(c) Physical Evidence
154 It was submitted that the loss of the physical exhibits comprising the vaginal swabs, the panties, the spot of blood from the deceased's car, and the untested fingernail clippings of the deceased, had disadvantaged the appellant in so far as he was unable to subject them to more modern forms of analysis.
155 Additionally, it was submitted that the delay may have occasioned the appellant difficulty in remembering details of the events on the day of the disappearance, and/or may have reduced his chances of locating a witness who could have corroborated his version of events.
156 It must be accepted, so far as DNA testing of bodily samples was concerned, that it may have provided an opportunity to identify who it was who had possibly engaged in sexual intercourse with the deceased, within 24 hours before her death, or at least to eliminate the appellant as one such person. In that respect, such evidence, if available, may have questioned so much of the Crown theory as depended upon the proposition that he killed her after having intercourse, or may at least have identified another possible suspect, who could then have been investigated.
157 Whether further analysis would have had such a result is, however, unknown, and to assert that it would or would not have done so, remains an open question.
158 In this regard, there was evidence of blood grouping tests having been carried out in relation to the seminal fluid which revealed that it had the characteristics of group A, PGM 2+1+. The results for the appellant were PGM 2-1- Hp 2-1, while those for the deceased were group A, PGM 2+1+ HP2-2. While the blood grouping was inconsistent with the results for the appellant, it was possible that all that was being picked up from the swabs was contamination from the deceased.
159 There were seemingly 3 possibilities open: first that the deceased had sexual intercourse before she arrived at the appellant's flat, with someone other than him; second, that she had intercourse with him while there; and third, that she did so subsequent to leaving his flat, again with someone else.
160 There was no evidence, according to Drs Staraj and Breusch, to suggest that the deceased had been the victim of a sexual assault, although it must be recognised that the possibility of discovering superficial scratches to her body would have been limited by the state of decomposition of her body once it was found.
161 In the light of the earlier separation of the deceased and appellant, the willing provision of a blood sample by the appellant, and the grouping results, the second possibility seems unlikely.
162 The presence of semen on the side of the deceased's pants rather than on the inside of the crutch area would tend to favour the third possibility over the others. In that regard, the explanation suggested by the Crown, to the effect that semen may have been washed away from the panties by immersion in water during the 3 weeks preceding discovery of her body, seems unlikely in the light of the fact that there was a still a stain evident on the side of the garment, that there had only been 1 mm of rain in the Armidale area over that period, and that the body was above the creek and not in it. It was, however, the case that at least the back of the deceased's jeans was wet when she was found.
163 While the Crown Prosecutor did not press the case upon the basis that whoever had engaged in sexual intercourse with the deceased during the period proximate to her death had necessarily killed her, that had certainly been the belief of the investigating police, and it made some sense.
164 In these circumstances, further DNA analysis of the kind which Professor Boetcher said could have been undertaken had the vaginal swabs and panties been available, may have been helpful, although it must be recognised, particularly in view of the deceased's reputation for promiscuity, that a "matching" DNA profile would not necessarily have identified her killer, or for that matter, have even proved that she had been murdered.
165 This aspect of the case had some significance in view of the evidence which showed, either positively, or as a matter of belief, that there was a pool of men who had been having sexual relations with the deceased in early 1982, following her separation from the appellant. Some of them may have matched, albeit in a general way, certain of the physical characteristics of the man with whom the appellant said she had left his flat, at about 6.30 pm, and not all of them were known to him.
166 Moreover, so far as the appellant was concerned, it needed to be considered in a factual context where it was not suggested that any signs of a struggle, or of blood, or indicators of sexual intercourse, were observed in his flat, either by the lay witnesses who had called by there, on the night of the deceased's disappearance, or the following morning, or by police who later searched the premises, unsuccessfully, without finding any such signs.
