R v Rose

WOOD CJ at CL and HOWIE J: On 2 October 2001, the appellant was placed on trial, before Justice Kirby and a jury, charged with the murder of his wife Kristine Anne Rose. To that charge he entered a plea of not guilty. On 16 November 2001, the jury returned a verdict of guilty. He now appeals against that conviction but not against the sentence imposed which, when adjusted for pre sentence custody, was effectively one of imprisonment for 14 years with a non parole period of 10 years. The Evidence

The deceased and the appellant had married in 1977, but had separated in early 1982. They had 3 children. The deceased at the time of her death was aged 31 years, and was living at the Claude Street Units, which were part of the University of New England, Armidale, where she was studying. The appellant, who was then aged 37 years, was living at 3/68 Markham Street, Armidale.

The deceased had arranged, on the night of 30 April 1982, to board a bus for Brisbane. That bus was due to depart at 11.00 pm from the vicinity of the New England Hotel, Armidale. It was her purpose to join a man, Peter Adamedes, with whom she had been having an affair.

Prior to her departure she had agreed to meet various friends, including Stacie Adamedes, Joanne Fuller and Robert Delforce at the New England Hotel, at about 9 pm.

She did not meet those friends, and she did not catch the 11.00 pm bus. After a lengthy search, her body was found, on 23 May 1982, off Weirs Road, near a bridge over Pipe Clay Creek, some 6 km or so outside the City of Armidale. The only obvious sign of injury to her was a haematoma on the left side of her neck.

The appellant gave evidence at his trial, to the effect that he knew that the deceased was seeing other men, and that, although he did not feel good about that, he accepted it. He said that, prior to 30 April, he had agreed that the deceased could come to his flat in order to leave some belongings there before she left for Brisbane. He said that following individual counselling services that afternoon, the deceased came to his flat where they had dinner. He did not have sexual relations with her.

After dinner, he said, a 25 to 26 year old man, about 5 foot 6 inches in height, and of average weight, with shoulder length reddy-brown hair, whom he did not know, but who seemed to know the deceased, arrived at the flat and invited her to accompany him to the bowling club. According to the appellant, the deceased agreed, saying that she would not be long, and that she would come back to shower and change. They left the flat and entered a motor vehicle which looked like a white Ford Fairlane (a vehicle which he later said may have been a Ford Falcon).

When the deceased did not return, the appellant said that he became concerned, and he went to the New England Hotel to see if she was there. His search being unsuccessful, he returned home. Later, Robert Delforce and Joanne Fuller came to his flat looking for her. They then went together to the bowling club to see if she was there, again without success.

In the course of his evidence at trial, the appellant denied having been involved in the death of the deceased, denied having threatened to kill her, denied having any knowledge about pressure points to the neck (although he was otherwise aware of pressure points and of the need for care, since their inappropriate use could be fatal), and denied having read a card sent to the deceased by Peter Adamedes.

He explained that an entry in his diary for 30 April 1982 “ Run Kris and Stacie to bus for Brisbane ”, was wrong because he generally did not drive, having suffered an accident to his right arm in the 1960’s, which had also caused him to give up Karate, in which he had been trained to brown belt level. He denied having driven the deceased anywhere that evening. He said that he had given up alcohol after going to the Dependency Unit at Armidale Hospital, although he acknowledged that he may have had 3 or 4 beers on the afternoon of 30 April.

The appellant’s evidence concerning his arm injury was corroborated by the evidence of Professor Ehrlich, an orthopaedic surgeon, who said that the arm was only able to make feeble movements, and that it was unlikely that the appellant would have been able to pinch or chop with that arm.

It was the Crown case theory, however, that the appellant, having been angered by the behaviour of the deceased, and specifically by her planned visit to Brisbane, had killed her in the flat and had then taken her body in her motor vehicle, a small Mitsubishi wagon, registration number GLE 109, out along Weirs Road to the Pipeclay Creek bridge.

Its case against him was entirely circumstantial, the arrest and trial occurring more than 18 years after the discovery of the body of the deceased, by which time, regrettably, certain critical elements of forensic evidence, including vaginal swabs from the deceased, her panties upon which semen had been found, her jeans on which dust had been found, and various dust or soil samples which were of critical importance, appear all to have been lost or destroyed. To their significance we shall return.

Moreover, it was a case which the Crown pursued, without any definitive evidence as to the cause of death. At the highest, its case was that death was probably caused by a blow, or by the application of pressure, to the neck of the deceased in the area of the haematoma, thereby causing vagal inhibition.

In summary, its case depended upon the evidence which it led in relation to the several circumstances set out hereunder: Relationship evidence and the appellant’s training in Karate

The evidence concerning the appellant’s training to brown belt Karate level assumed significance in view of the Crown case theory that the death of the deceased had been due to vagal inhibition of the kind which can be caused by some types of Karate holds or actions.

Diedre Allison gave evidence to the effect that she had overheard the deceased say, in late 1981, that the appellant “ knows ways of hurting people without leaving marks ”. Both she and her husband John Allison described the appellant as “ possessive ”, “ controlling ” and as having a temper that would just “ erupt ”. However, they conceded in cross examination, that they had never heard the deceased complain of the appellant hitting her, and had not seen him do so. Nor had they seen any marks of violence upon her person. Deirdre Allison also agreed, in cross examination, that she had not informed police of the remark which she had overheard, until 1999.

