(v) the suicide note left by Mr. Wakehim suggested that its author, now deceased, at least feared being accused of the killings;
(w) there was no examination of the Toyota for the presence of coal dust or of dirt, of the kind that may have been picked up, had it used the Coal Wash Road that was the only means of public access to the dam.
95 It may be accepted that there were significant arguments for the jury to consider, in determining whether the only rational inference open was that the appellant killed the three deceased. The fact that a jury, properly instructed, came to that conclusion, after having heard and seen the appellant and the other witnesses, after having reviewed the physical exhibits, and after having heard detailed closing addresses as well as a careful and comprehensive summing up from a very experienced trial Judge, is not conclusive of the matter when, on appeal, a S6(I) ground of appeal is raised. This Court must make its own independent assessment of the sufficiency and quality of the evidence, and in the light of that review, reach its own conclusion as to whether or not a jury ought to have entertained a reasonable doubt as to the appellant's guilt: Jones (1997) 72 ALJR 78.
96 In making that assessment, regard may properly be had to the advantage which the jury had in seeing and hearing the case unfold, particularly when credit issues arise and conflicting evidence is received. However, if at the end of the day, after making due allowance for the extent to which any difficulties apparent in the Crown case might be resolved by reference to that advantage, the Court has a doubt itself as to the guilt of the appellant, then normally it will conclude that such doubt ought to have been entertained also by the jury;
97 The most significant factors in favour of the appellant were his unchallenged prior good character; the lack of any apparent motive for him to commit such appalling crimes; the absence of injury or of any sign of abnormal behaviour or distress or anxiety on his part, on the night of 12 March (compared with his apparent reaction the following morning); the presence of hairs in the hand of Adrian De Gruchy, which the defence suggested may have been seized from the head of his assailant; and the finding of some items in the dam that were not positively identified as coming from the De Gruchy home;
98 The explanation offered by the Crown concerning the penultimate matter, to the effect that hair previously shed by Adrian, (from a time when his hair was longer) or by his sister (see Dr. Goetz's evidence noted above) may have been already present on the garage floor and adhered to his bloodied hand, cannot be dismissed as entirely improbable. The photographs of the deceased in situ do not show the hand in which the strands were found to have been clenched. Rather, it was in an open position, palm down, resting on the ground over an upturned chair. To this extent the evidence does not inevitably suggest that the strands were torn from the head of an assailant.
99 Another possibility, admittedly unexplored, also remains open - namely that the strands were gathered from the head of Sarah, when she was struck and having adhered to the weapon used upon her, were transported to the garage where Adrian was beaten. Her hair, it would seem from the photos, was a good deal longer than that of Adrian's, and to have been of a similar colouring.
100 So far as a disparity in colouring was suggested to have existed, that depended entirely on Dr. Cala's description of the recovered strands of hair as having been "dark brown", and of the hair of Adrian as having been "dark brown-black" - an imprecise distinction with little if any material difference.
101 In the end, the evidence concerning the strands was equivocal, since DNA that could have come from either Adrian or Sarah was found in the sample, and it could not be said with any certainty, that the hair inevitably must have come from an assailant who could not have been the appellant.
102 The suggested scenario of a thief or thieves having been disturbed, and having attacked the occupants, thereby missing the more valuable items in the house is in my view unconvincing, having regard to the fact that Mrs. De Gruchy and Sarah were obviously killed in their own beds. Equally unconvincing is the suggestion that the thieves deliberately ignored items that may have provided identifiable links to the killings, since the purse of Mrs De Gruchy, the video recorder, and the calculator found in the dam served that purpose.
103 While it is true that Miss Brindley, her mother and police did not notice any injuries to the deceased, there seems to be little doubt that he did lose some blood that night in view of the spots of blood found in the hallway and on the wall above Mrs. De Gruchy's head, and in view of the material found on the tuft of carpet, which although of insufficient size to be presumptively tested for blood (because that would have prevented DNA testing), gave every appearance of being blood.
104 There was no occasion for Miss Brindley or her mother to make any detailed observation of the appellant on the night of 12/13 March, nor in the absence of immediate suspicion was he subjected to medical or other examination for possible minor injuries such as a nosebleed or small cut. Moreover, while the tuft in the car could conceivably have got there, and collected the material from which DNA was recovered consistent with that of the appellant, on another occasion, there was no evidence to suggest any such occasion on which he had suffered a cut or other injury, or on which he had lost some bodily fluid that may have provided the source for the DNA.
