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1. This is an appeal against the appellant’s conviction for the murder of Ana Louise Hardwick (“the deceased”) between 30 September 2002 and 2 October 2002.

2. Whilst the notice of appeal contained grounds raising several issues as to perceived inadequacies in the trial judge’s summing up of the case to the jury, the ground most strongly pressed upon the hearing of the appeal was that the verdict of the jury was unsafe and unsatisfactory.

3. Any earlier uncertainty about the circumstances in which an appellate court should 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 as to the guilt of an appellant was effectively resolved by the High Court of Australia in M v R (1994) 181 CLR 487. In that case Mason CJ, Deane, Dawson and Toohey JJ explained at 494-5: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise 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, then the court is bound to act and set aside a verdict based upon that evidence (Chamberlain v R [No 2] (1984) 153 CLR at 618-619; Chidiac v R (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting a trial by court of appeal for trial by jury, for the ultimate question must always be whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v R (1991) 171 CLR 432 at 443, 458, 461-462). Although the proposition stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form which they are set out above.

4. We have read in draft form the dissenting judgment of Spender J and noted his Honour’s suggestion that we have adopted the wrong test in dealing with this ground of appeal. However, it was common ground that the passage quoted provides an authoritative statement of the relevant principles and, with due respect to his Honour, we can see no justification for departing from them. See also Jones v R (1997) 191 CLR 439 at 450-451 and Gipp v R (1998) 194 CLR 106 at 114, 123, 150 and 162-4.

5. We have also noted his Honour’s observation that “it is simply not the law that a verdict has only prima facie effect”. That is, of course, entirely correct. As the High Court made clear in M v R, the ultimate question on an appeal of this nature is not whether an appellate court might have come to the same decision, but whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In addressing that question, the court must make full allowance for the advantages enjoyed by the jury. However, the court may not shrink from evaluating the evidence by reason of perceived truisms about the virtues of the jury’s initial evaluation or fears that what his Honour refers to as a “judicial veto” may diminish the integrity or value of the system. On the contrary, the decision in M v R establishes that if the evidence lacks probative force in such a way as to lead the court to conclude that, even making full allowance for such advantages, there is a significant possibility that an innocent person has been convicted, “then the court is bound to act and set aside a verdict based upon that evidence”. No system is infallible and if, despite due appellate caution, it appears that a mistake may have been made, a person who may well be innocent should not remain convicted and be left to serve a lengthy term of imprisonment merely to allay concerns about compromising what his Honour describes as “the finality of adjudication by the peers of the accused”.

6. In any event, we have proceeded to apply the principles that were explained by the High Court in M v R and affirmed in the other cases to which we have referred.

7. In the present case it was not suggested that there had been any eyewitnesses to the acts that caused the death of the deceased and the Crown case at trial was dependent solely upon circumstantial evidence. Accordingly, any consideration of the appellant’s contention that the verdict was unsafe and unsatisfactory requires an examination of the circumstances said to have been inconsistent with any reasonable hypothesis other than that the deceased was murdered by the appellant.

8. On 30 September 2002 the deceased attended at her place of work for a shift due to run from 4.30 pm to 7.30 pm. After work she had a cup of coffee with a colleague, Ms Smelson, and left at about 8.00 pm. She subsequently had a telephone conversation with a friend, Ms Davenport, which lasted from 8.11 pm to shortly after 9.00 pm. She did not arrive at work as expected the following day, and when she again failed to attend on Wednesday, 2 October 2002, her parents were contacted. They went to her house at 20 Marengo Place, Isabella Plains at about 10.00 am, gained entry with a set of keys that she had previously given them, and discovered her body lying on the floor of the main bedroom. She was wearing pyjamas with a Winnie the Pooh motif and there were bed clothes wrapped around the lower portion of her body. It appeared that a fire had caused some damage to the room.

9. Mr Williams, a crime scene investigator who attended Ms Hardwick’s house at about midday on that day, observed that there were no signs of forced entry and that the house was in a fairly neat and tidy condition. He noted that there was a smoke detector in the hallway but that the battery was not in contact with the terminals. There was another smoke detector in the dining room and, whilst the battery was in contact with the terminals, it was also inoperative. Subsequent tests showed that the batteries in both smoke detectors had been nearly fully charged and that the detectors could be properly activated when the batteries were securely connected.

10. The investigator also noted that on a bedside table in the main bedroom there was an ashtray containing one cigarette butt, a packet of cigarettes and a cigarette lighter. The mattress had been substantially burnt, though the wooden slats supporting the bed from underneath had only minor damage, and two pillows lying on the floor had been damaged by fire. Mr Williams also observed there to be considerable smoke staining to the walls. The investigator concluded that the fire had commenced near the base of the bedside table and that it had spread from the more severely fire damaged pillow, up the bed valance and onto the mattress. Subsequent tests were carried out by applying cigarettes to standard polyester pillows with cotton covers but they produced only minor scorching. However, when further testing was performed by applying a cigarette lighter to the same pillows, they ignited rapidly.

11. The Crown sought to support its contention that the fire had been deliberately lit by adducing evidence to the effect that, whilst the deceased had been a smoker, she rarely smoked in the house and, when she did, she normally smoked in the kitchen near the exhaust vent of the stove. An officer from the ACT Fire Brigade gave evidence that the damage to the bedroom would have been caused by a slow, smouldering fire. Mr Hardwick, the deceased’s father, had found the door to the bedroom closed when he arrived, and the officer from the fire brigade expressed the opinion that the room would have been filled with smoke about 3 minutes and 20 seconds after the fire had started. As the fire progressed, the oxygen level would have been reduced and after 5 minutes and 15 seconds it would have been down to 15 per cent of the atmosphere, a level at which human life cannot be sustained. He said that the fire ultimately went out because of a lack of oxygen in the room.

12. Dr Burke, who was a senior forensic pathologist, subsequently performed an autopsy on the body of the deceased but was unable to determine the time of death with any precision due to the body’s earlier exposure to heat from the fire. He agreed that when found she could have been dead for days or only a matter of hours.

13. Dr Burke noted a number of injuries to the neck. There was a complex abraded injury that began just to the right of the midline and extended somewhat transversely across the left side of the neck, covering an area measuring 10 centimetres by up to 1.5 centimetres. Similar abraded injuries were seen on the left side of the neck above the thyroid cartilage beginning at a point 4 centimetres to the left of the midline and measuring 1.5 centimetres by 0.3 centimetres. There was also a round region of skin abrasion measuring one centimetre across. The left side of the neck also showed a discontinuous region of abrasion with a suggestion of a linear component measuring approximately 2.5 centimetres. Further ill-defined abraded injuries were seen to the lower right aspect of the neck and there were numerous bruises within the neck muscles, though no fractures of the larynx were detected.

14. Dr Burke also noted regions of skin abrasion to the tip of the deceased’s nose, and a further area of skin abrasion measuring 0.5 centimetres across on the left angle of the mandible with associated blue discolouration. There was also a bruise to the outer aspect of the right forearm wrist measuring 2 centimetres and a further bruise to the outer aspect of the left wrist measuring 4 centimetres.

15. No soot was found within the major airways, and no carbon monoxide could be identified in the deceased’s blood. These observations led Dr Burke to conclude that she had not been breathing at the time of the fire. He said that it would have been fanciful to suggest that she collapsed due to the fire consuming all of the oxygen in the room and that she died due to asphyxia.

16. He expressed the opinion that the cause of death had been neck compression.

17. In cross-examination Dr Burke agreed that the post mortem examination had revealed features that he had not previously encountered and that it had been a very difficult case. He agreed that the neck compression could have been caused by a cord, a rod or by manual strangulation, but added that he believed the use of a rod was probably more likely than a cord. He also agreed that the classic signs of those forms of compression were not present and said “I don’t know how the pressure was exerted to this lady’s neck”.

18. Subsequent examination revealed that the pyjamas also showed some sign of burning, most markedly on the right sleeve, though there was further damage to the right leg, left arm and left leg.

19. The Crown contended that the deceased had clearly been murdered and that the murder had been carried out by the appellant. It was conceded that the case against him was entirely circumstantial but the Crown contended that the appellant had had a motive to commit the murder, that he had had the opportunity to do so, that traces of his DNA had been found on the deceased’s pyjamas, and that he had subsequently acted in a manner that indicated a consciousness of guilt. Evidence of murder

20. As previously mentioned, Dr Burke made it clear that the injuries to the deceased’s neck did not betray the classic signs of strangulation. However, it was obvious that the injuries were neither self-inflicted nor the product of an accidental fall. Another person was clearly involved in the acts that led to her death. Furthermore, the attempts to set fire to the room were presumably made in an attempt to destroy relevant evidence and, perhaps, create an impression that she may have died as a result of smoke inhalation or other effects of the fire.

21. Handcuffs were found in a wardrobe in the deceased’s bedroom. Detectives investigating the matter asked Mr Williams to determine whether marks on the bedhead were consistent with their use so that they could examine the possibility that sexual activity involving the use of the handcuffs in some sort of bondage system may have been involved in her death. Mr Williams confirmed that the marks on the bed head were consistent with the use of the handcuffs. It was suggested, though it appears never proved, that some pornographic videos were also found at the deceased’s residence. Mr Koppie, who had had an intimate relationship with the deceased for a period of about twelve months prior to her death, gave evidence to the effect that he had been unaware of the existence of the handcuffs and that he had never seen any marks on the bed head consistent with their use. During the length of their relationship, he had been aware of only one pornographic video.

22. Nonetheless, in his closing address, counsel for the accused disavowed any suggestion of death by misadventure due to some act of sexual experimentation, and submitted that once that possibility was discounted, it had to be concluded that the deceased was murdered. Evidence of motive

23. The appellant and the deceased had formerly lived together in a de facto relationship but separated in about February 1999. They had two children, Daniel who was born on 23 August 1991 and Elle who was born on 21 December 1993. Upon separation it was agreed that the children would live with the appellant, and the deceased would have access to them as arranged between them. That agreement was formalised by terms of settlement in June 2000. In October 2000 the deceased filed an application in the Family Court of Australia for interim and permanent orders requiring the children to reside with her. The application for interim orders in those terms was dismissed in April 2001. However, in June 2002 the Family Court made an order providing for the children to reside with the deceased and for the appellant to have access to them. These orders were subsequently stayed upon the appellant’s application and the children commenced a regime that involved them living with each of their parents during alternate weeks. A notice of appeal against the Family Court orders was filed by the appellant on 6 September 2002, but an order effectively lifting the earlier stay of proceedings was made on 20 September 2002.

24. There was evidence that after the separation the appellant had sometimes displayed anger or behaved unreasonably. One witness said that in “about 2000” the appellant had left a message on the deceased’s answering machine containing a vague threat, though she was not certain of the words used. He had clearly been distressed by the orders requiring the children to live with their mother and the Crown invited the jury to conclude that he had decided to “take the law into his own hands” to ensure that he retained custody of the children.

25. In support of this contention the Crown relied upon evidence from the appellant’s step mother, Ms Daphne Hillier, to the effect that the appellant had told her that he had been obliged to tell Daniel that he could not afford to take proceedings in the Family Court “any further” because he had no money. That proposition was subsequently put to the appellant in cross-examination and he denied making any such comment. It is clear from the jury’s verdict that they did not accept his sworn denials of having murdered the deceased and, for the purposes of the present proceedings, it seems to us that no weight can be placed upon his evidence save, perhaps, to the extent to which it was left unchallenged by the Crown. In relation to this issue, 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. Ms Hillier said that the conversation which she recounted had occurred “probably weeks” before the death of the deceased and, even if her 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.

26. The appellant was also asked whether he had realised that his chances of having the relevant decision of the Family Court overturned on appeal “were going to be remote”. In response, he said that he had been advised that he had had a better than even chance of success. The jury was not, of course, obliged to accept this assertion but, equally, they would not have been entitled to accept the proposition conveyed by the question as there was no evidence to support it. Furthermore, since there was undisputed evidence that the appellant had been a caring and devoted father, and the court order involved a reversal of custodial arrangements that had then been in place for more than three and a half years, there was clearly no basis upon which the jury, unassisted by expert evidence, could have drawn an inference that the prospects of the appeal succeeding were remote, let alone a further inference that the appellant must have realised that.

