Regina v Frawley

Shortly after midnight on the night of 6-7 May 1988 the appellant was found by police sitting near the corpse of his de facto wife, Janice Maree Goodwin, at their home in Umina. She had been punched, and she had suffered 35 stab wounds, one of which had severed her carotid artery and caused death. He was charged with murder. He was tried on that charge in May 1990 before Lusher AJ and a jury and convicted. At that trial he was not legally represented. An appeal, on which he was legally represented, succeeded on the ground that inadmissible evidence had been received: R v Frawley (1993) 69 A Crim R 209. On 2 August 1994, a second trial, at which he was legally represented, began before Abadee J and a jury. On 30 August 1994 he was convicted. On 6 December 1994 he was sentenced to life imprisonment. He appeals against that conviction and that sentence. 2 The evidence given by the accused in relation to events just before and just after the killing was as follows. In the 48 hours up to 6 pm on 6 May 1988 he drank 38 cans of beer and 6-8 glasses of wine. On 6 May he ingested three types of medication intended to relieve back pain, including Mogadon. He said that some time after 6 pm he decided to sleep in the car in order to relieve his back pain. His next recollection was that the victim said to him: "I have scratched all of your face". He remembered kneeling beside the victim, who said "Say my prayers" or "Help me say my prayers". He leant over and said "Hail Mary", "Our Father" and "Act of Contrition". The victim followed him in the prayers. He next remembered being on the back verandah holding a rope and trying to tie a knot. He then remembered cutting his right arm with a razor blade but dropping the razor blade. He could not remember telephoning a Roman Catholic priest, Father R J McCann, who alerted the police to the killing. He could not remember the arrival of the police officers at the house, nor leaving it by ambulance, nor being at the hospital to which it took him. He could not remember the questions asked or the answers given in a police record of interview. He could remember being photographed and charged (3/537-550). 3 The police evidence was that they arrived after a call from Father McCann. The police found the victim lying on her back in the hallway. The appellant was sitting nearby at a kitchen table. There were signs of a violent and lengthy struggle both downstairs and upstairs. 4 At the second trial, the arguments of the appellant which received most attention in evidence, addresses and summing up centred on the contention that he was so intoxicated or affected by drugs or both that, assuming that he had inflicted the wounds which caused the victim's death, he lacked the mental element necessary if murder were to be established. He contended that his acts were not voluntary or willed by reason of intoxication operating on a sound mind, or by reason of intoxication causing insanity. He contended that the Crown had failed to prove that he intended to kill the victim or inflict grievous bodily harm on her. He submitted that if the elements of murder had been made out, he was entitled to a verdict of manslaughter on grounds of diminished responsibility. He contended that if there was a reasonable doubt about his intention to kill the deceased or inflict grievous bodily harm on her, he was not guilty of manslaughter. But apart from these defences centring on his mental state, the accused also contended that the Crown had failed to prove that he committed the acts causing death. The trial judge gave the jury directions in relation to the burden of proof on the Crown in that respect by reference to the evidence bearing on the question (pages 25/26.8-27.1, 32.4, 32.8, 66.6-68.8, 71.9-72.8, 75.4-75.6, 78.1-91.5 and 120.1-123.5 of the summing up, and question 1 of the document handed to the jury entitled "Issues for the Jury To Consider In Arriving At Its Verdict").

Structure of the Appeal 5 The appellant's Notice of Appeal, filed on 2 February 1995, said that the appellant desired to appeal against both conviction and sentence, but stated no grounds. However, none of the grounds of appeal which were later formulated go to the sentence, and no argument was directed to criticism of it. The appeal against sentence must therefore be dismissed. 6 An extraordinarily long period elapsed between the filing of the Notice of Appeal and the hearing of the appeal. This is explained by the inability of the appellant to obtain legal aid until quite late. Even then, the grant did not extend to all the grounds of appeal. Further, the appellant, who was born in 1938, has been in very bad health. He has had bad chronic back pain for many years, only partly alleviated by drugs which affect his capacity for mental work. He has had surgery several times for his spinal condition, for bowel cancer and for heart trouble. This has affected his ability to prepare the appeal, and has caused various fixtures to be vacated. 7 At the hearing of the appeal counsel presented oral argument on two groups of grounds and the appellant presented oral argument on aspects of them and on aspects of some other grounds. The appellant also filed written submissions which fell into three groups. First, a prison friend of his prepared a statement of three grounds of appeal and put detailed written argument, with reference to the authorities on the first ground, concerning relationship evidence. Secondly, the appellant's solicitor presented a capable written argument on the third ground of appeal, relating to certain DNA evidence not tendered at the trial. Thirdly, the appellant himself prepared the following written submissions: 41 pages (with a further 25 pages of annexures) on the grounds relating to DNA; 33 pages (with a further 7 pages of annexures) on a ground relating to the admissibility of a record of interview; 15 pages (with a further 27 pages of annexures) on a ground relating to the admissibility of Dr Wong's evidence; a further 13 pages on the grounds relating to DNA; 10 pages (with a further 9 pages of annexures) in reply to the Crown's submissions on the DNA grounds; 11 pages (with a further 8 pages of annexures) in reply to various of the Crown's submissions; and one page on the relationship evidence ground. The appellant's submissions used a different numbering system from that employed below, but no confusion was caused by this. 8 It is convenient to group the grounds of appeal relied on as follows.

Ground 1: Relationship Evidence 9 Ground 1 was as follows: "1. (a) The learned trial judge erred in admitting the evidence of Jeacle (Relationship Evidence); Alternately; (b) The learned trial judge erred in failing to properly and/or fully exercise his discretion to exclude the evidence of Jeacle; Alternately; (c) The learned trial judge erred in his directions to the jury in relation to Jeacle's evidence, in particular, (i) the directions were likely to have been confusing and misleading; (ii) the jury should have been directed on the limited use which they could make of that evidence and specifically, that they could not use it as evidence of 'motive' or evidence that may assist them in determining the question of 'intention' or for any other reason, other than for what it may have properly been admitted; and (iii) they should disregard and put out of their minds evidence from Jeacle that the appellant had made advances toward her. Alternately; (d) The learned trial judge erred in failing to direct the jury that if they were intending to rely upon the evidence as assisting them in regard to motive or intention, then before they could do so, they should specifically be satisfied of the truthfulness of such evidence beyond reasonable doubt."

