key?

MR TEHAN: Your Honour, I am not sure about that. I do not think there was any evidence.

GLEESON CJ: I thought I read in one of the judgments that the evidence did not show whether the perpetrator could have got out and locked the doors again without a key.

MR TEHAN: That is right, and the court was correct in making that judgment because there was no evidence on that. That reminds me, your Honour, there simply was no evidence on that matter. I am reminded that the matter raised just some minutes ago was whether there was any testing of the area of the deceased’s neck. At 167, which would be in volume 1, Ms Ristevska said that she knew that there were pressure wounds around the neck - - -

GUMMOW J: Page 167, line?

MR TEHAN: Line 2.

GUMMOW J: Thank you.

MR TEHAN: Line 5:

And you agree with this proposition, that it would have been prudent to have done a swab of the deceased’s neck?---Probably, yes.

Now, the other matters which are raised are the issue of the cessation or the reason for the cessation of the phone calls, and the appellant’s submission is that by the weekend the respondent had formed the view that he would murder his wife and that therefore there was no need to continue. How he could continue over the weekend making phone calls to solicitors and doctors, one wonders, but in any event, so the argument goes that he had evinced a desire to kill his wife and that explains why the phone calls had ended.

In our submission, this matter, this issue, was left hanging by the cross-examination of the prosecutor. In application book volume 2 at page 617 the matter was raised at line 22:

Silk Chambers was somebody who contacted you – Silk Chambers Pty Ltd, was there a lawyer from there . . .

Right. Had you been looking for counsel . . .

Is it fair to say that you spent a fair bit of your time that week, that is the week after you received the news on 20 September, exploring options for the appeal – or an appeal?---No, I hadn’t explored options for the appeal. I was exploring the next stages of the appeal.

And did that include the sort of evidence and other assistance that you might need to run an appeal?---Yes.

Then the matter dovetails in – it is interesting to observe this with the aspect of funds which I will come to in due course – and much of the next two pages is devoted to that matter. Indeed, they merge. The two matters of the funds and the cessation of the phone calls merge because take, for example, page 619 line 29 where the cross-examiner says:

The end of that week, had you decided that there was little prospect of you going through the Family Court in order to regain custody of your children?---No.

In final address, however, we have this being put at 823, and it is in volume 2:

The evidence was against him. The psychologist who’d given evidence was against him. The judge had been against him. He was running out of money. And some time over that weekend he decided to take the law into his own hands and that night kill the competitor for the custody of his children.

And the fact which I suggest very compelling demonstrates that is if you go on the phone records on the Monday, all the calls of the previous week to the psychiatrist, the doctors and the lawyers suddenly stop.

There it is, and it is never put to him. It is probably one of the most devastating aspects of the Crown case if you consider it because the Crown had it that this man had formed an evinced intention to kill his wife from about the Friday and over that weekend, and that is why the phone calls stop and it is never put to him, and it is most unfair, in our submission. The majority were completely correct to comment in the way that they did concerning that matter, because who is to know what the jury would have thought of that. “Oh, well, he did not answer that proposition. Maybe that is correct, what the Crown Prosecutor has said. It seems odd these phone calls”, whereas, in reality, there is absolutely nothing in the phone calls at all. I mean, there is a forensic reality. Quite frankly, they should not have been admitted into evidence. They did not advance the contention, in our respectful submission, that the Crown contended for. The only other matter, I think - - -

GLEESON CJ: Just before you pass from that matter, what did the trial judge tell the jury they were entitled to make of that evidence?

MR TEHAN: The judge, at application book 883, at lines 27 to 31:

Mr Hastings, you will recall, pointed as significant to what he was putting, the fact that there were at least in the two days, the Monday and the Tuesday of 1 and 2 October, no telephone calls emanating from Mr Hillier’s telephone.

What the prosecution put as the motive was the subject of responses by Mr Hillier in his cross examination, and I would wish to read to you that portion of the cross examination. This you’ll recall was Mr Hastings asking him questions.

He then sets out what was asked. I do not think those questions really relate to the phone calls.

GLEESON CJ: I understand you - - -

MR TEHAN: Although it was picked up again, sorry, your Honour, at 885, line 10:

Mr Hastings then proceeded to go seriatim through each of the telephone calls demonstrating telephone calls to psychiatrists, solicitors and the clinical psychologist.

Then further questioning is set out and that is it.

GLEESON CJ: What seems to have been put to him by a cross-examiner was that by the end of the week he concluded that an appeal was not likely to succeed.

MR TEHAN: Not likely to succeed.

GLEESON CJ: That was put to him as the explanation of the cessation of the phone calls.

