88. Whilst the closing address for the Crown painted an apparently compelling picture of the evidence adduced on its behalf, it was a picture that was not entirely accurate. It was asserted by the Crown prosecutor that nothing had been stolen from the house. There was no evidence to that effect. The address implied that the appellant must have learnt of the deceased's intention to change the locks and had chosen to strike before that could be done. There was no evidence that either occurred. It asserted that there was evidence from which it could be inferred that the appellant could have had access to the keys of the house. There was no such evidence. It suggested that it would have been an "extraordinary freak occurrence" requiring "some sort of divine intervention" for the appellant's DNA to have been transferred from him to one of the children and then transferred to the deceased's pyjamas "on the very place adjacent to the injury". The evidence did not support any of these propositions. On the contrary, the possibility of secondary transfer was expressly conceded by all three of the expert witnesses and none of the extracted samples of DNA referred to in the evidence were apparently adjacent to the site of the injury other than that found on tape lift 15C1 which contained DNA from an unknown contributor.
89. The Crown also asked the jury to consider who else would or could have murdered the deceased. In a case of this kind this was a most dangerous suggestion. It is true that this rhetorical question was immediately followed by the concession that it would be inappropriate for the Crown to bolster its case by suggesting that if the jury could not find anyone else the murderer must be the accused. However, having made that disclaimer, the learned Crown prosecutor proceeded to argue that it seemed highly unlikely that anyone other than the appellant would have wanted to or could have killed the deceased in the circumstances in which she died. He referred to "exhaustive enquiries" made to obtain information about other possible offenders and proceeded to argue that "it comes back" to only two or three "quite narrow possibilities as an alternative to the accused". One was that there may have been a mystery man or woman who had got into the house on some earlier occasion, obtained the keys, dropped them whilst climbing the back fence and subsequently returned and murdered the deceased. The second was that the deceased had been seeing a "mystery man" and that some sexual perversion or other activity went wrong and caused her death. Yet whilst police enquiries may have suggested that there were no fingerprints in police records matching any of those found in the house, they did not otherwise narrow the range of possible offenders in the manner suggested. Despite the disclaimer, the submission did seem to invite the jury to reason that, if no-one else with motive and opportunity to murder the deceased could be identified, then it must have been the appellant.
90. Some, though not all, of the errors to which we have referred were corrected by the trial judge, but there is, we think, some risk that the address created an overall impression that may not have been adequately counterbalanced by the subsequent directions. However, no issue was raised about the Crown address at trial or on appeal and, given the view that we have formed of the unsafe and unsatisfactory ground of appeal, we find it unnecessary to consider this possibility further.
91. No matter what processes of reasoning may have influenced the jury, the appeal must be upheld if, even making full allowances for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. After carefully examining the evidence in this case in the light of the principles explained in M v R, we have concluded that there is a real possibility that that has occurred.
92. It is true that there was evidence of motive and that the appellant was unable to rely upon an alibi for the night upon which the deceased apparently died. The fact that the death of the deceased occurred so quickly after the order lifting the earlier stay of Family Court proceedings and effectively requiring the children to live with the deceased, and the distress and anger exhibited by the appellant in relation to that decision provides very strong grounds for suspecting that he may have been responsible for her death.
93. Further support for that suspicion is provided by the presence of DNA which probably emanated from the appellant on the upper portion of the pyjama coat the deceased was wearing at the time of her death.
94. It should be noted, however, that after giving general directions as to the concept of circumstantial evidence, the trial judge directed the jury that before evidence of detectable DNA on the collar of the pyjamas could be taken into account, the jury had to be satisfied beyond reasonable doubt that the evidence could not exclude the appellant as having been a contributor to it and "that possible transference by one of the children could not account for it being there". This direction may have been unduly favourable to the appellant. As the High Court made clear in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, whilst each element of an offence must be proven beyond reasonable doubt, intermediate facts need only be proven to that standard if those facts constitute indispensable links in a chain of reasoning leading towards an inference of guilt. However, no point was taken about the correctness of the direction and the jury was, of course, bound to apply any direction of law given to them by the trial judge irrespective of whether, viewed objectively, it correctly reflected the relevant legal principle. Had it done so, it would have been obliged to disregard any evidence suggesting that the appellant may have been a contributor to DNA found on the deceased's pyjamas, given that each of the three experts had conceded the possibility of secondary transference from one of the children. In that event, the Crown case would clearly have been unsustainable and a verdict of acquittal inevitable.
