R v Adams

R v Adams - [2016] NSWSC 1565 - NSWSC 2016 case summary — Zoe

Introduction

On 27 September 2016, Robert John Adams (the accused) was arraigned before me on an indictment containing a single count. It averred that, on 24 September 1983, at Sydney in the State of New South Wales, he did murder Mary Louise Wallace (the deceased).
The accused entered a plea of not guilty to that count. No jury was empanelled, because I had previously ordered that the trial proceed by judge alone: see my judgment in R v Adams (No 2) [2016] NSWSC 1359.
By the end of the openings of counsel, it was clear that the Crown case was a circumstantial one. It alleged that the accused committed the offence charged on the basis of the doctrine of felony murder, as it was on 24 September 1983. It was also clear that a significant part of the circumstantial case of the Crown was the proposition that, as at the date of the alleged murder, the accused possessed a tendency to choke or strangle women in order to force them to submit to having penile/vaginal sexual intercourse (intercourse) with him.
My pre-trial judgment in R v Adams [2015] NSWSC 1960 explains why I considered foreshadowed evidence in support of that tendency to be admissible in the trial. It is noteworthy that that judgment of mine was founded upon the evidence of four women who had alleged that they had been sexually assaulted (the tendency complainants). At the start of the trial, the Crown Prosecutor made it clear that the evidence of only three of those women would be placed before me in the Crown case. Nevertheless, there was no application by defence counsel for me to revisit my pre-trial ruling, or the reasoning underpinning it, at any stage.
I consider that it is convenient for me first to set out the evidence placed before me in general chronological form, albeit with some thematic grouping. As I do so, I shall indicate which evidence was undisputed and which disputed in the trial, and briefly explain the nature of any such dispute.
Of course, with regard to any person who alleges that he or she has been a victim of a sexual assault, a pseudonym will be used, consistently with all of my earlier judgments, and the procedure adopted in the hearing of the trial itself.

[4]

Undisputed evidence

Ms Hyde was 28 years old in 1975. As at early August 1975, Ms Hyde was single, and had been sharing a house with Ms Peta Peters, another young woman, for six months in a suburb of Sydney. Ms Hyde had moved in with Ms Peters after having divorced her former husband. She had also had an abortion in late July 1975, and was experiencing bleeding and pain as a result.
In early August 1975, Ms Hyde was working at a retail store in The Rocks. She did not drink alcohol, and did not frequent bars, pubs, or nightclubs.
As at the same month and year, the accused was living at Munro Street, North Sydney. He had been living there for a number of years with his wife, but they were separated at the time and he was living alone. He was 23 years old, having been born in May 1952. He was employed as a carpenter in the city of Sydney, opposite a now-demolished hotel.
On a day that she described as close to the end of the week in winter 1975, and soon after the abortion had been performed, Ms Hyde met the accused at a café near Circular Quay. The accused told her of being the foreman on a building site near there.
Ms Hyde described the accused at that time as being "A big bloke, probably six foot at least, thought he was about 28 years of age, he had sort of blondie/brown coloured hair, medium length and straight". She thought he had blue eyes, and he appeared solid with a medium build.
After the two of them chatted for a period at the café, the accused drove Ms Hyde the short distance from there to her workplace. The vehicle that he drove was an old (that is, as at 1975) Holden station wagon.
The following day, by agreement the accused came by the workplace of Ms Hyde in his vehicle. She finished work at 6 PM. The general plan was that they would go out to dinner, perhaps to a Chinese restaurant on the North side of Sydney.
The accused told Ms Hyde that he needed to change out of his work clothes first, before they went out for the meal. He drove Ms Hyde to a suburb with very large houses and parked the car. The accused invited Ms Hyde inside his home - a small worker's cottage - for a cup of coffee. The cottage was separate from, and close to, a place that looked to Ms Hyde like a mansion.
When she entered the home, Ms Hyde had with her a leather handbag, a purse containing details of her identification, and a pay envelope. She was wearing a T-shirt, a brown skirt, brown tights, and brown leather shoes with a small heel. She was also wearing Moroccan beads as a necklace and "baubly" earrings to match. Because she was experiencing bleeding as a result of her recent medical procedure, she was also wearing a pad.
There was no dispute between the parties that the accused and Ms Hyde had intercourse shortly after their arrival at the home of the accused that evening. As I shall detail later, it was firmly disputed between the parties whether that intercourse occurred with or without the consent of Ms Hyde. It was also firmly disputed whether the accused inflicted any violence upon the person of Ms Hyde at or about the time that that intercourse took place. In particular, it was firmly in dispute whether that violence featured him choking or strangling Ms Hyde.
Returning to undisputed evidence, after the intercourse, Ms Hyde went to an outside bathroom that contained a shower. She did not return to the inside of the home of the accused. Rather, she left suddenly, without her underpants, her pantihose, her handbag containing her personal identification, and the pad that she had been wearing. She did have with her the pay envelope, and she was carrying her shoes in her hands.
The following was also undisputed. At about 6.45 PM on 4 August 1975, Ms Antonia De Boer was driving from her home in Wollstonecraft towards Lavender Bay Scout Hall in Munro Street, McMahons Point. In the backseat were two children whom she was taking to a Scout meeting at the hall. The sun had certainly set by that stage, and the early August evening was very cold.
Just as Ms De Boer was about to turn left into Munro Street, she saw Ms Hyde running towards her car. Ms Hyde (who was completely unknown to Ms De Boer) was waving her arms and screaming. Ms De Boer stopped the car, and Ms Hyde opened one of the back doors and got in. Ms Hyde was distressed, crying, and appeared to Ms De Boer to be in a state of shock. In the car, Ms Hyde spoke of a man having attacked and raped her, and said "He tried to murder me".
Ms De Boer drove the four of them to the Scout Hall, introduced Ms Hyde to the Scout Master, Mr Graeme Keed, and spoke to him. At a committal later in August 1975, Ms DeBoer recalled that Ms Hyde had come to the front of the bonnet of the car before she got in. Ms De Boer also recalled that, at the Scout Hall, Ms Hyde was rubbing her hand over her stomach.
Mr Keed saw that Ms Hyde was not wearing her shoes, was shaking, half-crying, very much distressed, and appeared very frightened. Mr Keed regarded Ms Hyde as not actually crying, but trembling or physically shaking. He did not see any physical injury to Ms Hyde.
She told him that her assailant was over 6 feet, spoke of being attacked, and, when asked by Ms De Boer, stated that she had been raped. It seemed to Mr Keed that Ms Hyde was more focussed on retrieving her belongings from the home of the accused than anything else.
Shortly after that, the Scout group leader, Mr Henry Ball, arrived. Mr Ball saw that Ms Hyde was sobbing. Although her clothing appeared generally normal, he noted that she was carrying her shoes.
Mr Ball walked to a telephone box, but found that it was engaged. Whilst waiting, he saw a Holden station wagon of a greyish colour with roof racks drive by; there is no dispute that that was the vehicle of the accused.
Whilst walking back to the Scout Hall after telephoning the police, Mr Ball saw a man on the street. That man turned around and started to walk back down Mitchell Street in the direction of Munro Street. Again, there is no dispute that that man was the accused. Mr Ball described him as at August 1975 as being about 6 foot tall, slim build, with dark hair and a beard, dressed in shorts, what appeared to be a T-shirt, and short socks and desert boots. Mr Ball saw the accused walk away.
On his return to the hall, Mr Ball spoke to Ms Hyde. She said that her assailant had "raped and strangled" her, and that the assailant retained all of her personal belongings, her diary, and her handbag. Ms Hyde asked Mr Ball to go and attempt to retrieve her items. She referred to having been "raped and strangled" three or four times. In the opinion of Mr Ball, she had naturally pale skin and was shivering.
Uniformed police in the person of Constable Wayne Hill and Senior Constable Andrews arrived at the Scout Hall at about 7.20 PM. They first spoke to Mr Ball, and thereafter to Ms Hyde, who by that time was sitting in the back of a car. Constable Hill noticed that Ms Hyde was upset and sobbing. Senior Constable Andrews pointed out to Constable Hill the area of Ms Hyde's neck. Constable Hill noticed red marks on it. Some days later, at the committal hearing, Constable Hill described what he saw as a "General reddening of the area". Constable Hill also noticed that Ms Hyde had with her what looked like a pay envelope.
The two uniformed officers went to the home of the accused in Munro Street and knocked on the door, but there was no answer.
Subsequently, detectives became involved in the investigation. One of them, Detective Constable Warren Reid, could not recall at committal having seen red marks to the neck of Ms Hyde when he was speaking to her.
Between about 6.30-7.45 PM, Ms Hyde was in the company of Constable Diane Waring. Ms Hyde was crying off and on. She appeared upset and distressed. Constable Waring did not notice any injuries to her throat. At committal, Constable Waring said that, if she had observed injuries to Ms Hyde, she would have made a note of them.
Meanwhile, at about 7.45 PM, police forced entry into the home of the accused, who was absent, and took possession of two blankets. They also found an earring in the fold of a blanket. The earring was in two pieces. The earring was shown to Ms Hyde at North Sydney Police Station and she identified it as being her own. Ms Hyde was conveyed to Royal North Shore Hospital.
Detectives returned to the home of the accused, and saw a station wagon with registration EFM 336 parked outside. The accused was found to be at home; when he asked "What's the trouble?", the police informed him that they had received a complaint of rape. His response to that allegation was "I fucked her, but I didn't rape her".
The accused was informed of his rights. He informed the police that Ms Hyde had left a number of items at his home, and that they were in his car. He removed a bag containing the items from the rear of his vehicle, and provided them to the police.
At about 10.45 PM at the hospital, Dr Grudzinskas examined Ms Hyde. He noted "No abnormalities on head or neck", although the doctor did note that the entrances of her vagina and anus were slightly excoriated. The doctor noted that Ms Hyde had an IUD contraceptive device in place. She informed the doctor that she had had an abortion 10 days before.
Swabs were taken from the vagina of Ms Hyde, her panties, her pantihose, the clothing of the accused, two blankets, and some other items of women's clothing.
Ms Hyde gave a statement to the police later that evening, and photographs were taken of her throat. They were not tendered in evidence before me; my understanding is that they have been lost.
Later that evening, Ms Hyde arrived home. Her flatmate, Ms Peters, was in the living room. Ms Peters noted that the face of Ms Hyde was grey. Ms Hyde told her flatmate that she had been raped, and that she had thought that she would be killed.
Subsequently, the items seized and the swabs taken were scientifically examined. Human sperm was found on the vaginal swab and smears. Human semen stains were found on the pad, the skirt, the petticoat, the men's shorts and the men's shirt. Human blood stains were found on the panties, the pad, the skirt, and the petticoat of Ms Hyde, and also on the shirt of the accused.
Ms Hyde gave evidence at the committal, at the end of which the accused was committed to the Supreme Court for trial on a charge of rape.
Subsequently, Ms Hyde left Sydney and travelled to Darwin in order to avoid giving evidence in the rape trial. Years later, on 24 August 2009, she gave a further statement to police. The following day, she drew a diagram of the interior of the cottage of the accused. She also gave evidence at the inquest into the disappearance of the deceased on 9 December 2010. Her second statement, and her evidence at the inquest, maintained the position that she had been strangled and raped.

[5]

Disputed evidence

In short, as I have said, the position of Ms Hyde was that she was forced by severe physical violence in the form of strangulation to submit to intercourse with the accused. The details of that assertion were as follows.
Whilst the two of them were in the home, the accused was getting a drink. He said something about sex. She informed him that she was bleeding. Shortly thereafter, the two of them were sitting on a lounge. The accused groped her both inside and outside her clothing. She physically tried to stop him.
The accused than bodily picked her up and threw her onto his bed. She made it clear, verbally, that she did not consent to having intercourse with him.
The accused placed both of his hands around her neck, and applied pressure to the extent that her ability to breathe was affected. During the physical interaction, one of her earrings came off and was ripped in two.
Because she was being strangled, Ms Hyde said "OK, do it". Her tights, underpants, pad and shoes were removed. She was forced to perform oral sex on the accused. He placed his penis in the vicinity of her anus, but did not penetrate her in that way. At the time she was saying "No, please don't", and the accused desisted.
After that, the accused had intercourse with Ms Hyde. At the time, the top part of her body was completely clothed.
After that came to an end, the accused ordered her to "Go into the bathroom and wash yourself". He unlocked the main front door of the cottage. Once outside, Ms Hyde ran from the house, leaving behind many of her personal items.
The position of the accused about those disputed matters was as follows.
In a record of interview in which he engaged with detectives at 3.20 AM on 5 August 1975, the accused said that he and Ms Hyde had indeed engaged in intercourse, but she had done so completely freely. There had been no complaint on the part of Ms Hyde at any stage, and she had said nothing at that stage about having recently had an abortion. He did not bodily pick her up or throw her onto the bed. It was she who had consensually removed her underpants before they had intercourse. After that came to an end, Ms Hyde spoke of having just had an abortion, and the accused described her as becoming "uptight". Ms Hyde then requested to have a shower. The accused facilitated that, and she went to the outdoor bathroom. After 10 minutes or so he realised that she had disappeared. He agreed that she left behind at his home two bags, her coat, her pantihose, her underpants, and the pad.
The accused described walking and driving around the neighbourhood looking for Ms Hyde. Unable to find her, he went to the home of his wife to pick up a sewing machine, and thereafter went to the home of his then-girlfriend to have a meal. On returning home, he found that someone had forced entry to his home. However, because nothing had been taken or damaged, he did not report that break-in to the police.
His position to detectives was that he was not aware that Ms Hyde was bleeding or wearing a pad, despite the fact that he had touched her pubic hair. He said that, if he had known that she was wearing that item and was bleeding vaginally, he would not have engaged in intercourse with her.
His position was that she had simply left the home to use the outdoor bathroom. Inexplicably, she departed hurriedly, leaving behind a number of her personal items. It was indeed he whom Mr Ball had seen searching for her, both on foot and in his motor vehicle. Unable to find her, he had placed her belongings in a bag that he intended to drop off to her at her place of work.
At trial, defence counsel put the following points of dispute to Ms Hyde (in accordance with the well-known rule in Browne v Dunn (1893) 6 R 67).
Generally, it was put to Ms Hyde in cross-examination by defence counsel that she had consented to intercourse with the accused, and in the lead-up to that event there was not the slightest coercion or violence directed towards her by him.
As for her sudden departure, the following was put to her in cross-examination (TT 660.47-661.2): Q. And you panicked because you had had intercourse after your abortion; is that right? A. No. Q. And that's why you ran off from the house that evening, is it not? A. No, basically, the choking really did it.
In final address, defence counsel said the following (TT 1107.33-37): The position I put to Ms Hyde from memory towards the end of cross examination, she suffered a panic attack at the end, which might well have been as a result of what she experienced shortly before the act of sexual intercourse - I say shortly, I mean within days or weeks, and then had an abortion. And for that reason she had a panic attack and left the flat.

