Martin Dukagjini is before the Court charged with the murder of Tatiana Sokoloff at Haberfield on 6 September 1986. The Crown consented to an application by the accused that he be tried by Judge alone and an order to that effect was accordingly made on 20 October 2021. The trial commenced on 15 November 2021 when the accused was arraigned before me and the Crown case was opened.
[2]
The case opened by the Crown
Tatiana Sokoloff was 56 years old. She was a lecturer in Italian at the University of Sydney. Ms Sokoloff occupied a free-standing single story dwelling at 57 Dudley Street, Haberfield. She lived with and cared for her 87-year-old mother, Klaudia, who was frail and deaf, with no hearing in the right ear and 90% loss in the left. The Crown alleges that at some time between 5:00pm and 7:00pm on Saturday, 6 September 1986 the accused broke into Ms Sokoloff's home to steal from it. It is alleged that he encountered Ms Sokoloff in a sunroom at the rear of the house and killed her by a combination of strangulation with an electrical cord that he cut from an iron and blunt force injuries to her head, inflicted with a piece of timber approximately 900mm long and 100mm by 50mm (4" x 2") that was later found at the scene.
The deceased's mother was asleep from about 4:15pm on the day in question. When she woke at about 10:00pm she was unable to locate her daughter. As she moved from room to room looking for her, she found that most rooms of the house had been ransacked. The contents of cupboards and drawers had been strewn on the floors of the rooms. Klaudia phoned some friends and two men, who knew both ladies, attended at about 1:00am on 7 September. When they arrived Klaudia discovered her daughter's body. The police were summoned and the crime scene was thoroughly examined and photographed. The cord used to strangle the deceased was still around her neck. It and the piece of timber with which she was bludgeoned were seized. Examination of the home for fingerprints was unsuccessful.
The Crown case is that extensive inquiries in 1986 and 1987 failed to identify a perpetrator. Inquiries were made amongst tradesmen who carried out work at the home, neighbours, colleagues and students from the University, people with whom the deceased did business in the locality and others from whom she bought antiques and jewellery, or to whom she sold such items.
Blood swabs and other forensic items from the scene were retained. DNA testing and comparison was not yet available in 1986. It was not introduced until the early 1990s. It is the Crown case that in 2019 pyjama pants that the deceased had been wearing when she was killed were examined and that blood spots on this item yielded DNA with a partial profile the same as that of the accused. Blood staining on the piece of timber that is alleged to have been one of the murder weapons yielded DNA with the same Y-STR profile as that of the accused. A swab from a blood spot on the tiled patio outside the rear of the house yielded DNA with a partial profile the same as the accused's.
The Crown case is that the DNA matching is circumstantial evidence that the accused was in the house at the time the deceased was killed and that he must have been the assailant. The Crown also relies upon evidence that the accused was in Australia at the time of the murder and that he is the only male in his line of descent who was here. The latter point is relevant to the assessment of one of the DNA comparisons. The Crown alleges that the accused lived at 105 Alt Street, Ashfield in September 1986, only about 3 km from the deceased's home. It alleges that he had a tendency to break and enter private property, based upon evidence that on 6 August 1984 he broke into business premises in Summer Hill to steal property and that he carried out similar offences on private homes in 1988 and 1989.
[3]
Issues opened by the accused
In a brief opening statement, Mr McMahon for the accused said that there was no dispute that the deceased was murdered but counsel identified the following issues in the trial. First, he questioned "the forensic integrity of the exhibits". Mr McMahon said that the DNA found on the deceased's pyjama pants "is critical evidence in the Crown case" but that this and two other items of the deceased's clothing were "stored in the same bag separated by pieces of brown paper […] not sealed separately, for many years" prior to the DNA testing of blood spots on the pants. He said that this gave rise to a "real prospect […] of transference".
Secondly, Mr McMahon opened that the forensic samples and physical exhibits that were retained by police from 7 September 1986 were "repackaged in 2004". Counsel identified that circumstance as "a concern", although he did not specify any particular respect in which the repackaging might have disturbed the integrity of the evidence or affected the results of the subsequent scientific examination.
Thirdly, Mr McMahon said that even if the Court could be satisfied that DNA that matched the accused "came to be [on the deceased's pyjama pants] prior to the police seizure in 1986, there is still the question of what inferences can be drawn as to how it came to be there". He said that "this case […] really comes down to […] an interpretation of the significance or otherwise of the DNA evidence".
Finally, Mr McMahon stated the accused's position with respect to the Crown's proposed tendency evidence, as follows:
The tendency evidence that the Crown leads in this case is not opposed; indeed, it is embraced for this reason. We accept that the tendency has significant probative value in this case, that is the tendency for him to commit break and enter offences, because it provides a potential explanation for how it is his DNA may have come to be at the scene. But […] a different emphasis will be placed on potential explanations if your Honour accepts continuity [ie, of the forensic exhibits] for why that may be because it is impossible to know […] how DNA comes to have been deposited on a particular item as a direct contact. One can't tell whether it is blood or skin or saliva.
[4]
Elements of the offence of murder
The elements of the charge, as it has been opened by the Crown, are as follows:
1. That Tatiana Sokoloff died on 6 September 1986.
2. That her death was caused by a combination of strangulation and head injuries deliberately inflicted by the accused.
3. That in strangling the deceased and/or inflicting blows to her head, the accused intended to kill her or at least to inflict grievous bodily harm.
There is clear direct proof, beyond reasonable doubt, of element (1) and it is not in issue. Police officers who attended the scene from about 1:25am on 7 September immediately established that Ms Sokoloff was deceased. With respect to element (2) the cause of death is established by a certificate of the Government Medical Officer, Dr Sylvia Hollinger. Her certificate was tendered by consent. The principal issue in the case is the second part of element (2), namely, whether it was the accused who strangled the deceased and inflicted the fatal injuries to her head. The accused cannot be found guilty unless the Crown has proved the disputed elements, (2) and (3), beyond reasonable doubt.
[5]
Circumstantial proof
As the Crown's evidence of these elements is wholly circumstantial I am required to determine, first, whether each of the circumstances relied upon by the Crown has been established to my satisfaction. Secondly, I must determine whether the established circumstances taken as a whole support the inference of each of the two disputed elements, rationally and not speculatively or in reliance upon mere supposition. Thirdly, if the inference of the disputed elements is supported by the circumstantial evidence, then I must determine whether the only reasonable inference or conclusion that can be drawn from the circumstances is that the disputed elements are proved beyond reasonable doubt and that the accused is guilty. At the third stage I would have to be satisfied that there is no other reasonable conclusion or hypothesis consistent with innocence that could explain and be accommodated to the established circumstances.
The following principles were stated by Dawson J in Shepherd v R (1990) 170 CLR 573; [1990] HCA 56:
[T]he essential ingredients of each element must be […] proved [beyond reasonable doubt]. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. […] Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
In Chamberlain v The Queen (No.2) (1984) 153 CLR 521; [1984] HCA 7 Gibbs CJ and Mason J, at 535, accept that evidence may have a cumulative effect and point out that it is the duty of the jury to consider all the facts together at the conclusion of the case. They say:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence.
In the same case McHugh J said this:
[…] There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in R v Kilbourne [1973] AC 729 at 758:
Circumstantial evidence ... works by cumulatively, in geometrical progression, eliminating other possibilities.
If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular fact has been proved beyond reasonable doubt. […] Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.
I will apply those principles in my approach to the evidence in this trial, on the basis that what their Honours said concerning the correct approach of a jury to a circumstantial case is directly applicable to my fact-finding role when trying this case as a judge sitting alone.
[6]
Summary of the evidence
In the course of summarising the evidence I will, where convenient, state some of my conclusions with respect to the circumstances of which the Crown has tendered proof. For the most part I will reserve the drawing of inferences until the latter part of these reasons.
[7]
Layout of the deceased's house
The layout of the deceased's house is relevant to an understanding of how the person who killed her may have gained entry, which in turn is material to some of the counsel's arguments concerning whether the accused was that assailant.
Dudley Street runs north-south. The block of land at No. 57 is on the east side of the street. As the house was configured in 1986, when facing it from the street there was a driveway to the right leading back to the garage towards the rear of the house. The front portion of the garage was adjacent to and shared a common wall with the rear part of the south side of the house. There was a roller door into this garage at the end of the driveway. There were a few steps at the right hand side of the front of the building, leading up to a doorway into an enclosed porch. The porch extended halfway across the front of the house, to the main front door that opened onto a central hallway. There was a lounge room to the left that served as the deceased's office and behind that were the bedrooms of the deceased and her mother. At the end of the hallway was the kitchen and beyond that a dining room.