Joanne Fuller gave evidence of having seen the appellant behave angrily towards the deceased, at a party, on 11 April 1982. She added that the deceased had mentioned an occasion on which the appellant had thrown her out of a caravan. She also said that she had been aware of a number of arguments between them at the Claude Street building, after which the deceased had appeared to be tense and apprehensive. She similarly conceded, however, in cross examination, that she had never seen the appellant assault the deceased, nor had she seen her with any injuries.

Julie Wragg said that the deceased had lived with her for about 3 weeks before moving to Claude Street. She added that the deceased asserted that she had previously been living at a women’s shelter, that the appellant had been abusive and violent towards her, and had once thrown her across their caravan by lifting her up by the throat. She added that the deceased had also complained that he drank a lot. She acknowledged that she had not reported the incident when the appellant had allegedly picked the deceased up by the throat until the 1990’s.

Rhonda Craig said that she had met the deceased at the shelter, and had been informed by her that the appellant had been abusive when drinking. She recalled her saying that he used to hurt her physically and emotionally, and that at times he picked her up and threw her. She also recalled regularly seeing obvious bruises to the face, neck and arms of the deceased, as well as black eyes and split lips. It was her evidence that the deceased had been seen at the shelter by a Doctor Henschke, on an occasion when the appellant had threatened to strangle her.

In her presence, she recalled the appellant saying to the deceased, on one occasion, “ If I ever see you with another bloke or you go with another bloke or have anything to do with another bloke, I will fucking strangle you ”.

In cross examination she agreed that the police running sheet which had been prepared following her interview, contained no mention of the injuries which she claimed to have seen, or of the appellant’s threat to the deceased. Superintendent Becke, who had spoken to her on 6 May 1982, said that she had not made any mention of observing injuries to the deceased.

Dianne Bourke, who had been a neighbour of the Roses at an Armidale caravan park in 1982, when she was then aged 17 years, gave evidence of hearing the appellant say, after he had been drinking, that he knew how to kill someone by applying pressure to the neck, which he then demonstrated. She did not come forward in 1982 with this information although she was aware of the deceased’s disappearance.

Anne-Maree Reeves said that the appellant had been at the flat of her parents on the day that the body of the deceased had been found. At that time she was also aged about 17 years. According to her, he had said this day, that he knew how to kill someone if he wanted to, that he knew Karate and all the pressure points, and that he hated the deceased. She also said that he had made similar observations in the past, and had remarked to his children “ you won’t have to worry about your mother, she won’t be here to look after you ”.

She also spoke of a conversation shortly after the deceased had gone missing, when the appellant allegedly asked her parents if he could marry her sister Michelle. She acknowledged not coming forward with any of this information before 2001, it being her explanation that her parents had said, at that time, that they would take care of it, but then when they had later died, she had remained silent because they were unavailable to provide corroboration. She also said that, at the time, she had been in a state of emotional turmoil, having been pregnant as the result of a sexual assault.

Michelle Long, the sister of Anne-Maree Reeves, said that 2 to 3 weeks before the disappearance of the deceased, the appellant, who had been drinking with her father, had said that he was going to kill his wife, that he was a Karate expert, and that the best way to do it would be to come up behind her and get her with a Karate blow. He had also said, according to her, that he would try and strangle her, demonstrating this by placing his hands around the witness’s neck and giving it a bit of a squeeze, after which he said that he was having a joke. She added that about a week later, the appellant had asked her “ If my wife wasn’t in the picture would you like to come back to Victoria with me?. ” She similarly said that she had not reported her information to police earlier because her mother had said that they had reported the matter to Superintendent Becke, who was a friend of her father, Les Powell.

Superintendent Becke gave evidence to the effect that no information had ever been passed on to him by the parents of these two witnesses of a kind which was suggestive of the appellant having made threats in relation to the deceased. He added that Mr Powell had, however, passed on other information, including that which had come from the appellant, concerning the visitor to the flat who had allegedly left with the deceased in a Ford Fairlane. Former Detective Keith Smith, who had spoken to Mr Powell on 10 May 1982, said that he had no memory of any such information having been supplied to him. Had that occurred, he said, it would have been recorded in the running sheets for the investigation.

Two other witnesses, who were fellow students of the deceased, Christine Roberts and Susan Cawthorne, gave evidence, but made no mention of having heard or observed any complaint from the deceased of having been physically harmed by the appellant. On the contrary, Ms Cawthorn recalled her saying that she did not have any fears of being hurt by him.

In the appellant’s evidence, he denied having ever spoken to Diane Bourke, Michelle Long, Anne-Maree Reeves or Rhonda Craig, or to have ever been in their presence.

There was also some evidence from Mark Arnold, who had been counselling the appellant and the deceased in 1982, and who saw each of them separately on the afternoon of 30 April. It was his understanding that they had remained friends after their separation, and that the appellant had accepted that there was only a remote chance of a reconciliation. He did, however, note that the appellant had expressed concern that the deceased was attending university.

Both Mr and Mrs Powell, it was established, had died some 10 years before the trial, and before they could be asked about the matters which their daughters had only recently reported. The deceased’s planned visit to Brisbane and her extra marital affairs

It was the Crown case that the appellant had a motive to kill the deceased arising out of her extramarital relationships, and her planned visit to Brisbane to continue one such relationship with Peter Adamedes.

Robert Delforce gave evidence that the deceased had informed him that the appellant was angry about her planned trip to Brisbane, but that he had agreed to mind her pot plants and budgerigar, which she was going to leave with him.