95. Accordingly, it is difficult to avoid the conclusion that the jury disregarded that direction. However, no point was taken about this issue and, as previously mentioned, we have concluded that the appeal should, in any event, be allowed on the ground that the verdict is unsafe and unsatisfactory.
96. The evidence adduced by the Crown was highly persuasive, but it was not compelling. There was evidence of motive but, whilst many parents are no doubt distressed and angry when they lose custody of their children, few respond by murdering the other parent. The proximity of the death to the order lifting the stay of proceedings logically lent considerable weight to the Crown case, but it did not exclude the possibility that another person may have been involved in the acts that led to the death. That may have been coincidence or there may have been some reason that has never been identified, such as a quarrel sparked by the deceased terminating an intimate relationship lest it be discovered by the children when they returned to her full time custody. The evidence as to whether the appellant may have had an opportunity to enter the deceased's house on the night of 30 September 2002 did not advance the Crown case but, if anything, tended to undermine it. Of course, it is possible that the appellant obtained keys from Daniel, that the deceased failed to use the chain locks and that the appellant acted irrationally in returning the keys to Daniel's room. It is also possible that Daniel committed perjury to protect his father, either because he refused to accept the obvious implication of their return or because his loyalty to him overrode all other considerations. The DNA evidence provided substantial support for the Crown case but the possibility of secondary transference was not excluded, and it was not shown that the DNA was transferred to the pyjamas on the night of the deceased's death. The other matters relied upon by the Crown such as the pattern of telephone calls and the damage to the appellant's fingernails were of little weight, even collectively.
97. Furthermore, there were other aspects of the evidence that clearly required consideration. Whilst the Crown prosecutor suggested that any suspicion arising from the presence of the handcuffs was a "furphy" and a "distraction", the possibility that the deceased may have had an intimate relationship with another person whom she admitted on the night of her death cannot be so readily dismissed. We accept that the suggested presence of pornographic videos should be ignored, but the presence of handcuffs and marks on the bed head consistent with their use, the bruises on the wrists of the deceased and the red marks similar to finger marks on her thigh, are all suggestive of a sexual relationship or incident with someone other than the appellant or Mr Koppie.
98. It is true that a police officer said that the handcuffs did not appear to have been used but that opinion seems to have been based upon the fact that they were found in their packet. It does seem unlikely that a person who had just murdered a former lover would bother to return the handcuffs to the packet rather than taking them from the scene, but there is no reason to assume that they had been used on the night in question. It is also true that no traces of semen were found. That may suggest that if any sexual activity occurred on that night it was not completed or a condom was used. However, this evidence does not exclude the possibility that the deceased had had an intimate relationship with another man or that he was responsible for her death. Nor, with due respect to the view taken by Spender J, can those possibilities be dismissed by adverting to the fact that she was wearing pyjamas with a "Winnie the Pooh" motif on them when she died. There is no reason to suppose that any such person had been engaging in sexual activity with the deceased immediately before or at the time of her death.
99. The evidence of handcuffs, the marks on the bed head, the bruises on her wrists, the DNA from an unknown male on her collar, the footprints in the soot and other evidence consistent with the presence of a third person at the relevant time raises the disquietening possibility that such a person may have been admitted to the house and in some fashion caused her death.