[6]

Undisputed evidence

The evidence relating to the tendency allegation of Ms Ellen Moon was received in its entirety in statement and deposition form, without objection by defence counsel.
There was also evidence that the accused had pleaded guilty many years ago to having committed the offence of rape against Ms Moon.
There was also evidence in the trial that, at the inquest in 2010, Ms Moon gave evidence and affirmed the truth of the statement she had given to police many years beforehand. The transcript placed before me also records that, thereafter, the accused extended an apology for his conduct to Ms Moon.
Finally, in both written and oral final submissions, defence counsel made it clear that there was no dispute about the evidence led in the Crown case with regard to the conduct of the accused against Ms Moon.
For a multitude of reasons, therefore, the following summary of the evidence can be regarded as completely accepted by the accused.
As at 30 May 1976, Ms Ellen Moon was living on the lower North Shore of Sydney. Although neither her age nor date of birth was placed in evidence in the trial, she is described as having been a young woman at that time.
At about 8.15 PM, she left an earlier social event to go to the Mosman Skiff Club at the Spit. Whilst there, she drank no alcohol. She danced with a man who introduced himself to her as Bob, and who told her that he was a carpenter. That man was the accused. Ms Moon described the accused as at May 1976 as being: about 5 feet 11 inches tall, of medium build, olive complexion, with long straight hair that was brushed to one side, wearing a brown body shirt and dark pants with a light blue stripe.
At the club, the accused spoke of the possibility of dinner and a cup of tea. Ms Moon declined the invitation, and announced that she was leaving. The accused offered to walk her to her car. Ms Moon farewelled her friends, and the two of them left the club together.
Whilst they were walking towards her car, the accused stated that he wished to get a jumper from his vehicle. They walked together to that vehicle. Once there, the accused asked Ms Moon more than once to sit in his car with him. She agreed. Ms Moon described the car as a fawn station sedan, with sheepskin seat covers on the inside, and with the back seat down. She noted that inside the vehicle was a light covered container, which looked like a box containing some items.
The accused asked Ms Moon whether she wanted to drive to a location where they could see a better view. She replied that there would not be much of a view at night. The accused drove the car around to the other end of the car park.
The two of them sat in the car together for a period and kissed. That occurred with the consent of Ms Moon. When the accused tried to undo the top of her jacket, she resisted. The accused became aggressive. He said (referring to his penis) "If you don't touch me by the time I count to five, I will choke you and kill you". Ms Moon did not comply with that demand, which featured a threat of death. As a result, the accused pressed hard on her windpipe with his hands, with the result that Ms Moon was struggling to breathe. Ms Moon became terrified that she would be murdered. She said "OK, OK".
The accused then took her hand with his hand and placed it on his penis on the outside of his pants. After that, he removed her shoes and jeans. Ms Moon resisted again. The accused tightened his hold on her throat and said "Either fuck me now or I will fuck you when I kill you, and you won't be able to talk when you are dead, I will strangle you and throw you in the river". Ms Moon, fearing death, did not struggle further. Thereafter they had intercourse, including ejaculation, without the consent of Ms Moon.
After that had come to an end, the accused said "I've done a terrible thing. Take me to the police station". The accused dressed and then slowly drove the two of them in his car to the car of Ms Moon. She was permitted to leave in her own car, and drove home.
At the time, Ms Moon was living in a group house. Her flatmate, Ms Susan Harridge, then aged 22 years, had herself been home for about 45 minutes when she saw a young woman approaching the front door. She recognised the young woman as Ms Moon. Ms Moon ran to Ms Harridge in tears. Ms Harridge noted that Ms Moon was "suffering from redness to the front of her throat. It extended from about the bottom of her throat to the top of her throat and all the front". Ms Moon told Ms Harridge and another flat mate what had happened to her, and the police were contacted. The police later arrived at the house.
At 12.10 AM, Constable Miller spoke to Ms Moon at her home. He described her as upset, and noted red marks around her neck. She was conveyed to Mosman Police Station.
At 12.30 AM, two female police officers met Ms Moon at Mosman Police Station. Ms Moon was taken home again, where she changed out of the clothes she had been wearing, and was thereafter conveyed to Royal North Shore Hospital for a medical examination. One of the police officers noticed red marks around the neck of Ms Moon.
The examining doctor observed no injuries to the genitals of Ms Moon, but saw signs of recent intercourse. The doctor also noted reddening of the skin of her neck and lower jaw.
At 2.15 AM, police went to the home of the accused at Munro Street, North Sydney. There they saw a 1967 Holden Station Sedan, registration EFM 366, parked outside. They also saw a dog that appeared to be a Golden Labrador.
The accused identified himself to police, and admitted that the car out the front of the house belonged to him. He was told an allegation of rape had been made against him, and that he was going to be taken to the police station. He replied "Yes, but I want to get dressed first". The accused expressed his understanding that he was not obliged to say anything, and identified the clothes that he had been wearing that night (which were in his bedroom) and the underwear that he had been wearing (which he was initially wearing, but changed out of prior to attending the police station). The accused admitted that the dog present at the house belonged to him. He agreed to accompany the police, and handed his car keys to one of the officers, who drove his car to the police station.
Later, detectives asked the accused whether he would show them where the offence had allegedly taken place. He agreed and told them it was "down at the Spit". Whilst at The Spit with detectives, he said "I must have been mad", "I need psychiatric help. I must be mad to do these things", "If I was of two minds, when I did these things, what do you think I would get?", and "I do need help".
Later again, the police returned to the home of the accused in Munro Street, North Sydney. There they seized a large carving knife with a sticky substance on it. When spoken to later about that knife, the accused replied "Yes, it's probably my blood. I thought of killing myself last night, it is a terrible thing that I have done".
A subsequent scientific examination of samples taken by the doctor and police revealed the presence of semen on the vaginal swabs and smears from Ms Moon. Seminal staining was found on the underpants of Ms Moon, and the inside front of the trousers of the accused. Human blood was found on the handle and the blade of the carving knife seized from the house of the accused.
Evidence was placed before me without objection that the accused pleaded guilty to the offence of rape, was convicted of that offence in this Court, and was sentenced to a period of imprisonment.

[9]

Undisputed evidence

In late July or early August 1978, Ms Brown was aged 21 years old. She had moved to Sydney in 1977 or 1978, and was employed as a clerk at an office in North Sydney. She was single, did not own a motor vehicle, and was a quiet person by nature. About six months previously, she had moved to the Sydney suburb of Lane Cove with Ms Vicki Panton (former name Robinson). They had been friends for a number of years, and would sometimes go out together socially.
Ms Brown would occasionally go out to listen to music with Ms Panton at a wine bar in Mosman, and other bars in Wollstonecraft and Cammeray.
One evening in late July or early August 1978, shortly after her 21st birthday, Ms Brown went out to a wine bar with a female friend (she could not recall who it was). It was the first time that Ms Brown had visited that bar, and in evidence before me she could not remember its name. She described it as being on the corner of the Pacific Highway and Miller Street at North Sydney. She said that there was a white building opposite the bar. The venue was dark and crowded, and a band was playing. The two young women had left the home at about 9 PM, that being the usual time at which they would go out. Ms Brown was wearing a tweed vest, a brown wrap-around skirt, boots and stockings, and she was carrying a brown handbag.
Ms Panton recalled going out to a bar in Sydney one evening with Ms Brown. That was unusual, because Ms Brown was quite shy and did not normally go out with Ms Panton.
Shortly before closing time, Ms Brown was approached by a man who introduced himself as Bob. She described him as having blue eyes, a moustache, wearing his hair in a style that was popular in the 1970s in that it came just below his ears, possessing a heavy-set build, and about 6 feet tall. She also described him as wearing either a short-sleeved shirt, or a long-sleeved shirt that was rolled up. He was wearing blue jeans. Ms Brown noted that Bob had a tattoo on his left arm.
Ms Brown was not intoxicated at closing time, because she did not drink much and did not have much money. She had consumed a few glasses of white wine over the course of the evening.
Ms Panton recalled Ms Brown telling her that she was leaving at about 11 PM or midnight. At the time, Ms Panton saw a man whom she regarded as good-looking and well-dressed standing near Ms Brown.
Ms Brown gave evidence that Bob offered her a lift home, which she accepted. His car, a white Holden 4-door sedan, was parked about 50 metres down a side street from the bar. They walked to it and entered it.
The man Bob drove off immediately, and took Ms Brown to a nature reserve located a drive of about 15 minutes from the bar. A single road led into the reserve. Ms Brown thought she could see the harbour from where the car stopped, but she could not see the Sydney Harbour Bridge. The man parked the car on a strange angle on the grassed area of the reserve, whereby the exit of Ms Brown from the motor vehicle was blocked by a cliff or rocky outcrop.
Ms Brown believed that she and the man Bob would have a "kiss and a cuddle", and thereafter the man would drive her home and subsequently ask her out.
Once Bob parked the car at the reserve, he manually engaged all of the internal locks in the car. Then he suddenly reached over, forced himself on top of Ms Brown, removed her wrap-around skirt, pulled her underwear down, and had intercourse with her without her consent.
At the time, Ms Brown was crying. She gave evidence that the man Bob had both of his hands around her neck and was squeezing her throat whilst he was having intercourse with her. Although her airway was not sufficiently blocked for her to pass out, she was terrified.
Eventually, Bob ejaculated and the intercourse came to an end. The two of them sat in the car. Ms Brown wanted to flee, but felt that there was "nowhere to run". They sat there silently for a time.
Eventually, Bob drove out of the park. The car travelled somewhere near the Pacific Highway. Ms Brown recalls seeing yellow and green signs displaying the names of suburbs, including Chatswood and Wahroonga. She saw the buildings of Knox Grammar, and a hotel built of stone. Although the car stopped at various traffic lights, all of the internal doors were locked, and Ms Brown was too terrified to try to escape. Around Wahroonga, Ms Brown became exhausted, and stopped taking note of the passing landscape.
They arrived at an older house that may have had a veranda. Ms Brown recalls seeing motorbikes in the vicinity of the house. The man Bob led Ms Brown into the house. They walked down a hallway, and she has a vague recollection of seeing an unclean kitchen at the end of it. The man Bob took Ms Brown to a bedroom, closed the bedroom door, and locked it with a key. Ms Brown saw there was a dirty mattress on the floor, which may have been a double mattress. There was other furniture, but she was unable at trial to recall what it was.
Bob ordered Ms Brown to take her clothes off; she complied through terror. She lay on the mattress, Bob got on top of her, and they had intercourse again without her consent. At that stage, Ms Brown was crying, telling Bob to take her home, and was experiencing physical pain.
Whilst she was being sexually assaulted again, Ms Brown noted that Bob had coloured tattoos - one on his left arm and some on his back.
The intercourse came to an end again, and Ms Brown lay very still. Thinking that her assailant was asleep, she got up in an effort to escape. As soon as she did so, the man got up, pushed her back onto the mattress, and commenced to sexually assault her violently again. She pleaded with him to stop and to take her home. She was hysterical, crying, and making a lot of noise. The man Bob refused to stop, and was repeatedly yelling at her to "shut up" and "be quiet".
Ms Brown felt the entirety of the weight of the man on her body. He was very strong, and she was too terrified to struggle to any great extent.
Eventually, that episode of intercourse came to an end as well. At some stage during the night, Ms Brown asked the man to let her out of the room so that she could use the toilet. The man Bob told her to "piss on the mattress" instead. Having no other option, Ms Brown urinated on the mattress.
At some stage the man left the room, and Ms Brown lay on the mattress for an unspecified time.
The next day, after daybreak, the demeanour of the man changed completely. He offered Ms Brown a lift home. She dressed, and was driven by the man Bob along the Pacific Highway. He told her not to tell anyone what he had done, and specifically told her not to go to the police. Ms Brown asked him to drop her at a location near Chatswood that was in fact some distance from her home.
Having alighted, she walked behind his car and noted its number plate. She then walked into a block of units, and waited for the man to drive away. She then walked the rest of the way home, because she did not wish the man to know where she lived.
When Ms Brown arrived home, her friend Ms Panton came into the room. Ms Brown told her what had happened. Ms Panton gave evidence that Ms Brown appeared upset, and told Ms Panton that she had been raped. Ms Panton took Ms Brown to a friend, Ms Jennifer Goss (former name Greenwood). Ms Goss noted that Ms Brown was "Distressed, teary, and traumatised". Ms Goss gave evidence that Ms Brown told her that she had been raped. When Ms Goss suggested that the police be called, Ms Brown strongly rejected the idea, and appeared to be frightened.
Two police officers arrived, despite the fact that Ms Brown had not called them because of her fear. She told the police some but not all of what had happened. They seemed to Ms Brown to be uncaring, and to blame her for what had occurred. She told the police that she did not wish to assist in an investigation.
Some days later, Ms Brown went to a doctor to see whether she had been infected with a sexually transmitted disease. The doctor responded to her in much the same way as the police had done.
Ms Brown moved out of her home because she was terrified that the man Bob may have followed her there, and could know where she lived. Ms Panton moved back to her home state, and did not have much more to do with Ms Brown. Ms Brown remains terrified in particular of North Sydney; speaking generally, she has never recovered from her ordeal of almost 40 years ago.
On 21 November 2012, Detective Senior Constable Jones (the officer currently in charge of the re-investigation into the disappearance of the deceased) contacted Ms Brown. That was after Detective Jones had read a document that recounted something of the events involving the man Bob and Ms Brown in 1978. Ms Brown expressed her readiness to provide details about what had happened to her. She made a statement to police on 15 January 2013. She provided the police with a sketch of the bedroom of the man Bob, and a sketch of the nature reserve.
On 15 January 2013, Ms Brown took part in a photo identification parade. She was shown 20 photographs of young men, each of whom had a full head of dark hair and a moustache. The array became exhibit Y in the trial. She chose two photographs as being "similar to" the man who had raped her. Of the two, she said that photograph number 7 was more similar to the man than photograph 14. Photograph 7 is a photograph of the accused of indeterminate date, although it was clearly taken many years ago.
Separately, the evidence of Ms Brown was that she had memorised the number plate of the man Bob so that she could be on her guard if he ever returned, and retained it in her mind for decades. She told Detective Jones in November 2012 that the number plate was either DMB 055 or DMB 065.
The typewritten document that became exhibit 4B in the trial contains two representations. The first is that, as at 19 September 1978, the accused was the owner of a 1964 Holden sedan, brown with a white roof, and with the registration DMB 055. The second is that, as at the same date, the accused resided at an address on Hewitt Street, Wahroonga.
On 20 December 2013, when arrested and charged with the murder of the deceased, the accused was photographed. As at that date, there was a large tattoo of an eagle extending across his back. He had no other tattoos on his person. Furthermore, during cross-examination of Detective Jones, she agreed that a card produced from the Department of Corrective Services records no markings to his body, other than a small scar on his back and a back tattoo.
In his electronically recorded interview (ERISP) of 20 December 2013, after the accused had been arrested on a charge of murder, Detective Jones put to him a summary of the allegation of Ms Brown. One of the responses of the accused was not to deny the offence, but rather to say "No, as I said, I can't, I can't recall her, I can't recall it".