Peter Adamedes gave evidence of having had an affair with the deceased when meeting her during the 1982 Easter holiday period, and of having sent her a card, in fond terms following that weekend. The card was addressed “ Dear Lovely Christine ”, and concluded with the words “ Keep well and in touch, come and visit if you can. Love Peter Adamedes xxxxxxx ”. The deceased responded to this card by a letter, dated 21 April 1982, in which she indicated that she would be coming up to see him and would be catching the 11.00 pm bus on Friday 30 April.

His sister, Stacie Adamedes, said that the deceased had informed her that the appellant had seen the card from Peter while in her room, and had become jealous. The appellant agreed, in his evidence, that he had seen the card in her room, but said that he had not read it.

There was in fact evidence from a number of witnesses suggestive of a degree of promiscuity on the part of the deceased, apart from that concerning her relationship with Mr Adamedes. Evidence to this effect came from Deirdre Allison, Stacie Adamedes, Julie Wragg and Rhonda Craig, and from inquiries made by police (including Detective Murphy, Sergeant Smith, Senior Constable Thomas, Superintendent Becke and Detective Small). This fact was relied upon both by the Crown and the defence, although in different ways – it being alleged by the Crown that it provided a motive; while the appellant relied upon it, along with the presence of semen on her pants and on the vaginal swabs, as raising the possibility that some person other than him had either accidentally or deliberately killed her during, or after having had, sex with her on the evening of 30 April. The movements of the deceased on 30 April

Julie Wragg said that the deceased had been at her house between 3.00 pm and 4.30 pm, presumably after the counselling session with Mr Arnold, and had reported that she was going to meet friends for drinks. She had arrived with some clothes which had to be altered.

Following this it appeared that the deceased went back to the Claude Street units, although there were some differences in the recollection of the witnesses who saw her back there, as to the time at which this occurred. Ms Adamedes said that she saw the deceased there between about 5.15 pm and 5.30 pm by which time she had packed her car with her clothes; Christine Roberts said that she saw her loading her car between 4 and 5 pm, and Mr Delforce recalled her knocking on his door, and saying that she was leaving, between 4 and 4.30 pm. Ms Fuller suggested that she had already left before her own return there at 4.30 pm.

Stacie Adamedes confirmed that the deceased had arranged to catch the 11.00 pm bus to Brisbane and had planned to see her brother. It was her evidence that, when the deceased left the Claude Street flats, she had said that she was going to the house of the appellant for dinner and to leave her car, pot plants and budgerigar there.

Ms Fuller, who said that the deceased had washed her clothes at the Claude Street flats (where there were washing machines but no driers) at about 9.00 am that day, confirmed that she had said that she was going to the appellant’s home for dinner, after which she was to meet her friends at the hotel. She helped the deceased load her plants and budgerigar in her car at some time after 1.00 pm. She did not see any bags in it, at that time.

Ms Fuller also gave evidence of a conversation with the deceased that day, in the course of which, she had said that she expected to meet a man called Frank at the hotel between 7.30 pm and 8.00 pm. Several witnesses said that a man, Frank Zirkler, who knew the deceased and who was said to have had an affair with the deceased, was at the hotel that evening. He was described as a somewhat elderly dance instructor, who had died by the time of the trial.

Christine Roberts, Mr Delforce, Ms Fuller and the others who had expected to see the deceased at the hotel, became concerned when she had not arrived by 10.30 pm.

When Mr Delforce and Ms Fuller arrived at the appellant’s flat in order to look for the deceased, shortly after 10.30 pm, they noticed that her car was parked in the undercover car space. They gave evidence, which was consistent with the evidence of the appellant, so far as he had informed them, that night, of the departure of the deceased, with the young man who was to take her to the bowling club. They agreed that the appellant appeared to be upset over the disappearance of the deceased.

Thereafter, Mr Delforce took Ms Fuller to the bus stop, before returning to the appellant’s flat with Ms Roberts. They again spoke to him, and looked in the car and flat without noticing anything that aroused their suspicions. On the following day each of Mr Delforce and Ms Wragg returned, at various times, to the appellant’s flat, and he was interviewed for the first time by police that afternoon. None of these witnesses, that is, Mr Delforce, Ms Fuller, Ms Roberts or Ms Bragg, reported observing any signs of a disturbance or struggle at the appellant’s flat, or any injuries to his person.

When the appellant was interviewed by police, he said that the deceased had arrived at his flat at about 5 pm, and then, after chatting for a while, they had a meal at about 6 pm. He said that she did not have a shower while there, but agreed that there were several of her bags found in the flat, containing makeup, gifts and clothing. These, he said, had been left there by her when she drove over in her car. It was between 6.30 and 6.40 pm, he said, that the young man arrived and invited her to go with him to the bowling club. Subsequent Investigations

The doorman at the Bowling Club was interviewed by former Detective Senior Constable Thomas, on 1 May 1982, and said that he could not remember seeing the deceased there on the previous night. Her name did not appear in the visitor’s register.

On that day, and the next day, neighbours in Markham Street were canvassed, but none reported having heard or seen anything untoward occurring the previous night.