100. It was not incumbent upon the appellant to prove the existence of an unknown lover, nor even to postulate the existence of such a person. No onus is cast upon an accused person to establish alternative hypotheses consistent with his or her innocence, let alone to establish the nature of any relationship that another person, who may have been the real killer, may have had with the deceased. Even if the possibility of an intimate relationship with an unknown person is ignored, the evidence of fingerprints on door handles and on the ashtray, cigarette packet and disposable lighter and footprints in the soot, DNA from an unknown male on the pyjama collar and hairs in the bed that were not those of the deceased or the appellant raise a substantial possibility that someone else had been in the house at the time of her death and, if that is so, then it does not matter whether that person had previously had an intimate or romantic relationship with the deceased.
101. In any event, it seems most likely that the deceased chose to admit the person who was with her when she died and, if she did so, that person would most likely have been someone whom she trusted. In all the circumstances, it is most unlikely that she would have admitted the appellant.
102. The evidence of fingerprints from an unknown person on the doorhandles, ashtray, cigarette packet and lighter, as well as the footprints adjacent to the body from someone else, hairs on the pyjamas and in the bed from someone else and DNA on the neck of the pyjama coat from someone else, all emerged during the Crown case and none of it was disputed. It cannot be ignored or treated as a mere distraction. At face value, it provides strong grounds for an inference that someone else may have entered the house and been responsible for death of the deceased.
103. It is true, of course, that there may be explanations for these matters that are compatible with the Crown case. For example, the appellant may have left no fingerprints because he wore gloves, though the adoption of that explanation would not only provide a further reason for discounting the evidence of damage to the appellant's fingernails, but make it less likely that he left DNA on the pyjamas whilst compressing the neck of the deceased. The DNA could have been deposited by spittle but, as Dr McDonald explained, saliva is a high yield source of DNA whilst skin is a relatively low yield source. Hence, one would have expected any contribution from the appellant's spittle to have provided the major portion of the DNA found on tape lift 15C7 instead of the minor portion. It may be that the footprints near the body were left by the deceased's father and that the police failed to ascertain that fact or the Crown overlooked the need to adduce evidence to that effect. That would not explain how the appellant had left the scene without leaving his own footprints but it is, we suppose, possible that he left before any soot had settled on the carpet or that his footprints were obliterated by those of firemen, fortuitously treading in the same spots. It is possible that someone left identifiable fingerprints on the door handles at some time prior to the night in question, though it is, perhaps, more difficult to dismiss the significance of the fingerprints on the ashtray, cigarette packet and lighter which, on the Crown case, were probably handled by the killer prior to leaving the house. It is possible that a different lighter was used to set the fire. It is even possible that the DNA on the collar of the pyjama coat as well as the hairs on that coat and in the bed were left by someone with whom she had intimate or at least affectionate contact earlier that night or, perhaps, on an earlier evening altogether.
104. However, potentially exculpatory inferences cannot be ignored merely because there may be other possible explanations for the relevant facts. It was incumbent upon the Crown to exclude any reasonable doubt that someone else may have been responsible for the death of the deceased and, as the High Court affirmed in M v R (supra), an appeal must be allowed "if the evidence, upon the record itself, ... lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted."
105. In the present case, aspects of the evidence, particularly that relating to motive, timing and DNA extracted from the 15C7 tape lift, provided ample grounds for grave suspicion that the appellant may have murdered the deceased. However, other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs, make it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present as the time of her death makes it impossible, in our opinion, to conclude that it was open to the jury to find that the guilt of the appellant had been proven beyond reasonable doubt.
106. In our view, there is a real possibility that another person was responsible for her death and we have been left with substantial doubt as to the guilt of the appellant. Even putting aside any disquiet arising from the possibility that the jury may not have decided the matter in accordance with the trial judge's directions and giving full weight to any advantages that may have been derived from seeing and hearing the evidence, the factors to which we have referred lead us to conclude that a miscarriage of justice may well have occurred.
107. In our opinion, the grounds of appeal relating to perceived deficiencies in the directions to the jury cannot be sustained. His Honour's directions were scrupulously fair to the appellant and the experienced senior counsel who then appeared on his behalf did not raise any issue as to their adequacy.
108. Nonetheless, for the reasons given, we would allow the appeal and order that the conviction and sentence be set aside.