MR TEHAN: Yes, exactly, your Honour. Indeed, it is consistent with the allegation that is put at 886, line 22:

Had you decided that you’d have to take the law into your own hands?

GLEESON CJ: What page is that?

MR TEHAN: At 886, line 22 in the application book. All part of the motive. These are two critical matters concerning motive - - -

GLEESON CJ: I understand that. I am just wondering whether in the context of the cross-examination and the line of cross-examination being pursued the suggestion that there was a connection, a sinister connection, between the cessation of the phone calls and the events that happened was fairly bluntly put to him.

MR TEHAN: No, your Honour. we would say it was not.

GLEESON CJ: If you look at what is put on page 885 at line 15 and at what is put at line 886 at line 24.

MR TEHAN: Yes, but if you go to a fact, your Honour - to the evidence at 617 it is not pursued in any way consistent with the proposition that is put in final address.

GLEESON CJ: Is this a Browne v Dunn point?

MR TEHAN: It is a Browne v Dunn point.

GLEESON CJ: Was it the subject of a ground of appeal?

MR TEHAN: No, it was not, your Honour.

GLEESON CJ: Was it the subject of a complaint at the trial?

MR TEHAN: No, it was not so far as I can see, your Honour, but it is the subject of commentary by the Court of Appeal. Our friends say that that commentary was unjustified by the Court of Appeal or unfair by the Court of Appeal. Our response to it is it was entirely fair and appropriate in the circumstances. What was made of this issue of the cessation of the phone calls was a mountain out of a molehill, particularly in final address, and that ultimately when it came for a Court of Appeal to undertake an independent assessment of the evidence concerning that, they were quite right to find as they did – and I use their words – that this evidence truly was of little weight. That is the submission that is really made, your Honour.

I think there is only one other matter and that is the damage to the fingertips. This evidence is dealt with by the majority at pages 1288 to 1289 of volume 3 of the application books and it is in the absence of evidence that the respondent’s fingerprints were required at the time that he damaged his fingers, then this evidence as establishing a consciousness of guilt was truly tenuous. Again, we would submit that the Court of Appeal was correct in finding the evidence tenuous, again to use their word.

One of the difficulties about this case is that – I mean, the jury might have found that evidence, given the directions that they in fact were given – the consciousness of guilt directions – they might have found this evidence quite powerful, but again, when it is independently assessed it really is, in our submission, quite tenuous. That, I think, your Honours, deals with the matters which were raised by our friend - - -

GLEESON CJ: How long do you expect to require to complete your submissions?

MR TEHAN: Probably about another 20 minutes, your Honour.

GLEESON CJ: Is it convenient to adjourn now?

MR TEHAN: Yes, your Honour.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 12.57 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr Tehan.

MR TEHAN: Your Honours, could I tidy up just a couple of matters before turning to what I said was the second issue in this application. The first one is to give the Court and, in particular, your Honour Justice Callinan the reference to gloves being taken from the respondent. It is page 662 at line 20, your Honour, where he says the police had seized his gloves. An analysis of the phone calls – and I am told the respondent gave evidence that they had finished. The last of them was on the Thursday. At times I think some of the submissions suggest that the last phone call to persons concerned - - -

GUMMOW J: Sorry, 662?

MR TEHAN: Page 662, line 20. I am sorry, that is not right, your Honours. The last phone call, as I said, to persons concerning the family law proceedings was on the Thursday. Could I hand to the Court – I have given my learned friend a copy of this. It is simply an analysis of what is exhibit Y, the proceedings in the Family Court, and this will become relevant in two respects, first of all, because the terms of settlement, the Court will see from the first entry, are signed on 22 June 2000, and that becomes relevant in relation to the line of credit in a way that I will explain shortly.

The other reference is about halfway down the page. It is suggested at some points by the Crown that shortly prior to the deceased being killed there had been a complete change in custody arrangements, but if one sees the entry for 18 June 2002, the orders of Justice Purdy came into effect on that day, which meant that the children went to the mother, so that there had been a previous time of some weeks, indeed, from 18 June 2002 up until 24 July 2002, when the children had been with the mother in any event.

HAYNE J: That is not wholly consistent, is it, with what appears against the date 24 July 2002 where the children are living week and week about?

MR TEHAN: That is true, your Honour. It is just to put the matter in full context that the children had been with the mother before. I am sorry, the reference to gloves is at 622, line 20, where the respondent was asked in re-examination:

In relation to the conversation that Jan Mundy had about police and gloves, did the police take all your gloves? – Yes.