A door through the back wall of the dining room opened out into an enclosed veranda or sunroom. The sunroom was about 12 m long, extending right across the rear of the house, and about 4 m wide. A sauna was constructed on the outside of the back of the house, adjoining the sunroom's rear wall. At the south end of the sunroom, to the right as one entered from the dining room, there was a side door into the garage. The garage was long enough to accommodate two vehicles parked one in front of the other. It was used for storage. The deceased did not have a car at the property.
There was a short passage about 1 m wide between the northern wall of the garage and the southern wall of the sauna, leading from the sunroom to a door that opened out onto a patio. In close proximity to that door there was a second door through the side wall of the garage, opening from near the back of the garage onto the patio. Halfway along the passage between the garage and the sauna there was a window in the garage wall, looking onto the passage. The window was about 1 m², comprising two framed glass panels that could be opened by sliding.
The outdoor tiled patio was about 2 m wide. It extended around the back of the sauna and then along the northern wall of the sauna to the rear wall of the sunroom. It was thus of an "L" shape around the back and side of the sauna. Next to the side of the garage, towards its rear, there was a set of three stairs leading from the patio up to a slightly raised area of the garden at the back of the property.
[8]
The deceased's body and the crime scene
In 1986 Philip Redman was a plainclothes constable of the NSW Police attached to the Physical Evidence Section. He had joined the Police Force in 1982 and by 1986 he was one and a half years into a five-year program of training in crime scene investigation. Mr Redman subsequently spent 20 years in the Forensic Services branch of the police and another three years in the Training Command. He was called out to the murder scene and arrived at 2:15am on 7 September 1986. He took numerous photographs.
The body of the deceased lay supine on the tiled floor of the sunroom with the top of her head about 900mm in from the threshold of the sunroom-to- garage doorway. The body was positioned at an angle of about 30° to the long axis of the sunroom with her legs towards the doorway from the dining room and her feet about 500mm from the nearest point of that doorway. The upper part of her body was clothed in a singlet and a jumper. The bottom hem of each of these garments was pulled up above the deceased's navel exposing the abdomen. Her lower limbs were clad in pyjama pants, the waistband of which was pulled down slightly to below the line of her pubic hair. A large cushion from a couch had been placed over the deceased's legs. A white bloodstained pillowcase lay across her chest. At some time this had been over the deceased's face, as is evident from the extent of blood staining on it that must have come from her facial injuries.
A length of electrical cord was wound twice around the deceased's neck, with the ends behind her head. This cord had a plug at one end. It had been cut from an iron that was standing on an ironing board near to the right side of the body, against the cedar wall of the sauna. The cord's outer insulating layer was of woven fabric. Mr Redman made this observation:
When you cut a piece of that particular type of cord you get […] clean fresh pieces of fibre showing that they are new, newly cut. It was quite obviously freshly done […].
The iron stood at the end of the ironing board, immediately adjacent to the commencement of the short passage from the sunroom to the back, between the garage and the sauna. On a chair near to the deceased's left side, against the rear wall of the dining room, there lay a large flat bladed screwdriver and a small kitchen knife.
The position of the body, its features and its immediate surroundings, as photographed by Mr Redman and as described above, were undisturbed from when the body had first been discovered until Mr Redman arrived. The two friends of the deceased who came to the house at 1:00am had not moved anything. The first police officer to attend was Senior Constable Single, a uniformed officer from Balmain. He entered the house at 1:25am and he advised Mr Redman, when he arrived 50 minutes later, that the deceased had not been touched.
The sunroom-to-garage door was hinged on the right as seen from the sunroom. It was ajar by 110mm as measured by Mr Redman. Senior Constable Single informed Mr Redman that the door was in that position from when he first arrived. Between the deceased's head and the bottom of the lock stile of the door there was blood on the tiled floor over an area 250mm wide by 900mm long. There were thick clots of coagulating blood at some locations within this area. A pink and blue patterned garment, apparently a dressing gown, was lying unevenly along the left-hand margin of the bloodied area and blood had extensively soaked into it. The dressing gown extended right to the bottom of the lock stile and a portion of it about 80mm long by 40mm wide protruded under the bottom of the door. This part of the blood-soaked dressing gown could be seen from the garage side. Adjacent to it was some blood that had run under the door and pooled there, occupying an area similar in size to the protrusion of the dressing gown.
Detective Sergeant Hastings, who has expertise in the examination of blood staining and splatter, identified in Mr Redman's photographs an intermediate area of clotting within the wider area of blood between the deceased's head and the door. In his opinion, which I accept, the deceased's head had at one time lain over this intermediate area, about 400mm from the door, and blood had pooled there. DS Hastings also identified a swipe mark through the drying blood on the tiled floor, from the intermediate area to the place at which the deceased's head was resting when her body was discovered. Relying upon DS Hastings' opinion I am satisfied that this indicates that the body had been dragged from the initial position, where her head had lain in the intermediate area of pooling, to the final position. A report from DS Hastings setting out his opinions was tendered by the Crown without objection. It provides detail of his training and qualifications to express the opinions. Counsel for the accused accepted that the officer is appropriately qualified and made no challenge to his scientific reliability or the correctness of the factual assumptions from which his conclusions were derived, mainly taken from Mr Redman's photographs.
There were abrasions and bruising to the underside of the deceased's chin, consistent with her having been punched. Mr Redman made these additional observations:
[There] appeared to be three injuries to the forehead […] a laceration over the right eye, a laceration to the centre of the forehead and a large abrasion and bruising over the entire forehead. Also, it appeared that that also covered part of the nose and there was some bruising around the nose as well. And the eyes were bruised […] which would be a natural effect if someone was hit in that part of the face. [… There was] swelling around the eyes, the nose and the forehead as well […].
It is evident from the photographs that the laceration over the right eye had bled heavily, as would be expected from an injury to that highly vascular part of the head. Dr Hollinger's post mortem report described the following:
An irregular V-shaped laceration […] in the midline of the forehead, each arm of the V measuring 3.5cm. Blood was present in the right ear. A laceration, irregular in shape was present above the right eyebrow measuring 3.0 x 1.5cm. A wide red abrasion was present on the front of the forehead measuring 10 x 5cm.
Dr Hollinger found numerous fractures of Ms Sokoloff's cranial bones and diffuse subarachnoid haemorrhage over parts of her brain. The doctor considered that at least some of Ms Sokoloff's injuries could have been caused by the back of her head striking the tiled floor, which obviously could occur if she was struck heavily to the forehead while in a supine position.
The deceased's hair and upper clothing were soaked in blood. There was blood spatter over the front of her upper clothing and on her exposed abdomen. Blood spatter was found on the floor around the deceased's upper body and head, on the south wall of the sunroom to the left of the sunroom-to-garage door and on the cedar wall of the sauna. On the sunroom-to-garage door there was no blood splatter on the surface that faced into the sunroom when the door was in its nearly closed position. When it was opened by police, blood spatter was found on the garage side of that door, concentrated in an area approximately 250mm from the bottom of the door, in the centre, and radiating upwards. Blood spatter was also found on the side of a refrigerator in the garage, standing adjacent to the doorway.
DS Harkins' analysis satisfies me that the blood spattering occurred when the sunroom-to-garage door was open to about 90° or more and when Ms Sokoloff was on her back on the sunroom floor with her head in what I have referred to as the intermediate location about 400mm from the threshold of the door. The spatter was caused by heavy blows to the deceased's head inflicted while she was lying in that position. In order for the door to be swung to its nearly closed position after the assault, the body had to be moved about 500mm away from the door. Dragging of the body over that distance left swipe marks in the blood on the floor, as referred to earlier. I accept Mr Redman's evidence that the pillowcase and blue lounge cushion that police found on top of the deceased's body could not have been there when the blows to her head were inflicted because they did not exhibit blood spatter.
[9]
The blood stained length of timber
Mr Redman's photograph of a garden bench seat in the garage depicts the length of timber that the Crown alleges was used to bludgeon Ms Sokoloff. It can be seen resting on top of a carton and other items on the seat. The seat was about two metres into the garage from the door to the sunroom and approximately opposite that doorway. This piece of timber subsequently yielded a relevant DNA result from a bloodstain at one end. It is necessary to resolve a discrepancy in the evidence as to where the timber was first located and whether it was moved.
[10]
Michael Gray's evidence
In 1986 Mr Michael Gray was a New South Wales police constable stationed at Ashfield. He has since retired. He was one of the first police to attend the scene in the early hours of 7 September 1986, arriving before Mr Redman. In March 2020 Detective Senior Constable Staples, the officer in charge of the re-investigation, asked Mr Michael Gray to recall his observations at the scene, without prompting. He told DSC Staples that he went through to the back of the house and out "into an outdoor area and into the carport". He continued as follows:
I recall bits about the scene. There was some wood with blood on it found in the carport. There was no car in there. The carport was on the right-hand side of the house as you looked at it. There was blood on one side of the wood.