[12]

Undisputed evidence

The deceased was born in August 1950, and accordingly was 33 years old as at the date of her disappearance. In the late 1960s, she trained as a nurse at Royal North Shore Hospital, along with Ms Pauline Biddle-Broadfoot (former name Biddle).
At the time of her disappearance the deceased was living alone at an apartment in Drummoyne, and working as a theatre sister at Hunters Hill Hospital. In surgery, she would often wear clogs that were suitable for use in a sterile environment. She would also sometimes wear clogs socially, they being a fashionable item in the early 1980s.
She was a popular, lively, and well-liked person. She had a large number of female friends whom she had met through nursing. She was reliable with regard to commitments, both at work and in her personal life. She was a trusting person. She had enjoyed a number of romantic relationships, but was single at the time of her disappearance, and had subscribed to a "matchmaking" service.
In terms of her health and medical conditions, the deceased smoked cigarettes and would drink heavily on occasions. She also had poor circulation in her feet and ankles, had had her gall bladder removed, and suffered from scoliosis (abnormal curvature of the spine).
She had also been diagnosed with Raynaud's Disease. That is a condition that affects the extremities of the body (the fingers, the toes, and sometimes the nose). As a result of coldness or stress, there can be a painful spasm in the blood vessels leading to the extremity becoming pale or even blue. Some forms of the disease are linked to diseases of the connective tissues that can in turn seriously interfere with the operation of organs such as the heart, the lungs, and perhaps the kidneys.
From July until September 1983, the deceased was in a romantic relationship with a Mr Frank Barbara. She had strong feelings for him, which were not entirely reciprocated.
On the Sunday evening before Friday 23 September 1983, Ms Biddle and the deceased had dinner together. The deceased was in good spirits, and told her friend that she was organising a farewell dinner for a nurse who was moving to Canberra.
After they finished work on the evening of Friday 23 September 1983, the deceased and her friend, Ms Leslie Parker (former name Kennedy) drove together to the deceased's apartment in Drummoyne. Ms Parker had taken a change of clothes to work, so that she could go to the farewell function without returning home. Each of them showered and changed, and they enjoyed a glass of champagne together before leaving for the dinner.
At around that time, Mr Barbara spoke to the deceased on the phone. She informed him that Ms Parker was at her home, and that they were going to the function together. Mr Barbara and the deceased made plans to catch up the following week.
The deceased and Ms Parker caught a taxi to the Malay Restaurant in North Sydney. On the way there they picked up Ms Mary Williams, another nursing colleague.
Present at the function were approximately 40 guests. Service of the meal was delayed, and quite a bit of alcohol was consumed. Ms Helen Morrison (former name Finn), the guest of honour, was presented with a farewell gift by the deceased. Ms Morrison noted at that stage that the deceased was quite affected by alcohol, in that she was repeating herself and slurring her words. At the end of the evening, Ms Morrison walked home directly from the restaurant.
Some time before midnight on Friday 23 September 1983, a doctor offered Ms Parker a lift home. The deceased playfully accused Ms Parker of being "a piker", and told her that she herself had had a lot to drink. Ms Parker left directly from the restaurant, at which seven to nine members of the party remained.
The function at the restaurant concluded. The deceased left the function with Ms Williams, Ms Debbie Mullin and her husband, and Ms Vicki Taylor. They travelled to the Stoned Crow, a nearby wine bar, where they met Mr Chris Liney, and two young women who were in his company. Ms Taylor described the deceased at that stage as being in good spirits, laughing and giggling, but not falling down drunk.
Later at the Stoned Crow, the deceased told a number of persons that she had been "bashed". She said that a man had asked her to go home with him, she had declined, and he had hit her in the face.
Ms Taylor gave evidence that it was noted at the Stoned Crow that the deceased could not be found, and people went outside to look for her. The deceased then rushed past Ms Taylor into the women's toilets of the Stoned Crow. Ms Taylor followed her in, and asked her what was wrong. It was then that the deceased told her that she had been assaulted. Ms Taylor could not see any injuries to the deceased, but noted that she was crying and recalled mascara running down her face. Eventually, the deceased returned to the socialising within the Stoned Crow.
Ms Taylor went home from the Stoned Crow at about midnight or 1am on Saturday 24 September 1983 with Ms Mullin and her husband. The deceased and Ms Williams were still at that wine bar when Ms Taylor left.
When the Stoned Crown closed at 2 AM, the remaining group comprised of the deceased, Ms Williams, Mr Liney, and his female flatmate travelled on foot to another nearby wine bar, the Alpine Inn. It was there that the accused and deceased intersected for the first and only time.

[15]

Undisputed evidence

As I have said, the accused was born in May 1952, and accordingly was 31 years old in September 1983.
On 27 September 1976, Mr Patrick Besso, parole officer, prepared a pre-sentence report with regard to the accused, who was then incarcerated. Mr Besso had spoken to the accused about the fact that the accused had written letters and poetry to his then-girlfriend.
In the late 1970s, Mr Ross Adams (no relation of the accused), then a young man, used to frequent the Crows Nest Hotel and the Cammeray Hotel. At those venues he met a number of men who played rugby. He began to play rugby with the Cammeray Northbridge Rugby Club, and to socialise with the other players and their friends. He went on tour with the rugby club in 1981.
In December 1982, Ms Suzanne Newhouse (former name Beckingham) began sharing a flat with the accused. She believed that Mr Ross Adams was also living in the flat at that stage. She had answered an advertisement for a flatmate placed by the accused, whom she understood to have been renting the flat for some years.
The evidence of Mr Ross Adams was that he met the accused through the rugby club, and it was during the 1983 season that the accused offered him a room in an apartment in Chatswood. When Mr Ross Adams moved in, one bedroom remained vacant, and it was shortly afterwards that Ms Newhouse moved in. I interpolate that that minor divergence between Ms Newhouse and Mr Ross Adams is of no moment.
According to Mr Ross Adams, the three flatmates got on reasonably well. It was the habit of Mr Ross Adams to spend about half the week at the home of his parents in Randwick (from Sunday until Tuesday), and the rest of the time at the flat. He would take his washing home to his parents each week.
As at September 1983, the accused was working as a carpenter in Lane Cove River Park. He owned at some stage a red VC Holden Commodore, and, as at 24 September 1983, a brown VH Holden Commodore with the registration number MAA 265. He had purchased that vehicle from Sundell Motors, where the vehicles of the accused were serviced by Mr Peter Jones. Mr Jones was also involved in the rugby club, along with the accused and Mr Ross Adams.
At about 4 PM on Friday 16 September 1983, Ms Barbra Andrews (former name Pittman) met the accused whilst he was doing some paving work outside his block of flats. They chatted for 10 to 15 minutes. The following morning, Saturday 17 September 1983, Ms Andrews and the accused met again, when she was taking her rubbish out and he was leaving his flat. They spoke for two minutes. The accused invited her to a party, an invitation that she declined.
According to a version of events he gave to the Police on 29 September 1983, and in the ERISP in which he engaged on 20 December 2013, the accused finished work on Friday 23 September 1983 at about 4.30 PM. He commenced drinking at various locations on the lower North Shore. He commenced at the Crows Nest Hotel, and from there travelled to Sheila's Wine Bar. Eventually he arrived at the Alpine Inn, which was across the road from the Stoned Crow, at about 2.20 AM on Saturday 24 September 1983. It was there that he met the deceased.

[17]

Undisputed evidence

As I have said, the deceased and the accused met at the Alpine Inn in the early hours sometime after 2 AM on Saturday 24 September 1983.
On the arrival from the Stoned Crow of the group that included the deceased, she sat on a bench seat and Ms Williams went to the bar. Mr Liney was sitting on a stool a short distance from the deceased.
On her return from the bar with a drink, Ms Williams saw two men sitting next to the deceased, one older and one younger. The older man was Mr Ullie Rabsch, the bar manager of another wine bar on the lower North Shore, who had known the deceased for some years. The younger man was the accused. Ms Williams gave the drink to the deceased and went over to sit with Mr Liney.
When Mr Rabsch had first seen the deceased at the Alpine Inn, he had sat down next to her, they had embraced, and he asked how she had been. She told him about having been assaulted at the Stoned Crow by a man because she did not wish to go out with him. Mr Rabsch could see no injuries to the deceased. Mr Rabsch formed the opinion that the deceased was very intoxicated.
As I have said, there was no dispute in the trial that the younger man with the deceased was the accused. In evidence, Mr Rabsch recalled the accused as being "amazingly, immaculately" dressed. It seemed to Mr Rabsch that the accused was uncomfortable with the presence of another male. As a result, Mr Rabsch left the deceased and the accused alone.
Later, the deceased asked Mr Rabsch whether he would give her and Ms Williams a lift home when he came to leave. He explained that he would be getting a lift himself, and going in the other direction.
Ms Sandry Coady (former name Baird) was the flatmate of Mr Liney. She described dancing at the Alpine Inn. She also described taking the deceased to the women's toilets on a number of occasions, where the deceased was physically sick.
Mr Rabsch left the Alpine Inn at about 3.15 AM. He farewelled the deceased, noting that she was still quite intoxicated. At that stage, she was still talking to the accused.
At some indeterminate time after the arrival of the party at the Alpine Inn, Ms Williams saw the deceased walk towards the entrance of the bar. The women's toilets were in the same general direction. The deceased did not return for 15 minutes or so. Eventually, Ms Williams went to look for her friend. As she approached the women's toilets, Ms Williams saw the accused walking out of the men's toilets, which were adjacent to the women's. He did not enter the women's toilets at that stage. Ms Williams entered the women's toilets looking for the deceased. There were two cubicles, one of which was locked. Ms Williams banged on its door several times and asked "Are you alright?" There was no reply.
Ms Williams walked out of the toilets and saw the accused in the vicinity. She said to him "She must be in there, I can't get her to unlock the door and she won't answer". The accused replied "I better come in and have a look". Inside the women's toilets, the accused unsuccessfully used a key to manipulate the locked cubicle door. He then tried to shoulder the door open three times or so, all of them unsuccessful. Ms Williams said "Don't do that, you'll break your shoulder", to which the accused replied "I should be used to it, I'm a policeman". That was, of course, untrue: the accused has never been a police officer.
Eventually, the accused succeeded in kicking the door open. Ms Williams observed the deceased sitting on the toilet, fully clothed, with her head in her lap. Ms Williams asked "Mary, are you alright?" The deceased replied "My head hurts". Concerned that the door had hit the deceased when it flew open, Ms Williams examined her head for injuries, but saw none.
Ms Williams said to the deceased "We better get you up and get you home". The accused, who was still present, said "I think she's left her bag inside", referring to the bar. Ms Williams re-entered the bar and retrieved the purse of the deceased, returned to the vicinity of the women's toilets, and saw the deceased standing outside them with the accused.
Ms Williams, the deceased, Mr Liney, and the accused all walked out onto the footpath. The time is unclear, but it must have been after the departure of Mr Rabsch at 3.15 AM. Ms Williams said "We better get a cab", but there were no taxis to be seen. The accused said "I've got my car here" and pointed to a car parked out the front of the Alpine Inn. In her evidence, Ms Williams recalled it as a reasonably new silver coloured Holden Commodore with clear perspex bull bars. The accused said "I can take her home". In response to the enquiry of Ms Williams as to whether he knew where the deceased lived, the accused correctly spoke of Drummoyne. When asked by Ms Williams whether he was fit to drive (in terms of sobriety) the accused repeated his earlier lie: "I am a policeman".
By this stage, the deceased was sitting slumped on a step, according to Mr Liney. Ms Williams asked her "Do you want to go home with this fellow?", to which the deceased replied in the affirmative. Ms Williams helped her friend into the passenger seat of the car. Mr Liney asked the accused if he would be driving near the home of Mr Liney on River Road (in order to obtain a lift himself), but the accused said he was not going in that direction. The accused entered the driver's seat, and the car drove away from the wine bar in the direction of Willoughby (that is, to the North). Ms Williams left the Alpine Inn with Mr Liney shortly afterwards.
As I have said, the departure of the deceased in the vehicle owned and driven by the accused is the last occasion on which she has ever been seen (or otherwise perceived to be alive) by family, friends, colleagues, acquaintances, the police, or indeed anybody in the world other than the accused. That includes security patrols of the Crows Nest area, none of whom were found (on subsequent police enquiry) to have observed the car of the deceased parked where he subsequently claimed it to be.

[18]

Disputed evidence

The position of the accused, as revealed in his conversation with police on 29 September 1983, and his ERISP of 20 December 2013, is as follows.
The accused did indeed drive his motor vehicle, with the deceased as sole passenger, in a northerly direction up Willoughby Road away from the Alpine Inn. He quickly realised, however, that he was too drunk to drive. Having driven about 100m north on Willoughby Road, he turned left (into what must have been Albany Street), and pulled over. He and the deceased then engaged in consensual sexual contact in his vehicle in the early hours of the morning in that public place. Due to his intoxication, the accused was not entirely clear whether actual intercourse took place. He did subsequently believe that his penis had been exposed. He also must have ejaculated, because he subsequently cleaned the front car seats because they were stained with his semen (I shall provide more detail about that activity shortly).
After the sexual contact concluded, the accused passed out. He awoke at about 5 AM, and the deceased was nowhere to be seen. He composed himself, drove home, and commenced his Saturday morning.
The Crown did not dispute at trial that the accused stopped the vehicle somewhere with himself and the deceased in it. Nor did it dispute that the accused did not drive the deceased home, nor the assertion of the accused that there was sexual contact between the two of them in the vehicle that led to ejaculation.
But the Crown submitted that I would be satisfied that the accused did not have intercourse, or indeed any sexual contact with the deceased, with her consent.
Rather, the Crown submitted that the combined effect of a large number of circumstances would inevitably lead me to conclude that, shortly after their departure from the wine bar, the accused choked or strangled the deceased in order to force her to submit to sexual contact with him in his vehicle. The Crown also asked me to infer that the act of choking or strangling the deceased promptly caused her death, either by deprivation of oxygen; deprivation of blood to the brain; stimulation of various nerves in the neck (and perhaps other parts of the body), which caused her heart to slow down or stop; or a combination of one or more of those medical mechanisms. That submission was based upon the evidence of Dr Duflou, who gave oral evidence about those mechanisms generally in the trial.
The Crown did not allege that the accused, in choking the deceased, intended to kill, or intended to inflict grievous bodily harm, or indeed was recklessly indifferent to human life, as that term is defined at law. Rather, the Crown submitted that the accused choked or strangled the deceased with the intention of having intercourse with her without her consent, well knowing that she was not consenting.
As I have said, the Crown submitted that, by way of the doctrine of felony murder, if I am satisfied beyond reasonable doubt that that is how the deceased died, then the accused is guilty of the offence of murder.

[19]

Undisputed

Much of the evidence about what occurred on the Saturday and Sunday was in dispute, including with regard to what occurred, the time at which it happened, and the order in which it happened. The following general propositions, however, were agreed between the parties.
A "champagne breakfast" was held at the home of "Duke" Smith, a member of the rugby club, in the Sydney suburb of Naremburn. The accused arrived early, perhaps as early as 6.30 in the morning. Many of the guests confirmed that he was present. One guest, Mr Robin Fletcher, observed the accused to produce a case of beer from his boot on arrival. Mr Fletcher recalls discussion at the party that the boot was wet when the beer was taken from the car.
More than one guest recalled the accused being at the breakfast in casual clothing featuring a T-shirt, shorts, and thongs, as opposed to his smarter outfit of the evening before.
More than one guest saw the accused fall asleep at the social event later on the Saturday morning, perhaps at around 10 AM.
Separately, from about 9 AM on the Saturday, friends and family of the deceased tried to contact her. Ms Biddle-Broadfoot telephoned her at home at about that time, but there was no answer. The deceased had a family function organised for the Saturday afternoon or evening, but she neither attended nor telephoned. Because that was so out of character for the deceased, people became very worried about her.
Returning to the activities of the accused, at some stage on the Saturday, Ms Barbra Andrews (who, it will be recalled, met the accused the previous weekend) saw the accused out the front of his flat. He invited her to a party that evening. She neither accepted nor declined. He asked her to call him later that afternoon with an answer. She did so at about 2 PM, and accepted the invitation.
At about 6 PM, the accused picked up Ms Andrews at her home, but informed her that they should go to the bar of a hotel instead of a party. They returned briefly to his flat, and the accused changed his clothes. They walked to a hotel in Chatswood, and had some drinks there. At about 9 or 9.30 PM, they returned to his home, watched television, and had intercourse. Ms Andrews arrived back at her own home at about 11.45 PM on the Saturday.
On the Sunday, Ms Williams, Ms Kennedy, and the father of the deceased met at her apartment in Drummoyne. Knocking on the door received no response, so her father broke in. The three of them went inside, but there was no sign of the deceased. Ms Williams saw the champagne glasses and a small bowl of peanuts just as she and the deceased had left them when the two young women departed for the farewell dinner on the Friday evening. Later on the Sunday evening, her father reported the deceased as a missing person to the police.
By the end of the weekend, many family members and friends of the deceased were deeply concerned, and a police investigation into her disappearance was under way.