167 It is true that a blood smear was found on the front passenger side door of the deceased's motor vehicle. However, Detective Hawkins could not say how long it had been there, and no evidence was led to show whose blood it was. Had it been that of the deceased, then it is unlikely that it would have been placed there post mortem, since it would have been somewhat extraordinary for a dead body to have been placed in the passengers seat, as distinct from the rear compartment (the latter scenario being that suggested, in fact, by the Crown).
168 Additionally, it is not irrelevant that, although the deceased's vehicle was fingerprinted, no print of the appellant was found upon any of its surfaces.
169 Again, it must be recognised that the absence of signs of blood, or of any disturbance in the flat of the appellant, were not necessarily indicative of his innocence, or, put another way, inconsistent with his guilt. If vagal inhibition, as the result of a single unexpected and forceful blow or application of pressure by the appellant to the deceased's neck while at his flat, had been the cause of death, then there may have been no occasion for any such signs.
170 A similar comment may be made in relation to the absence of any fingerprints in the deceased's car, since with gloves no prints may have been left.
171 Of greater concern however would seem to be the absence of any signs of bodily fluid in the vehicle, or of any obvious pattern of disturbance of dust in the rear compartment, of the kind which would be consistent with the Crown case theory of the body having been carried to the bridge in that section of the vehicle.
172 At the end what is of greater relevance than speculation or hypothesis in these respects, is that the forensic examination of the appellant's flat, and of the deceased's vehicle, turned up no forensic evidence positively linking the death to the appellant.
173 The presence of the deceased's clothing and bags, some of which were in the car, and some of which were in the appellant's flat, was potentially material, so far as it was consistent with the appellant's account of her having left for a short time to go to the Bowling club, before returning to shower and change preparatory to catching the 11 pm bus.
174 A matter requiring more careful attention was the evidence relating to the alleged sighting in the appellant's flat, at various times from 1 May 1982, of a pair of glasses which were possibly those of the deceased, or pairs of such glasses, since it is by no means clear that they were the same glasses, or even those of the deceased.
175 The witnesses who gave evidence of such sightings were: Julie Wragg, who said that she saw a pair of glasses which she recognised to be those of the deceased, in the kitchen area on the morning of 1 May; Detective Murphy (corroborated by former Detective Harborn's statement) who described seeing a pair of steel rimmed optical glasses in a white case during the search of the premises, which were either left there or taken away, and later returned; and Patricia McPherson and Mrs Gwenda Callaghan, who saw a pair of glasses there when they were packing up the belongings of the deceased, after the discovery of her body.
176 The finding of the deceased's glasses in the appellant's flat had a relevance, since there was a good deal of evidence to suggest that she was significantly short sighted, and wore glasses all the time. None were found near her body, or in the car, and it is improbable, in the extreme, that she would have left the house without them. On the other hand, it was more probable than not, that she would have removed them when engaging in sexual activity.
177 There were difficulties with the glasses evidence, both as a general proposition, and in detail. Their significance, so far as they might have been incriminating of the appellant, depended upon the Crown showing that the glasses, which were seen at his flat, were in fact the ones which the deceased was using in April 1982, and were the only such pair which she possessed at that time.
178 Julie Wragg's evidence was somewhat problematic, in so far as she gave inconsistent accounts as to where she had seen the glasses, in so far as she made no mention of the sighting until the year 2000, and in so far as none of Mr Delforce (who had gone into the kitchen on more than one occasion), Ms Fuller or Ms Roberts, had noticed any glasses of the appellant in the flat on the night of 30 April, or on the following morning, even though they had been looking for personal items of the kind which would normally accompany the deceased. It was the fact that the appellant also wore glasses, and the possibility that any sighting, which she had made, was simply of his glasses, could not be unequivocally excluded.