10 On 11 August 1994 Mrs Jeacle began to give her evidence. It was to the following effect. Mrs Jeacle was the next door neighbour of the victim, her husband and their two daughters when the victim's family lived in Canberra. In 1984 the victim's husband departed. The appellant began to visit the victim at her home from about April 1986 and moved into the house shortly thereafter. Just before Christmas 1987 Mrs Jeacle noticed that the relationship between the victim and the appellant had become strained. They began to have arguments about once a week in their house which were audible in Mrs Jeacle's house. She often overheard the appellant calling the victim a "bitch" and sometimes a "slut". He also said that she was "crazy". During this period there were occasions when the appellant would come over to Mrs Jeacle's home in a drunken condition. He would say that he had had a fight with the victim and that he wanted to move out. He always called her a "crazy bitch" and occasionally referred to her as a "slut". On at least one occasion he said he hated her. A few weeks prior to the move by the appellant and the deceased from Canberra to Umina, Mrs Jeacle received a telephone call from the appellant at her place of work. He said he wanted to talk to her about the victim. Mrs Jeacle eventually agreed to meet him. He told her that he had had enough and was not going to move with the victim "and then he made some advances towards me". He said that the victim was not being generous towards him with her money and he was tired of always begging for money. The appellant asked Mrs Jeacle if he could rent a room from her but she refused. The deceased and the appellant moved in March or April 1988 (3/426-428). 11 Before that evidence was given on 11 August, on 5 August 1994 the trial judge heard argument about its admissibility (2/192-194). He ruled that it was admissible, giving detailed reasons for judgment. 12 Ground 1(a) complains of the admission of Mrs Jeacle's evidence as a matter of law. The appellant put five arguments. First, it was said that the trial judge wrongly had regard to what transpired in the appeal after the first trial: Gleeson CJ had said, obiter, that Mrs Jeacle's evidence was admissible. Secondly, it was submitted that what Mrs Jeacle described was both too brief in time and too remote in time to be relevant, and stress was placed on Barwick CJ's reference to "the nature of the current relationship" in Wilson v R (1970) 123 CLR 334 at 337. Thirdly, it was said that the evidence "was not admitted on the basis of motive or indeed as evidence which could assist the jury in determining the question of 'intention'", and there was no other basis on which it was relevant. Fourthly, the appellant in oral argument contended that Mrs Jeacle's evidence was unreliable in various ways. Fifthly, the appellant in one of the written submissions composed by him submitted that an answer by Mrs Jeacle to a question about how her daughters got on with the appellant was inadmissible. 13 In relation to the first point, Gleeson CJ referred to Mrs Jeacle's evidence in order to illustrate a contrast between admissible relationship evidence and the evidence which, the Court of Criminal Appeal went on to hold, had been incorrectly admitted at the first trial. It is true that Gleeson CJ's words were obiter dicta, and no doubt defence counsel at the second trial was correct in saying that he conceded admissibility before the Court of Criminal Appeal, so that Gleeson CJ's opinions about admissibility, being propounded without the benefit of argument, did not constitute a decision on the point (2/192.8). However, it was not wrong for the trial judge to adopt Gleeson CJ's reasoning as his own after the point had been fully argued before him and after defence counsel's submission about the lack of argument in the first appeal had been noted, as he did on page 5 of his reasons for judgment. Further, the primary support for the trial judge's conclusion was not Gleeson CJ's opinion in the first appeal, but the decision of the High Court in Wilson v R (1970) 123 CLR 334 at 335. 14 So far as the second argument based on lack of contemporaneity is concerned, Mrs Jeacle's experience of the appellant's relationship with the victim extended over the period April 1986 to March or April 1988. The killing was on 6 May 1988. The trial judge was entitled to treat the gap of at most six weeks as being too small to be significant. He was also entitled to treat the period about which the evidence of past relationship was given - about four months - as sufficiently lengthy to permit its reception. 15 The third point is sound to the extent that motive was not in issue. But it is not sound in suggesting that "intention" was not in issue. The appellant contended at the trial that he did not have any intent to kill or inflict grievous bodily harm. He supported that contention with his evidence - received through his account of the events of 6 May 1988, the contents of his admissions, and otherwise - that the relationship was a loving and affectionate one, and in particular that it was "tremendous" (3/553.9). The Crown was entitled (and in effect obliged, if only because of its foreknowledge, derived from the first trial, that this was a likely defence line) to endeavour to meet that issue in its own case by calling evidence that the relationship had a tense, bitter and hostile side, and that the appellant had shown signs of a desire to end it. Mutual enmity between husband and wife can go to the issue of whether a killing was deliberate or accidental: Wilson v R (1970) 123 CLR 334 at 337 per Barwick CJ and 344 per Menzies J; R v Frawley (1993) 69 A Crim R 208 at 225.2 per Sheller JA . It is true that the trial judge did indicate, at the close of Mrs Jeacle's evidence in chief on Thursday 11 August 1994, while debating with counsel what direction should be given about Mrs Jeacle's evidence and whether it should be given not only in the summing up but also before the approaching weekend, that he was proposing to say, inter alia: "The statements are not to be treated as any evidence of the fact that the accused did wish, or intended to kill or inflict serious bodily harm or otherwise harm the deceased" (3/429).