Just to tidy up one or two matters concerning the DNA evidence. What is really said is that if the DNA of the children was there, one would expect the peaks to be higher. What is said in relation to that is given in evidence by the witness McDonald at page 664, which is in volume 2, line 7. He was asked:

Two contributors who you’ve said cannot be excluded as well – well whose DNA may be included, perhaps I should put it that way, are the children. Daniel and Elle, are they not?---Yes. And again I would not have to see the evidence to be able to make that statement. Because if the two parents are not excluded, then it follows that any children of those parents would potentially not be excluded either because their DNA is made up of a combination of DNA, all the DNA that’s already in there.

But the profiles are such, are they not, that they could include contributions from the two children?---Yes. The two children are not excluded as possible contributors.

That is because they have everything that the parents have. As a matter of scientific reality, they have everything that the parents have, and that is other than an allele 14 which is the basis for saying that the respondent cannot be excluded. Yet the prosecutor in his final address to the jury said that it would be a matter of divine intervention, to use his words, that the children’s DNA was included. We say that all of the witnesses conceded the possibility of the children’s DNA being included, the strongest of course being McDonald. A possibility is very different, in our submission, from divine intervention. The judge’s directions concerning this matter at 887 of the transcript at line 13 was somewhat strange:

For you to safely draw inferences from the evidence particularly given by Dr Roberts and Dr McDonald you must be satisfied beyond reasonable doubt that certain aspects of it have the characteristic which the expert witnesses say that it has.

Which, with respect, we observe is rather strange in terms of putting in the defence witness into that direction.

The most important aspect is that Ms Ristevska, Dr Roberts and Dr McDonald were all agreed that the accused could not be excluded as a contributor to the sample 15C7.

Your task is to evaluate that finding. The fact that there is a trace of DNA, the contribution from which the defendant cannot be excluded, associates the accused with the crime.

Again, this matter was not the subject of exception, the ground of appeal, but one grapples with why the jury came to the verdict that they did and we would say that that direction is simply erroneous, just as we know now that - - -

HAYNE J: Was there any complaint made in the Court of Appeal about error in direction in this respect?

MR TEHAN: Not in that respect, your Honour.

HAYNE J: No.

MR TEHAN: Can I turn then to the second issue and that is whether or not the majority acted upon material that was not the subject of evidence. At page 1205 application was made by the respondent who was then unrepresented to present a body of material in writing which was granted, it would seem, because at application book 1207 exhibit A was received. In their written response at application book 1154, line 4 the Crown referred to the only material not in the trial being the information concerning the $40,000 line of credit.

At 1276, line 14, in paragraph 33 the majority in referring to Justice Spender’s criticism of the respondent, that is, the criticism is directed really towards his demeanour, I think it is fair to say, in his application to adduce further evidence they state:

No adequate grounds for the reception of fresh evidence were established.

The question remains then, whether the majority considered this material, that is the bank records in relation to the $40,000, as further evidence. At page 1273, line 38 in paragraph 25 they say:

In relation to this issue –

meaning the issue of whether the respondent had run out of money to prosecute the appeal –

however, bank records were tendered, demonstrating that he had had access to a line of credit and that more than $40,000 had been available to fund the pending appeal . . . even if [Daphne Hillier’s] evidence had been accepted by the jury, it could have established only that the appellant had had insufficient funds to prosecute the appeal prior to arranging the line of credit.

It may be, and we make this submission, that the reference to bank records, when properly viewed in context, was an observation only, and only an observation. What is clear is that it made no difference, we would say, because in fact the respondent’s evidence which is set out at volume 2, application book 610 to 611, commencing at line 32, was that he had obtained the redraw facility with a limit of $50,000 at the time of the property settlement. If one goes back to the document that I tendered – and the reference is in fact in the evidence at application book 674 – that was on 14 June 2000, because what he says in evidence is – this is in cross-examination at line 32:

You said earlier that costs were not an issue as I understood it because you had a redraw facility in relation to your house?---I did.

When did you obtain that?---When I had to transfer the loan into my name on property settlement with Ana and myself.

And what was the nature of that facility?---That was a mortgage with a redraw facility.

With what limit?---The current limit on that redraw is $50,000.

Is the bottom line of that that you could have borrowed another $50,000 against your house?---No, I think there was a standing balance of close to $10,000 so I would have had $40,000 available.

So the reality is that the respondent – and this was not contradicted, I might say. It was evidence which was not in dispute. He said that he had a $40,000 line of credit and the prosecutor really dropped away - there were some questions at the top of 611 – from the issue. Nevertheless, the question that may arise is, if the court did take the bank records into account, how did they do so, and the answer we give is contained within section 37N(3) of the Supreme Court Act which gives the court power to receive further evidence in provision (d):

any other way the court may receive evidence.