Mr Michael Gray also told DSC Staples that he thought the timber was resting on something, perhaps an outdoor table, but he was unsure. On 19 May 2020 Mr Gray was shown a contemporaneous occurrence pad entry recording the names of police who attended the scene, including then Sergeant Kevin Battishill who had arrived with Mr Gray. Mr Battishill has also by now retired from the police force. Having reviewed this entry Mr Michael Gray said this in his statement of 19 May 2020:
I remember going to the back of the house - that's where we were drawn to by the people in the house. I saw the body of a woman on the floor. I recall her head facing towards the back door. I remember there was a cord wrapped around her neck. I don't have a clear recollection beyond this without the assistance of photographs or other records. I remember that Kevin [Battishill] and I went outside to look for anything that might be relevant. We went out into the backyard and into the garage via a back door. We found the timber with blood on it in the garage.
On 19 May 2020 Mr Gray reviewed further contemporaneous occurrence pad entries concerning police observations and activities. He stated that the following entry was consistent with his memory:
Sgt Battishill attended with Const Gray from Ashfield. Sgt Battishill located a large piece of timber approximately 90cm long and 100 x 50 mm in size (4 x 2 inches 3 foot long) which had fresh blood adhering to it. The piece of wood was located in the garage near the rear door where the deceased was located.
Mr Michael Gray was then shown a photograph taken by Mr Redman of the piece of timber resting on the garden bench in the garage. Having seen that photo he recalled that that was where the item was found, rather than on an outdoor table as he had at first recalled.
Mr Michael Gray's statement of 19 May 2020 included the following further recollection:
It's my memory now that Kevin Battishill found the timber on this chair. The bloodied part of the timber was face down so it wasn't visible at first. It's my memory that Kevin picked up the timber and we saw that it had blood on it. When we noticed this, Kevin put the timber back down on the chair in the same position that it was in because we believe that it was [possibly] relevant to what had happened. The photographs have assisted my memory.
In oral evidence Mr Michael Gray said that, as far as he was aware, he and Sgt Battishill were the first police officers to go into the garage. He said that they did not go through the "door that went from the carport into the house", evidently referring to the sunroom-to- garage door.
When Mr Michael Gray was asked if he and Sgt Battishill went into the patio and back garden area through the garage, he said:
No, no, no because we came out, the door we went out to basically exited out into the garden and then you walked around you came in and there was another door that came in through the carport area back into the house.
In that answer he is clearly describing having exited through one of the doors that opened from the sunroom directly to the outdoor area behind the house, then having entered the garage through the pedestrian doorway towards the rear of the garage, off the patio behind the sauna.
[11]
Kevin Batershill's evidence
On 20 August 2019 Mr Battishill made a statement at the request of police who were conducting the re-investigation. He stated the following:
I recall going in the house by the back door and the deceased was located lying on the floor. From memory it was like a "sunroom" at the back of the house. I don't remember anything else about the "sunroom" area as such except that she was lying not far inside the room from the entry. She was lying on the floor in like a curved position and there was blood from her head and on the piece of wood I located from memory as well. Possibly there was hair and skin on the wood, but I can't be a hundred percent. In those days we didn't wear gloves, it wasn't standard practice, however I didn't touch anything.
I remember seeing a piece of wood on the floor next to the deceased, I can't remember exactly how big it was but maybe three to four feet in length.
During the taking of his statement Mr Battishill was shown the occurrence pad entry quoted at [37] above. He stated:
To the best of my memory, I believe these details are accurate. I don't today recall what the deceased was wearing at the time. I can confirm seeing the piece of wood near the deceased's body on the floor where she was lying.
Where it states, "the piece of wood was located in the garage near the rear door where the deceased was located" I can't add anything further in relation to this other than what I already said relating to going around the back of the house, never going to the front of the house at all.
Mr Battishill was shown a copy of Mr Redman's photograph of the piece of timber on top of the garden bench seat in the garage. With reference to this, his statement continued as follows:
I believe this is the same piece of wood I saw on the ground lying near the deceased. The piece of wood was not on the bench seat when I saw it. I am not sure how the piece of wood came to be on the bench seat however I believe it must have been moved by someone, however I didn't see this happen
In cross-examination Mr Battishill was shown a photograph of the house, viewed from the street, with the roller door of the garage open and a police vehicle backed up to it. He referred to the garage as a carport and said that he believed he entered the rear of the premises through the carport. He said that he had a vivid memory of seeing the piece of wood on the floor next to the deceased. He answered questions from the accused's counsel as follows:
Q. […] Do you have any recollection of picking up that piece of timber yourself at any point?
A. No
Q. Given the passage of time, do you accept it's at least possible that you might have?
A. No, I didn't.
Q. Definitely didn't?
A. Definitely didn't.
Q. Definitely saw it on the floor?
A. Saw it on the floor.
Mr Battishill answered further questions from the bench as follows:
Q. When you got there sir and before the detectives arrived did you move anything that was near the body?
A. Not a thing.
Q. Why was that?
A. Well, we walked straight in, we were shown exactly what was, what we had to see.
Q. Which was?
A. Well, the body, the piece of wood that was lying next to her, yeah. I didn't have to move anything.
Q. Did you see any other officer move anything?
A. No, not while I was present.
Q. Nothing in proximity of the body?
A. No, no.
[12]
Conclusions regarding the location of the timber
I accept the evidence of Mr Michael Gray that he and Mr Kevin Battishill found the timber in the position in which it was photographed by Mr Redman. I am satisfied that Mr Battishill is mistaken in his recollection that the piece of timber was on the floor near the body when first seen. Mr Redman's photograph shows it on the seat in the garage. If it had earlier been on the floor beside the body, someone would have to have picked it up and moved to the garage before Mr Redman took this photograph. Given that the sunroom-to-garage door remained in its nearly closed position until after Mr Redman arrived, relocation of the piece of timber would have involved carrying it out through one of the doors from the sunroom onto the rear patio, then bringing it through the rear pedestrian door into the garage. Mr Battishill said that he did not move it and he did not see anyone else move it.
I find it inconceivable that, before the arrival of the crime scene examiner, any of the attending police would have relocated such a significant item along the route that would have to have been followed, as described. Senior Constable Single was first on the scene and he remained present until the body was removed to the morgue later in the morning. He gave evidence that he assumed responsibility for ensuring that other police did not disturb the scene. There is no reason to believe that he would have failed to stop a significant, irrational and misleading relocation of a possible murder weapon from beside the body. The straightforward explanation of the discrepancy in the evidence is that Mr Battishill's recall of where this item was first located, 35 years ago, is inaccurate.
I accept Mr Michael Gray's evidence that Mr Battishill picked up the piece of timber from the seat and then put it back down. I am satisfied that this did not contaminate the blood on the timber from which forensic samples were subsequently taken. Logically and naturally, it would have been picked up from the middle rather than from one end. The bloodstains that were later sampled were close to the ends.
[13]
Blood staining of the timber and its use as a murder weapon
There was a fairly large area of blood staining on the wider (100mm) face of the timber, commencing about 150mm in from the end, extending 150-200mm lengthways and right across the width. There was some blood splatter radiating out from the main body of the stain, both on the wide face and around the edge of the timber onto its narrow (50mm) dimension. I accept DS Harkins' opinion that this was a transfer stain resulting from contact of the timber with "a blood-bearing surface", which in this case I conclude was the forehead of the deceased.
About 200mm from the other end of the timber was a smaller bloodstain, on the same face but near one edge and extending only about 40mm across the width. In DS Harkins' opinion this could have resulted either from contact with a blood bearing surface or from some other mode of deposition. I am satisfied that it did not result from this part of the timber having been struck directly onto the deceased's bleeding head. It is highly improbable that a person using such a weapon would reverse it end-for-end during an attack.
I am satisfied that the piece of timber was used to inflict the blows to Ms Sokoloff's head that caused her injuries as earlier described. The V-shaped laceration in the centre of the forehead, in particular, would be consistent with striking by a corner at one end of the piece of timber.
Blood for analysis was not swabbed from the timber at the scene. The whole piece of timber was seized by Mr Redman and protected in two heavy paper exhibit bags, one placed over each end of the item, overlapping, and labelled.
[14]
Means of access for an intruder
The sunroom-to-garage door had two frosted glass panels, one beside the other, extending from the level of the latch up to the top rail of the door. When Mr Redman examined and photographed the glass panel closest to the lock stile he found it cracked as a result of someone having inserted a tool under the glass and having endeavoured to lever the glass upwards. On the garage face of this door Mr Redman found that the timber beading by which the bottom edge of the glass panel was held in place had recently been partially prised away, leaving a pale, fresh wood surface exposed. The damage to the timber beading was consistent with it having been caused by someone using the flat-bladed screwdriver that was found near the deceased's body. There was a security screen door to this opening, on the garage side, which would have to have been open for an intruder to get to the timber door.