105 The suggestion that robbers might have torn up the note, or placed it and other items such as the clothing, towel and knife, that happened to be mentioned, in the dam, makes little sense. The fact that not all of the steps listed was attended to is of limited significance, since a decision may have been made that they were unnecessary.
106 What was important about this list was its authorship, and the references to the three deceased, to steps consistent with a plan to remove possibly incriminating physical evidence from the scene, and to steps consistent with an attempt to manufacture a possible appearance of the appellant having been assaulted
107 Apart from the reference to the three deceased, it is significant that against the words 'tracksuit pants' appears the numeral '1', against the word 'knife' appears the numeral '1', and against the words 'T-shirts' appears the numeral '2'. Found in the dam in fact were 1 pair of tracksuit pants, 1 knife and 2 T-shirts. Furthermore, among the items listed in the note and found in the dam were a hanky, a towel, and a bottle.
108 The appellant was unable to give any explanation in relation to the items concerned with head butting a mirror or bench, or to cutting somewhere with a knife. His explanations to the effect that the references to hitting arms or legs with a pole may have had something to do with guests at his birthday party getting wild with the lanterns that had been placed on bamboo poles to light the garden area or with someone stumbling over, were to my mind absurd - particularly in the light of the added comment that he might have needed to write these things down to remember them, or to render help.
109 The explanations given for other items make little better sense. For example, the appellant suggested that the reference to 'throw bottle (singular) down back' was a reference to the collection of bottles from the party in a container at the back of the garden, and that the reference to the hi fi, was to a small portable hi fi, that was taken outside where the younger guests had assembled. The item 'throw things down wall' was said to be a reference to the placement of baits, for field mice or rats, in the ceiling, a precaution that he said was taken from time to time and repeated just prior to his birthday. In fact, the wall cavities were capped save for one area where there was an opening or inspection point. The "opening of blinds to see through" and of the "gate" were also said to relate to the birthday party, the former to allow people to circulate inside and outside the house, the latter to allow people to see into the house from the Pergola, as well as to look to the outside from the house, "just to keep an eye on people". Such events are so mundane as not to justify mention or recording in any programme for a planned birthday party.
110 The numbers written on the back of the note, the appellant acknowledged, he could not readily explain or remember writing. The "only thing that could come to mind" he suggested was the selection of track numbers on CDs for music at the party - again a somewhat extraordinary answer if the note had in fact been written as a plan for a birthday party held only three months earlier. The reference to "have shower" he suggested may have been a reference to having a shower "when under the influence of alcohol to straighten oneself up" - again an explanation lacking credibility.
111 The existence of this note, and the extraordinary explanations or answers given in relation to it, in my view provided powerful evidence for the Crown. The appellant's evidence, upon the face of the transcript was unimpressive in several other respects. Apart from the significant conflict with Mr. Bailey as to whether he mentioned that there was something wrong with Sarah, he gave accounts that were contradictory either of known facts or of his statement to police as to the items of clothing that had been placed in the overnight bag, as to whether he had been wearing shorts or tracksuit pants, as to whether he had placed a pair of joggers in the bag, and as to whether the prank caller had conveyed a message or had hung up by the time the calls were answered.
112 Significantly, he identified a maroon Quicksilver T-shirt as one given to him by a friend some time after the killing, at a time when he could not get access to his own clothes. However, when it became obvious that this was problematic since it had been found in the dam with the other items, it was his explanation that this was "more towards the police" - the clear implication (which he was then reluctant to fully embrace) that they had "planted" it.
113 When all of the factors identified by the Crown are taken into consideration, in combination, I am not persuaded that the case is one in which the jury ought to have entertained a reasonable doubt. In particular, the combination of the note, the presence of the appellant's fingerprint on the cabinet door knob, the DNA recovered from the carpet tuft, and from the spots of blood in the hallway and bedroom, the comment to Mr. Bailey about Sarah, the appellant's unconvincing evidence concerning the note, the absence of any mention to police of the prophesy as to the death of three members of the family, the appearance of a staged robbery, and the finding of the items in a dam with which he was familiar, constituted a powerful circumstantial case. It may also be assumed from the verdict that, having seen and heard the appellant give evidence, the jury were not impressed with his credibility - a conclusion well open to them by reference to the matters I have mentioned.
114 In these circumstances I am of the view that the appeals against conviction should be dismissed, and the applications for leave to appeal against sentence refused.