I do not want to take the Court laboriously to its decision or its judgment in CDJ v VAJ (1998) 197 CLR 172 at 196 to 203, but, in our submission, to adopt the words of the Court in that case - this was a case of the Court “admitting further evidence to buttress findings already made upon matters which ‘were not in dispute’.” In our submission, the evidence really could not have made a difference.

It is interesting to observe that in the English case of Pendleton that the English Court of Appeal also had provisions in relation to the receipt of fresh evidence. The House of Lords in that case considered that the appropriate test for the court to apply was to evaluate the evidence for itself but as a provisional matter to ask itself whether the evidence if given at trial might reasonably have affected the decision of the jury. How that fits into the unsafe - into a situation where one is analysing whether a jury verdict is unsafe, accepting for the moment that the evidence which has been looked at was not before the jury, the answer is perhaps given in the judgment of Lord Hobhouse at page 541 of the report where he said that:

The mere production on a later appeal of additional evidence which would have been admitted at the trial had it then been adduced demonstrates no unsafety of the verdict. It merely raises for the consideration of the Court of Appeal the question whether the Court of Appeal thinks that, taking into account the new evidence, the verdict has become unsafe.

Of course it is trite that the criminal appeal provisions in England are different from what they are in at least the Australian States and have been so now for some time.

GUMMOW J: What about the ACT? Sooner or later one is going to have to work out what this jurisdiction is in the ACT and what its characteristics are in order to work out whether there was error by the Court of Appeal.

MR TEHAN: Yes, that is why we raised Tran. I mean, there has been some commentary on that in the Federal Court decision of Tran [2000] FCA 1888; (2000) 105 FCR 182 that effectively the criminal appeal legislation of the States is the - - -

GUMMOW J: It varies from State to State to some degree anyhow.

MR TEHAN: - - - operative body of law – the body of law relating to that legislation is the operative body of law.

GLEESON CJ: But in the reference you gave us to Tran all they said was that this subject has not been subject of judicial exegesis.

MR TEHAN: We are not pressing that any further. We have just given the Court the material and - - -

GUMMOW J: What paragraph of Tran?

GLEESON CJ: Paragraph 82?

MR TEHAN: I do not think I have it at hand, your Honour. Paragraph 82, it is, of Tran.

GLEESON CJ: Which says this is an interesting question.

MR TEHAN: We are here to argue against a grant of special leave.

HAYNE J: It may be that the special leave point against you is the resolution of these difficulties about the nature of the task that the Court of Appeal has to undertake. That is a difficulty that I suspect you may have to confront, Mr Tehan.

MR TEHAN: We confront it, your Honour, by saying that the Court of Appeal undertook the time-honoured approach to considering whether the verdict was unsafe in a circumstantial case - - -

HAYNE J: I am not so sure about time-honoured. If you go back in time, on the civil side at least, and control over jury verdict, you have to go back via Hocking v Bell [1945] HCA 16; 71 CLR 430, particularly at 498 to 500 and you have to go back through English decisions which are summarised by the House of Lords, particularly Lord Wright, in Mechanical and General Inventions Company Ltd v Austin [1935] AC 346 particularly at 372 to 374. You have to consider the question of the nature and content of a ground in a civil case of complaint, leave aside whether on motion for new trial or on appeal of what is meant by a verdict against the evidence or the weight of the evidence. Now, all of those fields remain resolutely untilled at the moment.

MR TEHAN: One field that is well and truly tilled, though, is the unsafe and unsatisfactory ground as being a ground of appeal in criminal - - -

HAYNE J: Where in the common form criminal appeal statute there is reference to, at least in some versions of it, verdicts against the evidence.

MR TEHAN: Yes. That has been taken to mean that the verdict is unsafe and unsatisfactory and in spite of this Court’s criticism of that as a ground of appeal in R Fleming, still in Victoria, it is quite common to conduct criminal appeals with that as a ground of appeal, although particulars will and are given. But that is the state of play. Tran stands for the proposition that the unsafe ground is a good ground of appeal when the ACT Court of Appeal is faced with a criminal appeal.

GLEESON CJ: Is it fair to say that the ultimate conclusion of the Court of Appeal in this case was that the jury verdict was unreasonable?

MR TEHAN: If that is another way of saying that the verdict was unsafe, yes that is quite okay to say that.

HAYNE J: That then provokes the question asked by Lord Wright in Austin: the question in truth is not whether the verdict appears to the appellate court to be right, one possibility, but whether it is such as to show that the jury have failed to perform their duty, separate, radically different and distinct inquiry.