There were two key locks fitted to the timber door between the sunroom and garage. If it was locked when the damage was done to the timber and glass, the attempt thereby to gain entry was not taken far enough. When the scene was examined and photographed, there were keys in each of the two locks of the door, on the sunroom side. At some point before Ms Sokoloff was killed, the door had been unlocked and opened, as shown by the blood splatter.
No evidence was found of entry having been successfully forced at any other point around the exterior of the house. Mr Redman found that the sliding window from the garage into the short passage between the garage and the sauna was open. If an intruder had gained access to the garage through the patio-to-rear-of-garage pedestrian door, then the sunroom and other parts of the house could have been entered through that window.
In 1986 Mr Stephen Gray was a Detective Senior Constable with the Homicide Squad. He has since retired. Contemporaneous police running sheets and occurrence pad entries, as well as Mr Stephen Gray's handwritten notebook entries, show that he attended the murder scene from 9:00am on 7 September 1986. He recorded the following in his notebook:
House - rear verandah doors locked. Garage roller door locked. Door leading from hallway to outside - locked.
The reference to a "hallway to outside" is to the short passageway between the sauna and the garage. There is no other feature of the house that would fit the description. Mr Stephen Gray's notes contain no suggestion that the patio-to-rear-of-garage pedestrian door was locked or that he was told it had been locked during the preceding evening. On the contrary, his notes record consideration of this as a possible point of entry. This entrance had a timber door on the inside that opened inwards to the garage and a security screen door on the outside that opened outwards to the patio.
Mr Michael Gray's evidence also supports that this was an available route into the garage for the intruder. As referred to above, he said that he and Sgt Battishill were able to enter the garage via that rear pedestrian door. It was not locked when the two of them went into the garage and found the piece of bloodstained timber, early in the police attendance at the scene. Mr Battishill is mistaken in his recollection that they entered through the roller door.
[15]
Blood on the patio and from around the deceased
On the tiled surface of the patio behind the sauna, outside the pedestrian door from the rear of the garage, Mr Redman found and photographed five red spots that appeared to be blood. These were drops that had fallen from above, rather than spatter that had followed a trajectory. Neither Mr Redman nor DS Harkins drew any conclusion about the speed or direction of movement of the person or object from which these drops had fallen. Only one of these blood spots remains significant as a result of subsequent testing, namely, a spot on the corner of a terracotta tile close to the short flight of steps leading from the patio up to the back garden and rear fence. Following the usual procedures of the day, Mr Redman took a swab of that blood by cutting a small patch of gauze and placing it over the spot to soak up some of the deposit. To the extent necessary, according to whether the blood had dried, he placed one or more drops of distilled water on it with a pipette to promote absorption into the gauze.
This and other blood swabs taken in the same fashion were stapled to individual cards and each card was marked with the identifying number of the investigation and a description of the location from which it had been taken. When the swabs were subsequently sent to the laboratory at the Division of Forensic Medicine, they were accompanied by a P377 form on which each swab was assigned a number. The swab of blood removed from the rear patio near the stairs to the backyard was assigned No. 8. It was sent to the laboratory on 8 September 1986.
Six blood swabs were collected in similar fashion from surfaces near the deceased and one from the deceased herself. They were similarly stapled to cards and labelled. Each card with its specimen was placed in a separate lidded jar and labelled, for transport and storage. During these procedures gloves were worn. The gloves were changed between samples and after any piece of equipment or other foreign object had been touched. Plastic disposable tweezers were used to handle the gauze. The stapler was cleaned with methylated spirits between each use. I am satisfied that the precautions taken would have avoided cross contamination of the blood samples obtained.
[16]
The perpetrator's use of gloves
Detective Sergeant Mulholland from the Central Fingerprint Bureau made a statement dated 6 April 1987 concerning his examination of 57 Dudley Street on 7 September 1986. The statement was tendered by consent. That includes the following:
An extensive fingerprint examination of the premises was carried out by myself. Fingerprints were developed on furniture and fittings throughout the house, all identifiable fingerprints were photographed and have since been identified as belonging to the deceased. Numerous articles throughout the house, including an antique chest of drawers located in the deceased bedroom had been opened and obviously ransacked. The draws from the chest, which were of a highly polished finish, I would consider to be an excellent service to retain latent fingerprints. The only prints developed on these ideal surfaces appeared to have been made by either gloves or other material, although no clearly defined pattern was developed.
Numerous exhibits including an electric iron, one kitchen knife and several notebooks were conveyed by myself to the Latent Fingerprint Unit at Parramatta on the 8th September 1986, where I carried out chemical examination of the articles in an attempt to develop fingerprints, which met with a negative result.
[17]
Exhibits retained after post mortem examination
Mr Redman attended the autopsy. During it, Dr Hollinger took a tube of blood from the deceased for the purpose of having a sufficient sample available for future comparisons. At the conclusion of the post mortem examination Mr Redman took possession of the deceased's three items of clothing, to be held at the office of the Crime Scene Investigation unit at Campbell Street, Sydney. There, drying tables were cleaned down and covered with fresh sheets of heavy brown paper. The deceased's clothing was spread out on this for drying before storage, as it was not proposed to be further examined at that point. Mr Redman also retained the sample of the deceased's blood.
[18]
Initial laboratory examination of exhibits
Reference has been made to the submission of forensic samples to the laboratory at the Division of Forensic Services. In addition to item No. 8, the blood swab from the patio near the steps, Mr Redman submitted, inter alia, the bloodstained piece of timber, some material that had been scraped from the timber, the swabs of blood from around the deceased and the reference sample of her blood.
Blood grouping analysis was then undertaken by Ms G Clancy, who holds a Bachelor of Science degree and who had received, prior to 1986, specific training in this field. She cut a strand or other small portion from each of the swabs that Mr Redman had obtained at the scene and carried out blood grouping. That involves identification of proteins in the blood. Ms Clancy found that the six swabs taken from around the deceased's body were consistent with being her own blood. Item No. 8 from the patio yielded an insufficient quantity for analysis in three of a potential four areas of protein grouping. In the fourth area the analysis was attempted but was unsuccessful, meaning, in Ms Clancy's words:
The results were not considered to be reportable, there was an anomaly, it wasn't clear, or you just did not get any kind of reaction at all.
Ms Clancy took swabs from each of the two locations on the piece of timber that exhibited blood staining. She labelled the swab from the larger bloodstain No. 9(1). Two areas of attempted blood grouping carried out on a portion of this sample were unsuccessful and the other two areas were consistent with the blood having been that of the deceased. From the swab of the smaller area, which Ms Clancy marked No. 9(2), the portion that was tested was insufficient for grouping in two areas. Attempted grouping in a third area was unsuccessful. Grouping in the fourth area, Haptoglobin or Hp, was inconsistent with this blood having come from the deceased.
The grouping analyses for which results were reported were only carried out after initial testing had confirmed that the substance being examined was human blood. Ms Clancy gave this evidence about the reliability of the tests:
A. [The tests are] pretty definitive. It's either positive or negative. If it wasn't clear, we would usually say that it wasn't there enough to make a judgment on. So the fact that there has been a report of haptoglobin 1 or AK 1, it's usually read by more than one person and they have to be in agreement that that is the result.
[…]
A. These tests that we would have done would have been done many times to establish that they could be used as a reliable test. We used the same procedure each time. They weren't new or innovative tests at the time that were being trialled. They have been used many times by many different forensic laboratories. […]
[…]
Q. Are you able to assist us, though, in terms of their validation or accuracy though?
A. Okay. Every time that a test was run, known standards would be run next to it so that we would know that the test had worked correctly. We would have known standards that you would then compare your results to.
HIS HONOUR
Q. Just for the Hp test, what is the test? Do you look at the blood samples under a microscope and see a particular cell structure or do you test it with a chemical or what?
A. What happens is it's known as gel electrophoresis. What happens is you put a sample into a gel which acts a bit like a filter or a sieve. When you sieve things they get separated by their size. With gel electrophoresis, the protein, the haptoglobin protein, they have slightly different sizes depending on their grouping, so when they move through the gel, a bit like a sieve, the smaller ones will move faster than the larger ones. Then when you stain that you get a separation of lines that shows you whether you have 1, 2 or 2 1.
Q. So it is an analysis of the protein composition of the blood, is it?
A. Yes. All the blood groupings that we use are actually looking at different types of proteins that a person's blood cells would have on them, that is their genetic makeup.
McMAHON
Q. Correct me if I am wrong, just based on the description you've given us just then, does the interpretation of the Hp test involve a subjective element as well; that is, the analyst seeing the separation in the sample?
A. Well, you have to see it, but it is seen against a known standard. So it isn't just: I think this looks like 2. You compare it against a known standard and it has to line up exactly. If it doesn't line up exactly then it is an indeterminate result.