On 2 May, police took possession of the deceased’s motor vehicle, registration number GLE 109, for the purposes of examining it. The personal belongings of the deceased, which were found in the appellant’s flat, were also taken. On 3 May police returned to his flat, and with his permission, examined it and took various photographs which were placed into evidence. On that day the motor vehicle was examined by a senior scientific officer, and photographed. The vehicle was re-examined on 25 May, following discovery of the body of the deceased, and on this occasion a vacuum cleaner was used to obtain dust samples from the rear compartment and from each wheel.

On 26 May 1982 a search warrant was executed at the appellant’s flat, without turning up any incriminating evidence. On 1 June, soil samples were taken from the site where the body was found, and on the same day, the appellant agreed to provide an authority for a blood sample to be taken.

Superintendent Becke visited the university classes attended by the deceased on 2 June 1982, and asked if any of the 300 odd students there had seen the deceased in a vehicle of the description given by the appellant. There was no response.

Fingerprint testing of the deceased’s motor vehicle was negative, and there was no evidence of the appellant having driven it on this, or on any other occasion proximate to the offence. However there was evidence to show that the keys to the vehicle were at his flat, and that he had in fact been due to go for a licence on the following Monday.

On 6 June 1982, the appellant was reinterviewed by police, but did not provide any fresh information of relevance. Nor did he make any admissions.

Thereafter, apart from the inquest in June 1983, the matter rested until the investigation was reopened in 1995. For a short period during 1997 a telephone intercept was placed on the appellant’s phone, without any results. Some 3 years later, that is, on 18 July 2000, he was arrested and charged with murder.

Certain persons were identified in the course of police inquiries who knew the deceased, and who matched the general description of the man who, the appellant said, had called at the flat. They included Robert Swilkes, who had the use of a white Falcon in about 1982. He was called as a witness but could not remember whether he had ever had sex with the deceased. He denied seeing her on the night of 30 April.

Other such persons mentioned in the evidence, although not in a way which was incriminatory of them, included Garry Dell and Robert Weston, the former of whom was called as a witness, and denied ever having any relationship with the deceased, and the latter of whom was not called, even though he was said to have had a relationship with her. Another witness, David Campbell, who owned a white Holden, was called, but similarly denied having had any sexual relationship with the deceased. Another possible candidate nominated as a former sexual partner of the deceased, was Darren O’Brien, but his physical description seemed not to match that of the man mentioned by the appellant.

Former Detective Sergeant Small and Superintendent Becke, who made specific enquiries, in an attempt to discover a person fitting the description supplied by the appellant, were informed of various other sexual partners of the deceased, including one who reported having had sexual relations with her on the first day on which he had met her. None, however, seemed to fit the description of the man mentioned by the appellant.

In the course of these inquiries, Superintendent Becke, however, said that police had been informed by one person, Marilyn Battese, that she had seen a grey or white Holden sedan driving along Weirs Road around 7.00 to 7.20 pm on 30 April. A canvas was made of other residents in the area which indicated that some of them owned white Holden sedans.

It was the Crown case that the account given by the appellant, in relation to the young man, was an invention. The defence case was to the contrary, suggesting, among other considerations, that the absence of any sign of him arriving at the bowling club with the deceased was consistent with that having been a ruse to cover up a sexual liaison, in the course of which, or following which, the deceased had died, either of natural causes, or accidentally, or as a result of some act on the part of the young man. The Cause of Death

This was a critical issue in the Crown case since it had to establish beyond reasonable doubt that the appellant had applied pressure to the neck of the deceased, that this act had caused her death, and that by it, he had intended to kill her or to cause her grievous bodily harm. That it was critical in each respect arose from the fact that no other possible violent or toxicological cause for the death, of an apparently healthy female aged 31 years, was evident from a physical examination of her body.

Dr Sergio Staraj who conducted the post mortem examination of the deceased on 24 May 1982, and who was at the time a forensic pathologist, noted finding a haematoma on the surface of the strap muscles of the neck, just above the clavicle on the left side. The haematoma, he noted, “ roughly ” overlay the vagal nerve although it was to the side of it. Sufficient pressure in that area, he said, would transmit to all structures underlying that point, and “ if sufficient it may ” transmit to the vagal nerve.

Although he said that the haematoma had been caused within 24 hours of death, in his certificate to the Coroner he had reported that the cause of death was “ indeterminate due to decomposition ”. Vagal inhibition, he said at the trial, was a “ reasonably possible ” cause of death, although he had never himself previously encountered it. In cross examination, however, he said that it was his belief that vagal inhibition could not cause death unless it led to another incident such as fainting and hitting the head, an occurrence of which there were no signs. The location of the haematoma, he said, was such that he did not think it was indicative of vagal inhibition.

The evidence which he gave turned to some extent upon the fair interpretation of the evidence which he had earlier given at the Coroner’s Inquest in June 1983, and, in particular, whether he had then offered a view that vagal inhibition could have been a possible cause of death in this case, or whether he had been speaking generally or hypothetically, when he had observed that pressure on the vagal nerve, that is in the appropriate place, could lead to vagal nerve inhibition and cessation of heartbeat.

Dr David Breusch, a surgeon and local Government Medical Officer in Armidale, who assisted at the post mortem, said that the haematoma as recorded in Dr Staraj’s report to the Coroner, was 3 cms in diameter. It was located on the muscles on the left side of her neck, level with the thyroid cartilage. In his view, considerable pressure would have been needed to produce the haematoma which was evident.

Underlying the strap muscles, he said, was the carotid artery which divides in the region of the Adam’s apple and carotid sinus. Within the fibrous sheath, which encloses the branch of the carotid artery, which travels externally on the left side of the neck, lies the vagal nerve, which affects the rate at which the heart beats, and which, if pressed, can cause the heart to slow, to the point of death, in an extreme case.