[21]

Suzanne Newhouse

At about 8.30 AM on Saturday 24 September 1983, Ms Newhouse (the female flatmate of the accused) was asleep in bed. She had retired to bed about 11.30 PM on the Friday evening, and had not been woken during the evening, either by the accused, or Mr Ross Adams (the male flatmate of the accused). She usually slept with her bedroom door open when nobody was home.
At 8.30 on the Saturday morning, Ms Newhouse received a phone call at the apartment. The male caller asked where "the bastard" was, referring to the accused. He told her to tell the accused that "PJ" rang, and that he was calling from the Big House Hotel in the centre of Sydney. After the call ended, she went back to bed for a short period. Thereafter, she got up and went to the newsagent to collect the newspapers, and then returned to the flat.
At about 10.30 or 11 AM, Ms Newhouse saw the accused return to the flat. She asked how his night had been, and he replied "Just the normal". The accused obtained a beer from the fridge, went to the lounge room of the flat, and watched television. When seen by Ms Newhouse, he was wearing dark trousers and a cream shirt. Ms Newhouse told the accused of the telephone call from PJ. The accused left the house for a short time, and returned after about half an hour.
At about 11.45 AM, Ms Newhouse left the flat. At the time, the accused was in his room with the bedroom door shut. Ms Newhouse returned at about 2 PM, and the bedroom door of the accused was still shut.
After about an hour, the accused came out of his room. He was wearing a T-shirt, shorts, and thongs. He told Ms Newhouse that he was going to a party. At about 4 PM, Ms Newhouse left the flat to help a friend to move house. When she left, she saw the car of the accused parked in the street.
At about 2 to 2.30 AM on Sunday 25 September 1983, Ms Newhouse returned to the flat and saw that nobody was home. She watched TV in the lounge room, and then went to sleep at 3.30 AM. Nobody was home at the time she went to bed.
Ms Newhouse awoke at about 8 AM on the Sunday, and commenced to watch television.
At about 9.30 or 10.30 AM on the Sunday, the accused came home. He went to the fridge, obtained a beer, and then went to the lounge room to watch television. Ms Newhouse went out for groceries, and returned 15 minutes later.
When she came back to the apartment, the washing machine (which was located in the kitchen) was operating.
Later in the day, when the Rugby League grand final was on television, Ms Newhouse did her own load of washing. Once the washing cycle stopped, she went downstairs to hang her washing on the clothesline of the block of units, and saw that the accused had hung his car seat covers on the clothesline to dry. She also saw brown sheets hanging on the line, which she identified as some sheets that she had given to the accused so that they could be given to one of his friends.
Later again, Ms Newhouse washed the car of her father, which she was using at the time. She returned upstairs to the apartment, and saw that the accused was present. He left the flat, and she wondered where he had gone. Ms Newhouse entered the bedroom of the accused. From his bedroom window, Ms Newhouse looked down to the parked area at the front of the block of flats, and saw that the accused had the floor mats out of his car and that its boot was open. The car was parked on the paved area at the front of the block of flats. Ms Newhouse saw the accused with a hose in his hand, and she observed him to be scrubbing the interior of the boot. She also saw that he had removed a number of items from the boot, including a bag of tools, some clothes, some tools, a piece of carpet, and an orange towel.
Later that evening, at approximately 6 PM, Ms Newhouse went to her parents' house to return her father's car, and to have a Sunday roast dinner with her family. At about 9.30 PM, Ms Newhouse returned to the apartment. She saw that the accused was watching a movie on television. After that, he went to his bedroom. She herself retired to bed.
On the Monday morning, 26 September 1983, Ms Newhouse rose at about 6.45 AM. Whilst she was getting ready for work, she saw the accused come out of his bedroom wearing his work clothes. Ms Newhouse was aware at the time that the accused was working at Lane Cove National Park.
At about 5.45 PM on the Monday, Ms Newhouse arrived home from work. She saw the accused sitting on the lounge. The washing machine was operating. After it had finished, Ms Newhouse saw the accused remove from the washing machine the clothes that he had been wearing on the morning of Saturday 24 September 1983.
At trial, defence counsel submitted that there was a significant difference in recall between when Ms Newhouse was asked a leading question in examination-in-chief (with which she would readily agree) as opposed to a more general question in cross-examination (which would result in uncertainty). He pointed to the specific example in her evidence, whereby Ms Newhouse spoke inconsistently of whether or not she had assisted a female friend to pack on the Friday night. He submitted that Ms Newhouse had no independent recollection of the events of 1983 beyond her previous statements, and that she had simply relied on documents in giving her oral evidence in the witness box.
Ms Newhouse agreed in cross-examination that she first provided information to police about the events of the weekend when they came to the flat, prior to her first formal statement to them of 2 October 1983. She did not recall, however, what she had said on that first occasion, or the questions that they had asked.
She accepted that she did not tell police during that initial questioning that she had observed the accused washing out his boot, but provided this information in a subsequent undated letter addressed to "Sergeant" prior to providing her first statement.
As I have said, on 2 October 1983, Ms Newhouse spoke to police. Although her statement of that occasion was not tendered in evidence, one can infer that she told Detective Counsel the following.
She said that she arrived home on Friday 23 September 1983 at about 10.30 PM. She went to bed at about 11.30 PM. She was woken at 8.30 AM on the Saturday by the telephone call from PJ. The accused arrived home later that morning.
Ms Newhouse also told the police that she had left the home at 4 PM on the Saturday, returning at about 2 or 2.30 AM on the Sunday to watch the America's Cup sailing race on television. She fell asleep in her bedroom, with the bedroom door open.
Ms Newhouse also told the police of a telephone call of 30 September 1983 from the accused, which I shall detail shortly.
Defence counsel submitted that Ms Newhouse had not raised the specific suggestion that the accused had hosed out his boot (as opposed to cleaning it with water and rags, which was raised in the letter that was written after her first conversation with police, but before her first formal statement) prior to giving evidence in the trial, despite the unusual nature of such an activity.
Defence counsel observed that the timeline provided by Ms Newhouse was inconsistent with the accounts of other witnesses about the movements and clothing of the accused on Saturday 24 September 1983.
Additionally, in her original account of the cleaning of the car, Ms Newhouse stated that she saw the accused walk to his car and drive it into the driveway, whereas in the witness box she stated that, when she first saw them, the accused and his car were already in that location.

[22]

Ross Adams

The evidence of Mr Ross Adams was that he returned to his home on the Saturday morning at about 10 or 10.30 AM. He stayed for only a brief time before departing. At the time, he was playing competitive cricket and "would have been" collecting his cricket whites before playing. Mr Ross Adams passed the accused in the street: Mr Ross Adams was driving away from the block of flats, and the accused was driving towards it.
Separately, around the time that the deceased disappeared (but not necessarily on the weekend in question), Mr Ross Adams saw the accused washing his car. He also saw the accused leaning over the boot and, from his bodily movements, Mr Ross Adams inferred that the accused was scrubbing the interior of the boot. Mr Ross Adams saw a carpet on the ground, next to the boot. Mr Ross Adams observed all of this from his bedroom window within the apartment.
At some stage shortly after he observed the accused to be cleaning the car in that way, Mr Ross Adams asked him why he had been cleaning his boot so vigorously. The accused told Mr Ross Adams that he had killed some ducks at Lane Cove.
On 1 October 1983, Mr Ross Adams spoke to Detectives Counsel and Matthews. The occurrence pad entry of that conversation demonstrates that Mr Ross Adams outlined his movements on the Friday night and Saturday morning, stated that he had passed the accused in the street, and that he appeared to be "just coming home". Otherwise, Mr Ross Adams could not assist with the movements of the accused on the Friday night or Saturday morning.
On 11 October 2010, Mr Ross Adams gave his first formal statement to the police, after he had been contacted by them. As I have said, he had originally been interviewed by police on 1 October 1983, but no formal statement had been prepared at that time.
Mr Ross Adams gave a second statement to police on 19 October 2010, 8 days after his first formal statement. In that statement, when speaking of observing the accused washing the boot of his car from his own bedroom window, Mr Ross Adams stated that he could, in fact, have been watching from a window in another room.
Defence counsel submitted that the evidence of Mr Ross Adams and Ms Newhouse was contradictory, as Ms Newhouse recalled Mr Ross Adams leaving the house on the Sunday morning, and the accused washing his car on the Sunday afternoon. Mr Ross Adams, therefore, simply could not have witnessed the accused washing his car on that day, because he would have been at the home of his parents.
Additionally, Mr Ross Adams could not be clear about the specific day that he allegedly saw the accused washing his boot, but only noted that it was around the time of the disappearance of the accused.
As I have said, Mr Ross Adams stated that he had asked the accused why he was washing his boot, and the accused had provided the explanation that he had been transporting ducks, which defence counsel submitted was a plausible explanation.
Defence counsel also submitted that Mr Ross Adams provided inconsistent evidence about occasions on which he had previously witnessed the accused cleaning his car.
Finally, defence counsel pointed to the fact that, for whatever reason, Mr Ross Adams is recorded in the occurrence pad entry as saying nothing about having seen the accused washing his car in general, or its boot in particular, when first spoken to on 1 October 1983. To express that proposition another way, Mr Ross Adams said nothing to police about that until the time of his first formal statement of 11 October 2010, 27 years after the alleged events that he was then recounting.

[23]

Barbra Andrews

Ms Barbra Andrews gave evidence that she recalled seeing the accused dressed in shorts, thongs and a casual top on the Saturday of the weekend in question. At the time, either he was washing his car or she was washing hers. The accused invited her to a party, and the arrangement was made that she would call the accused after 2 PM. Ms Andrews spoke of the accused changing at his home, the undisputed visit to the bar, the two of them walking to the hotel at Chatswood, their return to his home, and the subsequent intercourse.
Ms Andrews also gave evidence that, on the Sunday at 3 PM, she went for a drive with her sister and daughter. The car broke down and had to be towed to a service station. The three of them walked home. Whilst walking, Ms Andrews saw the accused in the driver's seat of his car. In the witness box, Ms Andrews recounted that she in fact saw the accused hosing out the boot of his car on that occasion.
Despite their sexual contact the evening before, Ms Andrews did not speak to the accused. She gave evidence in the trial that that was because she was fearful of the accused, as a result of how he had treated her the preceding evening.
That evidence, however, was not notified to the accused as tendency evidence. Furthermore, despite me granting an application for the re-examination of Ms Andrews to be deferred so that the Crown Prosecutor could confer with her, no re-examination was conducted. Finally, the Crown Prosecutor did not rely on that evidence, perhaps suggestive of sexual violence on the Saturday evening, in any way in his final address. In those circumstances, I interpolate that I have put the nebulous allegation made by Ms Andrews from my mind.
In cross-examination, Ms Andrews could not be certain whether she had informed anyone, prior to entering the witness box in the trial, that she had observed the accused to be cleaning his boot on Sunday 24 September 1983. That included, notably, when she was speaking to Detective Jones, the solicitor for the Director of Public Prosecutions, and the Crown Prosecutor, in 2016.

[24]

Version of the accused

As I have said, the accused was interviewed by Detectives on 29 September 1983. Although no contemporaneous documentary or other record of that interview was created, at trial the accused did not dispute what he was alleged to have said. Furthermore, during the ERISP of 20 December 2013, the substance of his version of events of 30 years before was put to the accused, and he was content with it. I proceed to summarise his version of what occurred on the Saturday and Sunday.
The accused fell asleep in the driver's seat of his vehicle after the sexual contact with the deceased came to an end. He awoke in the same position at about 5 AM on the Saturday. The deceased was nowhere to be seen, and the accused assumed that she had simply departed and made her own way home.
The accused drove himself home, drank two beers, changed his clothes, and did some washing in the form of sheets, pillow cases, and work clothing. That household task was undertaken very early on the Saturday morning, because he left home at Chatswood in time to arrive at the champagne breakfast at Naremburn by around 7 AM. He took a case of beer with him to that social event.
Eventually, he fell asleep in the backyard, waking again at about 12 midday. He returned home, had a shower, and returned to the party at about 2 PM. He returned to his home a third time that day at 6.30 PM.
Later that evening, the accused had intercourse with Ms Andrews. His version of the events leading up to that generally conformed with her chronology. According to the accused, she left his flat at about 1 AM on the Sunday.
The position of the accused was that, during the day on the Sunday, he stayed at home, drank some beers, watched the Rugby League grand final in the afternoon, and thereafter watched a murder mystery on television.
His version was that, on the Monday, he went to work at the Lane Cove River Park at about 7.30 AM. In the afternoon, back at the block of units, he washed his car seat covers because they were stained with semen, as a result of the sexual contact between the deceased and himself very early on the Saturday morning. He took the opportunity to vacuum the car, and also to rinse the boot in search of a leak that had developed.
I interpolate that there was evidence in the trial that Holden Commodores of the early 1980s suffered from a build defect, whereby the seals of their boots were imperfect, with the result that their boots would leak. Having said that, Mr Peter Jones (who, it will be recalled, was employed at the car dealership and service centre) spoke of a procedure whereby two workers would be needed to identify the site of the leak: one would be enclosed in the boot with a torch, and the other would be outside spraying water onto the boot.
I also interpolate that defence counsel submitted that I should approach the version of the accused (about cleaning his car and hosing the boot on the Monday afternoon) as being easily mistaken, one way or another. In other words, it was said that I could take the view, on all of the evidence, that the accused may well have been speaking of the day before, the Sunday, as the day of the car cleaning and boot hosing, not the Monday, when he spoke to detectives on 29 September 1983, and on 20 December 2013 in the ERISP. In the alternative with regard to how such an error may have developed, he submitted that the police in 1983 may have made a slip of a day with regard to the version given by the accused, especially bearing in mind that the notes of the interview were not adopted by the accused.