27. The Crown also referred to evidence that on the weekend of Friday, 27 September 2002, the appellant had made numerous phone calls concerning his pending appeal from the custody decision. The learned Crown prosecutor suggested that this evidence was very compelling because the phone records for the following Monday and Tuesday showed that the calls that the appellant had made during the previous week to a psychiatrist, doctors and lawyers “suddenly stopped”. Counsel asserted that this was “quite remarkable” and said that it was consistent with the prosecution case that, over the weekend of 28 and 29 September 2002, the appellant had suddenly realised that he was “in real trouble in the Family Court” and decided to take the law into his own hands by strangling the deceased.

28. Despite the somewhat forceful language with which these submissions were apparently delivered it is, with respect, difficult to see how any substantial support for the Crown case could have been fairly derived from the fact that a spate of telephone calls made during the previous week had not been maintained after the weekend. As previously mentioned, an order effectively lifting the stay of proceedings in relation to the residence orders had been made on Friday, 20 September 2002. It was entirely understandable that a father, who was distressed by an order of this nature and believed that his children were also very distressed by it, might make a flurry of enquiries during the next few working days with a view to ascertaining whether anything could be done to prevent the orders appealed from coming into effect. There was no reason to suppose that he would have continued to make numerous telephone calls about the appeal once those enquiries had been completed.

29. Furthermore, if it had been intended to attach such a sinister connotation to the pattern of calls, then the issue should have been raised with the appellant in cross-examination so that he could have had an opportunity of providing an explanation in respect of it. Yet this was not done. The potential unfairness of raising the matter in the Crown’s closing address without having given the accused an opportunity to deal with the matter in cross-examination was compounded by the fact that it had not been mentioned by the Crown when opening the case. Whilst the telephone records had been tendered, nothing apparently occurred during the course of the trial to alert the accused to the possibility that they might be used as anything other than evidence of the extent of his feelings during the previous week. There appears to have been no forewarning of any suggestion that the appellant may have stopped making the calls because he knew that the deceased was already dead and that further action on the appeal would be unnecessary.

30. Nonetheless, there was ample evidence that the appellant was both angered by the decision and distressed at having to relinquish the day-to-day care of his children. In our opinion, the jury would have been entitled to have regarded this as a strong potential motive for murder albeit, perhaps, one not augmented by some of the factors suggested by the Crown.

31. Whilst the trial judge did not address, and was not asked to address, any issue as to the apparent absence of an adequate evidentiary basis for any of the particular propositions to which we have referred, his Honour did direct the jury that evidence of motive had to be viewed in the context of other relevant circumstances and warned that many people who have powerful motives to offend never do so. This warning was clearly appropriate in this case. Many thousands of relationships break down each year and many parents lose custody of their children. If a parent who has recently obtained custody of his or her children is murdered, suspicion will almost inevitably fall on the other parent, especially if he or she has displayed anger and distress at the custody decision. Yet the obtaining of a custody order obviously does not make a parent immune from violent attacks by others and such common human reactions do not, of themselves, demonstrate that the parent who has recently been deprived of custody is a potential murderer.

32. 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. The suggested inference from the appellant’s submissions on appeal

33. Before leaving this aspect of the case, we feel obliged to mention that we are unable to accept the approach suggested by Spender J of treating an impression he formed of the appellant’s conduct in seeking to adduce fresh evidence and/or handing up voluminous submissions on the appeal as demonstrating that he is “a person of obsessive, manipulative and controlling traits”, and speculating that the jury might have formed a similar view of him from the evidence he gave at trial. No adequate grounds for the reception of fresh evidence were established. However, the learned Crown prosecutor did not include in his closing address to the jury any suggestion that they should form such a view of the appellant, and in his submissions to us did not suggest that such a view should be taken on appeal. In fact, of course, there is no reason to suppose that an innocent person would not have been equally concerned that a comprehensive case be advanced on an appeal from his or her wrongful conviction. In any event, we are unable to see how an adverse impression of the appellant formed by one of three appellate judges from his presentation of documentary material could provide any conceivable basis for an inference that a similar impression may have been formed of the appellant’s character from his oral evidence several months earlier.

34. We accept that the jury must have formed a view adverse to the appellant’s credibility because it clearly rejected his denials of having done anything to cause the death of the deceased. That does not, however, mean that the jury could or did form some impression of his character capable of constituting positive evidence of guilt and neither the Crown nor the trial judge ever adverted to such a possibility.

35. Consequently, all of the issues raised in argument must be addressed on the basis that any potentially exculpatory evidence given by the appellant should be ignored, but that the jury’s rejection of his denials does not absolve the court from its duty to intervene if nonetheless satisfied that it had not been open to the jury to be satisfied beyond reasonable doubt of his guilt. Evidence of opportunity

36. The Crown’s contention that the appellant had the opportunity to commit the murder was dependent upon two propositions: namely, that the appellant was alone on the night of 30 September 2002, when it was alleged the deceased was murdered and that he may have been able to obtain keys to gain access to the deceased’s home from their son, Daniel.

37. The first of these propositions was not disputed. Whilst the children were still residing with him during the week in which the deceased died, there was evidence that the appellant had been required to attend a business meeting early on the morning of Tuesday, 1 October 2002 and that he had arranged for the children to spend the night of 30 September 2002 with their grandparents. Whilst neither the existence of the meeting nor the appellant’s obligation to attend it were disputed, the Crown contended that the absence of the children overnight presented him with an opportunity to murder their mother without arousing their suspicions.

38. Whilst the absence of an alibi may mean that an accused person cannot prove his or her innocence by establishing that he or she was elsewhere at the time of the alleged crime, it does not, of course, provide affirmative evidence of guilt or even of opportunity. In any event, the fact that the children stayed with their grandparents overnight would have added little, if any, weight to the Crown case because, if the appellant had been intending to kill the deceased he could have simply waited until they were asleep before leaving the house. Indeed, the learned Crown prosecutor conceded during his address that the absence of the children or anyone else to establish an alibi did not, in itself, prove anything.

39. It was argued, however, that the absence of the children had assumed added significance because there was evidence that the deceased had become alarmed about security and had made arrangements for a locksmith to come to her home on Tuesday, 1 October 2002 in order to change the locks, though it appears that she subsequently changed her mind. During the course of his address, the Crown prosecutor submitted that it was “beyond coincidence” that on the night before it was expected that the locks would be changed, someone had chosen to gain entry to the premises and murder her. As the trial judge pointed out in his charge to the jury, that might have been a significant circumstance had there been any evidence that the appellant had been aware of the arrangement with the locksmith. There was, however, no evidence to that effect and it seems highly unlikely that a woman, who had arranged for the locks to be changed for the express purpose of ensuring that her ex-husband would be unable to gain access to the house, would ring him and let him know about the arrangement. Furthermore, it was not suggested that his telephone records, which had been obtained by the police, revealed evidence of any such call.

40. The Crown case on this issue was otherwise dependent upon a contention that there was evidence from which the jury could infer that the appellant may have had access to keys to the premises. This contention seems to have been quite misconceived.

41. The Crown had adduced evidence to affirmatively establish that none of the four sets of keys to the house known to have existed showed any signs of having been copied. Its contention was that the appellant had gained entry to the house using a set of keys obtained from his son, Daniel. There was evidence that prior to her death the deceased had found the drawer of her bedside table partly open and feared that someone may have gained entry to her house. That, it was suggested, had been the catalyst for her approach to the locksmith. There was also evidence that following her death, police investigators found a set of keys in a drawer in Daniel’s bedroom. There was not, however, the faintest scintilla of evidence to suggest that Daniel had ever given those keys to the appellant. There was no suggestion that anyone had seen the appellant with them or that his fingerprints or DNA had been found on them. On the contrary, Daniel gave sworn evidence that he had not given any keys to the house to the appellant.

42. It was open to the jury to be sceptical of the explanation that Daniel gave of finding the keys over the back fence. However, even if his evidence had been wholly rejected, it could not have provided a basis for a contrary inference that he had given those or any other keys to his father. There was nothing in the evidence before the Court to suggest the existence of any other set of keys to which the appellant may have gained access. The only conceivable basis for the submission was an, albeit unstated, proposition that, if the jury did not accept Daniel’s evidence that he had not given the keys found in his room to his father, it could infer from his denial that he may have done so.

43. In the alternative, the Crown had submitted that, even if Daniel’s evidence was not accepted, it could not exclude the possibility that the appellant might have obtained keys from him. That may be true, but there was no evidence that he did so and the contention remained a matter of speculation.

44. In fact, the Crown case on this issue was not only devoid of the claimed evidentiary basis but was somewhat implausible. Since Daniel had not returned to the house between the time of the deceased’s death and the discovery of the keys in his bedroom, it was an inevitable corollary of the Crown’s contention that the appellant must have put the keys in Daniel’s drawer before leaving the premises. Of course, that could only have been possible if he had been able to lock the doors when he left without using the keys, and there was no evidence as to whether the deadlocks fitted to the doors could have been operated in that manner. In addition, he would have had to have had the presence of mind to go into Daniel’s bedroom and put the keys in his drawer after making a lethal assault upon the deceased and attempting to set fire to the premises. More importantly, it is difficult to imagine any conceivable reason for him to have done so. It was not suggested that Daniel had been a party to a conspiracy to murder his mother and the appellant, who, as mentioned, was a devoted and concerned father, would obviously have been concerned to avoid anything that might have led Daniel to conclude that he had been the offender. Yet, if Daniel had given him the keys and then found that they had been returned to his room on the night of his mother’s murder, the inference that the appellant had been responsible for her death would have been inescapable. Daniel would almost certainly have realised that the appellant was the murderer and there would have been a constant risk of him revealing damning evidence to the police. Furthermore, there would have been no apparent reason for him to have taken such risks. He could have simply taken the keys with him when he left the premises and, if pressed by Daniel, denied that he had ever used them.

45. The presence of chain locks which could not be released from outside even with a key provides a further impediment to the acceptance of the Crown’s proposition. The Crown sought to overcome this impediment by pointing out that the deceased’s parents and her friend, Lisa Wells, had also had keys to the house, and argued that it was unlikely that the deceased would have used the chain locks because it would have caused them difficulty in gaining access to the premises. However, there was no reason to suppose that the deceased had provided those keys with the intention that her parents or Ms Wells could enter the house without knocking when she was at home and had gone to bed for the night.

46. In the alternative, the Crown suggested that the deceased could have gone outside for a smoke or simply left the doors unlocked. Neither proposition seems likely. As previously mentioned the deceased was found wearing pyjamas. She was not wearing a dressing gown. It seems unlikely that she would have gone outside to smoke sometime after 9.00 pm on a September night in Canberra without wearing a dressing gown, and on the very day when she had earlier intended to have the locks changed because of concerns about aggression from the appellant. There was also evidence that she did smoke in the house on occasions and there was no evidence that anyone had heard her scream, as might have been expected had she been attacked outside at night. Nor were there signs of any struggle having occurred between any external door of the house and the bedroom where her body was found. It also seems unlikely that, having so recently questioned the adequacy of the security provided by the existing locks, she would have gotten changed and gone to bed without using them or, for that matter, without using the chains to ensure that, if anyone had previously gained entry to the house, he or she would not be able to return during the night.

47. The remaining possibility is that the deceased admitted someone to the house during the course of the evening. In the absence of any evidence of forced entry and her concern about the security of the locks, that seems probable. However, it seems unlikely that she would have voluntarily admitted the appellant late at night when she was alone and clad only in pyjamas, given their estrangement and her apparent concern about his aggressive behaviour. It is possible that he devised some pretext that persuaded her to do so but, apart from the traces of DNA found on her pyjama top, there was no evidence that he had made any such intrusion into the house. The DNA evidence

48. Following the discovery of the deceased’s body, arrangements were made for crime scene investigators to take swabs of certain items in the hope of obtaining relevant DNA samples. However, for reasons that were never adequately explained, no swab was taken from the injured areas of the deceased’s neck. That was most unfortunate. Such a swab might well have provided evidence of DNA left by the killer and either confirmed or cast grave doubt on the guilt of the appellant.