However, the trial judge said these were only his "preliminary thoughts", and he asked counsel to consider the matter overnight. The next day he indicated some directions he proposed to give which did not include the above words (3/430.1-.2), and then gave those directions to the jury (3/430.2-.3). In his summing up the trial judge directed the jury that Mrs Jeacle's evidence touched on whether the relationship was a "sweet and loving", "happy" or "loving and passionate" one (pages 17 and 120), or a "tremendous" one (page 122). The evidence was relevant to the appellant's intention, and the trial judge so treated it in the summing up. 16 The fourth matter raised was the unreliability of Mrs Jeacle's evidence. The jury was well placed to choose between Mrs Jeacle's version and the appellant's substantial though not complete contradiction of it. Her evidence was not shown to be so unreliable as to be inadmissible or as to be the source of a miscarriage of justice. 17 Finally, the answer complained of was supplied to a question in cross-examination - that is, a question put by the appellant's counsel. The answer may or may not have been correct, but that was a matter for the appellant's counsel to deal with at the time. 18 In ground 1(b) the appellant complained that the trial judge gave no reasons for not rejecting the evidence on the ground that its prejudicial effect exceeded its probative value. In my opinion it was not obligatory for him to do so. His failure to give reasons does not indicate any overlooking of the argument. He noted the argument (page 3.5 of his 5 August 1994 reasons for judgment). That argument was evidently put as a secondary position, being recorded in one sentence (2/193.8), while the balance of defence counsel's argument on admissibility is recorded in more than a page (2/192.7-193.8). Defence counsel is not recorded as making any complaint about whatever argument he advanced on discretionary exclusion not being dealt with when judgment was given (2/194). The extreme unlikelihood of the trial judge overlooking defence counsel's submission is also supported by his acceptance of a similar submission immediately after the ruling on Mrs Jeacle's evidence (2/194.2-.7 and judgment of 5 August 1994), and also by his rejection of part of Mrs Jeacle's evidence on grounds which included that ground at the close of her evidence in chief (3/431.9). In any event, it would not have been correct to reject Mrs Jeacle's evidence on discretionary grounds. Though the appellant submitted there was a possibility of concoction or error, these possibilities were not so strong as to create unfair prejudice. If accepted, the evidence in its principal elements had some probative force in meeting one of the appellant's lines of defence, and it had no unfairly prejudicial effect: the only prejudice to the appellant flowed from the probative force. 19 Ground 1(c) contains three complaints about the trial judge's directions on Mrs Jeacle's evidence. The trial judge on two occasions before the summing up debated the form of the directions on this subject with counsel. During the summing up, the trial judge adopted the practice of inviting counsel at every adjournment to comment on his directions in the absence of the jury and make suggestions for the curing of any perceived problems. Neither counsel made the complaints now made. The appellant's counsel at the trial had very considerable experience and skill in conducting heavy criminal trials, and a perusal of the transcript reveals very diligent application to the appellant's interests. His earnest arguments on both the admissibility of and the directions about Mrs Jeacle's evidence reveal that his failure to complain about the summing up in this respect was not an oversight and point against any injustice having been perceived at the time. Rule 4 of the Criminal Appeal Rules requires leave for these grounds to be advanced. I would refuse that leave. In any event, the grounds would fail even if leave were granted. The directions were not confusing or misleading. It was not necessary to tell the jury not to use the evidence as evidence of motive, and the directions adequately guided them on other issues in accordance with Wilson v R (1970) 123 CLR 334. Very brief evidence about the appellant's advances towards Mrs Jeacle, which was arguably not responsive to the Crown prosecutor's question, pointed, though not very strongly, against the appellant's case that his relationship with the victim was "tremendous"; its prejudicial effect was also very weak; but even if this evidence was technically inadmissible, it is a clear case for applying the proviso. 20 As to ground 1(d), the evidence was not tendered to prove motive, and hence the motive cases relied on, R v Murphy (1985) 4 NSWLR 42 and Penney v R (1998) 155 ALR 605 at [26], are not in point. In any event, the jury were directed on the standard of proof (eg pages 21-22, 25/26, 52-53 and 63) in a fashion which could not have left them with the impression that any lower than normal standard applied to Mrs Jeacle. This complaint, too, cannot be agitated without leave pursuant to rule 4 of the Criminal Appeal Rules. For the reasons given in relation to ground 1(c), I would refuse leave.

Ground 1: Application of Proviso 21 It is convenient at this point to consider whether, assuming, contrary to what has just been said, any part of ground 1 had been made out, the appeal should nonetheless be dismissed because of the proviso to s 6(1) of the Criminal Appeal Act 1912. The proviso permits dismissal of the appeal if this Court "considers that no substantial miscarriage of justice has actually occurred". The question is whether "an appropriately instructed jury acting reasonably on the evidence before them and applying the correct onus and standard of proof would inevitably have convicted the accused": Wilde v R (1988) 164 CLR 365 at 372. "[In] determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error": Glennon v R (1994) 179 CLR 1 at 8.

The question of whether the proviso can be applied has relevance to the other grounds of appeal as well, to the extent that they can be made out. 22 On the evidence, there was a strong case that the accused was responsible for the victim's death. The strength of the case rested on various items of circumstantial evidence and on numerous admissions the appellant made of having killed her. The circumstantial evidence included the fact that the death occurred at the house at Umina in which the appellant and the victim lived, the fact that on his own evidence the appellant was on the premises that night sleeping in the car, the fact that the appellant made a telephone call from the premises soon after death and was found there by police a little later, the fact that a violent struggle had taken place both in the immediate neighbourhood of the victim's body downstairs and upstairs, the fact that the appellant's wrist watch, pendant and ring were found on the floor near the deceased, the fact that the appellant's "Uncle Henry" brand folding knife was found next to the deceased's head and had been used as the weapon which killed her, the lack of any real evidence that any intruder was present, or had any motive for the killing, the fact that no valuables were missing, and the fact that the accused was wearing a torn shirt covered with blood. 23 The only explanation for the ring, pendant and watch which the appellant offered was as follows: "The appellant's watch was silver with a metal band that was broken. If the watch had been ripped off his arm the skin would have been cut. The coins on the floor of the middle landing showed that the appellant emptied his pockets of money and could have removed his watch and ring and neck chain and placed them on the table. The appellant says that the killer had the ring, watch and neck chain when he assaulted the deceased and lost them in the assault."