[25]

Undisputed evidence

On Tuesday 27 September 1983, Ms Williams made a statement to police about the events of the evening of 23 September 1983. She prepared an identikit picture of the man who departed the Alpine Inn with the deceased. A copy of that image became exhibit A in the trial. It was not disputed in the trial that the image approximates the appearance of the accused that weekend.
On 29 September 1983, information was provided to investigating police to suggest that the accused may have been the man that departed the Alpine Inn with the deceased. The detail of the information was not further pursued in the evidence in the trial.
At 11.15 PM on Thursday 29 September 1983, Detective Senior Constable Counsel and Detective Senior Constable Matthews observed the accused driving his vehicle. They caused it to be stopped, spoke to the accused, conducted a search of the vehicle, and located cannabis under the driver's seat.
Both the accused and his motor vehicle were taken to North Sydney Police Station. The car was seized by police, and retained for a number of weeks. The accused was interviewed there with regard to his interaction with the deceased (I have already provided a summary of what the accused said on that occasion). After the interview was completed, the accused was charged with possessing a prohibited drug (the cannabis located in the vehicle), and impersonating a police officer (based on the things that he had said at the Alpine Inn).
On the same evening, Mr Robin Fletcher, an associate of the accused from the rugby club, was telephoned by the accused. The accused asked Mr Fletcher to bail him out on his two pending charges. The accused also said "Tell the sergeant what I was wearing", referring to the attendance of the accused at the champagne breakfast on the Saturday morning. Mr Fletcher told the detectives that the accused was wearing a T-shirt, black shorts, and a pair of thongs. The accused was released to bail.
On Friday 30 September 1983, Detective Counsel attended the apartment of the deceased in the company of Detective Sergeant Butcher (nowadays he would be referred to as a scene of crime officer) and Dr Baxter (an analyst from what is now known as the Forensic and Analytical Science Service (FASS)). Fingerprints were collected from the scene, along with a hairbrush that contained a number of hairs.
On the same day, the accused telephoned Ms Newhouse at about 3 PM. He asked her why she had let the police into the flat they shared, and told her that she had no right to do so. That was in reference to the occasion earlier in the week when the police arrived at the flat, Ms Newhouse allowed them entry into the flat, and she briefly spoke to them. The accused also asked her what she had told police. Ms Newhouse explained that she had no familiarity with police, and said "What else was I supposed to do?" She refused to tell the accused what she had told the police. After that phone call, Ms Newhouse promptly moved out of the shared flat in Chatswood.
As I have previously detailed, police spoke to Mr Ross Adams and Ms Newhouse on 1 October 1983 and 2 October 1983 respectively.
On 5 October 1983, detectives went to the Lane Cove River. Nothing of relevance was located.
In the meantime, Dr Baxter was in the process of examining the motor vehicle of the accused. A fingerprint was found on the interior of the boot, but it was the fingerprint of neither the deceased nor the accused.
On 5 October 1983, enquiries were made with security patrols in the Crows Nest area. As I have said, no record of the vehicle of the accused being seen parked in that area in general, or Albany Street in particular, was able to be located.
On 6 October 1983, Detective Walsh (a scene of crime officer) vacuumed the boot of the car of the accused. He placed the contents in a brown paper bag. He labelled it "83/1363, Re missing person Mary Louise Wallace, Matter vacuumed from boot of Holden Commodore Sed. No. MAA-265, B.J.W D/Sgt 2/C Chatswood, 6/10/83", and signed it. He handed the paper bag to Detective Milroy. There was no detail in the trial about precisely how all of that was done.
Separately, the vacuum cleaner of the accused was seized, along with its contents. That was because the accused had told police that he had used his vacuum cleaner to clean the interior of his car some time after his interaction with the deceased.
On 7 October 1983, police confirmed that the deceased had been subscribed to a telephone dating service whereby she could meet men for possible romance.
Around the time of the week of the 14 October 1983, the police commenced to search in bushland near Delhi Road, Lane Cove Road, Lady Game Drive and Bradfield Road in the Northern Suburbs of Sydney. Police divers searched the Lane Cove River. Nothing of relevance was found.
Meanwhile, during the week of 20 October 1983, Ms Susan Holman (former name West) commenced work at a kiosk at Lane Cove National Park. At about 1 PM on a day during that week, the accused came to the counter of the kiosk and spoke to Ms Holman.
He said that he had just divested himself of $10,000 by giving it to his solicitor. He also said that he was suspected of murdering "the nurse from Crows Nest" and that he was the "prime suspect". In answer to an enquiry of Ms Holman, the accused said that he was not the boyfriend of the deceased, but had just met her that night. He said that he had driven the deceased around the corner, and had passed out with his pants around his ankles. He told Ms Holman that he did not remember anything. He also said "Do I look like I have a murderer's face?"
The accused told Ms Holman that he was subject to "holding charges" and could not go anywhere. He also said that his financial situation was being investigated.
The accused also said to Ms Holman "You better watch out, or I might hit you over the head and rape you as well". Ms Holman riposted "If you do that, you might find yourself with a knife in your guts". The accused laughed and walked off. Cross-examination of Ms Holman showed that it was disputed between the parties at trial whether the accused appeared to be joking or not.
At some stage during the conversation, Ms Holman had told the accused that the kiosk had a problem with mice. One or two days later, the accused returned to the kiosk, and told Ms Holman that he had a solution to the mouse problem. He produced an upturned coffee cup. Underneath it was what Ms Holman believed was a live funnel web spider. She felt frightened by the actions of the accused.
A few days later, Ms Holman was about to close up the kiosk. Whilst she was on the phone, the accused appeared. The accused asked for a Cornetto ice-cream, and she gave it to him. He also spoke of setting up a mouse trap.
Whilst she was locking up, the accused placed his arm around her waist, and rubbed his body up and down against her. She removed his hand from her person, locked the door of the kiosk, and walked straight to her car. Later, she told her boyfriend what had happened, and promptly made a statement to the police.
On 10 November 1983, investigating police received an anonymous handwritten letter. It was to the effect that the body of the deceased was buried in a crevice in bushland. The letter enclosed a portion of a page from a street directory, with an area marked as a suggested location for a search.
A photo of the letter became exhibit XXX. It is clear that the author of the letter had a command of English spelling, punctuation, and grammar. The postmark on the envelope of the letter is Katoomba, and the date of the postmark is 7 November 1983. A fingerprint was detected on the letter. It was not that of the accused.
On 10 November 1983, investigating police took the material vacuumed from the boot of the car of the accused, along with hairs obtained from the hairbrush, to the laboratory at Lucas Heights for the purpose of an examination that featured irradiation.
Chief Inspector John Goulding conducted that examination. No meaningful results could be obtained.
A couple of weeks after 10 November 1983, detectives retrieved the samples from Lucas Heights that had not been destroyed, and placed them at the Chatswood Crime Scene Office.
In early 1984, the police received a letter relating to the disappearance of the deceased. It bore a postmark that showed the place of mailing as Dee Why and the date as 20 February 1984. The author of the letter does not have a good command of spelling in the English language. The letter refers to details surrounding the disappearance of the deceased, including the number plate of the vehicle of the accused, and the fact that the deceased lived in Drummoyne. The letter also refers to there having been sexual contact between "RA" and the deceased. Although there had been significant publicity about the disappearance of the deceased, Detective Counsel gave evidence in the trial that the version of events of the accused (including that there had been sexual contact between himself and the deceased) had not been promulgated.
The author of that second letter is, one might infer, a very disturbed person.
Police made a number of searches in the subsequent months and years. They included at Lane Cove National Park, where the accused was employed. They also included searches in accordance with the map received with the anonymous letter in late 1983. Nothing of relevance was located.
By 1988 or 1989, Mr Ross Adams was still living with the accused. The accused commenced a romantic relationship with a woman called Linda, and the two of them purchased a house together in Gladesville. The accused and Linda moved into that home. Mr Ross Adams moved in with them as a tenant.
Some time in 1988 or 1989, Mr Ross Adams was drinking with the accused at Gladesville RSL Club. Mr Ross Adams ventured to ask "What happened to that nurse?" The accused leant over, put his face quite close to that of Mr Ross Adams, and said in a serious tone "What's that to you?" That way of communicating, including tone of voice, was not the usual way in which the accused and Mr Ross Adams spoke to each other.
Eventually, the investigation wound down without any person being charged with an offence relating to the disappearance of the deceased.

[27]

Undisputed evidence

In October 2002, the New South Wales Police re-activated their enquiry into the disappearance of the deceased. Detective Sergeant Puffet became the officer in charge of the investigation. Efforts were made to locate all of the items seized as exhibits in the original investigation, all of the statements taken, and all of the documents otherwise created. That included Detective Puffet and another police officer locating a cardboard box at the Mosman Police Station storage unit that was labelled to the effect that it contained the exhibits from the original investigation. The exhibits were extracted, examined, photographed, and held securely.
At some stage, Detective Puffet and other police inspected the original search sites, including the area around the Lane Cove National Park observation deck (which had been demolished since 1983), and Kuring Gai Chase National Park. Nothing was found.
There was also physical surveillance of the accused at certain stages. No incriminating evidence was derived from that process.
A number of exhibits thought to be from the original investigation were conveyed to the FASS for DNA analysis. They included the hairs vacuumed from the boot of the vehicle of the accused, and the hairs from the hairbrush inferred to belong to the deceased. They were examined, and judged not to be suitable for nuclear DNA testing.
In 2007, Mr Ross Adams saw the accused. That was at a reunion of the rugby club.
In about 2009, persons who had previously given statements to the investigating police shortly after the disappearance of the deceased began to give further statements. They included Ms Mary Williams, Mr Chris Liney, and Ms Leslie Parker.
Ms Parker, when shown a photograph of the boot of the accused depicting it to contain a clog, came to the firm view that she could not only identify that item as the same kind of clog that the deceased used to wear, but also that she was able, 30 years later, to identify that mass-produced item from a photograph as the clog that the deceased wore.
I interpolate that the Crown Prosecutor did not rely on that as evidence of identification, but, at the most, as evidence of similarity. Nor was it his case, he confirmed, that the accused had disposed of the body of the deceased, but inexplicably left one of her clogs in the boot of his vehicle. Accordingly, I put the assertion of identification by Ms Parker to one side.
By 2010, Detective Jones had become the officer in charge of the investigation. It was during that year that Detective Jones and the accused first met. They had a conversation at his home with regard to the fact that an inquest into the disappearance of the deceased would be conducted in the Coroner's Court.
Between 5 and 7 October 2010, a further excavation of a location in Lane Cove National Park took place. Nothing of relevance was found.
After the investigation was recommenced, very extensive bureaucratic and administrative searches were undertaken to see whether there was any sign of the deceased still being alive. I refer to such things as inquiries with all police services in Australia, Centrelink, the Department of Immigration, the Registry of Births, Deaths and Marriages, all major financial institutions in Australia, the Health Insurance Commission, and the Australian Taxation Office. There was also a process of checking unidentified bodies found in New South Wales since the disappearance of the deceased. No sign of the deceased was detected.
On 2 December 2010, Detective Jones contacted Sundell Motors (from where the vehicle the accused owned as at 23 September 1983 had been purchased, and where he had been in the habit of having it serviced). The business had closed down six months prior, and the last principal of the business informed her that no records had been kept for the period prior to the 1990s.
An inquest was conducted in December 2010. Many witnesses who gave evidence in the trial before me also gave evidence at the inquest.
On 14 December 2010, Dr Duflou, forensic pathologist, gave evidence in the inquest into the disappearance of the deceased about possible mechanisms of death as a result of manual strangulation.
In late 2013, further scientific investigations were conducted. A swab was taken from the inside cheek of the sister of the deceased for mitochondrial DNA (mtDNA) comparison purposes.
The swab from the sister of the deceased, the hairs said to be from the hairbrush, and the hairs said to be from the vacuuming of the boot, were sent to Dr Dadna Hartman at the Victorian Institute of Forensic Medicine in Victoria for mtDNA testing.
Hairs said to be from the vacuuming of the boot of the deceased, and hairs said to be from the hairbrush, were sent to Ms Elizabeth Brooks, expert hair analyst within the Australian Federal Police in Canberra.
In her report of 15 January 2014, and a supplementary report of 10 June 2014, Ms Brooks made clear that all of the hairs located had been naturally shed; there was nothing to suggest that they had been pulled out. She also expressed the opinion that the hairs vacuumed from the boot were identical to the hairs taken from the hairbrush. At trial, whilst accepting that there was no statistic that expressed the rarity of that occurrence, she expressed the opinion that such a match is "incredibly rare".
In her reports of 12 December 2013, 3 March 2014, and 20 July 2016, Dr Hartman expressed the opinion that the hairs vacuumed from the boot had the same mtDNA profile as the hairs taken from the hairbrush. The buccal swab from the sister of the deceased revealed a slightly different mtDNA profile, but Dr Hartman expressed the opinion that that variation was not exclusionary, and could be explained as a natural variation between siblings.
Dr Hartman provided many calculations seeking to reflect the rarity of such a match. Her final position, encapsulated in a Power Point presentation that became exhibit 4E, was that, adopting a conservative approach, 1 in 518 persons in the Australian community would be expected to possess that mtDNA profile.
In the morning of 20 December 2013, the accused was arrested at his home on a charge of murder. He accompanied Detective Jones and other police to a police station. There he engaged in an ERISP, which commenced at 9.53 PM, and concluded at 11.41 PM. There was no evidence in the trial about the reason why that process was so delayed.
As I have said, in summary, the accused confirmed the correctness of what he had said to police literally three decades previously. For convenience, I shall briefly repeat some aspects of his version.
He agreed that he owned a brown Holden Commodore in 1983.
He agreed that, in 1983, he had told police that he was a carpenter at Lane Cove River Park. He also agreed that he had told police that, on Friday 23 September 1983, he had finished work at about 4.30 PM, gone home, consumed a few beers, and watched a movie. From 7 PM until 12 midnight on Friday 23 September 1983, he was at the Crows Nest Hotel drinking with friends. He could not recall going to Sheila's wine bar afterwards.
He did recall going to the Alpine Inn at approximately 2.20 AM on Saturday 24 September 1983. He had driven there, and believed that he might have parked out the front of the wine bar. His estimate was that he had consumed 20 to 30 schooners of beer before arriving at the Alpine Inn. The accused recalled talking to the deceased at the Alpine Inn, and attempting to "pick her up".
He recalled the incident in which he had kicked open the door of the cubicle in the women's toilets, and seeing the deceased inside. He also recalled having described himself as a police officer or an airline pilot. He explained that he was in the habit of telling lies about his occupation in order to impress women.
He recalled the deceased telling him that she lived in Drummoyne, and the fact that he had offered her a lift. He told the detectives in the ERISP that, in fact, his intention had been to take the deceased to his house, and to have consensual intercourse with her.
The accused told police that, at the time he drove away from the Alpine Inn, he was drunk. After he drove the car around the corner, he pulled over, feeling "fazy" or "fuzzy". He recalled that he and the deceased "fooled around", but did not, at the time of the ERISP, recall whether they had had intercourse. When he woke up in his car, the deceased was gone. Although he accepted that he had told police in 1983 that he had woken at approximately 5 AM, at the time of the ERISP he was unsure of the time.
After that, the accused drove to his flat in Chatswood, drank two beers, and changed his clothes. He did not see either Ms Newhouse or Ms Ross Adams when he returned home. His estimate was that he would have arrived home at about 5.10 AM, based upon the assumption that he had woken at 5 AM, and the fact that it would have been a short drive from Crows Nest to Chatswood.
At the time of the ERISP, the accused did not remember the time at which he arrived at the champagne breakfast, but agreed with his earlier statement (when he was reminded of it) that it would have been at about 7 AM. There he consumed a few beers, and then went to sleep on the grass in the backyard. He also accepted his earlier version to the effect that he had woken up at about midday.
He recalled meeting Ms Andrews, and having intercourse with her on the Saturday evening.
On Monday 26 September 1983, he went to work at Lane Cove River Park between 7.30 AM and 4.30 PM. He washed the seat covers of his car that afternoon. As I have already explained, defence counsel submitted that it could well be that either the accused or the police were mistaken by 24 hours in that regard. He washed his car, and hosed the boot to see whether it was leaking.
He worked on the Tuesday and Wednesday, and on the Wednesday evening went out with another young woman who lived in Artarmon.
On Thursday 29 September 1983, the accused was arrested whilst driving his car. He recalled the police seizing his vehicle for a time, and his vacuum cleaner. He also recalled giving a sample of his blood.
At the time of the ERISP, he could not recall the details of his previous cars.
As for Ms Newhouse, he could not recall how long she lived with him. He denied that he would have washed the boot of his vehicle with water and rags. He noted that his corroborated presence at the champagne breakfast contradicted the timeline of events of the Saturday morning given by Ms Newhouse.
The accused could not, at that stage, provide any explanation as to why a hair of the deceased may have been in the boot of his car.
The interview concluded with the accused informing the independent officer that he had no complaints about any aspect of it.
As I have said, various forensic procedures were conducted upon the accused, including the taking of photographs of a very large tattoo on his back. Those photographs became exhibit T in the trial.
On 23 July 2015, Detective Jones confirmed from Detective Counsel that Detective Walsh had been stationed at Chatswood Police Station between 6 and 13 October 1983. Detective Counsel also confirmed that Chatswood Police Station had a secured exhibit room in the early 1980s.
Finally, Mr Matthias Zierholz, handwriting expert, gave evidence in the trial on 19 October 2016. His evidence was based upon two statements of his, the first of 13 December 2010, and the second as recent as 14 October 2016.
He had been asked to examine the letter and extract from a street directory that were sent to police on 7 November 1983 (Exhibit XXX and Exhibit M); the subsequent letter sent to police on 20 February 1984 (Exhibit N, its envelope being depicted in exhibit O); and to compare those documents with letters sent by the accused from prison in 1986.
In a nutshell, he came to the view that the samples of writing were different. He expressed the opinion, however, that there could be three explanations for that difference.
The first is that the samples of writing were created by different persons.
The second is that they were created by the same person, who deliberately disguised his or her handwriting.
The third is that they came from the same person, but his or her handwriting had changed over time.
On reflection, Dr Zierholz ruled out the second possibility of disguise. Dr Zierholz did not rule out the third possibility (same author, but change in writing over time), as a matter of prudence, because he felt that he had insufficient material upon which he could do so.
In other words, the opinion of the handwriting expert was inconclusive: neither a definitive exclusion of the accused, nor a definitive inclusion.

