(c) The claw hammer and the steam iron
165The evidence indicated that the presence of DNA material from both the deceased and the appellant on the handle of the hammer and iron may be explicable by virtue of the fact that the claw hammer and the steam iron were household items that could have been handled by both. It is the absence of any DNA material of any third party that is at least potentially a negative fact of significance. It is, accordingly, important to examine the expert evidence given by Ms Beilby insofar as this aspect of the matter is concerned.
166Ms Beilby was not cross-examined directly on the basis or bases upon which the absence of the DNA of any other person on the handle of the hammer or the iron could be explained, assuming that there was a third person who was involved in the attack on the deceased.
167Ms Beilby was, at one point, asked a number of questions concerning the means by which DNA may be transferred from one person to another or to another item. In that respect, she was asked:
Q. Yes, and you only need an amount you can't see, a microscopic amount, for a DNA transfer to take place and be there when the testing is done? A. That's right. But again it depends upon the individual. Some people seem to give up their DNA fairly easily.
Q. Because they shed more skin cells than others? A. That is the thought behind it. And others can touch things for quite some period of time and never leave their DNA.
Q. Sometimes people perspire more than others? A. It could be. If we are talking about hands touching, it depends on how often the hands are washed."
168The above cross-examination was not directed to the issue of the absence of any DNA of a third person from the handle of the hammer or the iron, but nonetheless was relied upon as evidence that meant one could not rule out the possibility that the abovementioned items were used by a third person in the murder of the deceased without the perpetrator leaving his or her DNA on the handle of either item.
169The submission made on behalf of the appellant in this latter respect is one to be accorded due weight in terms of the possibilities. However, it should not, in our assessment, be accorded the same weight if the evidence of the expert (Ms Beilby) had been specifically directed in cross-examination to the issue concerning the handle of the hammer and the iron and she had addressed the absence of "foreign" DNA in that context. It was not so directed.
(3) Some Open or Unresolved Questions
170Trial defence counsel, and counsel for the appellant in this Court, made submissions by reference to the forensic evidence, including bloodstains and DNA evidence. The presence or absence of bloodstains on the appellant's clothing worn by him and that located on the ground in the vicinity of the deceased, requires consideration in an assessment whether the Crown has proved the guilt of the appellant to the requisite standard. Submissions were made that, if the appellant was the assailant, then greater quantities of blood would have been detected on clothing or on him. The Crown response was that there were opportunities for the appellant to wash blood from himself.
171In assessing the evidence on this aspect, it should be kept in mind that the scene of the crime was a backyard on the edge of the township of Cobar. The Crown contention that there were opportunities for the appellant to wash, at places other than those presenting within the immediate household, should be assessed in this light. The argument can cut both ways. On the one hand, it could be said that there were limited washing facilities at 18 Harcourt Street, and that forensic examination did not disclose that blood had been washed in those areas. On the other hand, these could not be said to be the only points at which washing could occur in the area.
172In assessing this question, we keep in mind the fact that the presence or absence of blood may be of limited use in the circumstances of the particular case. This is not an area where a level of scientific precision and certainty can be deployed to point towards, or away from, guilt. It is necessary to assess the evidence on this aspect together with all the other evidence.
173It seems clear, and does not appear to have been disputed, that the deceased's body was moved by the assailant after she was assaulted and that, after the body came to rest, she was further assaulted. It was the Crown case that it was the appellant who moved the deceased's body. It was the unchallenged evidence of Sergeant Salmon, the Dubbo crime scene examiner, that the assailant would have had blood covering his hands. Sergeant Carnell, the Queanbeyan crime scene examiner, gave evidence to the same effect. There were no footprints, whether barefoot or shod, found in the laundry. The Crown submitted that obvious care had been taken by whoever moved the deceased not to step in the copious quantities of blood which were then upon the laundry floor.