MR TEHAN: Yes, that is - - -

HAYNE J: Now, how any of that could be translated or would be translated to a realm of discourse in which the relevant standard of proof is beyond reasonable doubt provokes a set of questions, the first of which is why the ACT must limp along with this criminal appeal arrangement, but leave that aside, what is the nature of the task that the Court of Appeal should have undertaken? I know you say M. What is the statutory route for that proposition?

MR TEHAN: We know that there is no legislation similar to the criminal appeal legislation in the States. We know that we have section 20 and section 37 of the Supreme Court Act and that they must evaluate the evidence and draw what inferences they can from it. That is what the statute effectively says. We have the decision in Tran that effectively says that the body of law which concerns State criminal appeal legislation is operative in the Territory and that includes the unsafe and unsatisfactory grounds. The effect of Tran is to incorporate that body of learning, concerning State criminal appeal legislation, into the Territory. If that is correct, then the approach taken by the court in this case is correct.

HAYNE J: It may lead to this set of steps, Mr Tehan, which I suspect may be a set of steps not to the advantage of your client. If you look at the statute and in particular the reference to taking account of the evidence adduced below, which we find in 37N(1) coupled with 37N(2), “draw inferences of fact from that evidence”, that read in the light of discussions of the kind found in Dignan’s Case [1931] HCA 34; 46 CLR 73 might suggest something in the nature of appeal by way of rehearing. You go from there to notice in 37O(1)(d) and (e), power not simply “to order a new trial” – 37O(1)(e) - but also power to enter a verdict of acquittal, 37O(1)(d). Therefore, the law concerning motions for new trial developed in the civil side may not be immediately apposite, but that is where the knife comes in the napkin.

In conducting a rehearing on the transcript the Court does so with the opacity of a jury’s verdict. It does not do so with the benefit of reasons. Does it not follow that a question that ultimately must be answered must be of the same kind as that posed by Lord Wright in Austin, namely, whether the state of the evidence reviewed reveals not just that the appellate court might, would or could have arrived at a different conclusion, but whether the state of the evidence thus revealed demonstrates that the jury did not perform its duty?

If that be so, the Court of Appeal has embarked on an altogether different task and, at least as at present state of the argument, it is not yet apparent to me that you are making a case that the state of the evidence is such that the jury cannot have attended to its duty. That is the chain of argument. It may be utterly wrong.

MR TEHAN: Some of the cases your Honour has put I have not had the opportunity to consider, but doing the best one can, having been presented with what your Honour has just said, it may be that the reference to the jury not performing its task is simply a reference to the jury verdict should have been one of not guilty.

GLEESON CJ: Would you like the opportunity to put in some further written submissions on this issue within, say, 14 days?

MR TEHAN: Yes, I would, your Honour. I would be grateful to the Court for that.

GLEESON CJ: Very well.

MR TEHAN: Thank you, your Honour. That brings me to just a couple of matters where it is said by our opponent that there were matters not the subject of evidence. They are really four in number: the footprint in the soot, the handcuffs and marks on the bed, the door chains and deadlocks, and the location of 15C7 on the pyjama top. If I could just quickly deal with those. The footprint in the soot, at 1296, line 36 the majority correctly, in our submission, acknowledge that maybe the footprints near the body were those of the deceased’s father, and they are correct when they state that the Crown did not in fact adduce that material and, we would say, if the respondent is the killer, where are his footprints?

GLEESON CJ: What, ultimately, did the Court of Appeal find about the footprints and what, if any, significance in the Court of Appeal’s process of reasoning did the footprints have?

MR TEHAN: The ultimate finding of the Court of Appeal was that the footprints in the soot was a fact, along with other facts, that could support the proposition that there was a reasonable inference that another person, other than the respondent, was the killer.

GLEESON CJ: That appears in paragraph 102 on page 1296.

MR TEHAN: I think that is the paragraph, your Honour, yes. The evidence about the footprint - - -

GLEESON CJ: I am sorry, just before you pass from that point, in paragraph 102 on page 1296 they refer to a number of matters, including the footprint, which they say “provides strong grounds for an inference that someone else may have entered the house” and then in the next paragraph, paragraph 103, they say, “It may be that the footprints near the body were left by the deceased’s father”.

MR TEHAN: Yes.

GLEESON CJ: If the footprints were left by the deceased’s father, they would not provide strong or any grounds for an inference that someone else entered the house.

MR TEHAN: If they were left by the deceased’s father.

GLEESON CJ: So what did they find about the footprints?