[29]

Directions

In coming to my verdict, I have taken into account the following legal matters. By that I mean, if this had been a trial by jury, I would have directed the jury as follows.
First, it is incumbent upon the Crown to prove each and every element of the offence beyond reasonable doubt. The accused need do nothing and prove nothing (Woolmington v Director of Public Prosecutions [1935] AC 462).
Secondly, the criminal standard of proof is not to be further defined (Green v The Queen (1971) 126 CLR 28; [1971] HCA 55).
Thirdly, turning to analyse the elements of the count on the indictment, as I have said, the Crown case for murder was restricted to felony murder. As at 24 September 1983, s 18 of the Crimes Act 1900 (NSW) was as follows: 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by death or penal servitude for life. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence.
The Crown Prosecutor made it clear that his case was that the act causing death occurred in the commission of a foundational offence (as opposed to "in an attempt to commit" such an offence). His case was also that the act was alleged to have been committed by the accused, not by "some accomplice with him". Finally, he explained that the act causing death was alleged to have occurred during the foundational offence, not "immediately after" its commission.
The foundational offence upon which the Crown relied for felony murder was contained in s 37 of the Crimes Act. As at 24 September 1983, that section was as follows: 37 Attempts to choke etc (garrotting) Whosoever: by any means attempts to choke suffocate or strangle any person, or by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance, with intent in any such case to enable himself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence, shall be liable to penal servitude for life.
As can be seen, the maximum penalty then applicable to the offence contained in s 37 brought that offence within one of the preconditions for a foundational offence then contained in s 18 of the Crimes Act.
The act causing death must have been a willed and conscious act (Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2; and Penza and Di Maria v R [2013] NSWCCA 21).
The indictable offence that the Crown alleged the accused had intended to commit (at the time of allegedly committing the offence then contained in s 37 of the Crimes Act) was to be found in s 61D of the same Act (yet again, as it was on 24 September 1983). The central portion of that section was as follows: 61D Sexual assault category 3 - sexual intercourse without consent (1) Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 7 years or, if the other person is under the age of 16 years, to penal servitude for 10 years.
It was not disputed between the parties that, as at the same date, the offence contained in section 61D(1) of the Crimes Act was an indictable offence.
As at 24 September 1983, the common law rule that, for offences of which the death of a human being was an element, the death must have occurred within a year and a day of the act causing death, had not yet been abolished by statute (see now s 17A of the Crimes Act, which commenced on 17 March 1991). Accordingly, it is an element of the offence of murder that the deceased died before 25 September 1984.
As well as that, in order for the Supreme Court of New South Wales to have jurisdiction with regard to an allegation of murder, the murder must be alleged to have been committed in New South Wales, or to have some connection with this State (see generally Part 1A of the Crimes Act). The parties did not explore this requirement to any degree; accordingly, I shall simply approach it on the basis that the Crown must prove its allegation that an act causing the death of the deceased occurred in New South Wales.
Accordingly, the elements of the offence of murder that must be proven beyond reasonable doubt are as follows:

The accused
In New South Wales
Voluntarily
Did an act
That caused the death of the deceased
Within one year and one day of that act; and
The act was done
During the commission by the accused of the offence of
By any means attempting to choke, suffocate or strangle the deceased
With intent to enable himself to commit the indictable offence of
Having penile/vaginal sexual intercourse with the deceased
Without her consent
The accused knowing that she did not consent to that intercourse.

By the end of the trial, it was agreed between the parties that, depending upon my findings of fact, it could be that I would need to direct myself with regard to the elements of manslaughter by way of an unlawful and dangerous act. I shall come to the elements of that offence as necessary.
That completes the directions that I would have given a jury about the elements of the offence alleged. The further directions I would have given are as follows.
Fourthly, bearing in mind that the Crown case is a circumstantial one based on inferences said to be able to be drawn from a large number of alleged facts, my analysis should not focus on each individual fact, but rather their combined force (The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]). Furthermore, I would not need to be satisfied of any particular fact beyond reasonable doubt; it is the elements of the offence that require proof to that standard (Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56). That legal proposition is subject to a single exception, which I shall discuss separately below.
Fifthly, bearing in mind that the Crown case is a circumstantial one, before I could return a verdict of guilty of murder, I would need to be satisfied beyond reasonable doubt that no rational hypothesis, other than guilt of the offence charged, is available on the facts that I find to be established (Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44; Peacock v The King (1911) 13 CLR 619; [1911] HCA 66).
Sixthly, it was agreed between the parties that, for at least two reasons, before I could return a verdict of guilty, I would need to be satisfied beyond reasonable doubt that, as at September 1983, the accused possessed a tendency to strangle women in order to cause them to submit to intercourse with him.
That was not only because of authority to the effect that, in order for a tendency to be taken into account in aid of proof of guilt, that tendency must be proven to the criminal standard (see the discussion of HML v The Queen (2008) 235 CLR 224; [2008] HCA 16 in DJV v R [2008] NSWCCA 272 at [30], and the recent judgment of Bathurst CJ in R v Matonwal & Amood [2016] NSWCCA 174 at [92]).
It was also because, in the circumstances of this case, it was agreed between the parties that the alleged tendency is an indispensable intermediate fact with regard to proof of the guilt of the accused of the offence of murder (Shepherd v The Queen).
Seventhly, the Crown alleged that the accused cleaned the boot of his motor vehicle shortly after the disappearance of the deceased. And the Crown alleged, as part of its circumstantial case, that the accused had done so because he had disposed of the body of the deceased by way of storing it in the boot for some period. The Crown further submitted that the cleaning of the boot demonstrated a consciousness of guilt of murder on the part of the accused.
I have borne in mind the legal principle that, in order to accept that line of reasoning, I would need to be satisfied: that that act was indeed done by the accused; that the act was done to conceal something material to the trial, not something insignificant; and that the act was done by the accused in order to conceal his guilt of the murder of the deceased, as opposed to any other crime, or for any other reason (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; R v Cook [2004] NSWCCA 52).

[32]

Second step - Andrea Hyde

Armed with those propositions, established to the criminal standard, I turn to the interaction of the accused and Ms Andrea Hyde in August 1975.
It will be recalled that there is no dispute on the part of the accused that he is the man whom Ms Hyde met at a café in Circular Quay. There is also no dispute that he and Ms Hyde had intercourse culminating in ejaculation on his part. What is very much in dispute, of course, is whether or not that intercourse occurred with the consent of Ms Hyde, and whether or not the accused inflicted violence upon her in the form of strangulation in order to overcome her lack of consent.
It will also be recalled that there is no dispute that Ms Hyde left the home of the accused very suddenly after the intercourse took place. It was undoubtedly dark by that time in August in Sydney, and independent witnesses described the evening as very cold. Ms Hyde left behind her handbag, her personal identification, her underpants, her tights, and a pad that she had been wearing.
There was also no dispute that Ms Hyde had recently had a termination, and was in pain as a result. Nor was it disputed that Ms Hyde was wearing a pad when she first entered the home of the accused. Nor could it be disputed, as a result of the finding of human blood on a large number of items seized from the home of the accused - including the pad - that Ms Hyde was indeed bleeding vaginally when she had intercourse with the accused.
As I have said, Ms Hyde left the home of the accused in darkness, on a winter's evening, on foot. She was carrying her shoes. She flagged down a vehicle, the occupants of whom were completely unknown to her, by waving her arms, screaming, and indeed dangerously running in front of it to some degree. Once inside the vehicle, and in the presence of two children, she immediately spoke of being attacked and a man trying to murder her.
Thereafter, she was seen by many persons to be distressed, including showing physical signs of trembling. From an early stage, she spoke of sexual violence that featured a threat of death. Her concern to retrieve her belongings is consistent with such a fear, in that her handbag contained personal identification documents.
Most noteworthy of all, perhaps, Senior Constable Andrews and Constable Hill observed red marks to the throat of Ms Hyde.
All of the foregoing powerfully supports the proposition that something occurred in the home of the accused that led Ms Hyde to become so afraid that she would flee, on foot, undressed, and bleeding vaginally, into a Sydney winter's evening.
It is perfectly true, as defence counsel submitted, that, in giving evidence before me in 2016, Ms Hyde was very unclear about the sequence of events that she said unfolded in the home of the accused. The Crown Prosecutor himself accepted that there was a lack of clarity in the evidence of Ms Hyde. He also accepted that there was a readiness on her part to agree, in cross-examination, to propositions that were inconsistent with what she had said in chief, that evidence in turn being based on a statement that she had given to police over 40 years before the trial. I have given due consideration to the lack of clarity and consistency in the evidence of Ms Hyde before me.
To be weighed against that is the fact that Ms Hyde was giving evidence in 2016 of events that had allegedly occurred in 1975; literally, a period of over four decades. Great consistency in her version in those circumstances would not only have been surprising, it would have been suspicious. Furthermore, although Ms Hyde was certainly unclear, even confused, about the sequence of events and details, she was clear that she had been sexually assaulted at the home of the accused, that she had been the subject of physical violence, that she had fled in great fear, and, most importantly, that she had been strangled.
Furthermore, the sighting of red marks to the neck of Ms Hyde by more than one person shortly after she left the home of the accused very powerfully corroborates her version of what had occurred.
Separately, it was made clear by defence counsel, by way of his compliance with the rule in Browne v Dunn, along with his written and oral submissions, that the proposed alternative rational hypothesis for the behaviour of Ms Hyde was as follows. Having engaged in consensual intercourse with the accused, she became overcome with remorse and agitation in the context of having had her recent termination.
Of course, it was not incumbent upon the accused to establish that alternative hypothesis to the slightest degree; indeed, it was not incumbent upon the accused to put forward an alternative explanation at all. Nevertheless, the explanation having been put forward, and giving due deference to the varieties of human response and emotion that can occur, I assess that alternative explanation as being an unlikely one. In particular, it may perhaps provide an explanation as to why Ms Hyde may have left the home of the accused suddenly, and in a distressed state. It provides no explanation at all as to why Ms Hyde expressed a fear of death, in the context of marks being seen simultaneously to her throat.
Defence counsel also made the point that it was rather odd that Ms Hyde left a number of belongings behind, but was able to leave with her pay packet in her hand, and also carrying her shoes. But I think that that evidence is of little moment: both parties were agreed that Ms Hyde left suddenly, and whether she took her pay packet and left her handbag, or vice versa, seems to me not to take the matter much further. It could also be the case that one might infer that a woman could remove her shoes, or fail to put them on, so that she could run more quickly.
In summary, all that I have spoken of argues powerfully in support of the proposition that Ms Hyde was speaking the truth when she spoke of being raped and placed in fear of death, literally at the hands of the accused.
But all of that evidence is not the end of the matter. To be added to my consideration, of course, is my undisputed satisfaction of the circumstances surrounding the crimes against Ms Moon, committed by the accused less than a year after his interaction with Ms Hyde.
The similarities are compelling: a meeting between the accused and a young woman. That meeting occurring in a public place of conviviality. The availability of the motor vehicle of the accused. The inveigling of the young woman to a location chosen by the accused on a pretext. That pretext involving the clothing of the accused. An initial pleasant interaction. A sudden change on the part of the accused. Full penile/vaginal sexual intercourse featuring ejaculation being insisted upon by him. And most importantly of all, an allegation by Ms Hyde of strangulation in the context of forced intercourse, when that is precisely what the accused has admitted he did nine months later to Ms Moon.
In short, my undisputed satisfaction beyond reasonable doubt of what the accused did to Ms Moon inevitably plays a highly significant role in my resolution of the dispute about what Ms Hyde has alleged.
Taking into account the evidence of Ms Hyde; the evidence of disinterested witnesses with regard to the circumstances surrounding her flight and immediate complaint; and taking into account the undisputed criminal conduct of the accused towards Ms Moon, I am satisfied that the accused had intercourse with Ms Hyde without her consent, and in order to overcome that lack of consent he strangled her to the point of fear of death. And although, as I have already said, I do not consider that I am required to be satisfied of that proposition to the criminal standard before I can use the evidence for a further purpose, I indicate that I am indeed satisfied of it beyond reasonable doubt.
That state of satisfaction constitutes the second step in my reasoning. The third step is to consider the evidence of Ms Brown.