That was not an explanation given by the appellant in evidence: he could not explain how the watch, ring and pendant came to be on the living room floor (3/550.5-.9 and 605.6-606.6). The appellant gave evidence of a practice, on going to bed at night, of placing his coins, jewellery and watch on a table (3/564.2). This practice cannot have been followed that night if the appellant was correct in his evidence that he went to sleep in the car. The submission thus does not explain away the adverse inferences from the circumstantial evidence. Nor was any of the other circumstantial evidence explained in such a way as to raise a reasonable doubt in the appellant's favour. 24 The admissions were as follows. 25 At about 11.30 pm on 6 May 1988 the appellant telephoned Father McCann, a Roman Catholic parish priest at Campbelltown with whom he was acquainted. According to Father McCann: "He told me that he had just stabbed Jane [sic] in the neck and she was dead" (2/7). Father McCann also testified that the appellant said: "I know I've done it but I don't know why I've done it" (2/15.9-16.5 and 16.9). 26 Shortly after 12.26 am on 7 May 1988, when Sergeant Fogg and Constable Schultz entered the couple's house, the following conversation occurred between Sergeant Fogg and the appellant. Sergeant Fogg said: "Have you got a gun or a knife?" The appellant said: "I've got nothing, it's all over". Sergeant Fogg then walked to where the appellant was seated, and the appellant said: "I've just done something terrible to the most beautiful person in the world". Sergeant Fogg said: "Mate, what have you done?" The appellant gestured with his arms towards the deceased and said "She's the most beautiful person in the world and I've done this" (2/80.8-81.2). Constable Schultz corroborated this (2/178.9-179.3). 27 A little later Sergeant Lawley, who arrived after Sergeant Fogg and Constable Schultz, heard the appellant say: "No-one else did it, I did it". Sergeant Lawley said: "Is there anyone else in the house?" The appellant answered: "No" (2/186.1 and 187.1). Constable Schultz corroborated this (2/179.9-180.1). 28 On the way to Gosford District Hospital, in the ambulance, the appellant said in the presence of Mr D W McClenahan, an ambulance paramedic, and Constable Hogan: "I don't know what I did it for to Jan, she deserves respect" (2/133.4). 29 After admission to Gosford District Hospital, the appellant said to Mr D A Brown, a nurse: "I killed the most beautiful woman in the world. I killed her, I will write it down if you like" (2/117.6). 30 All these admissions were spontaneous, voluntary and volunteered in every sense. There was no challenge to their admissibility and no challenge to the evidence that they were made. Most of them were supported by contemporaneous notes of persons accustomed to taking notes. Some of them were confirmed in the record of interview made later that night. 31 After the appellant had been taken from the hospital to Gosford Police Station, Detective O'Brien told the accused he wished to ask some questions in relation to the death of the victim. The appellant replied: "I have done a terrible thing" (2/238.8). 32 The appellant was then interviewed by Detective O'Brien at 3.40 am and a record of that interview was made by Detective Ashton. Questions 29-31 and the answers to them are as follows: "Q29. Could you tell me how the blood got on your knife? A. There is only one way the blood could have got on the knife. Q30. How? A. I must have stabbed her. She had this ugly big wound in her throat. It couldn't have been anyone else. I walked around her a few times, I stepped over her, I touched her. I don't know what time it happened. I usually walk away from arguments you can go back through my history. Q31. Is there anything else you can tell us? A. Can I stop now I don't want to say anything more. Except I know you are going to charge me with murder. I am guilty of a terrible thing, I know that there is no way I can defend this and I don't want to. Can we finish up now?"

33 In my opinion no jury acting reasonably could have avoided concluding that the appellant killed the victim, and (unless it accepted some argument based on his mental state, which neither jury did) convicting on the admissions alone. The circumstantial evidence strengthened the conclusion that the appellant was the killer. If the appellant were to have avoided an otherwise inevitable conviction, there would have to have been evidence pointing to the reasonable possibility of innocence consistently with the circumstantial evidence (that is, evidence of an intruder) and consistently with the admissions. The trial judge directed the jury along the following lines about the admissions made before the record of interview (page 82): "… you will also have regard, to the extent that you consider it appropriate, to the suggestion that even a person who has had a blackout or memory loss can perhaps confabulate or, as Dr Wong said, confabulation occurs when a person is unable to remember something and fills in the gaps, or as Dr Quinn said, confabulation is when a person appears to remember that which is random or spurious."

The trial judge suggested that the jury bear in mind that Mr McClenahan, an experienced ambulance officer, did not regard the appellant as particularly affected by drink or drugs (page 84). He pointed out that the detail of non-controversial material given in answers, as well as the acknowledgments of earlier admissions, as recorded in the record of interview raised a question for them going to whether it pointed against the appellant being in a state of blackout or amnesia, or as confabulating (pages 87-90). The proposition that the appellant made incorrect admissions of killing immediately afterwards while later professing a complete absence of recollection is not one that a jury would regard as a reasonable possibility without assistance from expert evidence. This Court was taken to none and it appears that none was forthcoming (see Dr Wong at 3/491.9 and 526.2-.9, and Dr Quinn at 4/804-806). 34 The strength of the prosecution case that the appellant killed the victim may be gauged from certain observations of the Court of Criminal Appeal in the first appeal, at a time when the relationship evidence presently objected to was not objected to and at a time when none of the other current grounds of appeal were being advanced. Gleeson CJ said (R v Frawley (1993) 69 A Crim R 208 at 209): "The evidence against the appellant established beyond any doubt that on 6 May 1988, following a violent argument and a struggle, he stabbed and killed Janice Maree Goodwin, who was his de facto wife."

Sheller JA said at 224: "the evidence against the appellant established beyond any doubt that on 6 May 1988, following a violent argument and a struggle, he stabbed and killed … his de facto wife."

These remarks related to the identify of the killer. On the other group of defences raised, Gleeson CJ said at 215: "The Crown case against the appellant was very strong. The issue upon which the defence focussed, i.e. the ingestion of alcohol and drugs on the evening of the killing, was one that was fraught with risk for the defence. There was an obvious danger that a jury might treat the alcohol and drugs as the explanation of the conduct of the appellant, but not an excuse for it. There were inherent difficulties about some aspects of the appellant's claimed amnesia. For example, when he was interviewed by the police in the early hours of the morning following the killing, he gave rational and coherent answers to all the questions that he was asked, but at his trial he claimed that he could not remember the interview."

On that subject, Gleeson CJ said at 213: "The record of interview, which was taken at about 3 am, and which was tendered in evidence, shows the appellant giving perfectly rational answers to the questions that he was asked. They were exculpatory, in the sense that he denied any recollection of the actual killing of the deceased, but there is nothing about the contents of the record of interview that would cast any doubt upon the reasoning powers or mental capacity of the appellant at the time he was interviewed."

Gleeson CJ said at 223.9-224.1: "The evidence that [the appellant] ferociously attacked and killed the deceased is overwhelming and, having regard to the circumstances of her death, the suggestion that he did not at least intend to cause her grievous bodily harm, even allowing for his ingestion of alcohol and drugs, is barely plausible."

35 The relationship evidence, and any errors made in dealing with it, go to the appellant's mental state. But the admissions, the appellant's conduct in ringing Father McCann and conversing with the persons he dealt with that night, point strongly towards the voluntariness of his conduct. In my judgment the evidence in the case apart from the relationship evidence made a conviction inevitable.