174As we have observed, the Crown conceded that whoever moved the deceased would have had a substantial amount of blood on his hands. When the child Jed awakened the appellant on the Friday morning having discovered his mother in the laundry, he noticed a bit of blood on the tip of the ring finger of the appellant's left hand. However, when the appellant's hands were tested for blood after his arrest, no blood was found. On the other hand, blood was found on a doona of the bed which the appellant had occupied, but testing determined that the blood was that of the appellant and not the deceased. If the blood on the appellant's ring finger was in fact blood and was that of the deceased, it is difficult to see how it would not have come off on the bedclothes whilst the appellant was asleep. But there was no evidence of any of the deceased's blood on the bedclothes of the bed on which the appellant had slept. Jed's evidence then raises these and other questions for consideration.
175As we have indicated, the board shorts were found in the courtyard together with a pair of underpants and sandals. Both the shorts and the underpants were determined to belong to the appellant as they had his DNA upon them. It was the Crown case at trial, repeated on the appeal, that although there was no evidence as to when the appellant removed his shorts, underpants and sandals and left them outside the laundry, he must have removed those articles in preparation for returning to the laundry in order to move the deceased after he had killed her.
176In his ERISP the appellant, at Q & A 232, stated that when he saw the deceased in the laundry after being awakened by Jed, he " knelt down and pushed the hair away from her face a little ". When asked at Q 240 and Q 241 whether he had moved the deceased's body at all, he replied: " No. Only had time to lean down. I moved her hair away ...".
177Jed, who was 12 years old at the time of the murder, and who had awakened the appellant after discovering his mother's body, said in evidence that the appellant went into the laundry/toilet and then came back out. When asked if the appellant touched his mother while she was lying on the floor, he said: " I'm not sure, 'cause I didn't see him ". In cross-examination he said that when the appellant entered the laundry he, Jed, remained away from the door and could only see the appellant's back. He agreed that he went in and then came out. He did not say that he saw the appellant kneel or lean down over the deceased's body nor was he asked any questions which would have enabled him to confirm or deny such actions by the appellant.
178We mention these matters for, as noted above, it was suggested on behalf of the appellant that the bloodstains on the board shorts could have occurred when the appellant knelt or lent over the deceased's body. The Crown submitted that Jed had denied seeing the appellant so acting but we do not believe his evidence supported that proposition.
179It was not put to Jed in chief that he had not seen the appellant kneel or lean over the body and not suggested to him in cross-examination that he had. Accordingly, the possibility remains that he did and that in moving the deceased's hair away from her face he got some of her blood on his hands which he may have wiped on the front of his board shorts. Such an explanation would be consistent with the appellant's innocence about the presence of blood on his board shorts.
180Although the evidence established that the T-shirt the appellant was wearing when he was arrested was the same T-shirt as that which he was wearing when he was awoken by Jed on the Friday morning, there was no satisfactory evidence as to whether the board shorts found in the courtyard were those which the appellant had been wearing when he was at the hotel. The only evidence pertaining to that topic was given by Mr Jason Lawrence who said that when he saw the appellant at the Grand Hotel at around 5.00-5.30 pm on Thursday 20 November 2003 he was wearing " blue shirt, blue shorts, cargo shorts, whatever ". He agreed he had not paid much attention to what the appellant was wearing. None of the witnesses who saw the appellant at the Occidental Hotel that night were questioned at trial as to what the appellant had been wearing.
181One difficulty facing the Crown case on this issue is that at most the evidence establishes that on the night in question the appellant was wearing blue cargo shorts whereas those which were found by the police in the courtyard and which had blood smears on them were described as cream-coloured board shorts (although we note that they appear to be light blue in the photographs of them in Exhibit E but this may simply be a product of the film used for the purpose). We have taken into account the emphasis placed by the Crown upon the deceased's blood being found upon the cream-coloured shorts, but that there was no evidence that those shorts were those being worn by the appellant on the night in question. The evidence contains a gap in this respect and, on one view of it, involves an inconsistency between the colour of the shorts which Mr Lawrence observed the appellant to be wearing early on the evening in question and the colour of those found by the police the next day. We note that the appellant accepted that the clothes he had on in bed when he was awoken on the Friday morning by Jed were also the clothes in which he was arrested three days later.