49. Ms Ristevska, a forensic scientist employed in the Forensic Services Branch of the Australian Federal Police, was subsequently given seven glass slides containing what were described as tape lifts said to have come from various sites on the pyjamas the deceased had been wearing at the time of her death. Ms Ristevska proceeded to analyse the samples on the slides by extracting DNA from the tape lifts and increasing the volume of the sample by a process referred to as the polymerise chain reaction, or “PCR”, identifying a selection of ten loci and then running what she described as an aliquot through a process of electropheris which separates the DNA molecules according to size. She obtained a computer print out of a series of peaks related to the size of particular molecules at those loci and interpreted the results by comparing the peaks against what is called a “standard ladder”.

50. When this process was applied to the tape lifts that had been labelled 15C2, 15C5 and 15C6, Ms Ristevska found a mixed DNA profile which could have come from at least two individuals. The deceased could not be excluded as having contributed to the major components but there was insufficient DNA to permit any determination of the origins of the minor components. The samples labelled 15C3 and 15C4 both revealed a single source of the DNA and the deceased could not be excluded as the contributor. It was not suggested that these results were of any real significance to the issues that arose at the trial.

51. However, there was considerable debate about the significance of the results which Ms Ristevska obtained from the DNA on tape lifts 15C1 and 15C7.

52. Ms Ristevska concluded that the appellant could not be excluded from having contributed to the DNA profile from the tape lift marked 15C7. She calculated that it was approximately 93 million times more likely that the contributors to the DNA found on that slide had been the deceased and the appellant rather than the deceased and another person chosen at random from the general population. This figure seemed to have been the product of extrapolations derived from the incidence of particular alleles in 415 predominantly Caucasian people who had been the subject of an earlier study. When it was put to her that Dr Roberts, who was to be called by the Crown to give supporting evidence, had calculated a different level of probability, Ms Ristevska explained that the science itself was exact but that there were always differing opinions about the interpretation.

53. This observation was soon confirmed. Dr Roberts gave evidence that he had calculated a probability, not of one in 93 million, but of one in 7.6 million. He explained that he differed from Ms Ristevska in that he thought it inappropriate to rely upon an assumption that the ACT Caucasian population was homogenous. He explained that within any population there were sub-groups within which people tend to be slightly more related to each other than to other people in the wider population. Hence, he had used a correction factor to allow for what he called “sub population theory”.

54. A further expert, Dr McDonald, who was called by the defence, suggested that there were more fundamental problems with Ms Ristevska’s assessment of probability. Dr McDonald suggested that her calculations had been predicated upon two assumptions: first that there had been only two contributors to the DNA on the tape lift; and, second, that the appellant had been one of those contributors. He said that there was no adequate basis for the first assumption and that the second required an act of faith. As Gray J subsequently reminded the jury, he also said that either of the appellant’s children could have been contributors to the DNA.

55. Dr McDonald also referred to some difficulties that may be encountered when a sample contains low-level degraded components of DNA. He explained that the amplification process can produce phenomena called “artefacts”, which are extra little peaks, the most common of which are “stutter” peaks. A large peak from a particular allele may have a smaller peak just in front of it. Laboratories sometimes work on the assumption that there will be no stutter peaks greater than, say, 15 per cent of the peak height of a large allele but such figures are derived from what he described as “proper intact samples”. He said that when forensic samples were obtained, “we have no idea what they are”; they could be degraded or they could consist of unknown mixtures. Hence it was “smart” to keep an open mind about whether stutters or peaks in such position were “real”. Dr McDonald also noted that a number of peaks were at a level that was “pushing the…limits of (the) machine”. He explained that the DNA had been loaded right up to the point of the maximum level that the machine would tolerate in order to identify smaller peaks down the bottom and that such an approach “starts to compromise the accuracy of the machine in terms of quantitating those peaks”.

56. In cross-examination Dr McDonald agreed that a mixture of DNA from the deceased and the appellant could have produced the results obtained from tape lift 15C7. He was reminded of the opinions expressed by Ms Ristevska and Dr Roberts concerning the chances of two contributors to the DNA on the tape lift being the deceased and the appellant compared to the deceased and an unknown person selected at random from the Australian population, and was asked for his own calculations as to the degree of probability. He indicated that he had not done the calculations and, when pressed about the matter, complained that the Crown prosecutor was asking him to speculate. He added that “for the purpose of the exercise, you know, it could be anything from half a million to five million”. When it was put to him that even this figure would have provided extremely strong support for the proposition that the mixture in the DNA sample came from the appellant and the deceased rather than the DNA of the deceased and an unknown person, he replied “if they’re the only possibilities that you are given, yes it would be”. He was not asked to make any comparable attempt to quantify relative probabilities in the event that the sample contained DNA from more than two contributors.

57. Despite the obvious differences of opinion and the potentially important qualifications to Dr McDonald’s conclusions, we accept that it is probable that at least some of the DNA found on tape lift 15C7 emanated from the appellant.

58. Nevertheless, all three of the expert witnesses conceded the possibility that the appellant’s DNA could have been found on the deceased’s pyjama coat as a result of “secondary transference”, that is transference by means other than direct contact between the deceased and the appellant.

59. We note that in his dissenting judgment, Spender J has maintained a suggestion that this statement is a misrepresentation of the evidence, apparently because the evidence in chief of Ms Ristevska did not reveal any such concession. Accordingly, we feel obliged to mention that Ms Ristevska did make such a concession in cross-examination. The relevant portion of her evidence was as follows: Secondary transfer is common, agree?---There have been studies to say it is common, yes.

And as I put to you before, if you have saliva by way of a kiss, that’s a classic high-yield secondary transfer source, agree?---Yes.

Assume then that he kisses his children goodbye when he finishes his custody, they rush off to Mum, to Ana. There’s likely to be an immediate secondary transfer of some sort, isn’t there?---There could be a transfer, yes.

Could be?---Could be, yes.

And it’s likely also that that’s onto items that Mum, Ana is wearing and/or objects that they come in contact with within the house?---It’s a possibility.

60. It is true that Ms Ristevska said that she would have expected to have seen evidence of the DNA of the children or anyone else who may have carried the appellant’s DNA into the house evident in the DNA mix from the tape lift. However, that expectation was obviously predicated upon an assumption that the transference must have occurred by skin-to-skin contact followed by skin-to-fabric contact. There is no reason to make such an assumption. There is nothing in the evidence to exclude the possibility that the children may have had some of the appellant’s DNA transferred to their sleeves or other parts of their clothing when they hugged him at the end of a week spent in his care, and then subsequently hugged their mother in a similar manner. Nor, is there any reason to suppose that DNA left on their clothing after contact with the appellant might not have been transferred to the deceased’s pyjamas at some later stage when she had been handling that clothing. Furthermore, Ms Ristevska conceded that there had been studies to show that secondary transference was common and that it was possible that the children had also contributed to the sample obtained from tape lift 15C7. She did say that she thought that this was unlikely, but apparently based that belief on the assumption that if there had been four contributors, she would have expected Daniel and Elle to have deposited DNA in the same amount. With due respect to Ms Ristevska, the evidence did not reveal any valid reason for such an expectation.

61. In any event, Ms Ristevska was the least experienced of the three experts and the trial judge directed the jury, without demur from the Crown, that “the prosecution, as I understand it, now accepts the views of Dr Roberts and Dr McDonald where it conflicts with the evidence of Ms Ristevska.” Dr Roberts and Dr McDonald clearly agreed that there had been a possibility of secondary transference.

62. Dr Roberts did express the opinion that it was “fairly unlikely” that dry biological material would have been transferred to the pyjamas unless it had been rubbed against them. However, he confirmed, in general terms, that DNA can remain on an object for a very long time, and that it can be transferred onto an object without the person from whom it originated ever touching the object.

63. Dr McDonald seemed less inclined to dismiss the possibility that DNA from the appellant may have arrived on the deceased’s pyjamas as a result of secondary transfer. He said “we have no idea how it got there and….it’s possible that it got there by primary transfer or secondary transfer”. He agreed that, given the system of shared custody during the weeks prior to the deceased death, it was likely that the children would have brought the appellant’s DNA with them into the house on many items that could have been a source of transference.

64. Dr McDonald explained that some years earlier the FBI had carried out a study which involved taking items of clothing from volunteers and obtaining DNA from those items by various means which included shaking and swabbing. The FBI researchers found that sufficient DNA was obtained to identify the potential donors and, in addition to the volunteers who had provided the clothing, they found the DNA of partners and co-workers. They also found DNA from others in areas in which there had not been any obvious direct contact. Dr McDonald said it became apparent from that study that in ordinary day-to-day activities people transfer DNA from themselves to those around them and also to nearby objects. He added “its something which we’re producing all the time, we’re transferring to our clothing, clothing of others and to items all the time”.

65. Whilst it is true that Dr McDonald gave evidence on behalf of the appellant and that the jury was not obliged to accept his evidence, it should be noted that the Crown prosecutor did not attack his credibility but, on the contrary, said during his closing address that he was quite happy to accept Dr McDonald’s evidence and volunteered the comment that he seemed to have given it “in a quite coherent and plausible and reasonable way”.

66. It should be noted that none of the experts were asked to express any opinion as to the probability of secondary transfer in percentage terms.

67. In fact, the Crown case on this issue was not based upon a contention that any of the experts had purported to exclude such a possibility but, rather, upon evidence of circumstances said to demonstrate that “there was very little prospect” that the DNA on tape lift 15C7 could be explained by contamination and that it was extraordinarily unlikely to have been attributable to secondary transference.

68. The Crown conceded that contamination was a real possibility and agreed that there had previously been cases in which samples taken for DNA analysis had been contaminated. It pointed out, however, that in the present case there had been no suggestion of deliberate contamination and that care had been taken to exclude or minimise any risk of accidental contamination. The samples had been put into sealed bags and there was no evidence that they had subsequently been placed in such close proximity to other items that a transference of DNA could have occurred. The crime scene investigators had taken considerable precautions to avoid what was described as “reverse contamination” from anything picked up in the course of their inspection. Other evidence suggested that there had been little, if any, risk of contamination by shaking hands or other contact between the appellant and officers charged with removing and storing such items. Hence, it was suggested, the risk could be effectively discounted.

69. The Crown’s argument that secondary transference, by means of the children having had physical contact with both parents, could not be regarded as a reasonable explanation for the presence of the appellant’s DNA on tape lift 15C7, was based essentially upon the contention that circumstances had not arisen for such a transference to have occurred.

70. In support of this contention, the Crown suggested that it was extraordinarily unlikely that one of the children could have picked up some of the appellant’s DNA, subsequently embraced the deceased and “just happened to leave a trace of that tissue on the very place adjacent to the injury”. This contention was put very forcefully but the cogency of the argument was not commensurate with the accompanying rhetoric. There was no reason to suppose that these children did not regularly hug both of their parents or that DNA could not have been transferred from one to the other as a consequence of their contact with them. Furthermore, tape lift 15C7 was not taken from a point “on the very place adjacent to the injury” but from a point on the inside of the pyjamas some 7 or 8 centimetres below the collar. The learned Crown prosecutor seems to have confused that tape lift with tape lift 15C1 which was on the right side of the “flap” or collar of the pyjamas. The significance of the DNA found on tape lift 15C1 is referred to later in these reasons for judgment.

71. The Crown also sought support for this aspect of its case by pointing out that the children normally returned from periods of access at about 5.00 pm, and suggested that it was unlikely that the deceased would have been wearing pyjamas at that hour of the day. Furthermore, it appeared that the children had not left the appellant to resume contact with the deceased for at least eight days prior to her death. It was argued that, even if there had been a secondary transfer of DNA to her pyjama top at that time, it was unlikely that she would have still been wearing the same pyjamas eight days later without washing them.