Ground 2: Voluntariness of Record of Interview 36 Ground 2 reads as follows: "Evidence of admissions in the record of interview were not made voluntarily and were improperly admitted in evidence." 37 The interview which was recorded took place between 3.40 am and 6.17 am on 7 May 1988. 38 The appellant's submissions refer to Father McCann's evidence about how his voice sounded during the telephone call at about 11.30 pm on 6 May 1988, Constable Ashton's evidence that the appellant seemed stunned and smelled of liquor and that eleven Mogadon tablets were missing, Mr McClenahan's evidence that the appellant was not inebriated and Dr Collits' evidence that the appellant was inebriated. The appellant then set out calculations suggesting that each question during the interview took three minutes thirty-five seconds to answer, while in the witness box he answered each question in twenty seconds. He submitted that this showed that his ability to answer questions during the interview had been diminished to about ten percent of the ability he showed at the 1994 trial. The appellant also pointed to evidence that he was suffering from back pain in the early hours of 7 May. The appellant submitted that there was no evidence of what happened to him between 2 am and 3.20 am. He pointed to documentary material suggesting the inadvisability of taking Mogadon and alcohol simultaneously. 39 In my opinion this ground of appeal must fail. Rule 4 of the Criminal Appeal Rules applies. No objection was taken to the record of interview at the second trial. Had an objection been taken, some of the conclusions which the appellant seeks to draw from a review of the evidence might have been more fully tested. For that reason, leave to pursue this ground should be refused. In any event, the record of interview, so far as it can be confirmed, is substantially correct. The police officers had no access to knowledge of the facts which can be confirmed other than through what the appellant told them. Though the appellant was not responding quickly to questions put by any of the persons he encountered on the night of 6-7 May 1988, the record of interview reveals that the appellant was giving rational answers. That is no doubt why the appellant's counsel did not object to the tender of the record of interview, which to a large extent was exculpatory. 40 What was admitted in the record of interview goes no further than numerous earlier admissions to the same effect which are not challenged, so that even if the record of interview ought to have been excluded, the proviso should be applied.

Grounds 3 and 5: the DNA Evidence 41 Ground 3 is: "DNA evidence is now available in relation to hair said to have been found in the deceased's hand, which the appellant contends, had it been available at the time of his trial, in conjunction with photogrammetry evidence and the evidence of observations made at the post-mortem in relation to the hairs length and colour, it would tend to prove that the hair came from someone other than the appellant or the deceased and that the appellant has therefore been denied the opportunity of an acquittal that may have otherwise been open to him." 42 Ground 5 complains of the refusal of defence counsel to carry out instructions given by the appellant for and during the trial resulting in a denial of the appellant's rights and the withholding from the appellant and the court of DNA evidence that would have resulted in the accused's acquittal. 43 In relation to ground 3 considered by itself, the first step in the appellant's argument was to point to the opening of the Crown at the first trial to the effect that two clumps of hair found on the television room floor, and hair found in the deceased's hand, were the victim's hair, and that she had "very long hair and the accused much shorter". Sergeant Steele said at the first trial that the average length was 20-25 centimetres, which was consistent with the deceased's hair, as was the colour. 44 In 1994 Sergeant Steele said the hair in the deceased's hand, when compared with the deceased's hair, "was the same texture, colour and approximately 20-28 centimetres in length, which was average for the deceased's head hair" (2/37.5 and 49.4-50.2). He also said the hair in her hand was different from the appellant's (2/50.2-.5). 45 That evidence was supported by Sergeant O'Brien, who said the hair in the victim's hand resembled her hair and not the appellant's (3/418.7-.9). 46 However, though Sergeant Steele was not asked in chief about the two clumps of hair, in cross-examination he changed his 1990 evidence about the two clumps of hair. In 1994 he said that the hair in the two clumps was different from that of the victim, but not dissimilar from that of the appellant, though he admitted that he took no samples of the appellant's hair (2/52.1-.5). He adhered to this in re-examination, basing that view on the texture, colouring and length of the hair, even though he made no specific comparison with the hair on the accused's head (2/64.2). 47 The trial judge said in his summing up (page 75): "The Crown says if you look at the objective facts, you look at what took place upstairs - a very violent attack upstairs, with up to 35 injuries perhaps excluding the final stabbing in the throat on the middle level, you look at the items of personal apparel there, the watch, the ring and the pendant, the Crown says you would have no doubt whatsoever that it was the accused that assaulted the victim. The Crown argues that if you add to that the fact that there was blood of the victim, the evidence of the knife attack, and add to that the fact that the knife which was produced was open, then the Crown says those objective facts together with the existence of little clumps of hair found upstairs, which the Crown says despite some conflict of the evidence were probably clumps of hair being pulled out by the deceased when she was perhaps being assaulted upstairs, you will have no doubt whatsoever, ladies and gentlemen, that the stabbing that took place ultimately on the middle level after the victim fled downstairs."

The "conflict of evidence" is no doubt the conflict between Sergeant Steele and Sergeant O'Brien in relation to the two clumps of hair on the floor. 48 On 27 July 1994, just before the start of the second trial, the appellant's solicitor requested tests of samples from the three clumps of hair and a sample from the appellant. The person conducting the tests was Dr Mathijs. On Sunday 31 July 1994 he told the solicitor: "The specimen taken from the hair of Maurice Frawley recently contained an extra faint band … I am unable to see this band in the sample taken from the hand of the deceased."

On 1 August 1994 he told the solicitor: "The marker I referred to yesterday is puzzling. The hair is different and the sample found in the hair of the deceased does not look like that of Maurice Frawley. Further tests will be run tomorrow. The two specimens found in the TV room do not look the same - completely different. The only conclusion that I can presently come to is that there is a band in Frawley's hair which was not in the hair found in the deceased's hand and that the hair cannot be his."

On 1 August 1994 a jury was empanelled, but the appellant's counsel obtained an adjournment until the next day "on the basis that some inquiries were being pursued, the results of which may materially affect the way the case is conducted on behalf of the accused" (2/1). As the note of the solicitor for the Crown put it, this was because the defence were "awaiting results of DNA testing re hair samples". 49 On 2 August 1994 the appellant's solicitor was told the following matters by Dr Mathijs: "The DNA is of poor quality and the results of the tests are inconclusive … There are differences but these are just 'artifacts'. I will repeat the tests today … DNA decomposes over time in poor conditions and this may be an explanation for the differences in the test results … The three samples are too old, although the hair taken from Frawley is good."