MR TEHAN: I do not know that the matter was returned to again, your Honour. I do not think it is returned to again, your Honour. The evidence – and this was led from a crime scene police officer – was that the footprint in the soot had a similar sole pattern to shoes or runners or whatever which belonged to the father, but no evidence was actually led from the father himself. So the matter was left really up in the air and he was not asked any questions about shoes or footprints in the soot.

HAYNE J: It might show what the parties at trial thought of the significance of it.

MR TEHAN: It is something that is put against us, your Honour, and that is why I am dealing with it. What we know is is that the respondent’s footprints are not in the soot and we also raise the question in our submissions, at paragraph 14 of our submissions, who turned the light off after the fire, because the mother of the deceased had to turn it on. Yet the evidence was that it was on during the fire.

CALLINAN J: I thought that the deceased’s father gave some evidence that the light was on.

MR TEHAN: No, the mother went in first and she turned it on and the evidence of soot on the switch suggested that it was on during the fire, so who turned it off? That is the question that is raised and it is raised squarely in paragraph 14 of our submissions. The bed had been misplaced. The evidence was such that one was unable to say whether that might have occurred before or after the fire. What we say is that all of these matters – and this is just on one particular aspect, but combined with other matters in the trial, they all go to indicate the possibility of another person.

We have dealt with the $40,000 line of credit, handcuffs and marks on the bed and the comment at paragraph 105 of the majority opinion concerning the apparent use of handcuffs. That comment does not necessarily mean that the majority were saying, or are to be taken as saying, that the handcuffs were used on the night. It does not necessarily mean that. What we do know from the evidence is that if they were used by way of attaching them to the bedhead and leaving the marks that were observed on the bedhead, it must have been relatively recently because Koppie happened to make such observation of the marks on the bedhead and it may be that the comment is nothing more than an observation as to their use in recent times.

The door chains and deadlocks has in part been covered already. There was no evidence that one could leave the premises without a key – page 1279, line 7. The majority do not refer to chain locks on both doors. Reference is made to the evidence at pages 421 to 423 and 763 to 764 concerning the wire I referred to earlier on the back door which is also referred to at page 423. At pages 421 to 423, which I think I have referred to, the evidence was that it was the deceased’s habit to apply all locking mechanisms to the doors.

Finally, there is the location of 15C7 on the pyjama top. We make the points again – these are in our submissions – that it was less proximate to the site of injury than 15C1 and it was not fair and it was not the case that it was on, as the prosecutor put in his final address, the very place adjacent to the injury. Now, your Honours, they are our submissions on what we submit was the second issue in this application.

GLEESON CJ: Can I bring you back to a subject we were talking about a little earlier, Mr Tehan, page 1296 and 1297. The conclusion of the majority in the Court of Appeal is expressed in one way in paragraph 105 and in a slightly different way in 106, but I am not suggesting there is any material difference. At paragraph 105 they say:

it [is] impossible, in our opinion, to conclude that it was open to the jury to find that the guilt of the appellant had been proved beyond reasonable doubt.

What they say produces that impossibility is what they refer to as the evidence suggesting that another person may have been present at the time of her death. That presumably is the evidence referred to in paragraph 102 which they say provides strong grounds for an inference that someone else may have entered the house and been responsible for the death. Correct?

MR TEHAN: Yes.

GLEESON CJ: That includes the footprints.

MR TEHAN: Yes, your Honour, it does.

GLEESON CJ: Well, do you support that process of reasoning?

MR TEHAN: Yes, we do, your Honour, because it was not established by the father himself that the footprints were his and it was open that the killer returned to the room and, for all we know – I mean, we do not know – the print that was in the soot could be a very common print from a runner or something like that. So we do support that, yes, we do.

Now, your Honours, the only other matter that I wanted to address was, this being heard as if it were a full appeal, the proposition that if we lose, what order the Court should make. In that regard, we would submit that if we do lose – we say we should not, of course, but if we do lose – the Court should send this matter back for retrial. We say that because – and we give this as just one example – it is apparent that if there were a ground
of appeal before the Court of Appeal concerning the so-called consciousness of guilt evidence relating to the hands in the caustic soda, that such a ground of appeal would have succeeded. In other words, that the court would have found that that should not have been left as evidence of consciousness of guilt.

Now, of course there was not such a ground, but the court have dealt with that issue in the way that I just indicated and for that reason, plus some of the matters of concern concerning some of the directions given by the judge, for example, we pointed out one in relation to DNA, we would say that the appropriate order is not to restore the judgment of conviction in the sense of our client being deprived of any retrial but to remit the matter for retrial before the trial court of the Supreme Court of the Australian Capital Territory. If the Court pleases.