[33]

Third step - Karen Brown

It will be recalled that there was no dispute before me that Ms Brown was subjected to an ordeal that was extended, degrading, and brutal. In other words, there was no suggestion that she was fabricating her evidence. The dispute was about whether one can be satisfied that the perpetrator of those acts was the accused.
That dispute needs to be understood in the context that there is no evidence directly identifying the accused as that perpetrator. The Crown case in that regard is circumstantial. It has a number of strands.
First, the man who approached Ms Brown at the bar generally fitted the description of the accused as he appeared back then. I include in that the height, build, hair colour, hairstyle, facial hair, and eyes of the man, and the fact that he was generally described as good looking. And although it was not relied upon for a moment as identification evidence, the assertion of Ms Brown in 2013 that the photograph of the accused shown to her in the array was "similar" to her assailant, very broadly supported the proposition of similarity of appearance.
Secondly, it is important, of course, that the man introduced himself as Bob.
Thirdly, the perpetrator drove to the northern suburbs of Sydney. In particular, Ms Brown recalled landmarks (such as Knox Grammar) and the suburb sign for Wahroonga. I did not understand it to be disputed by defence counsel that the accused did at some stage live in that suburb. Of course, on its own, that means little, and it is quite true that the evidence of Ms Brown was that she believed she was driven past that suburb. Nevertheless, it is not entirely insignificant that the perpetrator did not drive to (for example) Cronulla in the south, Penrith in the west, or Castle Hill in the northwest, of Sydney.
Fourthly, the perpetrator took Ms Brown originally to a waterside reserve in the inner northern suburbs of Sydney. It is not disputed that, in the early 1980s, the accused was employed at Lane Cove River Park. Nor is it disputed that, at the time of his interaction with Ms Hyde in August 1975, the accused resided at McMahons Point. He resided at the same location at the time of his interaction with Ms Moon in May 1976.
Again, that is hardly determinative or conclusive. But it plays some including role, just as (by way of hypothetical example) the accused living nowhere near the inner northern harbourside suburbs of Sydney would play an excluding role, to some small degree, in a circumstantial case.
Fifthly, Ms Brown spoke of there being tattoos to much, if not all, of the back of the perpetrator. There is no dispute that the accused has a large tattoo of an eagle on his back, and it has been there for many years.
To be weighed against that is the fact that in a previous statement Ms Brown spoke of the perpetrator having tattoos all over his body and on his left forearm. She maintained in the witness box that she saw the tattoo on his arm. Those are excluding observations that I shall discuss in more detail later.
Sixthly, Ms Brown memorised two variants of a number plate that matched the number plate recorded as having been that of a car owned by the accused. That representation was contained in a document that I accept was created by the New South Wales Police Service, for reasons that I shall explain shortly. That motor vehicle is recorded as being owned by the accused in mid-September 1978; that is, a matter of weeks after the assault on Ms Brown. It is also noteworthy that the description in the police document of the motor vehicle said to belong to the accused fits, in a very general way, with the description of the motor vehicle given by Ms Brown, that being a white Holden sedan with four doors.
It is perfectly true that Ms Brown may be mistaken in her recollection of the number plate. It is also true, as defence counsel submitted, that the accuracy of the document is open to question, for a number of reasons.
First, conclusive documentation from the relevant government department is no longer available.
Secondly, in those circumstances, one cannot be sure of the information upon which the representation is based.
Thirdly, in light of the evidence tendered in the trial of Mr John Andrews, a former police officer, the evidence is not conclusive that the document recording the registration number is a police document.
Fourthly, the representation in the document about the vehicle was tendered, not the document itself. As for the representation about the address of the accused being in Wahroonga, it was placed in evidence through the examination-in-chief of Detective Jones. In other words, defence counsel submitted that I cannot have regard to the other representations contained in the document in order to test the accuracy of the two tendered representations.
As for the latter submission, it is true that the document was not tendered in the trial; rather, one representation contained in it was tendered, and the other was referred to in the oral evidence of the detective. But Detective Jones also gave oral evidence that the representation appeared on "A page from the criminal antecedents found in the storage of the file in relation to Robert John Adams".
As I have indicated, I am satisfied that the document containing the two representations was created by the New South Wales Police Service. I say that because, even disregarding the entirety of the rest of its contents, it is inconceivable that a document as described by Detective Jones, located in a box of exhibits retained as part of an investigation by the police, was created by any other organisation. It follows that I believe that Mr Andrews was either mistaken in his recollection, or perhaps had not been exposed to such a document in his role as a uniformed police officer.
On the other hand, I accept, of course, that, without a certificate of registration, one cannot be sure that the representation in the document accurately reflects the true position.
Having said all of that, it remains the fact that the link between the motor vehicle registration noted almost 40 years ago in a police document, and the number plate seen by Ms Brown 40 years ago, and recounted to Detective Jones in 2013, is undoubtedly a significant one.
Finally, it is true that Ms Brown recalls that the man who sexually assaulted her had a tattoo to his left forearm. Although the evidence was not entirely clear, I also approach my task on the basis that her evidence was that the perpetrator had tattoos to much of his body, beyond his back. Those memories of hers have given me significant pause. In the ultimate, I do not believe that they mandate exclusion of the accused as the perpetrator against Ms Brown. I believe that they can be explained in a way consistent with the accused being the perpetrator against Ms Brown, for the following reasons.
First, Ms Brown was describing in 2016 events that occurred in 1978, about which she had first spoken in detail to investigating police in the form of Detective Jones. That was, at the earliest, in late 2012. It is possible that Ms Brown is mistaken about the extent of the tattoos.
Secondly, on either case, Ms Brown had been through an extremely traumatic event, from which she has never fully recovered psychologically. One would be surprised if every detail of her version of events, including the description of the perpetrator, were completely reliable.
Thirdly, Ms Brown spoke in the witness box of being "repulsed" by the tattoos of her assailant whilst she was being raped on the mattress, and deliberately looking away from them. Her disgust may well have led her to recall the tattoos of the perpetrator as being more extensive than they actually were.
Fourthly and finally, it is not to be forgotten that the perpetrator shared many other characteristics with the accused. In particular, it is not to be forgotten that Ms Brown spoke of the perpetrator as having extensive tattooing to his back; that is exactly what the accused possesses.
In short, considering the concatenation of circumstances listed above, I assess the circumstantial case arising from the evidence about the crimes against Ms Brown that the accused was their perpetrator as being quite strong. But, of course, those circumstances are not to be assessed on their own.
They are also to be assessed in light of the undisputed evidence of what the accused did to Ms Moon, and my satisfaction beyond reasonable doubt of what he did to Ms Hyde.
Again, a pattern emerges. A meeting with a young woman. The meeting occurred in the evening. It occurred at a public place of conviviality. The place of the meeting was either in the centre of Sydney, or in its inner northern suburbs. The male person was pleasant and attractive. He introduced himself as Bob. The male person was not with his own male or female friends. The male person had a motor vehicle available to him. The male person and the young woman ended up in that motor vehicle, with her consent. The young woman consented to some form of shared affection. The male changed, and suddenly became very violent and threatening. Full penile/vaginal sexual intercourse with ejaculation took place. Each woman was treated very much as nothing more than an object: Ms Hyde by being sexually assaulted when bleeding from the vagina as a result of an abortion; Ms Moon by being threatened with death, to be followed by defilement of her body; Ms Brown by being ordered to urinate on the mattress when she pleaded to be permitted to use the toilet.
Most importantly of all, the male person used strangulation in the course of the sexual assault, with the result that the victim was placed in terror.
It is quite true that there are differences between what the accused did to Ms Moon, what I am satisfied he did to Ms Hyde, and what the Crown alleges he did to Ms Brown. For example, in the case of Ms Brown, she was detained for a period of many hours, in contrast to Ms Moon and Ms Hyde. Furthermore, it is true that Ms Brown believed that she was being strangled not before the intercourse that was imposed upon her, but rather during it. Other variations are no doubt to be found in the evidence of the three women.
Defence counsel placed emphasis on that latter factor, and submitted that there was a significant contrast between what was done to Ms Moon, and allegedly done to Ms Hyde (strangulation in order to ensure compliance), and what was done to Ms Brown on her version (strangulation during intercourse, perhaps for the sexual gratification of the perpetrator).
It is true that Ms Brown had the recollection that she was not choked or strangled before the sexual intercourse commenced. Rather, she was physically constrained by the weight of the attacker, which pinned her to the passenger seat and, later, to the mattress. But I think that it is quite possible that the perpetrator strangled Ms Brown during intercourse as a preventative measure against possible resistance; in other words, not for reasons markedly different from those that led to the strangulation of Ms Moon and Ms Hyde. It is also quite possible, I think, that the accused gained sexual or psychological gratification from strangling Ms Hyde and Ms Moon. And in any event, I think that, as a tribunal of fact exercising common experience of the world, I am entitled to find the following.
Sexual assault, although regrettably not rare in either 2016 or the 1970s, constitutes a criminal deviation from the normal sexual interaction between adults. Sexual assault involving full intercourse, ejaculation, and the infliction of physical violence (above and beyond the violence of the sexual assault itself) is rarer. And sexual assault featuring those attributes, and manual strangulation to the point of the victim being placed in fear of death, is rarer again.
In other words, I think that, if there be a distinction between the point of their ordeal at which Ms Moon and Ms Hyde suffered strangulation, and the point at which Ms Brown suffered it, it is an insignificant one.
In short, the compelling - indeed irresistible - conclusion, founded upon the combination of the direct evidence about the tendency complaint of Ms Brown, combined with the behaviour of the accused towards Ms Moon and Ms Hyde, is that the accused is indeed the perpetrator of the offences against Ms Brown.
Again, although I do not consider that I am legally required to reach the criminal standard of satisfaction before I can use the evidence of Ms Brown with regard to the count on the indictment, I am satisfied beyond reasonable doubt that the accused is the man who brutalised that young woman, and severely damaged her life. That is the third step in my reasoning.

[35]