Ms Clancy answered questions from the accused's counsel concerning the possibility of cross-contamination of samples in the laboratory. I am satisfied from her answers that that did not occur. She was not aware of it having occurred on any occasion in her career and she described cleaning and sterilisation of instruments and other protocols that would render such contamination highly unlikely. At the conclusion of her testing Ms Clancy returned to Mr Redman the samples that he had submitted, including the piece of timber. She retained at the laboratory the swabs that she had taken from the timber, Nos. 9(1) and 9(2). These were stored at very low temperatures to preserve them for future testing if necessary.
[19]
Continuity of forensic exhibits
The deceased's clothing was not submitted to the Division of Forensic Services laboratory for examination or testing in 1986. After the clothing had been dried Mr Redman caused each of the three garments to be separated by a sheet of heavy brown paper and they were placed in one exhibit bag. After the blood swabs and the piece of timber had been returned from the laboratory in November 1986, all exhibits were stored in a specimen exhibit room at the Sydney Police Centre ("SPC") in Surry Hills. The evidence does not establish exactly when the exhibits went to that location or for how long they may have been initially held at the Sydney Crime Scene office in Campbell Street.
Up to the time when the exhibits relating to this investigation went into storage at the SPC in Surry Hills, no register was maintained of exhibits across all open investigations. Exhibits relating to any one investigation were retained together, with labelling on individual items to indicate the matter with which they were concerned and the place from which they had been collected or seized. In the late 1990s or early 2000s the exhibits in the investigation of Ms Sokoloff's murder were sighted by Mr Redman at the SPC. At that time consideration was being given to whether exhibits that related to unsolved crimes should be retained in central storage at the SPC, under the control of Crime Scene Investigation or Forensic Services personnel, or whether they should be returned to the officer in charge of the investigation at the station from which it originated - in this case, Ashfield. It was decided at that time that the exhibits for this case should remain at the SPC and they did.
On 21 July 2004, the investigation of Ms Sokoloff's murder was reactivated and 18 exhibits were located at the SPC, entered in a Specimen Item Register and placed in new bags. These exhibits included the swab of blood from the patio near the rear stairs, still identified as item No. 8; the length of electrical cord from around the deceased's neck and a bag described as containing "Clothing from victim Sokolova (2 x jumpers, pyjamas and pillowcase)". On 23 July 2004 all 18 exhibits were signed out from the control of the Forensic Services Group at the SPC and removed to Ashfield Police Station. They were recorded in the Station Exhibit Book as having been received.
On 7 October 2004 an officer assisting in the reactivated investigation removed the deceased's clothing and the electrical cord from Ashfield Station and submitted those items to the Division of Analytical Laboratories ("DAL") for examination by Ms Friedman, a senior forensic biologist. Ms Friedman also retrieved samples Nos. 9(1) and (2) from the laboratory's frozen storage, in which they had been placed by Ms Clancy in 1986. Approximately six months later, on 7 April 2005, Ms Friedman reported as follows:
1. The deceased's clothing was not examined.
2. The electrical cord:
[The] partial DNA profiles recovered from three areas of the electrical cord […] are consistent with originating from the same female individual. Traces of DNA from a second female were also recovered from the electrical cord.
1. Samples No. 9(1) from the larger stain on the timber and No. 9(2) from the smaller stain:
The DNA profiles recovered from [these] retained samples […] are consistent with originating from the same female individual.
On 20 April 2005 the electrical cord and the deceased's clothing were retrieved by police from DAL, returned to Ashfield Station and duly recorded in the Exhibit Book. On 10 January 2013 all exhibits held at Ashfield Station in relation to this investigation were uplifted and transferred to the Metropolitan Exhibit and Property Centre ("MEPC") at Potts Hill, near Lidcombe. From that point the items were recorded on the police electronic register of exhibits known by the acronym EFIMS.
On 9 October 2018 DSC Staples uplifted various exhibits from the MEPC. She submitted a number of them to the Forensic and Analytical Science Service ("FASS") for further examination by Ms Friedman, including the deceased's clothing and Mr Redman's blood swab No. 8 from the patio near the rear stairs (submitted on 9 October 2018) and the electrical cord (submitted on 20 March 2019).
I am satisfied that the items submitted to Ms Friedman at FASS at this time, from police custody, were the original items that had been obtained from the scene and from the deceased's body. The chain of custody has been thoroughly established. There is no indication in the evidence of erroneous labelling or mistaken substitution or confusion of exhibits. In particular, with respect to the deceased's pyjama pants, the photographs taken at the murder scene and at the morgue reveal distinctive stains and spots that are identifiable and unmistakable on photographs taken of the same piece of clothing by Ms Friedman at the time of her examination of the article.
[20]
DNA profiling in 2020
On 16 December 2019 Ms Friedman was provided with a buccal sample from the accused. At the request of police she examined the deceased's pyjama pants and blood swab No. 8 from the patio near the rear stairs and she re-examined the electrical cord and the laboratory-retained samples swabbed from the piece of timber, Nos. 9(1) and 9(2). With respect to the blood swabs from the timber, these had been distinctively labelled by Ms Clancy when they were taken in 1986 and they remained in the laboratory's frozen storage over the next 18 years until the examination of April 2005. The samples were returned to frozen storage after that and again retained until Ms Friedman's further analysis, that resulted in her certificates of February 2020 and November 2021.
Ms Friedman used the PowerPlex21 system for profiling DNA in or on the exhibits she received and the DNA of the accused from his buccal sample. That system targets 20 highly variable loci of the DNA and the gender locus. The results of comparison between the profile of DNA recovered from a forensic source and the profile of DNA from the buccal sample are expressed in statistical terms, as a likelihood ratio, applying an upper level cut-off of 100 billion to 1.
Dried blood at four locations on the deceased's pyjama pants gave rise to relevant results. At each result there was a small dark reddish-brown stain that passed a positive screening test for blood. There were three oval spots, each about 5-10mm across in the front crotch area and one streak about 40mm long on the back of the right mid-calf. The results may be summarised as follows:
1. Area 6aii, outside left front crotch: Partial DNA recovered. A mixture that originates from at least two individuals. The accused cannot be excluded as the major contributor. Assuming two contributors, it is greater than 100 billion times more likely that the profile originates from the accused and an unknown, unrelated individual than that it originates from two unknown, unrelated individuals in the Australian population.
2. Area 6aiii, outside right front crotch: Partial DNA recovered with the same profile as the accused (not a mixture). It is greater than 100 billion times more likely that the profile originates from the accused than that it originates from an unknown, unrelated individual in the Australian population.
3. Area 6aiv, outside right back mid-leg. Partial DNA recovered with the same profile as the accused (not a mixture). Similar conclusion as for area 6aiii but with a probability of greater than 1 billion to 1.
4. Area 6axviii, outside left front crotch (side): Partial DNA recovered with the same profile as the accused (not a mixture). Similar conclusion as for areas 6aiii and 6aiv but with a probability of greater than 120 million to 1.
Ms Friedman explained that variations in the likelihood ratios from one sample to the next are due to the DNA recovered having been partial. The DNA yielded from some areas on the pyjamas was a greater fraction of the whole chain than the DNA recovered from other areas. Consequently, some of the partial DNA had more of the 20 targeted areas for comparison and led to a higher degree of likelihood of exclusion of a source other than the accused. Ms Friedman said that it was consistent with scientific experience that the integrity of the DNA on a piece of clothing would be preserved over decades if the clothing "has not been exposed to the elements, to sunlight, to moisture, to other substances that may start to degrade the DNA that's there".
A cutting from Mr Redman's swab No. 8 from the rear patio near the stairs to the upper garden yielded partial DNA with the same profile as the accused (not a mixture). Ms Friedman reported that it is greater than 7.9 million times more likely that the profile originates from the accused than that it originates from an unknown, unrelated individual in the Australian population.
The laboratory-stored sample No. 9(1) swabbed from the larger stain at one end of the timber yielded DNA with the same profile as the deceased. DNA from sample No. 9(2), taken from the smaller stain, was a mixture from at least two individuals of which the major contributor was the deceased and the DNA from the minor contributor was at an insufficient level for comparison. Additional testing of that sample was carried out using the Y-filer system that targets areas on the Y chromosome. By use of this system the analysis concentrates upon the male DNA within the mixture. Ms Friedman found that the recovered male DNA has the same Y-STR profile as the accused. She reported that it is expected to match all males on his paternal line. Other evidence in the case has satisfied me that there were no other males in the accused paternal line present in Australia in 1986. The accused migrated to this country from Albania in 1980 and Australian Border Force records negate the presence here of any other person in his paternal line. Ms Friedman's evidence is that the recovered Y-STR profile from this sample is expected to occur in approximately 1 in 750 males in the New South Wales general population who are not related on the male paternal line and 1 in 52,000 unrelated males in the worldwide population.