72. However, as previously mentioned, there is no reason to suppose that the DNA could only have been transferred to her pyjamas immediately upon the children’s return. There may have been many items of clothing, toys and other things regularly taken from one house to the other and back again, and any of those things could have borne traces of the appellant’s DNA. Indeed, since the children had been in his custody for more than three and a half years, everything that they owned had probably been touched by him at one time or another. The children were only eleven and eight years old respectively, and it is likely that their mother would have come into constant contact with their clothing and other possessions when they were in her care. It is also likely that she would have hugged them, kissed them and had other physical contact with them. Children are not invariably tidy and she may have found and picked up worn items of clothing at any time. Whilst the subsequent transfer of DNA from one item of clothing to another may have been less likely if both were dry, the possibility of such a transfer could not be excluded. There was even some evidence to suggest the possibility that in some circumstances traces of DNA may remain after clothing has been washed, though it seemed most unlikely that this would have occurred with the pyjama top in question.

73. 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. The evidence did not exclude the possibility that all of the calculations, purportedly demonstrating an extremely high likelihood of him having been a contributor, had been based upon a false assumption that there were only two contributors to the sample. As previously mentioned, Dr McDonald said that there was simply no basis for such an assumption and that the further assumption that the appellant had been one of the contributors required “an act of faith”. There may have been more than two contributors and they may have included one or both of his children. Furthermore, the evidence did not exclude the possibility that, even if some of the DNA had emanated from the appellant, it may have been found on the deceased’s pyjamas as a result of secondary transference or subsequent contamination.

74. Nonetheless, we accept that, even when full allowance is made for other possibilities, the evidence suggesting that DNA from the appellant had been found on this tape lift provided substantial support for the Crown case.

75. The same could not be said of the tests carried out on Item 15C1. All three of the experts agreed that there were more than two contributors to the DNA found on that particular tape lift. There was some difference of opinion as to whether the appellant may have been one of those contributors, with Ms Ristevska concluding that he could not be excluded, Dr Roberts concluding that there was no clear evidence either way and Dr McDonald concluding that there was evidence to exclude him. Most significantly, however, all agreed that there had been an unidentified contributor. The DNA on tape lift 15C1 was taken from an area on the collar of the pyjamas that was closer to the neck than the area from which tape lift 15C7 had been taken and, as Dr Roberts appeared to accept, the DNA could have been left by an unknown perpetrator who had attacked the deceased’s neck. Evidence of a ‘consciousness of guilt’

76. The evidence the Crown asserted revealed a consciousness of guilt consisted of observations of damage to the appellant’s fingertips and some inconsistencies in his accounts of how that damage was caused.

77. On 14 October, 2002 a police officer wrote to the appellant’s solicitors to ask the appellant to provide fingerprint and DNA samples. A court order was subsequently obtained and on 1 November 2002 the appellant’s fingerprints were taken by Constable Horrocks, who noticed that the appellant’s fingernails appeared to have been damaged and asked him if they were painful. The appellant agreed that they were. Constable Horrocks assured him that he would try to make the procedure as painless as possible. The appellant explained that the damage had been caused by chemicals he had been using whilst cleaning. The Crown also adduced evidence said to show that the appellant had given inconsistent or implausible accounts of what he had been cleaning and the chemicals used. The Crown suggested that the appellant had damaged the tips of his fingers “out of a sense of guilt” in order to prevent the police from taking his fingerprints.

78. There are, however, a number of logical objections to this contention. First, whilst his fingernails were badly damaged, no substantial damage seems to have been caused to the appellant’s fingertips. Second, the damage was not caused immediately prior to 30 September 2002, as one might have expected if the appellant had been attempting to avoid leaving any incriminating fingerprints behind him at the scene, but rather some time after the death of the deceased. Third, the proposition that he may have been attempting to prevent the police from taking impressions of his fingerprints to match them with any fingerprints found at the scene seems fanciful, given that he did not express any reluctance to provide fingerprint samples or suggest that he was unable to do so by reason of the injuries. Indeed, he did not even mention the injuries until Constable Horrocks raised the matter as the samples were being taken. Furthermore, the police could, in any event, have readily obtained impressions of his fingerprints from his home, workplace, car or other places he frequented or, if necessary, by the simple expedient of waiting until his fingers healed. Fourth, the evidence revealed that he had similarly injured his fingers in an accident using caustic chemicals some eighteen months prior to the deceased’s death, at a time when he had not been accused of murdering anyone and would have had no reason to injure his hands deliberately.

79. Whilst there was evidence of some inconsistencies in the accounts that the appellant had given as to the precise manner in which he sustained the injuries, the fact that the perceived link between the subject matter of these discussions and the death of the deceased was so tenuous necessarily deprives such evidence of much of the probative value suggested. In any event, it may be understandable that a man who has come to realise that he is the main suspect in the murder of his former partner may become somewhat coy or even evasive when questioned about matters relating to his recent conduct even if he was not guilty.

80. The trial judge directed the jury not to consider this aspect of the Crown case unless satisfied beyond reasonable doubt that the appellant injured his fingers deliberately and that he did so to frustrate the taking of his fingerprints. No objection was taken to this direction, either at trial or on appeal, and the evidence was clearly insufficient to support findings to that effect. Evidence suggesting the presence of a different person

81. The case put by the defence was that the evidence before the jury had not excluded the possibility that, unknown to Mr Koppie, the deceased may have had an intimate relationship with another man, and that that person may have been responsible for her death.

82. There was certainly evidence to support the contention that another person may have been present at the time of the deceased’s death. As previously mentioned, the doors were locked and there was no sign of a struggle. There was no evidence that the appellant had access to keys and it was unlikely that the deceased would have admitted him to the house. There were handcuffs in the wardrobe, marks on the bed head consistent with their use, and fresh, though apparently faint, bruises on both wrists of the deceased. Yet Mr Koppie testified that he had been unaware of the existence of the handcuffs and had never noticed the marks on the bed head. Mr Williams, the crime scene investigator, also referred to red marks similar to finger marks on the deceased’s left thigh near the groin, though these were apparently no longer visible by the time of the post mortem.

83. Whilst it proved difficult to detect fingerprints on horizontal surfaces within the house due to pyrolis from the fire, some identifiable prints were found on door handles and they were not those of the appellant or anyone else known to have visited the house. There were also fingerprints found on the ashtray, cigarette packet and disposable lighter found on the bedside table which were not identified as those of the deceased or appellant, and it was not suggested that they were those of Mr Koppie. This evidence was of considerable potential significance. It was the Crown case that those items had been placed in the bedroom by the killer to create an impression that the fire had been started accidentally. As previously mentioned, the Crown also relied upon evidence of tests demonstrating that it was unlikely that the fire could have been caused by a casually dropped cigarette, but could have been ignited by applying a lighter to the pillows. If the Crown theory as to the use of these items was correct, one would have expected to find the fingerprints of the killer on them. Yet, they bore the prints of some unidentified person and, conversely, no fingerprints from the appellant were located on any of the named items.

84. There were also footprints in the soot on the floor of the bedroom adjacent to the body of the deceased that were not those of firemen or of the appellant, and no fibres were found on the appellant’s shoes when they were subsequently examined.

85. There was an unknown contributor to the DNA lifted from an area on the collar of the pyjama coat and there were hairs in the deceased’s bed and on her pyjamas that were not those of the deceased or the appellant. It was not suggested that any of the DNA samples or hairs had been left by Mr Koppie.

86. 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.

87. We note that in his dissenting judgment Spender J has suggested that counsel for the appellant did not present any argument to this effect as a basis for their contention that the verdict was unsafe or unsatisfactory. With respect to his Honour, we feel obliged to say that this suggestion is quite incorrect. On the contrary, this was the only basis put forward in support of this ground of appeal. It was not suggested that the deceased had not been murdered or that, if the appellant had been the killer, he could have been absolved from criminal responsibility by reason of some recognised defence. The argument that was put forward was that it had not been open to the jury to be satisfied beyond reasonable doubt that the murder had been committed by him rather than some other unidentified person. We should also mention that those aspects of the evidence that had not previously been addressed by counsel, such as the evidence relating to fingerprints, hairs and footprints in the soot, were raised by the appellant in written submissions which he was given leave to hand up. The Crown was given leave to file written submissions in response, but chose not to specifically address those aspects. Whilst his Honour has suggested that our view of the evidence is erroneous, we must say, with respect, that we are unable to see any basis for that suggestion or any valid reason to disregard evidence that was adduced by the Crown and left effectively unchallenged. Conclusions

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) 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. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Chief Justice Higgins and President Crispin.

Associate:

Date: 15 December 2005

IN THE SUPREME COURT OF THE ) No. ACTCA 42 - 2004

) No. SCC 37 of 2004

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: STEVEN WAYNE HILLIER

Appellant

AND: THE QUEEN

Respondent

Judges: Higgins CJ, Crispin P and Spender J

Date: 15 December 2005

Place: Canberra

REASONS FOR JUDGMENT

SPENDER J:

109. On 8 November 2004, the appellant, Steven Wayne Hillier, pleaded not guilty before his Honour Justice Gray to a charge that between 30 September and 2 October 2002 at Canberra in the Australian Capital Territory he did murder Ana Louise Hardwick (hereinafter “the deceased”). A jury was empanelled and, following 13 days of evidence, the jury retired to consider its verdict on 26 November 2004, at 11.55 am. At 3.45 pm the same day, it returned with a verdict of guilty.

110. Chief Justice Higgins and President Crispin have concluded that there is a real possibility that an innocent person has been convicted, with the consequence that the verdict of the jury convicting the appellant of murder was “unsafe and unsatisfactory”, and should be set aside. I disagree.

111. In reaching this conclusion, in my respectful opinion, their Honours have applied the wrong test of when an appellate court may set aside a jury’s verdict as unsafe and unsatisfactory. Further, their Honours have misunderstood both the evidence, and the directions to the jury, concerning the possibility that DNA of the appellant might have been transferred to the pyjamas worn by the deceased at the time of her death by “secondary transference”. Setting aside the jury’s verdict in the circumstances of this case and on the material that was before them, in my respectful opinion, is a usurpation of the jury’s proper function, and constitutes a grave miscarriage of justice.

112. The test which the majority apply is the test which appears in par 91 of their Honours’ reasons, namely, that ‘the appeal must be upheld if, even after making full allowances for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.’ In my opinion the test, in M v The Queen (1994) 181 CLR 487, of what is an unsafe and unsatisfactory verdict is not merely the entertaining of a view by an appellate court that there is, after recognising the advantages enjoyed by the jury, a significant possibility that an innocent person has been convicted. There has to be something in the nature of the evidence which leads to that conclusion and which is the basis for it. That requirement is that ‘the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force.’ It is only if there is this basis for the conclusion that an innocent person has been convicted that an appellate court is entitled to conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. That requirement, in my respectful opinion, is not met by the evidence before the jury in this case.

113. There appears to be two bases on which the majority reached the conclusion that there is a significant possibility that an innocent person has been convicted.

114. The first appears from par 99 and par 97 of their Honours’ reasons: ‘99. The evidence of hand cuffs, the marks on the bed head, the bruises on her wrists, the DNA from an unknown male on her collar, the foot prints in the soot and other evidence consistent with the presence of a third person at the relevant time simply raises the disquietening possibility that such a person may have been admitted to the house by the deceased and in some fashion caused her death.’ And further: ‘97. … The presence of hand cuffs 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.’

115. The factors to which their Honours allude are, in the main, not established by the evidence: they truly are to be categorised as theoretical and speculative.

116. The evidence before the jury was that a set of hand cuffs found in the deceased’s house did not appear to have been used. They were found wrapped in their packet in the wardrobe. The observation by a crime scene investigator, Mr Gareth Emlyn Williams, that there were marks on the bed head consistent with the use of hand cuffs (which is not in fact a fair or an accurate summary of his evidence) is an opinion which is not the province of an expert, and which does not demand the jury’s acceptance. That view of Mr Williams is inconsistent with the evidence of Mr Koppie, the boyfriend of the deceased, that he had never seen any marks on the bed consistent with the use of hand cuffs. There was simply no evidence that bruises on the arms of the deceased were consistent with the use of hand cuffs. Dr Burke, the pathologist who described the bruises, was not asked any questions in that regard, either by the counsel for the Crown, or for the accused. There was no suggestion in the evidence that those bruises had any connection with the use of hand cuffs at all.