It was his evidence that “ sustained considerable pressure ” at this point was the “ potential cause ” of death, especially as no other potential cause was found.

In cross examination however he admitted that it was possible that the death of the deceased was unconnected with the haematoma. He also conceded that the bruising was not in the optimal position to cause vagal inhibition, that position being one directly over the carotid sinus, at the position of the Adam’s apple rather than the strap muscle. He also noted the hyoid bone had not been damaged, as commonly occurs in the case of manual strangulation.

Anthony Kelly, a martial arts expert, said that Karate training includes identifying pressure points on the body, among them those on the neck, and he confirmed that pressure on those points could cause death. He described various holds or techniques which can be applied to pressure points, and of the caution given to students of Karate as to the consequences of the application of inappropriate force to these areas.

Of some relevance, in relation to this aspect of the evidence, was the difference in size between the appellant, a man, who was in the order of 6 feet tall and who weighted about 11.5 stone in 1982, and the deceased, who was a good deal smaller. Additionally of relevance was the fact of the injury to the right arm of the appellant, which on his account, as well as that of Professor Ehrilich, had left him with little strength in it, as well as an inability to straighten it. The Deceased’s Spectacles

The relevance of this arises from the absence of spectacles in the area where the body of the deceased was found, even though she customarily wore them by reason of her being extremely short sighted, and from some evidence as to the discovery of a pair of spectacles, which may have been hers, at the appellant’s flat. A starting point in this respect was the circumstance that the glasses worn by the deceased, at about the time of her death, were those shown in the various photographs of her which were tendered.

Julie Wragg said that she had visited the appellant’s flat on the morning of the deceased’s disappearance, and had there seen her glasses on a kitchen bench under some cupboards, or at least on some form of permanent fixture.

In cross examination she acknowledged that she had nominated three different places where she had seen the deceased’s glasses while in the kitchen: on the kitchen table, on a bench top, and on a breakfast bar. Additionally, she conceded that she had not mentioned seeing those glasses when interviewed by police on 2 May 1982.

Patricia McPherson, the sister of the deceased, said that she had gone to the appellant’s flat in late June 1982, in order to help clean it out. While removing the items of the deceased from a sock and underwear drawer in the bedroom, she had found a new pair of glasses similar to those worn by the deceased as shown in the passport photos. She asserted that the deceased had always worn glasses since the age of 12 years and said that she could not have afforded to have more than one pair of glasses at any one time.

A statement by Gwenda Callaghan, the mother of the deceased, was read to the jury, in which she said that she had been at the flat with Patricia McPherson in June. In this statement she had said that she had seen a pair of the deceased’s glasses sitting on a shelf just outside the kitchen. The appellant, she said, had remarked that they were a pair of the deceased’s glasses and had suggested that they be thrown in the bin.

A statement by Sergeant Gregory Harborne concerning the search which was made of the appellant’s flat, on 26 May 1982, was read to the jury, which confirmed that a pair of steel rimmed optical glasses, in a white case, had been found that day. Detective Murphy said that the glasses had either been left in the flat, or returned soon after.

The appellant informed police, during the second interview, that the deceased had been wearing her glasses, which had light brown plastic frames with an orange fleck, when she had left the flat. He said that she had left an old pair in the flat “ in a junk bag ”. He agreed that the glasses shown in the passport photos of the deceased were those which she customarily wore.

There was evidence from Robert Delforce, Joanne Fuller, Christine Roberts, Julie Wragg, Deirdre Allison and John Allison to similar effect, although the latter said that the deceased also had a second pair, which were metal and oval shaped, and which she used for study. In general, they each confirmed that the deceased wore glasses most, if not all, of the time.

Kristine Roberts and Mr Delforce were each asked whether they had seen any of the deceased’s glasses in the premises on the morning after her disappearance. Each answered in the negative; even thought they had been in the kitchen. Dust Samples and the Appellant’s Motor Vehicle

Dust samples were collected from the area near where the deceased was found, and also from the rear compartment and wheels of the motor vehicle of the deceased.

Various belongings of the deceased were found by police in the vehicle, along with, what was said to be, a blood smear on the window frame of the front passenger door. The finding of this smear, however, appears to be of no significance, having regard to the absence of any sign of blood in the appellant’s flat, or of any injury to the body of the deceased which would have led to blood loss.

The presence of dust in the vehicle and its significance, involved a good deal of trial time, and the admissibility of the evidence concerning it is the subject of specific grounds of appeal. On any view its forensic value was of importance for the prosecution case theory, which involved the proposition that having killed the deceased, the appellant used her car to take her body out to Pipeclay Creek, and dumped it there, along with her handbag, before driving back to his residence.

It was common ground that Weir Road, the only route out to this area, was an unformed road, and a vehicle using it was likely to accumulate a good deal of dust. In those circumstances a link between the dust found on the wheels and dust from the Pipeclay Creek area, and/or between dust from the rear compartment of the vehicle, and the jeans of the deceased (which it was suggested came from her body being carried in that rear compartment) was potentially of considerable forensic significance. As mentioned in more detail in relation to Ground 1, the possibility of any such connection was considered by three experts called by the Crown, Dr Byrnes (a geologist), Mr Stroud (a geologist) and Dimitri Karaolis (a scientific officer with the Department of Mineral Resources), and by two experts called by the defence, Professor Gilkes (a geologist and soil scientist) and Professor Hibbert (an analytical chemist). The testing included colour comparison, chemical analysis, mineralogical comparison, and a GIS search for possible sources of similar dust.