DNA was recovered from 10 areas of the electrical cord. Ms Friedman's report does not state whether the areas were all bloodstained or may have had other human cells that would have yielded the DNA. The deceased's DNA was identified at three locations. Male DNA was detected at two locations, at levels too low for further testing. At one location male DNA was recovered with a Y-STR profile that could not have originated from the accused but was at too low a level for further interpretation.
[21]
Conclusions regarding integrity of scientific results
Counsel for the accused questioned Ms Friedman about the risk that the samples she obtained from the deceased's pyjama pants may not represent the blood or human tissue that was on them when her body was discovered. Ms Friedman discounted that possibility, as follows:
Q. What I am suggesting to you is that the items of clothing were all inside the same outer bag, but separated to some extent by loose brown paper sheeting inside the bag? […] You would accept in those circumstances that there would be a real risk of transference between those items of clothing over the years, especially if on occasion the bags had been moved?
A. Not necessarily. We are talking about what appeared to be soaked in stains and I don't think that there was a risk of dried soaked in stains transferring from one item to another.
Q. Not even a risk?
A. No, because the stains were dried.
Q. Well, one of the things that happens with blood, isn't it, that it when it dries it tends to take on a flaky texture, doesn't it?
A. Yes, it can.
Q. So, especially if bags with paper and other items in them are moved around, isn't there at least a possibility of fragments of dried blood breaking off from one item and moving elsewhere in the bag?
A. Yes, but then when I conduct my testing on a soaked in stain that's given me a positive screening test to blood I'm expecting to get a DNA profile from that soaked in blood stain. If that soaked in blood stain is contaminated by particulate matter that's flaked off from another area I would expect to be able to pick that up and get evidence of a different profile in that mixture.
Q. You are assuming though that the other profile is a different profile; correct?
A. Well, by your scenario we're talking about DNA coming from other stains on an item.
Q. What I am talking about is this, if person A's DNA is on one particular location on an item of clothing and that item of clothing is stored with other items of clothing in this fashion and the bags are stored, moved in 2004, then accessed again later for the subsequent testing, there is the prospect, isn't there, of that DNA, that is the same DNA, being found elsewhere on the clothing as a result of transference?
A. Yes, but, as I say, I am still expecting to get DNA from the visible soaked in stain that I am testing.
Q. There is no way of telling though, is there, whether the DNA you are getting is from the stain as opposed to microscopic or small amounts of transfer?
A. I think it's a fairly logical connection between seeing a blood stain on an item, testing it for the presence of blood, getting a positive result, extracting DNA from that and getting a DNA profile and I think it's a fairly logical connection that the DNA you have recovered originates from that blood stain unless you have animal blood soaked into the garment and you have got somebody's DNA elsewhere in that package that's flaked off and covered that animal blood stain and the only thing that is showing up is that flaked off blood from that stain.
Ms Friedman explained how the bloodstain was removed from the pyjamas and the DNA extracted, in the following answer:
[We] cut out a small area of the stain, put that into a tube and then add the chemicals to the liquid that's made from that […] extract from the stain and we conduct the DNA testing on what we assume is the staining on the piece of material that we have cut out.
From this evidence I see no realistic possibility that the DNA results obtained by Ms Friedman from the four locations on the pyjamas were anything other than a true reflection of the DNA within the blood that created those four stains. Further, there appears on the evidence no plausible mechanism by which DNA that appears to have come from the accused could have got into the evidence bag in which the deceased's clothing was stored, other than on the deceased's clothing, deposited there by the time police seized it from the murder scene. Ms Friedman added this, which confirms my conclusion:
[We] look at the quantities of DNA as well. If you are just talking about flakes of powdered DNA on a stain you wouldn't really expect there to be a lot of DNA in that and possibly you would expect to get those similar flaked material of DNA on the other areas of the garment if the garment has become contaminated by flaked materials of DNA such as the lower areas of the pyjama pants where we didn't recover any DNA.
With respect to Ms Friedman's result for swab No. 8 from the patio near the rear stairs, defence counsel questioned whether that analysis could be relied upon having regard to the fact that other swabs from nearby on the patio did not yield results. I accept Ms Friedman's evidence that the difference in successive testing may have arisen from a lesser quantity of blood being recovered on one swab, or one droplet of blood having been adversely affected by the environmental conditions where it fell. These possibilities do not provide any reason to doubt the reliability of the testing on swab No. 8, which was successful. Ms Friedman said that the manner in which the swabs were taken and stapled to cards for identification did not cause her to have any concern about possible DNA contamination given that there was "a visible stain on there". She gave these answers:
[Given] the quantities of DNA that you would expect to get from a bloodstain, the prospect of there being small amounts of DNA from a contaminating source wasn't really an issue because you were overwhelmed with the DNA recovered from that stain.
[…] I would be less concerned about contamination if I got a strong single source profile or profile from one particular person. If it was a mixture of individuals I may have some concerns that there had been a mixture or mixing of DNA from another source at some stage and I would be looking into that.
But there's an expectation if you have a, what appears to be a bloodstain, you have done your screening tests, you've got a positive result, you've cut out a piece of that stain and sent it through for DNA testing, if you get a DNA profile that appears to be from one person, you would expect that that DNA profile comes from that bloodstain.
Those answers are directly applicable in respect of Mr Redman's swab No. 8 from the rear patio near the stairs because the swab yielded partial DNA with the same profile as the accused (not a mixture). Ms Friedman agreed that a relatively low level of DNA was recovered from this swab but she said that that did not necessarily imply that transference had to be considered. She discounted the risk of contamination by transfer in circumstances where there was a visible bloodstain recovered from this location on the patio and it gave a positive result to the screening test for blood.
Mr McMahon's very thorough testing of Ms Friedman did not shake the reliability of her conclusions, which establish circumstances that very powerfully support the case for the Crown.
[22]
Principles governing use of tendency evidence
In this trial I am not required to rule upon the application of ss 97 and 102 of the Evidence Act 1995 (NSW) for the purpose of determining a threshold question of admissibility of evidence tendered by the Crown to establish the accused's tendency to commit break and enter offences. As earlier noted with respect to Mr McMahon's opening, the reception of that evidence was not opposed. Counsel tendered evidence that the accused had committed offences of this type additional to those proved by the Crown. Notwithstanding that admissibility has not been an issue, statements in the High Court concerning assessment of "significant probative value" for the purposes of s 97(1)(b) provide guidance to the manner in which this evidence may be used.
In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 Kiefel CJ, Bell, Keane and Edelman JJ said this at [41]:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. […] In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
Of course, the tendency evidence cannot be used by me as merely showing that the accused is a bad person in a general sense and therefore likely to have committed murder. The evidence tendered by the Crown satisfies me that the accused committed property offences as follows.
[23]
Tendency to break and enter
In the early hours of Monday 6 August 1984 the accused broke into a warehouse at Summer Hill. He forced open a rear window with a screwdriver, entered through it and removed from the premises three new blankets in plastic bags. In doing so he tripped a silent alarm that brought police to the scene. The accused was found hiding in a rear courtyard. He was taken to Ashfield police station where he admitted the offence.
At about 7:20pm on 2 April 1987 the accused entered a private dwelling at Maroubra through an open window, stole electrical items and broke out of the building. The offence was committed in company with one Ton Hoti, who acted as a lookout from outside the premises. The accused was arrested at the scene, admitted the offence to police and was convicted at Waverley Local Court on 25 May 1987.
On Saturday, 22 April 1989 at about 8:00pm the accused and Ton Hoti were under police surveillance as they drove from Bondi to Letitia Street, Oatley. They broke into a house at No. 74 and stole jewellery. They were arrested not far from the scene, after the accused had attempted to dispose of the bag containing two jemmy bars, a screwdriver and a torch. They had ransacked the house. Some of the stolen jewellery was found in the accused's pocket. Both were arrested and when the accused was interviewed later that evening he admitted the offence.
In a further interview the following day the accused admitted having carried out the following break and enters on earlier dates. Jewellery and other items were stolen from each of these premises:
43 Torokina Avenue, St Ives on 12 March 1988
12 Neerim Road, Castle Cove on 17 July 1988
18 Neerim Road, Castle Cove in December 1988
12 Gibran Place, Saint Ives in December 1988
18 Cannons Parade, Forestville in late 1988
15 Wilding Street, Marsfield in early 1989
14 Lexcen Place, Marsfield on 31 March 1989
15A Sobraon Street, Marsfield on 2 April 1989
The accused was sentenced to a term of imprisonment for these offences; the evidence does not disclose for how long. The evidence of this series of break and enters establishes that from 1984 until April 1989 the accused had a marked and very persistent tendency to break into private dwellings to steal from them. The tendency was established from August 1984 and was current in September 1986. The offence of April 1987 at Maroubra shows the continuity of the tendency through the date of the murder now under consideration. I am satisfied that that tendency is significantly probative, taken together with other circumstantial evidence, of a central fact that the Crown must establish in this case, namely, that the accused was present in the deceased's home on the night she was murdered.