GLEESON CJ: Thank you, Mr Tehan. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal with a number of matters and commence by just saying something briefly about the DNA evidence. The proposition was advanced by our learned friends that there must be a possibility on the evidence that the DNA on 15C7 included that of the children. Your Honours, we have set out the relevant pieces of evidence in our written submissions in the subparagraphs of paragraph 40. I will not go to them now, of course. What we would submit is that if one looks at those passages in the evidence the jury was perfectly entitled to take the opposite view, but we would invite the Court to look at those passages in the evidence.

May I just say one other thing about the DNA evidence. The jury – this appears at about page 135 – did not just see the coloured documents that your Honours have. There were also transparencies and overlays and they were put in a position – the jury was shown it so that they could see the documents – held the documents up with the transparencies, one against the other, and your Honours will appreciate that if one looks at the right-hand side of those documents the scales vary and the documents that the jury saw were ones which show they matched, so the scales were the appropriate scales.

The jury were not just looking at those pieces of paper and hearing evidence about them. They were also seeing them spoken about and the witness giving evidence about them and that was a matter which they were entitled to take into account.

Your Honours, the second matter with which I would seek to deal concerns the damage to the respondent’s fingers. The respondent’s submissions on this issue do leave out of account one important matter. That is that the fingerprint and DNA samples had been requested by the police from the respondent by a letter to his solicitor on 14 October. You will see that referred to in volume 1 at page 351, about line 15. The fingerprints were, in the event, provided in consequence of a consent order made which is referred to at page 351, lines 20 to 30. They were provided on 1 November.

If one adds to those bare elements of the chronology, the evidence of the doctor to whom I referred this morning, your Honours, at pages 308 to 316, that is the evidence of Dr Healsmith - your Honours, I will not go back to that. He saw him on 22 November and he had to appear – the respondent had to see Dr Healsmith by virtue of court order, but Dr Healsmith’s evidence at pages 308 to 316 indicates that there had been damage to the fingers at a time which would make it very relevant to the fact that he later on 1 November went to have the fingerprints taken.

Your Honours, could I say something then about the question of access to the premises. All that the evidence really discloses as to access to the premises is that the murderer got in without breaking in. The position on the evidence as to the existence of locks or chains being used is set out in our written submissions at paragraph 58. I will not take your Honours back to that. One notes too that when the deceased’s parents came on the Wednesday morning they entered through the back door and the description of the entry they made using a key that they had appears in the father’s evidence in volume 1, page 248, line 40, and in the mother’s evidence at page 266, line 13.

Your Honour the Chief Justice asked did the children have keys. There were four sets of keys discovered after the death, three of which were accounted for. They were the deceased’s parents and a girlfriend of hers, Lesa Wells. You will see that referred to in the evidence of Mrs Hardwick in volume 1 at page 269, lines 20 to 35, and Mr Koppie’s evidence at page 416, lines 20 to 30. A fourth set was located in the son, Daniel’s, drawer. You will see that referred to in volume 1, page 368, line 40 to 369, line 45.

So far as the evidence relating to whether the children had access to a set of keys before death, the answer appears to be no and may I just give your Honours perhaps the page references in that regard - page 269, lines 20 to 35; 416, 20 to 30 and 339, 30 to 40.

Your Honours, may I just say one more thing about the question of opportunity. The respondent - your Honours have heard, and this appears in volume 2 at page 564 – left his parents’ place at about 8.30 pm, on his evidence, on the Monday evening. The last telephone call of the deceased was at about 9.00 pm – that appears in Miss Davenport’s evidence at page 457, lines 1 to 27.

Your Honours, on the question of the cessation of the telephone calls, your Honour Justice Callinan asked where are the references to the cessation of phone calls by the Crown in closing and by the trial judge in his charge to the jury, and did the defence address or object. Now, my learned friend has given your Honours some of those references.

You can see, your Honours, in the Crown’s closing address the submission made, that has already been referred to in volume 2 at page 823, line 10 to 824, line 5. The issue was not referred to in the defence closing except, your Honours, in a respect to which I will come. Your Honours, if the issue was one that was foreseen by those conducting the trial on behalf of the respondent as one of significance, and a point that should not have been made, or without there having been some further questions asked, why was not there some objection taken to the course? Why was there not a direction sought to the jury and indeed, why was there not a ground of appeal?

Your Honours have seen a reference to the primary judge’s charge to the jury in part – and I do not mean that in any way offensively. If I could just take your Honours to two other passages dealing with the issue at page 883. At page 883, your Honours were referred to the paragraph commencing about line 27, but if one goes to the preceding paragraph, you will see that counsel for the respondent at the trial - this is the judge’s charge to the jury - had referred to the telephone calls, the last three lines of that paragraph:

He then also pointed to the telephone calls the week after the reasons had been handed down as the active pursuit of matters related to this appeal.