The appellant's solicitor recollects that in later conversations Dr Mathijs expressed the view that further tests were inconclusive. No written report came into existence until 12 September 1994 (after the appellant had been convicted). A report by Dr Mathijs bearing that date said of a Y chromosome PCR test that "The conclusion from this test suggests that the four specimens are of male origin". The report concluded: "The tests performed on these four (4) specimens do not generate a conclusion of exclusion of the suspect". Dr Mathijs also provided a report on, apparently, 6 December 1995. 50 So far as Dr Mathijs' 12 September 1994 test established that all the hair was of male origin, it showed that the police evidence about the hair in the deceased's hand was incorrect. The appellant's argument was that assuming that the police evidence that the hair in the deceased's hand was not the appellant's was correct; assuming that Dr. Mathijs was correct about the band in the appellant's hair not being in the hair in the deceased's hand; taking into account that the hair in the deceased's hand cannot have been hers, since Dr Mathijs thought all the hair was from males; and noting that there was no evidence that any clumps of hair were missing from either the victim's head or the appellant's, the hair can only have been that of a third person - an intruder who lost it in the violent struggle preceding the killing of which he must have been the perpetrator. 51 The following difficulties exist with the argument. First, it depends in part on Dr Mathijs' view about the band in the appellant's hair: yet that was not a view he recorded in his 12 September 1994 report and it appears to have been withdrawn by his statement to the appellant's solicitor on 2 August that "The DNA is of poor quality and the results of the tests are inconclusive". Secondly, so far as the appellant's argument depends on the statement in that report about all four samples being samples of male hair, it is unclear, by reason of the ambiguity in the word "suggests", how confident Dr Mathijs was. Thirdly, on 6 December 1995 a second report of Dr Mathijs stated: "The quality of the DNA extracted from the specimens is very poor and, I believe that further tests will not generate a clear pattern. This may be due to a contamination of the hairs or severe breakdown of the nucleic material."