179 Similarly Ms McPherson made no mention to police in 1982 of sighting a pair of glasses, which could have been those of the deceased, when cleaning out her belongings. In her evidence at the trial, she indicated that she had not recognised the glasses in the flat as those of the deceased, as they were of a different shape to the "Dame Edna" glasses which she had last seen her wearing. In the statement, which Mrs Callaghan had provided, there was no description of the glasses included.
180 In the statement which Ms McPherson had made in 1997, she had indicated that she had recognised the glasses as being the same type of glasses that the deceased wore. This, she said at the trial was due to a typographical error involving the omission of the word "not", which she had omitted to notice when signing the statement.
181 Whether the glasses which these 2 witnesses saw were an old pair of glasses, or were those which had been seen by Police, and either left in the premises or returned to the appellant, could not be established to any degree of certainty, particularly as each had a recollection that they were thrown in a bin. Certainly the pair of glasses, which police described seeing differed from those which appear in the various photographs of the deceased which were placed into evidence.
182 On the other hand, there was no particular reason why the deceased would have left her current glasses, or any older pair, in the appellant's flat since she had never lived there, and had been living at Claude Street for over a month.
183 In the light of these matters, and in the light of the evidence given by Mr and Mrs Allison, that the deceased had a second pair of glasses, a matter confirmed by the appellant in his record of interview, this body of evidence remains equivocal, and does not provide any support for the Crown case theory that the appellant killed his wife in the flat.
184 The loss of the fingernail clippings was also relied upon by the appellant, as having occasioned him a potential forensic disadvantage. In that regard there was evidence from Dr Goetz that 5 clippings had been stained with blood, but that, with the techniques available in 1982, he had been unable to type that blood. The testing conducted then led to their destruction, but there were some fingernail clippings which had not been tested and returned to police, and which had subsequently been lost or destroyed. Again, had they been retained, more modern analysis could have been undertaken to determine whether the blood under them had come from the deceased, or from some other person, including possibly the killer. Of some relevance in this regard is the fact that no record was made of any scratch marks having been observed on the body of the deceased, or of the appellant.
185 Finally of relevance, in relation to the Crown case theory as to the appellant having murdered the deceased in his flat, and having then taken her body out to Pipeclay Creek in her car, there is the circumstance that none of the occupants of the neighbouring houses and flats, who were canvassed by police, had heard or observed anything untoward, or had seen the appellant carrying a body to the deceased's yellow Mitsubishi, or driving it away from, or back to, his place of residence. Moreover there was no evidence of anyone having seen such a vehicle driving along Weirs Road that night, although there was a sighting of a white Holden in that area between 7.15 and 7.20 pm.
186 The possible effect of delay, between 1982 and the time of the trial, in relation to the appellant's ability to have sought and obtained evidence which may have been corroborative of his account, is relevant but of relatively limited weight, particularly in the light of the manner in which his Honour dealt with that circumstance in the summing up. It may be presumed that, as a person who was a potential suspect, or at least a person with a vital interest in the disappearance of his wife, and later investigation into her murder, any witness who could have assisted the applicant's case would have been known to him. There was no suggestion that any such witness had remained unidentified, or was unavailable at trial.
187 While theoretically he may have been able to find evidence that could have countered the more recently emerging evidence in the Crown case, that was to a considerable degree a matter for speculation. Otherwise, there is no reason to assume that the effect of delay in relation to differences in detail was overlooked, or that any such differences took on a particular significance in the Crown case. It is true that there was one such matter relied upon, namely, as to where precisely the appellant had been, or what he was doing, when the young man, on his account, arrived at his front door and spoke to the deceased, but it does not seem to have been regarded, at least by the trial Judge in the summing up, to have been of momentous importance.
188 In combination, while the physical evidence did not necessarily exclude the appellant as the person responsible for the death of the deceased, when properly weighed, it could not be understood as having incriminated him. Much of it was in fact intractably neutral, while serious question marks arose in relation to the spectacles, in particular since it seems unlikely that the appellant would have left them in the kitchen, or retained them thereafter, if he had been the killer.