The passage in the counsel for the respondent’s address to the jury, to which reference is there being made, is at page 857, line 35. Your Honours will see that about line 35 through to about line 42. There had been something said about it. Your Honours, after the passage in the charge to the jury at pages 883, 884, 885, could we invite your Honours to note also that at page 886 in the two paragraphs commencing at line 30 and going through to line 42, the judge does warn the jury about the use of evidence of motive.

May I move to a different topic. Our learned friends have said that there is a suggested change of course by the Crown or by the DPP in relation to the evidence concerning bruising, the hairs, fingerprints on the ashtray. Now, your Honours, we have dealt with what the evidence was on those matters in our written submissions, but may I just say three further things, the first as to fingerprints on the ashtray.

Your Honours, our learned friends were saying that it was our case, “our” meaning the prosecution’s case, that the respondent’s fingerprints should be found on the ashtray. Of course, your Honour, we knew that there were no fingerprints of the respondent on the ashtray. It is hardly going to be our case that there were. We knew there were not before the trial started. That is the first thing.

The second thing, as to the bruising, there was absolutely no cross-examination at all of the doctor as to the cause of bruising of the arms. He referred to the bruising, in fact, in giving the list of injuries that he found on the deceased. What is wrong, we would say, with stating the very obvious fact, namely, that the bruising may well have resulted from the ordeal to which she was subjected.

Your Honours, as to the hairs, the testing which was conducted was performed to see if any of the respondent’s hairs were found there and both sides had the relevant report. The relevant - this was not treated as being of sufficient importance by anyone to actually call the person who prepared the report.

GLEESON CJ: Mr Jackson, Mr Tehan asked in the course of his submissions this. If the respondent had killed the victim, why would not the respondent’s DNA be all over her pyjamas? Why would it only be under the collar? Were tests conducted to see whether there was any other person’s DNA all over the pyjamas?

MR JACKSON: Your Honour, the answer is yes, I think. May I seek to give your Honour a reference to that. Endeavours were made to obtain whatever DNA there was.

GLEESON CJ: Because the same question would apply to whoever else killed her.

MR JACKSON: Yes.

GLEESON CJ: Why was not the killer’s DNA all over the pyjamas?

MR JACKSON: Indeed, your Honour, yes.

GLEESON CJ: And I just wondered whether that had been the subject of an inquiry to see whether there was any one person’s DNA all over the pyjamas.

MR JACKSON: Yes, I will endeavour to give your Honour a reference to that in a moment, if I may.

GLEESON CJ: Thank you.

MR JACKSON: Your Honours, could I just say in relation to the matters with which I was just dealing that your Honours will appreciate that these matters about the ashtray and so on were really things that arose from the way in which the majority in the Court of Appeal approached the matter. Many of these matters were things that really one sees articulated in the way in which they were for the first time in the Court of Appeal’s reasons.

Your Honours, as to the question of the further evidence, could I just say one thing about it. If I could go, your Honours, in volume 3 to page 1145 and to paragraph 4 of that, our learned friend’s submission said I think – and I suspect it may have been erroneous, with respect – that of the material that was put to the Court of Appeal, the additional material, the only part that had not been in evidence was the financial information. That is not quite so, your Honour. If your Honours look at paragraph 4, the position was that the only material that did not exist prior to the trial was the financial information confirming the availability of an overdraft of $50,000. The point that we sought to make in response was that, although those documents were more recently created, they could have been procured before the trial.

Your Honours, our learned friends referred to the evidence that was given by the respondent in relation to the potential availability to him of a line of credit and said that was not challenged. Well, your Honours, if one goes to page 617, your Honours will see that he was asked, for example, around line 36:

Did it become clear to you that money was going to be a major issue -

and the question of money was pursued, if one goes over to page to 619, lines 24 to 27. Your Honours, in relation to the question that your Honour the Chief Justice asked me, I have an answer but may I perhaps put it in a written form and give our learned friends a copy of it.

GLEESON CJ: Yes.

MR JACKSON: May we respond to the question about jurisdiction also in writing because it is a matter on which, apart from anything else, I need to obtain some instructions.

GLEESON CJ: Certainly.

MR JACKSON: Your Honours, I think subject to that, those are our submissions.

GLEESON CJ: Very well then. We will reserve our decision in this matter and we will adjourn until 10.15 am on Tuesday, 5 December.

AT 3.01 PM THE MATTER WAS ADJOURNED