Fifth step - Mary Wallace

The fifth step in my reasoning is to turn to apply all of those findings to the events of the weekend of Saturday 24 September 1983, and the week or two thereafter.
Again, when one considers the tendency that I have found established beyond reasonable doubt, and the incidents that prove it, and compares that tendency to the events of the evening of 23 September and the early morning of 24 September 1983, a pattern readily emerges. An interaction between the accused and a young woman, the deceased. That interaction taking place in the hours of darkness. The interaction commencing at a public place designed for socialising. The public place being on the lower North Shore of Sydney. The accused not being in the company of his own male or female friends. The accused having his car readily available. The accused inveigling the deceased into the car, including by way of a false pretext of being a police officer. The accused and the deceased being alone together in the car. The accused and the deceased having some sort of sexual contact in the vehicle, culminating in his ejaculation.
The indisputable fact that must be added to that readily discernible pattern of factors is the fact that, after having been in the presence of the deceased in those circumstances, the deceased has been neither seen nor heard of by any person, in circumstances where the inevitable conclusion is not only that she is dead, but also that she died very soon after her departure from the Alpine Inn.
Further facts, because they are trenchantly and cogently disputed, can be added to the mixture of evidence only with great circumspection.
As I have said, there was a sharp dispute at trial about the evidence from the Crown witnesses of the accused hosing out or cleaning his boot on Sunday 25 September 1983, the deceased having last been seen by any person other than the accused when she drove away with him in the early hours of 24 September 1983.
I accept that the disputed evidence of Ms Newhouse, Mr Ross Adams, and Ms Andrews about the events of the weekend is open to valid criticism. It suffered from a lack of consistency with regard to the witnesses, both internal (that is, between the statements of an individual witness) and external (that is, between the witnesses). Each of Ms Newhouse, Mr Ross Adams, and Ms Andrews was not entirely internally consistent with regard to important details, and at least Mr Ross Adams and Ms Andrews spoke for the first time of alleged events years after one may have expected them to have first mentioned them.
Furthermore, as I have recounted, the evidence of Mr Ross Adams was that, in all likelihood, the cleaning of the boot that he allegedly saw occurred on a Saturday, because he was in the habit of spending Sunday with his parents at their home, not at the flat in Chatswood. The evidence of Ms Newhouse about the clothing she observed the accused to wear at a certain time on Saturday 24 September 1983 is not consistent with the evidence of many witnesses who saw the accused dressed very casually whilst present at the champagne breakfast. Ms Andrews said nothing about seeing the boot being cleaned until 33 years after she allegedly saw that occur.
In short, having reflected carefully on the evidence of those three witnesses about the events of the weekend, it plays little or no role in my verdict, because, except with regard to undisputed matters, I have effectively put it to one side.
But it is to be recalled that defence counsel confirmed that it is not disputed that, on that weekend, there was indeed a connection between the accused, a hose, and the boot of his car: on his own version, the accused was hosing the boot in an effort to identify leaks in its seal.
Nor is it disputed by the accused that he did indeed wash the seat covers that weekend, because he wished to remove seminal staining arising from his sexual interaction with the deceased.
In other words, the dispute between the parties is within a relatively short compass. There is no issue that the accused was, on the weekend in question, cleaning his car. Nor is it disputed that, on the same weekend, he was using a hose in connection with the boot of his car. Rather, the issue is what precisely he was doing, and why.
The resolution of that question can be informed by a further fact, itself not the subject of dispute by defence counsel as a primary position.
As I have said, hairs said to be vacuumed from the boot of the accused's Commodore by a scientific police officer on 6 October 1983 were analysed years later by Ms Elizabeth Brooks, a senior forensic scientist who specialises in hair analysis. She expressed the opinion that the hairs said to be from the boot were identical in their microscopic characteristics to hairs taken from a hairbrush seized from the home of the deceased (who, it will be recalled, lived alone). Ms Brooks, whilst unable to provide any statistic of rarity, expressed the opinion that a match of that kind is "incredibly rare".
I respectfully think that a number of separate criticisms can be made of the evidence of Ms Brooks. For example, because she was provided by the organisation seeking her opinion with context inculpatory of the accused, it is possible that she was subject to unconscious bias in her (to a degree, subjective) determination of identicality.
Secondly, she accepted in the witness box that, in truth, some of the hairs were not identical in each and every attribute to the other hairs, but explained that those variations were not significant, or were otherwise explicable. But the dividing line between excluding variations and includable variations was not clear in my own mind at the end of her evidence.
Thirdly, despite the obvious need for great care to be taken in record keeping with regard to analysis of exhibits in a murder investigation, Ms Brooks agreed with defence counsel that, regrettably, she had mis-described one of the "sub-exhibits" that was in her care. Furthermore, when asked in the witness box to identify which sub-exhibit was the correct one, she provided an alternative thesis that was itself subject to criticism, in that it did not appear to be consistent with her dealings with other sub-exhibits.
Fourthly, it seems odd, perhaps, that a process of comparing each hair to all hairs was not adopted, bearing in mind that the hypothesis being tested was that all hairs emanated from the one person.
Fifthly, it seems that no detailed record was kept of the observed characteristics of one of the hairs that formed part of the comparison process.
As I have said, those criticisms, when considered cumulatively, have considerable force.
On the other hand, defence counsel also fleetingly submitted that it is noteworthy that Dr Baxter (who first had custody of the seized hairs many years ago) spoke of them as being quite long. On the other hand, Ms Brooks (who analysed them years later) spoke of them as being quite short. I understood defence counsel to be raising, perhaps, the prospect that the hairs analysed were not the hairs seized.
He also suggested that there was a lack of detail about the precise steps adopted with regard to the hairs said to be found in the vacuumings by police from the boot of the vehicle; the taking of the hairs from the hairbrush; and the seizure of the contents of the vacuum cleaner of the accused. He suggested that that lack of detail raises the spectre of cross-contamination, or other incompetence.
I do not accept those submissions. To my mind, the difference in the description of some of the hairs seen by each expert is of little moment: the detailed oral and documentary evidence amply satisfies me that the hairs analysed (both by Ms Brooks and Dr Hartman, whose evidence I shall discuss in a moment) were indeed the hairs vacuumed from the boot by Detective Walsh in 1983. I say that because careful analysis of all of the evidence in the Crown case about those exhibits shows that the chain of custody was not broken. Nor is there any probative evidence to suggest that some sort of contamination or admixture occurred with regard to the exhibits that were ultimately the subject of scientific examination.
As can be seen from the above, in short I accept some but not all of the criticisms that defence counsel has made of the examination of the hairs by Ms Brooks. But the primary position of defence counsel was that the hairs said to have been taken from the boot could indeed be hairs of the deceased. In other words, the primary position of defence counsel was not that the analyst was mistaken, or mixed up, or unconsciously biased, in expressing the opinion that the hairs from the boot were identical to the hairs from the hairbrush. I repeat: his primary position was that the hairs from the boot are indeed the hairs of the deceased.
The simple explanation for that was said to be entirely innocent secondary transfer. That was said to be perfectly possible, bearing in mind the following. As a matter of expert evidence and common human experience, hairs can readily be transferred by and on clothing. The deceased was indeed in the front passenger seat of the motor vehicle of the accused. On both cases, the accused and the deceased had sexual contact in the motor vehicle. The accused was indeed at the boot of the car (not only when hosing it, but also when he produced the carton of beer from it upon his arrival at the champagne breakfast). Finally, there were undoubtedly other human hairs, and even animal hairs, identified in the materials vacuumed from the boot.
It is perfectly true that the fall back position of defence counsel was that the analysis of Ms Brooks (and indeed of the mtDNA analyst, Dr Hartman) should be discounted for a large number of reasons. But I think that, as the tribunal of fact, I am entitled to analyse the evidence on the primary position of defence counsel.
To summarise my discussion of the scientific evidence so far: it was not effectually disputed by defence counsel that the hairs analysed by Ms Brooks came from the boot of the vehicle of the accused; it was not disputed that the accused was using a hose on his boot within 48 hours after the deceased was last seen alive by any other person; and it was not disputed that the hairs analysed by Ms Brooks and Dr Hartman could be from the head of the deceased.
Separately, as I have already said, Dr Hartman expressed the opinion that the mtDNA profile of the hairs from the boot was identical to that of the hairs from the hairbrush (they were not quite identical to the mtDNA profile of the sister of the deceased, but Dr Hartman expressed the opinion that that variation between siblings is readily explicable). Dr Hartman also expressed the opinion that such a profile is expected to occur in 1 in 518 persons (that being a cautious estimate).
Again, defence counsel made a number of criticisms of that statistic. One of them was that, to the extent that the mtDNA profiles of persons of African descent make up part of the comparison database, and relatively few such persons were members of Australian society in 1983, the comparison with the database may give a false picture of rarity that should be adjusted downwards. A further criticism was that the comparison database contains no results obtained from the United Kingdom, Ireland, or France, perhaps suggesting that there is a paucity of profiles derived from persons of Caucasian background; to be weighed against that is the fact that results from the United States of America and Canada are included in that database.
There is some force in that, as there is in his other criticisms of the mtDNA evidence. But, again, I understood them to be ancillary positions adopted by defence counsel. As I have said, the primary position was that the hairs taken from the boot could indeed be those of the deceased, but they ended up there by way of entirely innocent and commonplace secondary transfer.
Again, I believe that I am entitled to take the primary position of defence counsel at face value, and to factor it into my reasoning.
One is then presented with the following facts. The last person in the world with whom the deceased was seen to be in company was the accused. The deceased was never seen or heard of again after she was seen in the company of the accused. The accused had a tendency to rape and strangle women. Over a period of some years, he evidenced that tendency, with regard to three different women. The tendency was chronic, and showed itself as recently as a little over five years before the disappearance of the deceased. The incidents that demonstrated the tendency showed a repetitive and specific modus operandi. Many of the characteristics of that modus operandi were shared by the circumstances of the intersection between the accused and the deceased, and their departure together from the wine bar. A number of hairs that defence counsel accepted could very well be those of the deceased were vacuumed from the boot of the motor vehicle of the accused a week or so after the disappearance of the deceased. Less than 48 hours after the deceased was last seen, the accused was seen using a hose in connection with his boot.
In a circumstantial case, each fact informs one's understanding of the significance of other facts, and the totality of one's understanding of the combined significance of all of the facts will inform one's verdict.
Here, the undoubted tendency of the accused to treat young women in a certain way, combined with the circumstances in which he and the deceased were present in his motor vehicle, surely informs the presence of the hair with an mtDNA profile identical to that of the deceased in his boot.
Similarly, the presence of the hair surely informs the use of a hose by the accused in the vicinity of his boot.
So does the fact that the use of the hose occurred, not two weeks before or two weeks after the disappearance of the deceased, but no more than 48 hours after it occurred.
Finally, the meaning of the hair is in turn informed by the use of the hose in the vicinity of the boot.
In other words, in assessing the significance of the match between the hairs vacuumed from the boot and the hairs taken from the hairbrush, and the admitted use of the hose with regard to the boot, it is perfectly true that each fact on its own may mean little. But seen in the context of each other, and in the context of the established tendency of the accused, and the context of the surrounding chronology of events, they become a compelling, interconnected, inculpatory set of facts. And I say that bearing firmly in mind the legal restrictions that apply to finding that acts were done, or things were said, by an accused person with a consciousness of guilt, and the need for caution in reasoning in that way.
As against a finding of guilty, defence counsel submitted that, if one is considering whether the accused did indeed cause the death of the deceased in the early hours of the morning of 24 September 1983, much of his subsequent conduct is bizarre to the point of stark inconsistency with that proposition.
For example, reasonably soon after the alleged murder, he was content to attend a social event in the form of a champagne breakfast. He was also content to socialise with Ms Andrews in the evening, and indeed to have intercourse with her at his home. That is extraordinary behaviour, it was said, for a man who has allegedly committed murder in the early hours of that morning.
Furthermore, if one is testing the proposition that the accused had used the boot of his vehicle to transport the body of the deceased in the early hours of the Saturday morning, it is remarkable that both Ms Newhouse and Ms Andrews spoke of him cleaning the car on the Sunday, and not the Saturday. And although Mr Ross Adams spoke of a cleaning on a Saturday, he could not be specific with regard to the particular weekend.
Finally, if the accused was indeed washing the boot of his vehicle on the driveway outside his block of flats in order to remove from it traces of the deceased, that was a remarkably brazen, indeed irrational, thing for him to do in full public gaze.
All of those submissions have force, and I have taken them into account. But the fact is that the accused did not and does not possess a conventional personality: he admitted many years ago that he raped and strangled Ms Moon, and I have found beyond reasonable doubt that he raped and strangled Ms Hyde and Ms Brown. Furthermore, in the ERISP of December 2013, he is to be seen and heard making a number of wryly humorous comments in the context of being accused of the murder of the deceased.
Not only that, Ms Moon spoke of the accused suddenly changing after his crimes were completed, expressing remorse, and speaking of his need to obtain psychiatric help. Ms Brown also spoke of the change between the man who raped and detained her in hours of darkness, and his pleasant personality the following morning in daylight. Although Ms Hyde did not speak of a sudden change (she having fled very soon after the forced intercourse came to an end), one might infer that there was such a change: on his own version, the accused packaged her belongings in a bag in order to return them to her, and there was no dispute that it was he who was searching, in his vehicle and on foot, for Ms Hyde after her departure.
In short, I accept that the conduct of the accused on the weekend in question does not sit entirely comfortably with him having murdered the deceased on the Saturday morning. But on a broader analysis of all of the evidence placed before me, I do not consider that his behaviour, by way of social events and sexual contact that weekend, stands in the way of me drawing the inferences for which the Crown contends.
Separately, the chronology shows that there was in fact ample time, between the departure of the accused and the deceased from the Alpine Inn, and the next time at which his location was confirmed (at the earliest, 6.30 AM at the champagne breakfast), for the accused to have disposed of the body of the deceased, perhaps at a temporary location. As well as that, there was a period of many hours between the departure of Ms Andrews from the flat of the accused at (at the latest) about 1 AM on the Sunday, and the next time at which the accused was reliably sighted, that being at about 9.30 or 10.30 AM on the Sunday morning.
It is quite true, as defence counsel has said, that the accused was not manipulating a hose within the vicinity of the boot until sometime after midday on the Sunday. But to my mind it is quite possible that the body of the deceased was quickly secreted at a temporary location very early on the Saturday morning, and thereafter it was permanently disposed of some time after midnight on the Saturday night. That would not have required a cleaning of the boot until Sunday. An alternative possibility is that it was not until the Sunday that the accused reflected on the possibility that some material had been left in the boot that could reveal the presence of the body of the deceased inside it.
In short, I do not regard the seemingly delayed interaction of the accused with the boot and the hose as standing in the way of the inference that the Crown asks me to draw, namely that what was occurring was a cleaning of the boot, not a search for leaks.
Finally, it is true that, if the interaction between the accused, the hose, and the boot was done with consciousness of guilt, it was done with remarkable brazenness. The inevitable reply to that submission is that, throughout the 1970s, the accused has brazenly raped and strangled three separate women, using his own name, his own vehicle, his own home, and eschewing the use of any disguise.
Defence counsel also asked me to reflect on the fact that the accused has co-operated with police with regard to the murder. That includes by speaking to detectives on 29 September 1983; by engaging in a lengthy ERISP after he had been arrested on a charge of murder on 20 December 2013; by providing various bodily samples to them; and by facilitating them photographing his back in order to capture its very large tattoo.
Again, I have reflected on those undisputed facts. But it will be recalled that the accused engaged in a record of interview with detectives with regard to the allegation of Ms Hyde in August 1975, in which he denied it. I am satisfied beyond reasonable doubt that his denials on that occasion were lies. It is also to be recalled that, when asked by detectives in 2013 about the allegation of Ms Brown, the accused gave a rather odd, non-committal answer. Again, my satisfaction that it was the accused who sexually assaulted Ms Brown means that I reject the truthfulness of that response to police during the ERISP.
In other words, I consider that the seeming co-operation that the accused has offered to police with regard to the disappearance of the deceased is of negligible probative value.
Defence counsel also pointed to the fact that the surveillance operation against the accused yielded no inculpatory evidence. That is perfectly true; on the other hand, whilst bearing firmly in mind that the onus of proof remains at all times on the Crown, I regard that as something that does not tell in favour of the Crown case, rather than as something that powerfully tells against it.
In similar vein, I regard the inability of the handwriting expert to come to a position of inclusion or exclusion as neutral to my determination.
Separately, defence counsel explicitly accepted in his final address that I could safely infer, on all of the evidence, that Ms Wallace is indeed deceased. But he put forward some alternative hypotheses for her death for my consideration. Again, of course, it was not incumbent upon him to do so in the slightest, and it is not incumbent upon the accused to establish anything.
Bearing those fundamental propositions firmly in mind, some of those hypotheses, I respectfully think, can be rejected as being unlikely to the point of being fanciful. For example, I reject the proposition that the man who seemingly assaulted the deceased outside the Stoned Crow wine bar could have coincidentally come across her hours later, after she had alighted from the vehicle of the accused some distance away, and that man thereupon bashed her, killed her, and disposed of her body.
I also reject the suggestion that the deceased suffered some kind of medical emergency after she left the deceased; if that were the case, she would readily have been found lying on the footpath or at home, unconscious or dead.
Other alternatives, referred to fleetingly in the running sheets and occurrence pad entries from the original investigation, were in my opinion nothing more than wisps, not rational alternative hypotheses.
Finally, there is not the slightest evidence to suggest that the deceased may have committed suicide.
Defence counsel also asked me to consider further alternative hypotheses said to be rational. They were rather different, in that they featured inculpation of the accused, but not by way of felony murder based on the foundational offence of choking, strangling, or suffocating the deceased with the intent to have sexual intercourse with her without her consent.
It was said, for example, that it is possible (contrary to the entirety of the version of the accused given in both 1983 and in 2013, and contrary to the whole defence case) that the accused could have had intercourse with the deceased whilst she was unconscious, bearing in mind her undoubted heavy intoxication with alcohol, and thereby accidentally killed her. That would constitute, it was said, the offence of sexual assault, but not the offence of murder.
It was also said in the alternative that, if I were to find that the accused had inflicted physical violence on the deceased in order to force her to have sexual intercourse with him, but had not adopted the precise tactic of restricting her supply of oxygen, that would not fall within the foundational offence for felony murder either. The result would be that the accused could not be found guilty of murder, and manslaughter would need to be considered as an alternative.
I consider that there are two responses to those ancillary submissions. The first is that, in the recent unanimous decision of The Queen v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, the High Court of Australia warned against speculation founded on hypotheses that are completely without anchor in the evidence and the issues joined between the parties in a criminal trial: at [46] and [58]. The High Court referred at [75] with approval to the same approach taken by the New South Wales Court of Criminal Appeal in Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [111].
Here, there is no evidence whatsoever that the accused had intercourse with the deceased whilst she was asleep or unconscious, and she accidentally died as a result.
Nor is there any direct or indirect evidence, including from the accused, that he inflicted physical violence on the deceased, other than restricting her supply of oxygen, in an effort to overcome her resistance to intercourse, and that she died as a result.
To the contrary, the position of the accused maintained over 30 years has been that he and the deceased had conscious and consensual sexual contact in his car, he fell asleep immediately thereafter, and he awoke to find that the deceased had departed.
In those circumstances, in accordance with my understanding of the way in which the High Court has explained a tribunal of fact should approach the issues joined in a criminal trial, I consider that those alternative hypotheses should be put to one side.
Secondly, if I am wrong in that legal analysis, I approach those alternative hypotheses as follows.
It is not easy to see how the accused, by way of intercourse with the putative unconscious deceased, could have caused her death in doing so: although like everyone else she had a number of health issues, none of them were dangerous in an acute or chronic sense. In particular, I am satisfied that Raynaud's Disease had nothing to do with her death. I do not regard the alternative hypothesis of sudden, non-violent death arising from intercourse as a reasonable one.
As for violence other than airway restriction inflicted in order to overcome resistance to sexual intercourse without consent, the only evidence of how the accused might have done that speaks with one voice: manual strangulation.
In short, I have considered all of the alternative hypotheses put forward by defence counsel, including the alternative positions that reflect badly on the accused. I reject them.
In conclusion, considering all of the evidence placed before me as a set of individual facts, and as a whole - the proven tendency of the accused to rape and strangle women; the marked similarities between his interaction with the deceased and his interactions with women whom, I am satisfied, he had raped and strangled; the fact that the deceased has never been seen again after she was in the company of the accused; the fact that, within 48 hours of his interaction with the deceased, the accused undertook an activity relating to his boot that featured the use of a hose; the fact that hairs (which shared a reasonably rare profile with those of the deceased) were seized from the boot of his vehicle, and not disputed at trial to be from the deceased; and the fact that, on any analysis, the accused had ample time to dispose of the body; I am satisfied of the following beyond reasonable doubt.
Whilst alone in his car with the deceased early in the morning of 24 September 1983, the accused choked or strangled her with the intention of having sexual intercourse with her without her consent. That voluntary act of the accused caused her sudden death, and thereafter the accused disposed of her body, which was at some stage in the boot of his vehicle. By 25 September 1984, the deceased had regrettably been dead for many months. I reject all other explanations for the entirety of the evidence placed before me beyond reasonable doubt. In other words, the accused treated the deceased very much as an object, just as he had treated three other young women.
In those circumstances, it is not necessary for me to discuss the elements of the offence of manslaughter.

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