The Crown argued that a more specific tendency could be discerned, with features such as an inclination to make incursions on Friday or Saturday evenings, to force entry with a screwdriver or similar implement and so on. I do not consider that a more detailed tendency is established, as at the date of the homicide, by the particulars of the proved features of subsequent individual offences, nor that any such features as the Crown has argued would add to the probative force of the tendency by increasing the likelihood that the intruder to Ms Sokoloff's home was this particular burglar. The specifics of the other offences to which the Crown referred would be common features of break and enters carried out by a range of offenders in this class. What is significant is that it is not everyone in the community who engages in breaking into other people's homes to steal from them. The fact that the accused is such a person and that other established facts indicate that Ms Sokoloff was killed by someone who broke in to steal from her contributes significantly to the Crown's circumstantial case.
[24]
A less than completely successful break-in
DS Mulholland found a considerable quantity of jewellery left behind in the house. Despite the ransacking, the house was by no means completely stripped of valuables. There is no clear evidence of exactly what was taken, no doubt because the person who could give an inventory of the house contents was killed and her mother was too old and infirm to be able to say. Contrary to Mr McMahon's submission, this does not detract from the probative force of the evidence that the accused had a tendency to break in and steal. I do not consider it a realistic possibility that the unlawful entrant was merely a vandal. I am satisfied from the evidence of ransacking that there was at least an attempt to steal and that this was the purpose of the person who entered the property and turned it upside down, which makes the accused's tendency significantly probative.
[25]
Tendency against violence
There is no evidence that, in any of the break and enters proved to have been perpetrated by the accused, he inflicted any violence upon any person. On the contrary, the Crown tendered by consent a record of interview with Ton Hoti in which he said that he had never known the accused to be violent in any situation. I accept that there is positive evidence of the accused not engaging in personal violence and that is a circumstance to be taken into account in determining whether I should entertain a reasonable doubt as to the accused's guilt of the charge.
[26]
Motive
It is not necessary for the Crown to identify a motive that the accused may have had to kill Ms Sokoloff. However, his counsel submitted that no motive could be discerned and that this tended against an inference, which other circumstances might suggest, that he was the assailant. From the presence of the accused's DNA on the pyjama pants and on the patio, from the evidence of the accused's tendency to break enter and steal and from the deranged state of the house, I am satisfied beyond reasonable doubt that the accused was present at 57 Dudley Street on the night of the murder and that he was there to take whatever valuables he could find. In final address defence counsel did not resist the conclusion that the accused was present, nor suggest that there was any legitimate purpose for him being there. Instead, counsel advanced hypotheses as to the deceased having been murdered by some other person who was also present during the evening.
From the starting point that the accused was present unlawfully in order to steal, a motive to commit murder is self-evident. He had already been caught breaking and entering on one prior occasion and I infer that he would have feared imprisonment if he were caught again. If Ms Sokoloff disturbed the accused and commenced to scream, a reason for him to strangle and silence her would immediately arise. Disproportionate as the response may have been, it would not be improbable that the accused should, in panic, kill a person who might otherwise identify him to the authorities. It is not correct that there is no conceivable motive.
[27]
Other police inquiries in 1986
The Crown tendered by consent two large volumes comprising 847 pages of statements, records and exhibits describing inquiries made by police in 1986 and 1987 to identify the perpetrator. The purpose of this tender was apparently to demonstrate that there was no other person whom it could reasonably be thought had committed the murder. This evidence showed that detailed inquiries were made concerning two brothers named Oldroyd who had committed break and enter offences in the area. Forensic evidence positively excluded them. I do not rely upon this material concerning the earlier inquiries as contributing any measure of affirmative proof of the guilt of the accused. I regard it as in the nature of unused material disclosed by the Crown, as required in discharge of the prosecution's duty.
The inquiries in 1986 and 1987 established that Ms Sokoloff withdrew $10,000 in cash from her mother's bank account on the Friday afternoon before she was murdered. This money was taken by her from the local branch of her bank in a yellow envelope. At about the time of the withdrawal she gave conflicting explanations of what the money was required for and at least one of those explanations was contrary to information obtained by police investigating the murder. All of this appears to me to be entirely irrelevant to the case and throws no light upon who may or may not have killed the deceased.
[28]
Inference from established circumstances
The principal circumstances relevant to whether it may be inferred that the accused strangled Ms Sokoloff and bludgeoned her to death are as follows. I am satisfied that each of these circumstances is established by the evidence. Some of them may be regarded as intermediate facts, inferred from other more basic facts in the list:
1. Three drops of the accused's blood were on the front of the pyjama pants that the deceased was wearing when she was killed and another stain of his blood was on the back of the right leg of that garment.
2. There is no evidence of any occasion other than the night on which Ms Sokoloff was murdered on which the accused would have been in such proximity to her in her pyjama pants for his blood to land on them.
3. A drop of the accused's blood fell on the patio near to the rear door from the garage and close to the stairs leading up to the back garden and boundary fence. That is a point likely to be passed by an unlawful intruder. There is no evidence of any occasion on which the accused would lawfully have been in that location for a drop of his blood to fall.
4. The accused was an habitual house breaker at the time of the murder, living only 3 km away. He was present in the house on the night in question, for the purpose of stealing, and he ransacked the place in search of valuables, wearing gloves.
5. The piece of timber was one of the murder weapons. The lighter bloodstain on this was at the end that was grasped as a handle. Although the accused wore gloves, he was shedding blood in small amounts from some part of his body as shown by the DNA analysis of the pyjama pants and the blood drop on the patio. It was possible for a drop of his blood to fall on the piece of timber.
6. Male DNA in the smaller bloodstain at the handle end of timber is consistent with having come from the accused. It has a significant statistical probability of having come from him.
I find that it is a rational and reasonable conclusion from these circumstances that the accused was present in the house on the night of the murder, unlawfully and for the purpose of stealing, and that he strangled and bludgeoned Ms Sokoloff when she disturbed him. It is also a rational and reasonable inference that in inflicting these injuries the accused had the intention requisite for the crime of murder, namely, that he intended to kill Ms Sokoloff.
[29]
Alternative hypotheses propounded by defence counsel
There are two distinct components to defence counsel's argument that the inference of the accused's guilt cannot be drawn beyond reasonable doubt. The first is that he identified what he submitted are elements of uncertainty about the whole picture, such that the inference is said to be inadequately supported. The second component is that counsel propounded alternative hypotheses as to what occurred in the house, which he submitted could explain and fit in with the established circumstances but which were consistent with the accused not having been the murderer.
As to the first component, counsel referred to uncertainty about the route by which an intruder gained entry to the house. He relied upon the evidence that police did not identify any location around the perimeter of the building where entry had been successfully forced. Counsel also referred to evidence that when the deceased's mother woke at 10:00pm she found the main front door ajar. The mother said that she opened "the veranda door", which I take to be the door at the top of the steps leading up to the front porch. From this it is not clear whether both doors at the front of the house were truly insecure. I find all of this to be of no consequence. The established circumstances show that the accused entered, by whatever route. Counsel did not dispute that conclusion.
Mr McMahon also referred to a number of exhibits that have been mislaid over the intervening years, including the piece of timber, a single hair that was on the front of the deceased's neck and that did not appear to be her own, finger nail clippings that were taken from the deceased by Dr Hollinger and the screwdriver and small kitchen knife that were found near the deceased's body. The absence of those items is a neutral circumstance. It does not detract from the proof of other circumstances nor from the strength of the inference from those circumstances, that the accused was present and that he killed the deceased.
An argument based on the fingernail clippings was that they may have supported or discounted the possibility that the accused's blood at the scene was dropped from an injury inflicted defensively by Ms Sokoloff. The inability to pursue that enquiry in the absence of the clippings is irrelevant. It being established by the DNA testing that blood from the accused was dropped at the scene, the circumstantial probative force of that fact could not be affected by any information as to how he came to be bleeding. Whether from a defensive wound, an injury sustained in making entry or some other cause of a blood vessel being breached, the critical fact is that he must have been present in order to drop his blood. Further, the dropping of his blood on the pyjama pants of the deceased is strongly suggestive of him having been in close proximity and physical contact with her.
Counsel for the accused submitted that it was unlikely that the assailant would have bludgeoned Ms Sokoloff first and then wound the electrical cord around her neck and tried to strangle her. He said that commencement of the attack with strangulation, in particular strangulation from behind as the position of the cord suggested, did not fit the Crown's case that the accused must have been disturbed during his break in. He said that commencement with this mode of attack "speaks to somebody who had a preconceived intention to kill Ms Sokoloff". I do not regard that submission as carrying any weight against the compelling inference of guilt from the combination of circumstances. Consistently with the accused having become aware in the course of his break and enter offence that the occupier was at home, he may have seen a light switched on or heard human movement, warning him of the occupier's presence in sufficient time for him to cut the cord from the iron and then attack her with it.