117. I set out below the entirety of the evidence before the jury concerning handcuffs and bruising to the arms of the deceased:

118. The only evidence before the jury concerning bruising came from the evidence-in-chief of Dr Michael Phillip Burke, a fellow of the Royal College of Pathologists who, describing the autopsy he performed on the deceased, said: ‘A further investigation we do is to make incisions from the shoulder down to the fingertips and then reflect the skin back. The reason for this is that one doesn’t always see bruises that are below the surface of the skin just by looking at the surface of someone’s arm, for example. Once these incisions are made and the skin is reflected back, one may then see bruises that weren’t evident there before. The dissection of the upper limbs showed a bruise to the lateral, the outer aspect, of the right forearm wrist; so just on the outer aspects of the right wrist, measuring two centimetres, and a further bruise to the outer aspect of the left wrist measuring four centimetres. So a bruise measuring two centimetres to the right and four centimetres to the left. …’

119. As noted above, no questions were directed by counsel for the accused concerning the nature and extent of any bruising to the arms of the deceased, let alone any questions concerning the possible cause of that subcutaneous bruising.

120. Concerning hand cuffs and marks on the bed head, the only evidence before the jury is to be found in the following passages:

121. First, Mr Williams, a crime scene investigator with the Australian Federal Police Forensic Services, in his evidence-in-chief, gave the following evidence: ‘Then on 27 February did you go back to Isabella Plains and examine the metal bed heads from the main bedroom?---They were examined at the Forensic Services laboratory. And so they’d been taken earlier, had they not?---That’s correct. And were there some marks on the bedhead?---Yes, there were. Were you able to form any conclusion about them?---Not specifically. It just appeared that some of the black powder coating from the bed head had been removed at some stage. Just in small areas.’

122. Mr Williams was asked in cross-examination: ‘And you carried out some tests, did you not, on the bedhead in relation to applying police handcuffs?---That’s correct. And that’s because there was a belief that there might have been some sexual activity that was involved in her death with the use of handcuffs in some sort of bondage system?---It was a request that was made to me from the detectives to examine that possibility. And that’s what you were exploring?---Whether the marks were left – well, were consistent with the use of handcuffs on the metal bedheads, yes. And it was your opinion that they were?---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. Well you could put it another way, I suggest, that the marks on the bedhead that you saw were consistent with the use of handcuffs?---I – I would – it is much more scientific and preferable to say that they cannot be excluded. Well, that still means they’re consistent, doesn’t it?---Yes.’

123. Next, John Paul Dougan, a Detective Senior Constable of Police, was asked in cross-examination: ‘… Now, were you one of the detectives that was present when the scientific officer Mr Williams was asked to carry out an experiment in relation to handcuffs on the bed head?---No, sir, I wasn’t. Are you aware of any experiment that was asked to be carried out in terms of handcuffs on the bed head of the deceased’s bed?---I’m aware of the seizure of a set of handcuffs. I’m not aware of what forensics did with them after they were seized. You were involved in the seizure of handcuffs?---No, sir, I was not. Sorry. I’ll retract that. I believe there was a set of handcuffs seized and I was property holder from a premises at U-Stow-It sometime after the …(indistinct)… And those handcuffs as you understand it came from the deceased’s premises?---Yes, sir. And those handcuffs as you understand it were used on the bed head perhaps in some sexual act performance?---I’m not aware of that sir, no.’

124. Mr Koppie was asked in cross-examination: ‘Were you aware that there was a theory that police had that Ana might have met her death due to some sexual misadventure?---No, I wasn’t. Were you aware that there was a theory that Ana had used handcuffs on the bedhead for one assumes some sort of B & D or bondage and discipline type performance?---No, I wasn’t. Have you been asked about that?---No. Were you aware that she had handcuffs?---No, I wasn’t. Was there ever any discussion with you about handcuffs?---No, there wasn’t.’

125. Finally, Matthew Richard Keith Innes, a Detective Sergeant of Police was asked in-chief the following: ‘In the course of the search of the premises at 20 Marengo Place I think you yourself noticed, did you, that in the bedroom wardrobe there were what appeared to be some handcuffs?---At 20 Marengo Place. I wasn’t at that search warrant but they 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. And I think they later came back to police, did they, via Mr Lardner?---That’s correct, yes, we actually did a search warrant. They were later given to Mr Gareth Williams to conduct some tests - - -?---Yes, that’s correct. - - - in relation to any possible marks on the bedposts of the bed in the bedroom of the deceased?---That is correct.’ (Emphasis added.)

126. No further questions were asked of Mr Innes in cross-examination on this aspect of the matter.

127. The evidence set out above is the entirety of the evidence relating to the question of any marks on the bed head, and any hand cuffs, being either hand cuffs located at 20 Marengo Place or “police hand cuffs”.

128. The majority judgment, in pars 99 and 97 of their Honours’ reasons set out above relies, amongst other things, on the evidence of hand cuffs, marks on the bed head and bruises on the wrists of the deceased to erect the scenario that the deceased may have had an intimate relationship with another man, and that that person may have been responsible for her death. The evidence to which I have referred does not provide a basis for that scenario, which truly is utterly speculative. The scenario is not such in my view as to have required the jury to have entertained a doubt about its possible existence, so as to make their conviction of the accused unsafe or unsatisfactory.

129. The majority judgment notes in par 87: ‘… this combination of evidentiary factors does not seem to have been clearly identified either at the trial or on the hearing of the appeal.’

130. The relevance and weight of what are said to be the “evidentiary factors” was very much a matter for the jury. The hypothesis that the ‘evidence had not excluded the possibility that, unknown to Mr Koppie, the deceased may have had an intimate relationship with another man, and that that person may have been responsible for her death’, was not a basis argued by counsel for the appellant on the appeal as to why the appellant’s conviction was unsafe or unsatisfactory. It was not suggested, nor could it be, that the jury was not properly directed that before they could return a verdict of guilty they had to exclude beyond reasonable doubt any factual possibility consistent with the innocence of the accused.

131. The conclusion of the majority that ‘someone else may have been responsible for the death of the deceased’ (and particularly the “evidentiary factors” on which that conclusion was based) is not only a matter that was not argued by counsel for the appellant as a basis on which the jury’s verdict should be regarded as unsafe or unsatisfactory: that argument, and the factors said to support it, is the product solely of the industry of the majority, and of their Honour’s view (erroneous in my opinion) of what the evidence before the jury was.

132. The second basis on which the majority based the conclusion that there is a significant possibility that an innocent person has been convicted, is the contention that the jury were not entitled, on the evidence, to conclude that the DNA of the appellant found on the deceased’s pyjama coat did not happen as a result of “secondary transference”, that is, other than by direct contact between the deceased and the appellant.

133. It is, in my respectful view, a misrepresentation of the evidence to say that ‘all three of the expert witnesses conceded the possibility that the appellant’s DNA had been found on the deceased’s pyjama coat as a result of “secondary transference”, that is transference by means other than direct contact between the deceased and the appellant.’

134. The experts concerning DNA conceded that DNA could be transferred by secondary transference as well as by primary contact. Such a “concession” is wholly unremarkable. This is not the same thing as conceding that secondary transference was a possible explanation, in the circumstances of this case, for the presence of the appellant’s DNA on the inside right front of the deceased’s pyjama top some seven or eight centimetres from the collar, as the majority assert.

135. Further, the majority contend, in par 94, that if the jury had applied the directions given by the trial judge, the jury were obliged to conclude that the Crown case was clearly unsustainable and a verdict of acquittal inevitable. The direction of the trial judge was not to this effect, and did not lead to that conclusion.

136. According to their Honours: ‘[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. …[Had the jury applied this direction by the trial judge], 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.’

137. Their Honours conclude: ‘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.’

138. The conclusion of the majority is that the jury was not entitled to conclude that the DNA on the pyjamas of the deceased had not occurred by secondary transference from the appellant. In my opinion, the jury was entitled to reject, beyond reasonable doubt, the explanation of secondary transference for the presence of the appellant’s DNA on the deceased’s pyjamas.

139. Having done so, the DNA evidence, together with the other evidence in the case, provided a firm basis on which the jury might properly convict.

140. In my respectful opinion the jury was perfectly entitled, on the evidence before it, to reach the conclusion it did. Its verdict in convicting the accused of the murder of his former de facto wife was properly open to it; the jury was properly and carefully directed as to the basis of the performance of its task; and no objection can properly be taken to either the fairness or accuracy of the primary judge’s charge to the jury.

141. It follows, in my opinion, that the conviction of the accused for the murder of his former de facto wife is not unsafe and unsatisfactory. The verdict of guilty of murder should not be set aside by this Court and should stand. The appellant’s appeal should be dismissed.

142. What follows in these reasons is in amplification of the conclusions referred to above. They address the arguments presented on behalf of the appellant on the appeal. Background to the Trial

143. The appellant and the deceased, aged 39 and 35 respectively at the time of the deceased’s death, met in May 1985. They commenced to cohabit in September 1987. On 23 August 1991 they had a son, Daniel, and on 21 December 1993, a daughter, Elle. On 19 February 1999 they separated, when the deceased moved out of the family home.

144. Apart from the DNA evidence, to which short reference has already been made, the Crown case against the appellant relied on what was said to be strong evidence of motive, as well as opportunity for the appellant to murder his former wife.

145. The history of proceedings in the Family Court between the appellant and the deceased concerning the custody and access of their two children, and the deterioration of their relationship following separation, indicates material on which the jury could properly conclude that the appellant had a timely and great motivation to kill his wife.

146. Between April 1999 and July 2000, pursuant to an agreement between them, the children continued to reside in the family home, with agreed access times to the deceased. On 14 June 2000, the parties signed a Deed of Agreement in relation to their property. On 5 July 2000, Terms of Settlement signed by the parties with respect to arrangements for their children became final consent orders. They reflected the earlier informal agreement, except that the children no longer had contact with the deceased on Fridays. In September 1999 the deceased moved to 20 Merango Place, Isabella Plains.

147. On 12 October 2000, the deceased filed an application for interim and final residence of the children. The application was opposed by the appellant. The interim application was heard by his Honour Justice Coleman on 6 April 2001, and his Honour dismissed all applications, thereby maintaining the status quo. In May and June 2002, a full hearing of the matter on the issue of residence of the children was held before his Honour Justice Purdy.

148. On 11 June 2002, the Family Court handed down its decision and order, discharging the existing arrangement and ordering that the children reside with the deceased, and that she have sole responsibility as to decision-making when the children were in her care, with contact with the appellant on alternate weekends, alternate Wednesday evenings and half of the school holidays. His Honour’s reasons were not handed down until 12 August 2002. On 8 July 2002, the appellant filed an application that his Honour’s orders be stayed, thereby maintaining the status quo until this application was dealt with. On 24 July 2002, the parties agreed interim contact arrangements, which were formalised in an Order of the Family Court. The interim arrangements were that the children live week-about with each parent. On 6 September 2002 the appellant filed a Notice of Appeal against the order of his Honour Justice Purdy; the time for the filing of a Notice of Appeal had been extended to run from when his Honour had handed down his reasons.

149. On 20 September 2002, the Family Court ordered that the temporary order of 24 July 2002 be discharged, and the stay application filed by the applicant on 8 July 2002 be dismissed, thereby bringing into effect the orders of 11 June 2002, whereby the children were to reside with the deceased. The order indicated that the appellant could re-list the matter if he so desired.

150. The deceased was self-employed as a hairdresser in the day-time, operating between two retirement homes, and also worked as a carer at one of the homes on a casual basis on some evenings. She lived alone in her house at Isabella Plains, except when she had the children.

151. On Friday 27 September 2002, the appellant picked up the children from school. Being the beginning of school holidays, he was to have them for half of that period, which included the following week. The appellant was working as a mortgage broker, and arranged for a friend to care for the children for the Monday and Tuesday of the following week. On Tuesday 1 October and Wednesday 2 October, the deceased failed to appear at work. Her parents were informed. On Wednesday morning, they attended her house and found her body on her bedroom floor, clothed in her pyjamas. The interior of the house was soot-blackened, and in due course it was determined that a fire had started in the bedroom in the vicinity of a pillow lying on the floor. The prosecution led evidence to the effect that the autopsy established that the cause of death was compression of the neck, and that death had occurred prior to the commencement of the fire.