Fourthly, so far as the appellant's argument depends on some analogical conclusion of inadequate police investigations inferred from the fact that Sergeant Steele conceded at the first trial that "certain blood samples were perhaps not submitted for analysis because there was a known offender", it has little materiality: so far as anything could be made of the matter, it was known to the appellant's counsel at the second trial, and in any event the appellant's submissions conceded, and there was evidence (3/419.9 and 455.3-.6), that relevant DNA testing was not possible in 1988. Fifthly, even if all the hair was male hair, the evidence only excludes the appellant if Sergeant O'Brien's evidence that the clumps of hair on the floor were from the deceased is correct, and the evidence of both police officers that the hair in the victim's hand was that of the deceased is correct. But that evidence cannot be correct if the DNA testing is correct: the police evidence was that, by a comparison with the victim's hair, the hair in issue was hers rather than the appellant's; yet the DNA evidence meant it cannot have been the victim's hair since she was not male. The appellant's argument is internally contradictory, in that part of it depends on the police evidence being correct, but another part depends on the same police evidence being incorrect. Finally, the appellant's argument depends on exploiting particular parts of the DNA evidence while ignoring other parts. In order to judge whether untendered evidence would have made a difference at a trial, it is necessary to postulate that it be placed in admissible form. Even if Dr Mathijs' oral utterances and his two reports had been available, they would not have been admitted, in a practical sense, without being distilled into a proof of evidence to which admissible oral evidence would have conformed. And in evaluating whether that evidence would have made a difference in the sense of creating a significant possibility that a reasonable jury could have acquitted, it is necessary to make some allowance for the inroads which a cross-examiner might reasonably be expected to make. A distillation of all Dr Mathijs' utterances and reports into admissible oral evidence would probably have resulted in a statement by him of inability, once all his qualifications, doubts and ambiguities had been factored in, to arrive at an opinion excluding the appellant. And if his oral evidence had risen higher than that, it is very unlikely that it would have survived cross-examination. 52 So far as the appellant's argument depends on the proposition that there is no evidence that either the victim or the appellant were missing clumps of hair, the difficulty is that there is no evidence that the clumps in question were of a sufficient size to leave noticeable gaps. 53 A further argument appeared to suggest that Dr. Mathijs' report of 6 December 1995 indicated that samples of hair came from different people. It does not appear to do so: rather, it is inconclusive. 54 Among the difficulties with the police identification of the hair is that in part it depended on the use of photographs, in relation to which the use of artificial light may affect the appearance of the hair (2/49.8), and in part Sergeant Steele was not confident about identifying the colour of female hair (2/49.9). A further difficulty is that no sample of the appellant's hair was taken in 1988 (2/51.1). The police officers also had only limited opportunities of observing the appellant's hair in 1988 (2/30-31, 238 and 244; 3/392-393). 55 Without the DNA evidence, the hair evidence, confused as it was, was not such that the jury ought to have experienced a reasonable doubt. The DNA evidence, at best heavily qualified as it was, did not improve the appellant's position. So far as it went, taken at its highest it tended to damage parts of already vulnerable police evidence which lacked any probative value either way, but other parts of that police evidence were needed if there were to be created a "significant possibility that the jury, acting reasonably, could have acquitted the [appellant] of the charge if the new evidence had been before it at the trial": Gallagher v R (1986) 160 CLR 392 at 402; Mickelberg v R (1989) 167 CLR 259 at 288 and 301. Not only did the possibility appealed to depend in part on the vulnerable police evidence that the clumps of hair on the floor were not the appellant's, but it had to be considered against the background of the rest of the evidence implicating the appellant, which was very strong. The weakness of the hair evidence, with or without DNA analysis, is so great that the jury would necessarily have to have looked to other material; the DNA analysis was too weak to cause a reasonable doubt to arise in the light of other material. 56 The parties put some effort during the appeal into establishing that the DNA evidence was, or was not, available or known to the appellant. The significance of this dispute was that if the evidence was "new" in the sense of being unavailable at the trial, the test was that stated in Gallagher v R (1986) 160 CLR 392 at 402, see above. If it was not "new" in that sense, the test was said to be more onerous. It seems that at least the following evidence was "new": Dr Mathijs' first report; Dr Mathijs' view that all four samples of hair comprised hair from males (which was not communicated until his first report); and Dr Mathijs' second report. Dr Mathijs' view based on the band in the appellant's hair was probably not "new", but it was soon followed by his view that the results of the tests were inconclusive, communicated to the appellant's solicitor on the first day of the trial, and thus the "band" evidence for practical purposes had a useful life of only a day or two: it could not have been deployed at the trial to any advantage. The material which came to the attention of the solicitor for the appellant in ensuing days from Dr Mathijs about the inconclusiveness of his further testing was not favourable and not useful to the appellant. There is a dispute between the appellant's solicitor, who gave evidence to the effect that Dr Mathijs' view of the inconclusive character of the tests was passed on to the appellant, who in turn gave instructions to proceed with the trial without raising the evidence of the DNA testing, and the appellant, who denied this. The contemporary documentation was extremely sparse and indecisive. It is not necessary to resolve this dispute about events occurring six years ago. It would suffice for the operation of any restrictive test based on the characterisation of evidence as not "new" that the appellant's representatives were aware of the evidence but what they were aware of was not useful; what they were not aware of was "new", but was not useful either. 57 Accordingly the DNA evidence appears to be too weak to permit ground 3 to succeed. 58 Turning to ground 5, the appellant's written submissions complained that defence counsel "refused to carry out the appellant's instructions given in writing prior to the trial and verbally during the trial and the appellant says that this was a denial of the appellant's rights and resulted in a guilty verdict instead of a not guilty verdict." 59 On the appeal the appellant filed and read an affidavit dated 16 November 1999. Apart from referring to a request to his solicitor to apply for an adjournment of the second trial to allow the appellant to have a bowel operation, that affidavit did not refer to any written or oral instructions. In oral evidence on the appeal the appellant did not give evidence of any such instructions, though he did give evidence of having asked for the DNA results. Towards the end of the argument attention was directed to the fact that any instructions on which the appellant wished to rely on in the appeal had to be proved. The appellant was then re-sworn. He gave further evidence about his instructions on two matters. One concerned the tender of a page from an edition of what is known as MIMS, an annual publication which serves as a drug reference system for health care professionals in Australia, referring to the effects of Mogadon: the appellant said he gave instructions that the relevant edition be one near the time of the events in issue in 1988, not one near the time of the second trial. The page which the appellant wished to have tendered contained the following passages: " Precautions As with other hypnotics, alcohol should be avoided while under the influence of the treatment, since the individual response cannot be foreseen … Adverse Reactions … Increased dreaming has been reported early in treatment. Slurred speech and poor coordination are uncommon." 60 The other matter on which the appellant contended that instructions had been given concerned the tender of a demonstrative device in the nature of a wig made out of strips of coloured paper of various lengths which the appellant wished his counsel to have placed on his head, so as to show the radical difference between hair of the length which the appellant said he had in 1988 and hair of the length which the police evidence attributed to the victim in 1988. No evidence of any written instructions beyond the relevant page from MIMS was tendered. 61 Forming a judgment about the reliability of any testimony given by the appellant years after the events in issue would be difficult. The effects of the grave health difficulties from which the appellant has suffered since about 1986 and the effects of the abuse of alcohol for most of his adult life until 1988, not to mention the effects of the twelve years which the appellant has spent in gaol, are such that his powers of observation, recall and concentration may be gravely defective. His demeanour while giving evidence and presenting argument gives strength to those possibilities. It seems very likely that inherent in his convictions is the fact that two juries have rejected key aspects of his evidence. In the circumstances it is undesirable to make any findings about what the appellant did in relation to instructions unless absolutely necessary. 62 Assuming, without deciding, that the appellant did give instructions to seek an adjournment on health grounds, and assuming, without deciding, that no application was made (these being propositions which the appellant's solicitor did not deny in his affidavit read by the Crown, but was not cross-examined about by the appellant's counsel), it has not been demonstrated that that failure affected the outcome of the second trial. 63 Assuming, without deciding, that the appellant gave particular instructions about the page from MIMS, and assuming, without deciding, that if given they were not carried out (these being propositions which the appellant's solicitor, who heard them being advanced in oral evidence, was not called by the Crown to deny), it has not been demonstrated that that affected the outcome of the second trial. The tender of one page of MIMS rather than another in relation to the effects of mixing alcohol and Mogadon and other effects of Mogadon can have had no impact in a trial in which expert evidence was given about the effect of alcohol and drugs on the accused apart and in combination. Dr Judith Perl was called by the Crown to give evidence on that subject. Dr Wong, who was called by the Crown, gave some evidence about it in cross-examination. Dr G B Chesher was called by the appellant to give evidence about it. So was Professor G A Starmer. It would be a matter for the latter two witnesses in particular to suggest what documents should be tendered, or what information based on documents should be conveyed to the court testimonially. If their evidence was not enough to carry the day, a page from MIMS would not have turned the scales. 64 The final matter is the appellant's instructions about the device demonstrating different hair lengths. The employment of such a device was entirely within the discretion of defence counsel. Assuming, but not deciding, both that the instructions were given and that they were not complied with (these being propositions which the appellant's solicitor referred to in evidence during the appeal but which he was not called by the Crown to deny), the failure to comply with them could not have caused any miscarriage of justice. The hair evidence was confused. The police officers giving evidence on hair agreed that the hair in the victim's hand was hers. The police evidence was contradictory in relation to the hair in the two clumps: Sergeant Steele said that it was the appellant's, Sergeant O'Brien said it was the victim's. While Sergeant Steele's tenuous evidence was mildly adverse to the appellant, Sergeant O'Brien's evidence did not exclude him. If the appellant's hair was shorter than the victim's, that supported Sergeant O'Brien. It was a matter for the judgment of defence counsel how the hair issue should be handled. The appellant's solicitor gave evidence that in his judgment, while the appellant's hair was much shorter in 1994 than in 1988, in 1988 his hair was fifteen centimetres long in parts. That may well have caused counsel to regard it as a dangerous issue to highlight. Defence counsel's task in arriving at an appropriate tactical judgment was a difficult one, given the appellant's professed inability to remember anything about whether he had or had not fought with the victim. Neither the evidence called from the police officers nor the DNA evidence not called excluded the appellant and supported the intruder theory. Neither counsel appears to have addressed about it in a manner leaving more than a trace in the summing up, which scarcely mentions hair. The use of the device demonstrating different hair lengths could not in these circumstances have been such as to bring into existence a significant chance of acquittal which did not otherwise exist. 65 The appellant made a related complaint concerning his counsel's failure to cross-examine Sergeant Steele about his change of evidence and about his prior evidence in the 1990 trial. The appellant submitted in his 9 August 1999 submissions that he gave written instructions about Sergeant Steele's 1990 evidence. There is no evidence of these instructions. He also submitted that he instructed his solicitor that he wanted his counsel to read to Sergeant Steele the 1990 evidence, but counsel "refused to carry out the appellant's instructions". There is no evidence of these instructions. If they were given, there are understandable reasons why they were not carried out. Counsel did press Sergeant Steele (2/52.1-.7 and 56.2-.4), but without success. Counsel may well have thought that to have pressed him further might make the evidence both more firm and more likely to strike the jury as significant. As it happened, the re-examination weakened the evidence given in cross-examination (2/64.2), but counsel was not to know that this would happen. The Crown evidently did not see the evidence as pointing to guilt, since it failed to elicit it in chief from Sergeant Steele. Defence counsel may well have thought that to put to Sergeant Steele his evidence at the first trial could have had the undesirable by-product of reminding the jury more than was necessary that one jury had already found the Crown case proved beyond reasonable doubt. Defence counsel had made an unsuccessful application for discharge of the jury because of a reference to the first trial (2/99). 66 Some of the appellant's complaints relate to not being told of the DNA evidence. While the appellant gave evidence that he asked his lawyers "at different times at the start of the trial about the DNA results" and was told that they were not available, there is no evidence to suggest that any helpful version of them was available. There is no evidence that the appellant's legal representatives learned of the 12 September 1994 report before the end of the trial. The appellant's solicitor gave evidence that he did not receive it until 15 September 1994, and there is no evidence to the contrary. Hence there is no basis for the appellant's submission that his lawyers deceived him about it, let alone any basis for his submission that his lawyers were engaged in a conspiracy with the Crown lawyers to suppress it. On the evidence, all that the appellant's lawyers heard after the false hopes raised on the weekend before the trial about the appellant's hair being different from the two clumps found on the floor and the hair in the victim's hand was that the results were inconclusive. 67 Whether the appellant is correct in saying that this information was not passed on to him, or whether the appellant's solicitor is correct in saying that it was and that he gave instructions to proceed without DNA evidence does not matter. This is because even if there was a failure on the part of the appellant's lawyers to tender whatever DNA evidence they had available, and even if it were all available, it would not have made a difference. The appellant submitted: "In fact … Det. Sgt. O'Brien's evidence and Det. Sgt. Steele's original evidence together with the DNA report shows/proves the appellant's innocence". That is not so for the reasons given in paragraph 51 above. 68 The reliance of the appellant on the grounds related to DNA evidence essentially operates to support the conclusion that there was a reasonable doubt whether or not an intruder killed the victim. Other points to the same effect were advanced. 69 One argument was that the appellant's recollection of the victim saying she had scratched his face, coupled with the absence of scratches, pointed to her having scratched an intruder. This argument was available at the trial and depended in part on the jury's estimation of the appellant's reliability. They were entitled to reject his reliability. 70 Another argument was that there was evidence of blood stains in parts of the house outside the areas where the assault took place. That blood was not sent for testing. The appellant submitted that it was possible that the victim's dog bit her attacker, and that this could have caused some of the blood. He submitted that the failure of the police to have all the blood tested deprived him of a means of establishing his innocence. By themselves, these arguments would not inevitably raise a reasonable doubt; they do not do so even taken with others; they were available at the trial; if counsel chose not to run them, that was an understandable course; and if the jury chose to reject them, that was understandable also. 71 A further issue, raised only in reply, concerned a piece of finger nail found in the victim's hair. The appellant submitted the evidence showed that it came neither from the victim nor from him, and this proves that there was an intruder. It was the jury's task to determine what was found and what the explanation of the finding was. The evidence pointed to does not suggest that the jury ought to have experienced a reasonable doubt. 72 In short, to the extent that the appellant's submissions on the DNA tests included arguments advanced that do not depend on the DNA tests, they were available at the time of the trial on the basis of the evidence given and they do not suggest any miscarriage of justice. The same is true of other arguments in those submissions which depend on evidence not called at the trial and which are not the subject of any ground of appeal. 73 I would reject ground 5 as well as ground 3. Even if those grounds were made out, the strength of the remaining evidence calls for application of the proviso.