In summary, Dr John Byrnes said that his analysis led him to the view that dust from the wheels of the appellant’s vehicle (“ wheels dust ”) contained basaltic, granitic and sedimentary rock detritus that were similar to dust found near the location where the body of the deceased was found (“ bridge dust ”).

The dust on the deceased’s jeans, he said, was unlike the bridge dust, but did have some similarity to that found inside the rear of the vehicle.

He accepted that some of the dust samples (as well as the jeans of the deceased) were missing, and that had they been preserved, more modern methods of analysis could have been used to give more accurate results.

In relation to the jeans, there was something of a problem, in that, by the time they reached Dr Byrnes for analysis, the dust had fallen away and was gathered in the bottom of the paper package in which they had been transported. That dust was, accordingly, a combination of the drying dust from the buttocks area, which had become wet when the body was lying on the ground, and of dust from the linear markings which were apparent on the legs of the garment.

Dimitri Karaolis said that the chemical analysis, involving x-ray fluorescent spectroscopy, which he had made of the wheels dust and bridge dust, showed, adopting a statistical confidence limit of 99%, that there was “little similarity” between them.

Mr Stroud suggested that there should be adjustments made to his figures: firstly, to allow for the presence of water, and, secondly, so as to normalise the samples by assuming a similar proportion of silicon dioxide.

While such recalculations would result in the wheels and bridge dust becoming more similar (one of the 5 major oxides then falling within the expected concentration range), Mr Karaolis said that they were still not similar.

Mr Karaolis, in any event, questioned the validity of the second adjustment, pointing out that it was only appropriate to do so if it were assumed or known that both samples had come from the same source – the very point in issue, being that which the forensic investigation was meant to determine.

William Stroud, a geologist with expertise in determining the geological make up of the New England area, gave evidence of performing a petrological, microscopic examination of the dust samples. This testing, he said, showed that the wheels dust and bridge dust had come from the same area and were remarkably similar, as the lithic clasts and radiolarian cherts looked identical.

He then used the geographic information system (GIS) to search for similar areas to Weirs Road, using distances based, in part, on how far certain rock types were from the Weirs Road area. In undertaking this exercise he had regard to the geological characteristics, which were known to produce dust, with the characteristics of the bridge and wheels dust. He then looked for areas that replicated that geology in order to frame the search parameters. This was a technique which he explained was used, for example, in the search for gold bearing deposits. The exercise turned up, so he said, 14 other roads which could match the criteria. After field-visiting some of these roads and examining others on a topographical map, he came to the conclusion, for various different reasons, that none could have produced the same material as that found in the wheels or bridge dust.

Mr Stroud also said that, after recalculating Mr Karaolis’ figures on an anhydrous basis, and normalising the silicone dioxide figures, it was his view that, from a geochemistry point of view, the samples came from similar sedimentary rock.

The differences between them, he said, were normal for very similar rocks, explaining that the size of the grains analysed for example, could contribute to different figures, without being of significance.

Professor Robert Glikes said that, in his opinion, the jeans dust and the dust from the back of the appellant's vehicle were from different sources. He said that the basalt, granite and chert from the Armidale area would be similar, particularly when considered as small fragments. It was his view, accordingly, that similarity in the wheels and bridge dust samples could not lead to the conclusion that they came from the same source, since the components were common materials in the region.

He also said that recalculating Mr Karaolis’ figures on an anhydrous basis was inappropriate, as water was a necessary component. Normalising the silicone dioxide figures, he also said, was inappropriate, and completely changed the analysis.

He expressed the view that the criteria used by Mr Stroud to look for similar roads to Weirs Road were seriously flawed, as material could be naturally, biologically and artificially transported between sites, without being shown on GIS. The parameters which Mr Stroud had adopted, he described as quite arbitrary and as lacking any scientific basis. He thought that there may be many roads, additional to the 14 roads selected by Mr Stroud, in the Armidale area which could give rise to the dust found in the relevant wheel samples.

In cross examination he said that the jeans dust resembled the wheels dust and that parts of it could have come from the rear of the vehicle. He also said that he could not rule out that the wheels dust came from Weirs Road, there being a similarity so far as the samples each contained fragments of basalt sediment and granite.

He made it clear that there was a major problem in comparing a dust sample and the jeans sample, since, while larger particles may fall free, the small particles may remain trapped in the fabric, a matter which may affect the ratio of the elements in the different samples.

In respect of most of the elements, he thought that the dust in the vehicle seemed to be different from that on the jeans. The elements revealed by analysis, he said, were common and hence not diagnostic. Although he could not exclude their source as coming from the vehicle, he could not necessarily include that, because in his view the common elements would appear in most dust samples.

Professor David Hibbert said that the chemical analysis techniques used on the jeans dust, and on the rear compartment dust samples, limited the ability for comparison, with the consequence that the results were of little worth. The only conclusion he could make was that the stains on the jeans were “ probably of dust, but we cannot say anything at all about the origin of the dust .”

He also said that, in his view, the wheels and bridge dust did not appear similar, even after recalculation of Mr Karaolis’ figures. In that latter regard, he accepted that the adjustment to make the sample 100% anhydrous was appropriate. He could see no valid reason, however, for the second adjustment made by Mr Stroud.