152. The last known contact with the deceased was a telephone call on the Monday night with a friend, terminating at 9.08 pm. The prosecution case was that death occurred later that night when the appellant gained entry to the house, and he then started a fire to mask the crime. Submissions of Appellant on Appeal

153. Mark Ierace SC and Alyn Doig, who appeared as counsel for the appellant on the appeal, argued two grounds. The first was that the trial judge did not direct the jury as to the limited use to be made of “Relationship Evidence”. The second ground was that the verdict of the jury was unsafe and unsatisfactory. It will be necessary to consider each of these grounds in detail later.

154. It is a singular feature of this appeal that after written submissions on behalf of the appellant had been filed, and after extensive oral submissions had been made and concluded on his behalf by senior and junior counsel, the appellant sought to speak on his own behalf.

155. After an adjournment, senior and junior counsel withdrew as counsel for the appellant, and the appellant proceeded to place before the Court voluminous written material which he told the Appeal Court was “supplementary to the submissions his counsel had made”. They are, on inspection, no such thing. They are extensive, detailed, comprehensive submissions, prepared in advance, which travel far beyond the matters sought to be argued on behalf of the appellant by his counsel, while also traversing in minute detail the matters that previously had been the subject of written and oral submissions by his counsel.

156. The document headed “Submission Papers” sought to rely on grounds, other than those previously argued by counsel (which had been contained in the notice of appeal), and also in respect of grounds which did not appear in the appellant’s further amended notice of appeal. These further “grounds” include a failure by the trial judge “to direct and warn on the possibility of contamination, chain of custody defects, the admissibility of statistical profiling, and the overall unreliability of any conclusions to be drawn from the DNA samples, particularly item 15C7.”

157. At page 12 of the submission papers under the heading “Submissions”, the following appears: ‘Your Honours, We would like to submit that the Jury erred in their finding and therefore their verdict was unsafe and unsatisfactory. For the appellant to be found guilty of a crime that he did not commit, based on the evidence as submitted, is unjust, unfair and incorrect. It is clear that the jury did not understand and were not given adequate direction by the learned Trial Judge, in relation to Forensic Science, or how to treat evidence of a circumstantial nature. It is also evident that they did not understand the burden of proof that the Crown must meet, and that the level of proof required is one of a high degree. That is, it must be proven beyond a reasonable doubt that the appellant is the one who committed the offence and it is this requirement which appeared to confuse the jury who chose between competing evidence. …’ It is unclear who is the “we” there referred to.

158. Those submissions also assert: ‘… the appellant was not given any part of the samples from 15C1-7 and this is against the Forensic Procedures Act.’

159. In the submission papers, the appellant seeks to rely on what is described as “fresh evidence”, which includes part of a record of a conversation between a police officer and Mr Koppie about video tapes of a sexual kind in Mr Koppie’s house.

160. All of the material referred to was clearly in existence prior to the commencement of the trial, or could have been procured prior to the trial. It was available to the appellant’s legal representatives, had they seen fit. It is significant that no such claims were advanced by counsel on behalf of the appellant. It is plain, also, that none of that material satisfies the test for the admission of new evidence on appeal enunciated by the High Court in Mickleberg v The Queen (1988-1989) 167 CLR 251 at 301, namely that: ‘when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it.’

161. This attempt by the appellant to have a voluminous, fully self-contained submission of his own making, in addition to the submissions made on his behalf by his counsel, is the same procedure that he adopted in the sentencing process subsequent to his conviction by the jury. Senior counsel who appeared for him at his trial had been replaced by another counsel, who made submissions on his behalf before the trial judge in respect of sentence. After counsel had made those submissions, the appellant produced then, as now, voluminous written material said to be in supplementation of counsel’s submissions, but in fact being comprehensive and self contained submissions of the accused’s own making, prepared in advance and obviously intended to be used by the appellant as a “better version” of the submissions that had been made on his behalf by counsel whom he had, at least temporarily, retained.

162. None of this information about the appellant’s conduct, of course, was before the jury, and has no direct relevance in relation to the disposition of this appeal. What it does do, in my opinion, is demonstrate that the appellant is a person of obsessive, manipulative and controlling traits. It is not irrelevant that the jury may have formed a similar view of his character from his evidence at the trial, a view which would have been relevant to its assessment of some of the evidence that was before it, particularly its evaluation of the evidence bearing on motive, the arrangement of leaving his children with his parents on the evening of 30 September, and the history of telephone calls by the accused in the week before the deceased’s death.

163. It is apparent, from the jury’s verdict, that they disbelieved his denial of murdering Ms Hardwick, without reservation. Their observations of him and their assessment of his personality and character are, in my view, not irrelevant in their assessment of the strength to be given to the evidence of motive and opportunity. Evidence of Murder

164. It has never been suggested by any ground of appeal or submission on the appeal that the deceased was not murdered. This is so, notwithstanding the exegesis in the majority judgment in pars 17 to 19 inclusive about the possibility of death by misadventure due to some act of sexual experimentation, an hypothesis which seems to be predicated on the fact that there were found, wrapped in a wardrobe in the deceased’s bedroom, a set of handcuffs, and also the “suggestion”, unsupported by any evidence in the trial, that ‘some pornographic videos were also found at the deceased’s residence’.

165. The possibility of death by sexual misadventure considered by the majority judgment is a fanciful, speculative and irrelevant digression in the circumstances of this case. The suggestion that there existed a completely unknown secret lover who had engaged in sexual conduct with the deceased involving handcuffs, and who in fact was her killer is equally ludicrous, particularly given the circumstance that the deceased was killed wearing a pair of purple flannelette pyjamas with yellow Winnie the Pooh motifs on them. The wearing of pyjamas of that kind is quite inconsistent with an episode of sexual adventurism, or, at least, a jury could so conclude.

166. The reference to “apparent use of handcuffs” in par 89 of the reasons of the majority, has utterly no basis in the evidence, and destroys the “unknown secret lover” hypothesis as one which the jury could not reasonably exclude.

167. The summary of the trial judge, in passing sentence on the appellant on 16 March 2005, accurately reflects the evidence before the jury in this respect: ‘A subsequent autopsy showed that she died as a result of a neck compression injury and her body showed external and internal bruising to the front of the neck consistent with pressure being applied to that area. Although the pathologist who did the autopsy was guarded about how much force could cause the abrasions and amount of bruising, it is not difficult to conclude from the position of the body, the state of the room and the nature of the injuries that she died by the intentional infliction of force in circumstances which constitute murder. That is reinforced by the evidence concerning the fire from which the inference can be drawn that the fire was deliberately lit for the purposes of covering up the crime.’

168. I turn to consider the grounds argued by counsel for the appellant. Ground 1: Failure to give a direction concerning Relationship Evidence

169. In the course of the trial, evidence was led concerning details of the relationship between the appellant and the deceased. Much of this evidence, in my opinion, is not properly to be called “Relationship Evidence”, but it is evidence which is specifically relevant to the question of motive and, to a lesser extent, opportunity.

170. That evidence included the following: a. That the appellant and the deceased communicated through a notebook from August 2001, because personal communications were too acrimonious; b. That the appellant would unreasonably keep his children and the deceased, or her family or friends, waiting outside his residence until the precise time that a pick-up or drop-off was to take place; c. The appellant would be unreasonable in other ways in relation to hand-overs of the children; including evidence from Debra Chase, the school principal at the Torrens Primary School at which Daniel and Elle, the children of the appellant and the deceased, were students, that on one occasion in either 2001 or 2002, the appellant denied a request by the deceased to pick the children up from school fifteen minutes early; d. There was an on-going issue as to whether there was sufficient clothing for the children passing between them; e. The appellant would describe the deceased in derogatory terms, including referring to the deceased as a “slut” and “drug-taker”; f. The appellant expressed frustration at the Family Court, complaining to a friend, Peter Polkinghorne, that ‘Steven often … complained. He felt he was hard done by the Family Court. He felt that his wife had actually on one occasion been caught out lying in the Family Court and that the court didn’t take action against her for the lie. This is what Steven told me.’ g. The deceased feared the appellant may seek access to her house, and for this reason intended to change the locks on the external doors; Ms Alexandra Vandertoorn said, in this context: ‘She was worried about escalating aggression from [her husband or former partner] and being unreasonable. She was worried that he might come and take the children from her at some stage.’ The deceased had, in fact, made an arrangement for a locksmith to change the locks on 1 October 2002, but had cancelled that appointment on 30 September 2002. The trial judge correctly directed the jury that there was no evidence to indicate that the appellant was aware of these plans or of their change. h. She feared that the deceased had the means of access to her house, because she had found an opened drawer in her bedroom, that she believed neither she nor her children had opened, and her son Daniel had asked her for a key, which she had refused. i. On an occasion about fifteen months before the deceased’s death, Judith Vaughan gave evidence that at a school assembly, the appellant had come between her and the deceased and said: ‘You two should stop spying on me or you’ll regret it.’ Ms Vaughan said: ‘Ana said, “They’re my children I have a right to be here too,’ and I said, “What do you mean?” like “What do you mean ‘You’ll regret it’?” What did he say?---He - he leant really into me and said. “You know what I mean, bitch.” And I just sort of, you know, recoiled back a bit and he just kept on leaning into me and I said, “Stop it,” and he didn’t. I said, “Stop it you psychotic, bastard,” and I was really frightened, his face was very red and veins sticking up, he was just so angry. And I said to him, “Stop it,” and, “Leave us alone,” “Leave us all alone, leave the children alone, leave us alone, you can’t keep scaring people like this,” and then he said - - - Did he say anything?---Yes, he said, “Oh, so you reckon.” I said, “Well I’m going to say that you’re abusing me so I’ll see you in court,” and then he said, “Don’t forget I can spy on you too, you’re going to regret what you’ve done”.’ j. There was evidence from Veronica Hofen in about the year 2000 where the deceased played a phone message to her saying ‘Listen to Steven, he’s at it again’, and Ms Hofen said that she heard on the message ‘Watch your back, you’ll never get the kids.’

171. Ms Chase gave evidence that on 20 September 2002, (the date the Family Court dismissed the appellant’s application for a stay of the temporary orders of 24 July, and discharged those orders, the effect of which was, except for specified periods, the children would reside with the deceased and no longer with the appellant), the appellant had arrived at the school and was sitting with his son Daniel at about 11 am. She said that they were very distressed, in particular Mr Hillier: She said: ‘He was crying. He looked extremely distressed. Daniel was fighting back tears.’ She asked ‘What are you doing here?’ and he said that ‘… he had come to tell Daniel what that woman had done to them.’ (Emphasis added.) She said that she would phone to locate a counsellor for the appellant, and when asked what was it about the appearance of Mr Hillier that caused her to make that offer, she replied: ‘He looked like he was barely in control. He was crying but he was also very angry. … He was red faced. He was clutching his fists. The words were sort of spitting out as opposed to just a conversation.’

172. The murder of “that woman” was likely to have occurred on the evening of 30 September 2002, just ten days later.

173. There was also evidence from a clinical and forensic psychologist, Antoinette Harmer, who was appointed as an expert by the Family Court to carry out a family assessment and report in relation to Daniel and Elle. She said that during interviews of the appellant, he became angry when being questioned about his and the deceased’s comparative parenting skills. Ms Harmer said: ‘The appellant explained that he had taken a redundancy from work to become the children’s primary carer, and he was not going to be inconvenienced in terms of his lifestyle to have to go back to work. He was concerned that he would have to retrain, that that was not really possible given his age and circumstances and that was an issue that he was very angry about …’

174. The submission by counsel for the appellant concerning all this evidence was: ‘… there was a grave danger that the evidence of ill-will or menace on the part of the appellant would be used by [the jury] as evidence of a propensity on the part of the appellant to do harm to the deceased rather than evidence of mere motive.’ Reference was made to the observation of McHugh J in BRS v The Queen (1997) 191 CLR 275 at 305: ‘If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose.’