Ground 4: Dr Wong's Evidence 74 This ground was that: "Dr Wong's evidence should not have been allowed because the circumstance surrounding his interview with the appellant renders his evidence … inadmissible." 75 The interview referred to was an interview between Dr Wong, a forensic psychiatrist called by the Crown, on 6 November 1988. Putting aside many irrelevant submissions in support of this ground, it is necessary to deal with the following. The appellant contended that he was bullied by his then counsel into attending the interview and that he did not in reality consent to it. (The counsel in question was not the counsel who appeared on the first appeal and at the second trial, nor the counsel who appeared on the second appeal). The appellant submitted that Dr Wong should have been prevented from giving evidence derived from the medical examination. The appellant also submitted in effect that because the trial judge at the first trial prevented Dr Wong from giving the history which the appellant had given him, the trial judge at the second trial should have done the same. The appellant further submitted that Dr Wong should not have been permitted to give "an opinion on intent" because "no person is able to say what another person is thinking". 76 This ground should be rejected for the following reasons. 77 First, so far as the argument depends on the appellant having been bullied by counsel, it lacks any evidentiary foundation: the appellant made no reference to this in either his affidavit or his oral evidence in chief on his return to the witness box towards the end of the argument on appeal. 78 Secondly, the appellant's counsel at the second trial did not object to Dr Wong's evidence on any of the grounds advanced save that he objected to questions about the appellant's sanity which the Crown then withdrew. There is no reason why leave should be granted pursuant to Rule 4. 79 Thirdly, there was no identification of which particular answers fell foul of the supposed rule against giving an "opinion of intent". 80 Finally, it is unclear why the trial judge at the first trial rejected the evidence of history, and on the face of it it seems that he was not correct to do so, except perhaps as an act of generosity to an unrepresented litigant on a murder charge.

Orders 81 In my opinion the appeal against both conviction and sentence should be dismissed. 82 SMART AJ: I agree with Heydon JA. 83 IRELAND AJ: I agree with Heydon JA. **********

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