There was evidence from some witnesses to suggest that Weirs Road was something of a lovers lane, and that it was also used by local residents. The Clothing of the Deceased and Traces of Semen

When the body of the deceased was discovered, it was found that she was not wearing a bra or spencer. She was, however, wearing panties.

Vaginal swabs and stains on the panties were analysed by Dr Goetz in 1982. Semen was found on the swabs and panties. The semen on the panties was on the outside of the elastic band around the legs, rather than on the crutch area. It was Dr Goetz’ evidence that the deceased would have had intercourse within 24 hours preceding her death.

He also found blood under fingernail clippings of the deceased, but tests done on that blood were unsuccessful.

The appellant, after being interviewed on 1 May 1982, and supplying information concerning the man who had allegedly come to his flat, and departed with the appellant, voluntarily provided a blood sample, on 1 June 1982. He was aware that it was sought for investigative purposes.

By the time of his arrest and trial, the vaginal swabs and panties, along with the deceased’s jeans, had been lost, and police were unable to establish any complete paper trail as to their whereabouts or destruction. A consequence of this was to deny, both to the Crown and to the appellant, the opportunity of DNA sampling, a procedure not available in 1982.

Professor Boettcher gave evidence of the DNA testing which could have been performed had the relevant items been available. Mr Goetz also said that, if the semen samples and fingernail clippings had been available, more sophisticated DNA analysis would have been possible.

Of perhaps lesser relevance was the evidence concerning the question whether the deceased had showered at the appellant’s flat and the fact that when her body was found she was not wearing a bra, skivvy or spencer. Its relevance related to the Crown suggestion that she had been attacked by the deceased while naked, after having had a shower at his flat, and then redressed by him, without her bra or without the red skivvy which Ms Wragg said she had been wearing earlier that day.

In that regard, the appellant had said in his two records of interview, and in his evidence at trial, that she had not showered while at his flat, although she had indicated to others an intention to do so before setting off for the hotel and bus. He had also informed police that she had brought the bags to the flat, which were later found, for the purpose of showering and changing for the trip. It was his case that she had been interrupted in this plan, when agreeing to go out with the young man who had called at the flat.

The clothes in which she was found, comprising brown and white sneakers, white socks, pale blue jeans and a multicoloured roll neck blouse, fitted the description which he had earlier provided of the clothes that she had been wearing when she had first arrived at the flat and when she had later left with the young man.

Among the luggage found in her car were brassieres, and there was evidence from Peter Adamedes and Joanne Fuller supportive of the proposition that she normally wore a bra, and from Julie Wragg that she always wore a spencer as she felt the cold. Christine Roberts said that that the deceased always wore a singlet. Further, there was evidence from Detective Small that 30 April was a cold day, with a brisk wind, and consequently a significant chill factor, to the point where a person with a cotton type blouse, and no undergarments, might feel extremely inconvenienced by the cold.

There was, however, evidence from Detective Sergeant Small that Ms Wragg had informed him, in May 1982, that the deceased did not always wear a bra, that she owned only one such item, and that she had left it at her residence. Additionally there was evidence from Sergeant Smith that Darren O’Brien, who acknowledged having had sexual intercourse with the deceased on several occasions over a period of 2 weeks, had informed him that she had not been wearing a bra, although she did have a spencer. The appellant said that sometimes she wore a bra, and sometimes she did not, but agreed that she did feel the cold.

The defence argument, as put to the jury, was that evidence concerning the absence of a bra or spencer were neutral, in so far as, if someone other than the appellant had engaged in sexual intercourse with her this evening, then that person may also have not fully redressed her, whether or not he had also killed her. Laundromat

A critical piece of evidence for the defence came from Leslie Dawson, who ran a Laundromat in the Centrepoint Arcade off the main Street, in close proximity to the New England Hotel and the place from where the bus was due to leave. He was interviewed by police on 4 May 1982, and said that he had gone to the Laundromat from his home, at about 9.00 pm on 30 April, in order to close up the premises. While there he saw a lady using two washing machines. He described her as 5 foot 8 inches in height, with shoulder length hair, slim and wearing a brown coat with a heavy collar. He thought that she was aged about 30 years, and significantly, he said that she was wearing glasses and faded blue jeans.

When he returned at 9.25 pm, he saw that she had her clothes in the dryers. He noticed a white or light cream Ford or Holden in the car park. He recalled the lady saying that she was on her way to Brisbane on the 11.00 pm bus that night. He noticed shortly after the lady had departed the premises, that the vehicle earlier mentioned had also left the area. He said that, on the following morning, immediately after opening up, another woman had gone to one of the machines, which the lady previously mentioned had been using, and had handed to him a pair of green trousers which she found inside it. They were given to police but they have since been lost. They were said to be largish, size 14 or thereabouts.

On the following Monday he saw a photograph of the deceased on television, and recognised her as the lady who had been in the Laundromat on the evening of 30 April. Police interviewed a number of passengers who caught the 11.00 pm bus, who said that no one on it resembled the deceased.

Anne Wilcox and Margaret Meale said that they had walked past the Laundromat around 9.00 pm having driven to the parking lot behind the arcade in a silver grey Sigma sedan. Neither of them went inside, nor spoke to Mr Dawson. Ms Meale did, however, say that there was someone in the premises, but she could not say whether that person was male or female.