175. In this case the evidence was admitted as relevant to motive. There is, in my opinion, no basis for a fear that this evidence would be seen by the jury as evidence of a propensity of the appellant to do harm to his wife. The submission for the appellant was that the trial judge should have directed the jury that the evidence could be used only in respect of motive and for no other purpose. No such direction was sought by the experienced counsel at the trial for the appellant.

176. The trial judge directed the jury in these terms: ‘Evidence of motive for a person to do something is of course relevant to the question before you, but before you may act upon it as a factor pointing to an accused’s guilt its existence must be established beyond reasonable doubt. It also must be viewed in its context in all the circumstances of the case. Even if established you should not be unduly affected by it. That’s because of the fact that many who have powerful motives to offend never do so. Motivation is simply an item of the evidence in the case that may tend to show that a particular person committed an alleged act. Allowance should be made for the fact that having a motive and even expressing it does not as such constitute proof of involvement in a crime.’

177. No direction along the lines suggested was called for, nor, in my opinion, was required, particularly in the light of what the jury had in fact been told about the evidence touching on motive. Directions to the Jury about other matters

178. The jury was also directed fairly and correctly in relation to the evidence concerning the question of keys and, in particular, the circumstance that keys were found on 8 October 2002 in a sock drawer in Daniel’s bedroom. The trial judge directed the jury: ‘The suggestion that the accused had access to or knowledge of the keys which were found in Daniel Hillier’s drawer has no foundation in his evidence before you. You may well think that the prosecution is not able to show that the accused had the ability to gain unforced access to Ana Hardwick’s house. You will recall that Daniel Hillier’s evidence was that he agreed that he asked for a set of keys a month before his mother’s death, and that she had said no, and he then gave evidence of finding a set of keys in the parkland over the back fence and he said that he put those keys in his sock drawer. He said that that was about a week before his mother died. He also said that his mother had spoken to him about her drawer in her bedroom being left open and he did say that he did not tell his father about the keys, that he did not know that his mother was going to change the locks and he did not tell anybody about that. Mr Hastings suggests that the explanation given by Daniel of the circumstances of finding the keys is unreliable. Even if it is, and I don’t suggest that you view it that way, such a circumstance does not advance the prosecution case so as to show that the accused positively had access to those keys.’ The trial judge also directed the jury in relation to the proposal to change the locks, that: ‘There is no evidence … which would enable you to infer that [the proposal to change the locks] had come to the accused’s attention.’

179. There were, it seems to me, two pieces of evidence, the assessment of which and the weight to be given to which, was very much a matter for the jury. The first concerns the circumstance that the appellant was alone on the evening of 30 September 2002. On the morning of 30 September 2002, he had delivered his children to a friend’s place as he had to work and it was school holidays. After work he collected the children; they went to McDonald’s for dinner, and the appellant then delivered the children to his parents’ house for an overnight stay. The appellant said he went home and went to bed. He got up at 6 am the next morning, as he had a work breakfast to attend. He attended the breakfast and then did some canvassing for his job. He had a haircut, returned to his office until about 4 pm and then he picked up his children from his father.

180. The contention by the Crown was that on the evening of Monday 30 September 2002, when the deceased was killed, the appellant had divested himself of the children and was alone.

181. The second body of evidence, the weight of which was very much a matter for the assessment of the jury, concerns telephone records of the appellant. An assessment that the telephone records were entitled to “little weight”, as the majority assert, is not an assessment properly to be made by an appellate court. The records for the appellant show that from Monday 23 September 2002 through to Friday 27 September 2002, the appellant made numerous calls to lawyers and psychologists concerning his Family Court appeal, about ten to twelve calls each day. However, by 30 September 2002 these calls had stopped. The appellant made no calls to lawyers or doctors on 30 September 2002, on the evening of which the Crown alleged the deceased was killed. On 1 October 2002 there was no telephone traffic at all, and on the morning of 2 October 2002, only one incoming call.

182. It was the Crown’s contention that this telephone activity supported the contention that over the weekend of 28 and 29 September 2002, the appellant had decided ‘to take the law into his own hands and eliminate the deceased as the competitor for the custody of his children’.

183. Counsel for the appellant contended that the Crown’s assertion that the absence of phone calls to lawyers and others for this period of three days permitted an inference that the appellant had abandoned his appeal, was a specious proposition. In my assessment, it was a matter for the jury whether that cessation of active communications was consistent with the Crown contention that an appeal was no longer necessary in the appellant’s mind, he having resolved to deal with the problem in a different way, and whether the inactivity from and including 30 September 2002 to 2 October 2002 was consistent with the appellant’s realisation that an appeal would not be necessary. On one view of the evidence, and the jury’s assessment of the type of person the appellant was, the telephone records might be a telling circumstance in the jury’s consideration.

184. On the question of access to the deceased’s house by the appellant, it is not the case that the prosecution had to prove beyond reasonable doubt that the appellant used keys to gain access to the home of the deceased. There was no sign of forced entry to the premises, and there was no evidence that anything had been stolen or damaged.

185. The evidence was wanting concerning the need for a key to operate the deadlocks on the front and bank doors, and there was no direct evidence of which I am aware in relation to the nature of the locks on the sliding glass door that appears in the photographic exhibits between the house and the carport on the side of the house.

186. The smoke detectors had been disabled, although the batteries were almost at full strength. The inference is that the crime had most likely been committed by a person familiar with the deceased. Somebody had gained entry to the house and killed her. The contention for the Crown was that the appellant was better placed than any other person to be the killer, and proof of the precise means by which the Crown said the appellant gained entry was not an essential part of the Crown case. Unsafe and Unsatisfactory Verdict

187. It is convenient now to turn to the second ground of appeal, the subject of submissions by counsel for the appellant, that the verdict of guilty by the jury was unsafe and unsatisfactory.

188. Counsel submitted that: ‘It is submitted that the verdict is unreasonable and cannot be supported by the evidence; that there is a significant possibility that an innocent person has been convicted.’

189. After making submissions concerning motive and opportunity, and as to the prosecution case as to how the appellant gained access to the deceased and her residence, the submissions focused on the DNA evidence. The submission for the appellant was: ‘The evidence of DNA profiling on the deceased’s pyjamas, not excluding the appellant, was equivocal.’

190. Mason CJ, Deane, Dawson and Toohey JJ said in M v The Queen (supra) at 493: ‘… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (See Whitehorn v. The Queen (1983), 152 C.L.R., at p.686; Chamberlain v. The Queen [No.2] (1984), 153 C.L.R., at p.532; Knight v. The Queen (1992), 175 C.L.R. 495, at pp. 504-505, 511. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R., at p. 621.’

191. The joint judgment then considered the comments by Barwick CJ in Ratten v The Queen (1974) 131 CLR 516, about the lack of any practical consequence of whether the doubt is a doubt entertained by the court itself, or as a doubt which the court decides that a reasonable jury ought to entertain. This is a matter, it seems to me, highly relevant to the present appellate disagreement. Their Honours said at 494: ‘To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.’

192. At the conclusion of the next passage, their Honours said at 495: ‘Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.’

193. Those “four preceding sentences” were: ‘1. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. 2. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 3. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise 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, then the court is bound to act and to set aside a verdict based upon that evidence. 4. In doing so, the court is not substituting a trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’

194. The proposition stated in the third sentence above was directly relevant to the conclusion of the majority in M v The Queen. That case involved the uncorroborated testimony of the complainant daughter that her father had indecently assaulted her on two occasions when she was thirteen years old, and had had sexual intercourse with her between 8 September and 23 September 1990.

195. In that case, not only was there no corroboration of her account, but there was evidence by a medical practitioner called by the prosecution that was inconsistent with her account of one of the acts of sexual intercourse. There was no complaint to her mother or to the appellant’s wife until a month after those events, and the apparent equanimity with which the complainant conducted herself during a barbecue on 23 September 1990 suggested the need for careful scrutiny of the allegations she made against the appellant.

196. There were other discrepancies in her evidence to which the majority in the High Court referred, as well as the improbability in the appellant acting as he was alleged by the complainant to have done. In the light of the matters which cast doubt upon the prosecution case, to which direct reference was made by the majority, their Honours concluded that it would be unsafe and unsatisfactory to allow the verdict to stand.

197. As the joint judgment in the High Court in M v The Queen made plain: ‘the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’ (Emphasis added.)

198. It is in the context of that ultimate question that one must consider the DNA evidence along with the other evidence in the case. The DNA Evidence

199. A forensic scientist with the Australian Federal Police Forensic Services at Weston, Sarah Benson, took tape lifts on the deceased’s pyjamas. Ms Benson has a Bachelor of Science and Applied Chemistry (Hons) in forensic science from the University of Technology in Sydney, and the Forensic Services Laboratory at Weston is accredited by the National Association of Testing Authorities.

200. Two of the tape lifts from the deceased’s pyjamas are directly relevant on the issue of DNA evidence linking the appellant to the murder of his former spouse. Tape lift No. 15C1 was from the outside flap, being the right side of the collar, of the pyjamas. Tape lift No. 15C7 was ‘from the right side from the front on the inside of the pyjamas’; “inside” being ‘the part that would be closest to your body when you were wearing them’. Ms Benson indicated in the witness box that the lift was taken from a region ‘just below the collar … seven or eight centimetres below the collar on the inside.’

201. The location of tape lift 15C7, as indicated by Ms Benson to the jury, as being on the inside of the right side of the pyjamas as viewed from the front, seven or eight centimetres below the collar, is a very relevant circumstance in considering whether a possible explanation for the DNA on that tape lift was the result of secondary transference, through the medium of one or other of the children of the appellant, from the appellant to the pyjamas of the deceased.

202. The DNA testing of the tape lifts was performed by Slazana Ristevska, who had been employed since 1995 as a forensic scientist with the Australian Federal Police. She has academic qualifications relevant to expertise in DNA analysis, including an associate diploma in Applied Science and a Bachelor of Applied Science. She has been studying DNA since 1993.

203. In respect of the tape lift 15C1, Ms Ristevska said that the profile was a mixed DNA profile which could have come from at least three individuals. The deceased could have contributed to the major component of the DNA mixture. Ms Ristevska said of the appellant: ‘I could not exclude him as a contributor to the partial minor component and I also had an unknown third contributor to the partial component.’ Ms Ristevska said she was unable to obtain a statistical prediction about the appellant’s contribution, because it was at a partial level.

204. Concerning the tape lift 15C7, Ms Ristevska said that that tape lift had produced a mixed DNA profile that could come from two individuals. That profile had a major and minor component. The major component, Ana Hardwick, could not be excluded as the contributor, and Steven Hillier could not be excluded as the contributor to the minor component.

205. Ms Ristevska, in her evidence-in-chief, was asked by Mr Hastings QC, senior counsel for the Crown at the trial: ‘… one of the hypothetical possibilities that needs to be considered in this case is that there has been transference of the DNA of Mr Hillier or matching Mr Hillier’s DNA onto the pyjamas by a carrier or a third person. Was that a possibility that you considered in the course of your analysis?---I did consider that in the course of the analysis but I excluded that as – as an option.’ Mr Hastings said: ‘… I think in general the possibility that needs to be assessed is that for example Steven Hillier may have hugged or kissed one of his children who shortly thereafter may have gone home and hugged or kissed his or her mother, thereby creating the potential for the DNA from Mr Hillier to be deposited on for example her pyjamas if she was wearing them when this act of familiarity took place, what do you say about the information available to you as to that possibility?---I would expect the profile from the carrier to also be evidence in the evidence sample at higher levels – well, not at higher levels but I would also expect that person to also be a contributor to the profile. … … are you saying that you would expect the child’s DNA to be present as well?---Yes. And was that evident from the tests that you carried out?---I don’t believe so, no. And particular in relation to the DNA on 15C7?---No.’

206. Ms Ristevska estimated that the mixed DNA profile obtained from item 15C7 was at least 93 million times more likely if the donors of the DNA were the deceased and the appellant than the deceased and another person chosen at random from the general public. She excluded Daniel and Elle as possible contributors in relation to the results she obtained.