It is common knowledge that strangulation to death is a prolonged process and physically demanding to achieve. It is not an unrealistic inference that Ms Sokoloff may not have died as quickly as her attacker hoped and that he may then have resorted to the piece of timber. It is not necessary to proof of the Crown case beyond reasonable doubt that this particular possible sequence should be established. Counsel for the accused has argued that the sequence of strangulation followed by bludgeoning is not capable of being rationally inferred. My statement of the above considerations explains why I do not agree.
Counsel further relied upon the absence of any finding of blood in the rooms that were ransacked. He said that the person who bludgeoned the deceased would have blood on his clothing. He said the absence of blood deposition in the other rooms raises an obstacle to the inference that the accused both battered Ms Sokoloff with the timber and also searched the house for valuables. I do not accept that there is any such obstacle. First, it may be accepted that the inference that the accused was the murderer must be made upon the basis that he attacked and incapacitated Ms Sokoloff before he went on to search the house. I would not consider it open to infer that he could have created the chaos that is depicted in Mr Redman's photographs without first having rendered Ms Sokoloff at least unconscious. However, it is entirely possible that he may have silenced and immobilised her with the electrical cord, then searched the house while she was unconscious, without any blood on his clothes, and bludgeoned her as he was leaving to ensure that she would not recover.
Secondly, if the bludgeoning was done by the accused before he searched the house no doubt there would be blood splatter on some of his clothing as there was on the floor and walls of the sunroom. But it is not apparent that this blood could not have soaked into the cloth of whatever he was wearing or that it must necessarily have transferred onto surfaces in the rooms that were searched. Similarly, if Ms Sokoloff was bludgeoned with the timber before the accused searched the house, it does not follow that blood must have transferred onto his shoes and been distributed to the floors of the other rooms. The blood that pooled around the deceased body would not have appeared immediately as she was being struck, so that the assailant need not have stepped into it. The crime scene photographs do not show that any person ever stepped in the pooled blood.
As to the second component of counsel's submissions, the first hypothesis is that he raised was that the accused may have broken into the house after the deceased had been killed by someone else at about 6:00pm or 7:00pm and before Klaudia awoke at 10:00pm. He submitted that the prior entrant may have been a person who was "let into the premises, was there potentially by arrangement". Counsel relied upon evidence that from time to time people visited the house "for the purposes of transactions involving jewellery and money". Alternatively, counsel submitted that the murderer may have been another break-and-enter exponent who broke in and killed Ms Sokoloff before the accused arrived. He referred to evidence tendered in the Crown case that there were 123 break and enters reported in Haberfield in 1986. He said this alternative was supported by the possibility that someone may have learned of the deceased's withdrawal of a significant sum of money on the Friday afternoon and may have broken in to seize it. A further element of this hypothesis was that the accused, having arrived after the murder had been committed by someone else, proceeded to search the house for valuables; that he at some point approached near enough to the body to deposit his blood upon the deceased's pyjamas; and that he left having never harmed her in any way.
The suggested presence in the house of a person additional to the accused is not supported or indicated by any fact or circumstance of the case. It is purely speculative. The evidence that people at times came to the house to do business with the deceased and the break and enter statistics for the neighbourhood do not elevate the hypothesis, which is supposed to explain particular events at this house on this particular evening, beyond the realms of unfounded and generalised speculation. It is also improbable in the extreme. Could the accused really have such misfortune as to break into a house within hours of some other person having targeted the same residence on the same night and killed the occupier? Upon breaking in to thieve valuables, as the accused undoubtedly did and as counsel's hypothesis accepts, the accused would certainly check that the house was unoccupied. He could hardly have missed the body of Ms Sokoloff in a spreading pool of blood. Is it to be supposed, on this hypothesis, that the accused then set about ransacking the house, knowing that the occupier lay murdered in the sunroom? Is to be thought that he would stay and go about his thieving business, running the risk of being caught there and implicated in a murder he did not commit? This does not constitute a reasonable alternative hypothesis capable of explaining and being accommodated to the established circumstances. It is speculative and fanciful.
Counsel propounded another hypothesis, to the effect that the accused may have broken into the house with an accomplice and that that person may have killed Ms Sokoloff without the accused's involvement. This is similarly speculative. It is not indicated or made tangible by any feature of the case. It is true that the accused had Ton Hoti as an accomplice in subsequent break and enters, from April 1987, but he had acted alone at Summer Hill in August 1984. There is nothing to indicate that it is reasonably possible he was accompanied by a co-offender on this occasion and that that person alone carried out the murder. This theory would not explain why the accused's blood should be on the deceased's pyjama pants at several locations or why blood containing Y-STR DNA consistent with the accused blood should be on the handle end of the piece of timber. The second hypothesis is also far-fetched, for reasons similar to those arising from the first theory. It is not reasonably possible that, if an accomplice killed Ms Sokoloff without participation of the accused, he would nevertheless press on with searching the house and stealing from it, thereby running the risk of being caught at the scene or apprehended later and held liable for such a serious crime committed by another.
Counsel submitted that the possibility of some other person having been in the house in addition to the accused and having killed Ms Sokoloff is supported by the presence at one location on the electrical cord of male DNA that did not originate from the accused. The male who deposited that DNA is unknown and unidentified. It is not known when the DNA was deposited. As this iron and its cord were movable, the potential time and circumstances of the deposition are extremely wide. The source could have been a person who supplied or serviced the iron. It could have been a handyman named George who, according to police inquiries at the time, had resided on the property three years before and was accustomed to washing in the kitchen. It is not disclosed in the evidence whether the DNA of the other male was found within blood or in some other cellular material on the cord or independently of human cells.
I find that hypotheses said by counsel to provide an explanation of the circumstantial evidence, alternative to the inference that the accused was present and killed the deceased, are not reasonable possibilities. The Crown's evidence has excluded any reasonable possibility consistent with innocence. The accused's counsel did not submit that, in the event of my being satisfied beyond reasonable doubt that it was the accused who attacked Ms Sokoloff, I would entertain a reasonable doubt as to his intention to kill. I find that the evidently ferocious nature of that attack leaves open no reasonable possibility that there was any lesser intention.
[30]
Accused did not give evidence
The accused did not give evidence and did not call any witness. Although he was entitled to do either or both of those things he was under no obligation in that respect. He is presumed to be innocent unless and until I have been satisfied by the evidence led by the Crown that he is guilty of the charge. It follows that he was entitled to say nothing and leave it to the Crown to endeavour to prove his guilt to the high standard required. I cannot and do not use his decision not to give evidence against him in any way. It does not amount to an admission of guilt and I have not used it as a basis for drawing any inference or to fill gaps in, or to strengthen, the Crown case. I have undertaken no speculation about what the accused might have said if he had given evidence.
[31]
Delay from events to trial
Relying upon s 133(3) of the Criminal Procedure Act 1986 (NSW), the accused submitted that I should take into account in assessing the evidence a warning, as might be given to a jury in terms of s 165B of the Evidence Act; that is, a warning that the accused has "suffered a significant forensic disadvantage because of the consequences of delay" between the events the subject of the charge and the trial.
A trial judge would only be required to give such a warning to a jury "if satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay". The same prerequisite applies to this matter being taken into account in a judge alone trial. I am not satisfied that the accused has suffered significant forensic disadvantage by reason of the delay. Counsel pointed to "the loss of exhibits and/or witnesses". I have referred at [107]-[108] above to exhibits that that have been lost. As stated in Binns v R [2017] NSWCCA 280 at [22] (Basten JA, R A Hulme and Garling JJ agreeing):
[Under] the current statutory regime, DNA evidence will not usually be evidence falling within s 165B(2) because it will rarely be possible for a judge to say that he or she is "satisfied" that the absence of such evidence involves a significant forensic disadvantage to the defendant; there is no basis for knowing whether the evidence would be inculpatory or exculpatory. In short, this was not the kind of disadvantage to which the section was directed.
That is the position with respect to each of the items of physical evidence that are no longer available and to which defence counsel referred. I have no idea whether DNA or other scientific testing of any of those items would be inculpatory or exculpatory of the accused. I cannot say that the delay in this murder charge having been brought against the accused, during which the physical items have been mislaid, has given rise to any forensic disadvantage. Some of the witnesses whom police interviewed in the original investigation have since died. Counsel did not identify any from among them whose absence has given rise to any forensic disadvantage defending the case. The situation in this trial is very different from that in, for example, some historical sexual offence prosecutions where, after long delay, the accused is unable to call evidence to corroborate his account of having been absent from the scene of the alleged crime or of not having been alone with the complainant or the like. I find no occasion in the present case to have regard to the matters specified in s 165B.
[32]
Verdict
For these reasons I find the accused guilty of the murder of Tatiana Sokoloff at Haberfield on 6 September 1986.
[33]
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Decision last updated: 26 November 2021