182In its supplementary written submissions, the Crown submitted that there was no reasonable possibility that at the time he was awakened by Jed the appellant was wearing the shorts which were later found in the courtyard by the police or that those shorts were stained with blood when he entered the laundry after Jed had discovered his mother's body. It was submitted that the circumstance of the clothing being found with the blood of the deceased on them in close proximity to the laundry and the appellant's acknowledgement to the police that the clothes he was arrested in were the same clothes he was wearing when in bed, was consistent with the appellant having killed the deceased, washed all blood off himself at some suitable and nearby location in circumstances that precluded later discovery of where that occurred, changed his clothes and then retired to bed.
183It can be accepted that the shorts the appellant was wearing at the time he was awakened by Jed and later arrested were not the shorts found by the police in the courtyard outside the laundry. However, given the evidence of Mr Jason Lawrence that he observed the appellant wearing a pair of blue cargo shorts earlier on the evening before the murder, there is no reliable evidence that the shorts found in the courtyard were those which the appellant was wearing when he left the Occidental Hotel at about 2.00 am on the night of the murder.
184The Crown contended that the appellant must have thoroughly washed his hands to remove any trace of the deceased's blood before he went to bed on the night in question. Testing of the bathtub and otherwise in the bathroom of the house failed to locate the presence of blood. Further, dirt in the laundry tub suggested that it had not been recently used and presumptive tests for blood on the laundry taps were negative. The tap assembly outside the laundry was submitted to a biologist for examination and no blood was found. There is therefore no evidence to suggest that the appellant had washed off the deceased's blood at the scene. It was submitted by the appellant that this was difficult to reconcile with the Crown case. If the appellant had, after killing the deceased, got into bed with bloodied hands, then why is there no evidence of the deceased's blood on the bedclothes?
185We have already made reference to the evidence of Jed who said that he saw blood on the appellant's ring finger when he followed him out to the laundry after he had been awakened. Blood was detected on the appellant's hands by the police after his arrest and found to be his own blood. It is possible that the blood seen by Jed on his hands on the morning in question was that of the deceased. However, the appellant submitted that it was improbable that the appellant managed to wash off almost all of the deceased's blood to the point that he had left none on his bedclothes but left behind a clearly visible amount of blood on his ring finger as seen by Jed.
186The Crown's response to these submissions was that the deceased's residence at Cobar was one of a number of premises in a residential area with a quarry or mine to which the appellant had later fled some little distance away and at which the police later found water which had pooled due to rain. It was then submitted that there were, therefore, a number of alternative sources of water (apart from those at the Cobar residence) that the appellant could have used to wash off all traces of the blood of the deceased, albeit that none of those alternatives was later identified by the police as such a possible source.
187The blood smears found on the shorts and the T-shirt could well have come from the appellant's hands brushing against his shorts and shirt. The fact that the sandals had no blood on them may be explained by the possibility that the appellant was not wearing them at the time of the assault. Given that there was none of the deceased's blood found on the bedclothes in which the appellant had slept, it must follow that, if he was the assailant, at some place he must have washed his hands before retiring to bed. There was no evidence that he did so in the laundry or at the tap outside the laundry. So he must have gone elsewhere. The fact that he left the shorts in the yard and kept the T-shirt on and did not dispose of them may be explained by the fact that at the time he was severely intoxicated and, therefore, was not thinking as clearly as he might otherwise have thought had he been sober and had had the presence of mind to hide his trail. For instance, he may have removed his shorts but inadvertently left them where they fell. His state of inebriation, although not sufficient to affect his mobility, may have been sufficient to cause him to be somewhat careless when removing himself from the scene and shedding his clothing. After all, he did not remove his T-shirt that was found to have blood of the deceased upon it. It is still somewhat of a mystery as to where he washed his hands but it is perfectly feasible that he was more concerned about washing his hands before he went off to bed than removing any blood-smeared clothing.
188All of the above matters are, of course, part of the factual matrix of the case and are to be given full consideration along with the other evidence that went to make up the Crown case.