207. A forensic scientist, Henry Roberts, attached to the Victorian Police Forensic Services Centre, who has a PhD in Biochemistry from the University of Oxford, as well as the degree of Bachelor of Arts in Biology with Chemistry from the University of York, gave evidence concerning the DNA samples. Dr Roberts had conducted DNA profiling in criminal cases since 1989, having practised as a forensic scientist since 1981.

208. He expressed the view that the DNA sampling by Ms Benson would not have been affected by the heat of the fire. In respect of the sample 15C7, 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. The conclusion of Dr Roberts was that: ‘… the profile obtained from sample 15C7 would be approximately 7.6 million times more likely to occur if the DNA came from a mixture of material from the deceased and the accused than if it came from a mixture of DNA from the deceased and a male chosen at random from the Victorian caucasian population.’

209. As to the statistical difference in the opinions of Ms Ristevska and Dr Roberts, Dr Roberts said that he thought it inappropriate to rely on an assumption that the Caucasian population in the ACT was homogenous, (as Ms Ristevska apparently had), and that he had applied a correction factor to take account of what he described as “the sub-population theory”. Dr Roberts was asked in cross-examination: ‘In the end result, what conclusion did you reach concerning the possibility that the sample taken from the collar may have included a contribution of DNA from the accused?---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.’

210. He was later asked what he meant to convey by “extremely strong support” in the answer just set out, and he explained that “extremely strong support” was the highest of the scale of relationship, and ‘in our laboratory anything over one million we describe as providing extremely strong support.’

211. His evidence concerning the possibility of secondary transfer as being the source of the DNA in item 15C7 was to the same effect as the evidence of Ms Ristevska. He was asked: ‘Did you examine the DNA profile obtained by Ms Ristevska from item 15C7, said to have come from the inside collar of the pyjamas of the deceased in the light of the possibility that the profile which was consistent with that of Mr Hillier may have been carried by somebody to that location?---Yes. As I said before, 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. So you would have a small amount of DNA from Mr Hillier, a larger amount of DNA from whoever transferred the DNA, and then in this instance an even larger amount of DNA possibly from the deceased who was actually wearing the pyjamas. And were you able to identify any indication of the DNA of a carrier in the quantities that you would expect?---No. There is no indication of DNA from a third person in this mixture. There’s certainly DNA from more than one person but the mixture can be explained by DNA from two people. As I mentioned before, the majority of the DNA matches the deceased and the rest of the DNA can be explained by a minor quantity of DNA from one person who is a male. There is no indication of DNA from a third person. I specifically investigated the possibility that one of the children of the deceased and the defendant might have been involved in this transfer process. …’ (Emphasis added.) And he was later asked: ‘So what view did you form ultimately about the possibility of either child having carried a DNA trace from their father to the deceased?---I think it’s very unlikely. I would have expected to find a large amount of DNA from either child in this sample. And in addition, if one imagines a child embracing their mother, hugging their mother, I would expect to find the child’s DNA on other areas of the pyjamas as well. I looked at the other samples which were lifted from the pyjamas and could find no clear indications of a contribution from either Daniel or Elle Hillier on any of the samples on the pyjamas. So the other samples don’t indicate that the children deposited detectable amounts of DNA on the pyjamas and that kind of boosts my confidence that there isn’t a significant quantity from DNA from either Daniel or Elle in sample 15C7.’

212. Dr Brian McDonald was called in the appellant’s case, and gave evidence concerning DNA in the case. He has a degree of Bachelor of Science (Hons) and a PhD in Pathology. He describes himself as a molecular geneticist. He said: ‘I don’t generally identify myself as a forensic scientist … generally my expertise is in the area of DNA from diagnostic medical conditions through to forensic situations.’

213. He said in relation to 15C1 that: ‘… I think it’s very difficult to identify Steven Hillier as a contributor to C1, there – there are grounds to exclude him as a contributor for C1.’ His reasons for saying that, were: ‘… it’s a mixture of a number of individuals, one of whom, the deceased, is present in a very high amount. The other contributors are present in what is clearly absolute borderline amounts of DNA.’

214. In relation to item 15C7, Dr McDonald agreed that the appellant could not be excluded as a contributor to that mix. 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. He was asked in cross-examination: ‘You were asked to comment on the figures which were given by Ms Ristevska and Dr Roberts. From 93 million on one hand and 7.6 on the other?---Yes.’ He indicated that he himself had not done a calculation at that time. On being pressed by Mr Hastings QC for the Crown, he protested: ‘… you’re asking me to speculate … which I’d hesitate to do but for the purpose of the exercise, you know it could be anything from half a million to five million.’ It was then put to him: ‘In either event, 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.’ He was later asked: ‘Do you agree with the premise that both Ms Ristevska and Dr Roberts offered that in the transference scenario you would expect to see a DNA contribution from the transferor to the person transferring?---The intermediary? Yes?---It’s possible, yes. Would you expect it?---Well again it would depend on the circumstances, in – in this particular scenario where we have a higher yield source of you know the DNA being transferred going via a low yield source, based on how much DNA we’ve actually got that’s not the mother’s here, it would probably be unlikely to find the intermediary’s DNA present.’

215. On a detailed analysis of the evidence of each of the three scientists concerning the DNA evidence, it is incontrovertible that the jury was entitled to accept that at least some of the DNA found on tape lift 15C7 came from the appellant.

216. Each of the scientists agreed that DNA might be found on a particular item of clothing as a result of secondary transference, which is to say transference by means other than direct contact between the transferor and the item on which the DNA was found.

217. Ms Ristevska, in her opinion, rejected the possibility that there had been a transference of the DNA of Mr Hillier onto the pyjamas by a third person. The jury was entitled to accept her evidence. Dr Roberts said he was unable to identify any indication of the DNA of a “carrier” in the quantities he would expect. He expressed the opinion that the possibility of either child having carried a DNA trace from their father to the deceased was very unlikely, and he gave reasons for that conclusion. The jury was entitled to accept his evidence. Dr McDonald expressed the view that secondary transference by one or other of the children was possible, and opined that, because of the low yield of DNA that was not the mother’s, it would probably be unlikely to find the intermediary’s DNA present. The jury was not obliged to accept that there was a reasonable possibility that secondary transference had occurred.

218. Apart from the opinions of the scientists about the possibility of secondary transference being the explanation for DNA matching that of the appellant being found in tape lift 15C7, the location of that tape lift was demonstrated to the jury by Ms Benson, which was on the inside of the pyjamas some seven or eight centimetres from the collar, and there was other evidence supporting the conclusion that the DNA profile of the appellant in tape lift 15C7 had not got there by secondary transference from him.

219. The evidence before the jury indicated that the deceased purchased the Winnie the Pooh pyjamas from Target on 10 February 2002. The evidence indicated that the last time, prior to September 2002, that the appellant was inside the deceased’s home at Marengo Place, Isabella Plains was in May 2000. The last occasion prior to the death of the deceased that her children left the custody of the appellant to return to the deceased was on the night of Sunday 22 September 2002, eight days before her death.

220. The site of the tape lift 15C7 was on the inside of the pyjamas on the right hand looking at it from the front, some six or seven centimetres from the collar. There was evidence concerning the effect of washing of the pyjamas on the presence of DNA that might have been transferred there prior to the washing. There is the inherent unlikelihood of there being a transference of DNA by means of a kiss or a hug from a child of the appellant to the inside of the pyjamas of the deceased which must have occurred at least eight days prior to her death and which had survived any intermediate handling or washing. A most telling factor against secondary transference of the appellant’s DNA by a carrier, being one of the children, is the absence of any indication of DNA from the carrier.

221. The trial judge’s direction to the jury concerning the DNA evidence was, in my respectful opinion, impeccable. His Honour said: ‘I would now wish to turn to the DNA evidence. That of course is also part of the circumstantial evidence for you in this case and is to be tested in accordance with the general directions that I gave you regarding circumstantial evidence. … 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. 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. … The other important aspect is that the evidence of both Dr Roberts and Dr McDonald leaves open the question of transference of Mr Hillier’s DNA by the children, the portion of DNA from which he cannot be excluded. Now, you’ll recall the submissions of Mr Hastings as to the unlikelihood of that being so. Nevertheless, that must be considered in the context of the evidence of Dr Roberts where he said that he could not exclude the close relative of Steven Hillier being a contributor to the sample 15C7, that it was quite possible that that was so. Having regard to that, you may consider the evidence of Dr McDonald and his evidence to this effect.’

222. The trial judge then referred to the evidence given by Dr McDonald in-chief, including the passage: ‘Assuming that Steven Hillier’s DNA is on item C7, could that DNA get onto that item through direct transfer as well as secondary transfer?---Yes, yes, we have no way of knowing if his DNA is on that sample. He’s not excluded as a possible contributor which doesn’t mean that his DNA is on it, but you asked me to assume that it was on there. Yes, we have no idea how it got there and as I said, it’s possible that it got there by primary transfer or secondary transfer.’ The trial judge then continued: ‘Evaluating that and having regard to counsel’s submissions, it’s a question of whether there is a real possibility that Mr Hillier’s DNA on the pyjamas, just below the collar, if you find that to be so, was there as a consequence of being transferred by one of the children. If that is a reasonable possibility, then the DNA evidence does not assist you in your deliberations. I would sum up your task as being as far as there being direct evidence that there was detectable DNA on the collar of the pyjamas before it can be used by you, that you must be satisfied beyond reasonable doubt the DNA found on the pyjamas does not exclude the accused as being a contributor to it and that possible transference by one of the children could not account for it being there. Further, that evidence only becomes significant if there is other evidence pointing to the accused being responsible for the crime.’ (Emphasis added)

223. That direction is not only correct, in my respectful opinion, but the conclusion which the jury reached by its verdict was consistent with their obedience to that direction, and was one open to it on the evidence before it, part of which I have set out earlier in these reasons.

224. The majority, in their reasons for judgment in par 53, argumentatively seek to challenge the correctness of the opinion by Ms Ristevska concerning the possibility of secondary transference. Notwithstanding the comment and criticism that is directed to the evidence which was led by the Crown, and to the submissions that were made by the Crown concerning the evidence and, in particular, the DNA evidence, the jury was properly directed as to their task concerning the DNA evidence, and the evidence before it was capable of supporting the conclusion to which they came. It is simply, in my respectful opinion, not correct to say that ‘each of the three experts had conceded the possibility of secondary transference from one of the children’. This is a misrepresentation, not only of the evidence, but of the trial judge’s direction concerning the DNA evidence.

225. As the High Court made plain in M v The Queen, it is simply not the law that a verdict of a jury in a criminal trial has only prima facie effect, with the real power as to guilt or innocence being vested in the Court of Appeal. In my respectful opinion, an appellate court must show restraint in disturbing the evaluative determinations of primary decision makers. There is nothing to show that evaluation by an appeal court is, objectively speaking, better than a first evaluation.

226. In the circumstances of this case, a judicial veto by an appeal court of the unanimous verdict of twelve citizens runs the risk of diminishing the integrity and value of the jury system, and compromising the finality of adjudication by the peers of an accused. That adjudication is a notable and desirable aspect of the jury system of our criminal law.

227. Because of those important consequences, appellate intervention is justified (and indeed required) only if a negative answer has to be given to the ‘ultimate question’.

228. The ‘ultimate question’ is ‘whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’

229. The jury was entitled to be satisfied beyond reasonable doubt that there was the appellant’s DNA in the location of tape lift 15C7 on the deceased’s pyjamas.

230. The jury was further entitled to conclude, beyond reasonable doubt, that possible transference from one of the children did not account for that DNA being there.

231. With the other evidence in the case, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

232. They were.

233. The appeal should be dismissed. I certify that the preceding paragraphs numbered one hundred and nine (109) to two hundred and thirty-three (233) are a true copy of the Reasons for Judgment herein of his Honour Justice Spender.

Associate:

Date: 15 December 2005

Counsel for the Appellant: Mr M Ierace SC with Mr A Doig – subsequently heard in person

Solicitor for the Appellant: Ken Cush & Associates

Counsel for the Respondent: Mr P Hastings QC with Ms P De Veau

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 11 August 2005

Date of judgment: 15 December 2005

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