There was evidence from Ms Wragg and from Ms Fuller, to the effect that the deceased was no bigger than a size 8, so that the green trousers would have been much too big for her.

No evidence was called to show that any bus, other than the one on which the deceased had a booking, had left Armidale at 11.00 pm that night for Brisbane.

A public request was made for anyone who had used the Laundromat this night to come forward, but no one did so.

As has been previously noted, there was evidence to the effect that the deceased had washed clothes that morning at the Claude Street units, and also to the effect that she had packed her clothes in the bags which were found in the rear of her vehicle or in the appellant’s flat. There was no suggestion by the appellant that the deceased had been wearing a brown coat when she had left his premises, although a coat was said to have been found in the rear of the vehicle.

By reason of this combination of circumstances, namely the stated intention of the deceased to meet her friends at the hotel at 9 pm, the apparent absence of any reason for needing to wash or dry her clothes, the discovery of the green trousers, and the fact that she had not been wearing a coat when she left the appellant’s flat, the Crown submitted that Mr Dawson’s identification of her as the lady who had been in his premises between 9 pm and 9.30 pm was in error.

The defence submission was that he was not in error, and that, having regard to the observation which had been made concerning the bus, and to the fact that no other passenger on the bus had failed to catch it, or answered the description of a person who had been at the Laundromat that night, Mr Dawson’s evidence meant that the Crown case theory, of the appellant having killed the deceased at his flat, fell to the ground. Ground 1 – The Jury’s verdict was unreasonable and inconsistent with the evidence.

This ground was associated with ground 2, relating to the trial Judge’s refusal to grant a stay of proceedings in view of the 18 year delay in charging the appellant, and the loss of critical exhibits. It was submitted that, had they been subjected to contemporary forensic analysis, it could have established his innocence. That ground was not itself pursued, other than as an adjunct to ground 1.

In summary, it was submitted that, in accordance with the principles established in Jones v The Queen (1997) 191 CLR 439, M v The Queen (1994) 181 CLR 487 and Chidiac v The Queen (1991) 171 CLR 432, the case was one where this Court, having made its own independent analysis of the evidence, and making due allowance for any advantage which the jury may have had, as triers of the facts, would reach the conclusion that the jury were bound to have entertained a reasonable doubt as to the appellant’s guilt, or should have accepted some reasonable hypothesis consistent with his innocence ( De Gruchy v The Queen [2002] HCA 33 per Kirby J at para 67). The appellant submitted, in effect, that the overall quality of the evidence was so lacking in probative force, or was subject to such challenge, that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

In support of this ground, the appellant identified what were asserted to be significant deficiencies in the Crown’s circumstantial case. He also submitted, relying in particular upon the evidence concerning the Laundromat, as well as that relating to the recency of sexual activity on the part of the deceased, that there was a reasonable hypothesis left open which was consistent with his innocence. This was to the effect that some person other than himself, possibly the man who called at the flat, had been responsible for her death.

It is next convenient to deal with the individual groups of evidence which, together, were said to make out a circumstantial case of murder. (a) Cause of Death

The appellant submitted that, in view of the conflict between the evidence of Drs Staraj and Breusch, and the somewhat provisional nature of any opinion which either had offered as to the cause of death, there had to be a doubt as to whether the deceased had been murdered, and if so, whether that was due to an act of his.

This was obviously a critical and fundamental element in any case of murder brought against the appellant, which turned not only upon the post mortem examination, but also upon the question, assuming that the cause of death was vagal inhibition, whether the appellant could have been the person who applied the force or pressure needed to bring about that process.

The possibilities, which were identified by the appellant as alternatives to the hypothesis of him having killed the deceased, were that the young man who had come to the flat had murdered her after having sexual intercourse, or that she had died accidentally, or of natural causes while in his presence or in the presence of some other person who had intercourse with her, either of whom had then panicked and disposed of her body.

On these alternative possibilities, the death could have occurred in the vicinity of Pipeclay Creek, the area being known as a “lovers lane”, or elsewhere, in which case it was chosen as a convenient place for dumping the body.

The location of the deceased’s body, and the state in which it was left, would appear to be equivocal as to the identity of the killer (if it was, in fact, a case of murder or of manslaughter) since either the appellant, or whoever else had been with the deceased when she died, could have left her where she was found, or carried her there.

Equally, the absence of a bra or skivvy is equivocal, not only having regard to the evidence from the appellant, from Detective Smithers (who questioned Darren O’Brien on this topic) and Julie Wragg, that the deceased did not always wear a bra, but also by reference to the circumstances that these garments may well have been removed, had she been engaged in sexual activity and died in the course thereof, or soon afterwards.

Whoever had been present may well have not troubled to replace these garments when dumping or abandoning the body. Absent their discovery in the appellant’s residence, or in the motor vehicle of the deceased, or in the possession of some other person, the fact that they were missing from her body does not seem to prove anything in relation to the identity of any offender.

Returning to the post mortem examination, and to the 2 doctors who gave evidence concerning their findings and opinions as to the cause of death, it is not unimportant that Dr Staraj was uncertain as to the cause of death, and that Dr Breusch was only prepared to say, at the highest, that vagal inhibition had been a possible cause.

The haematoma on the surface of the strap muscles, although indicative of the application of pressure to that region, seems not to have been in the optimum position for interference with the carotid sinus or vagal nerve. Dr Staraj indicated that it may have been a love bite, and he said more than once, in his evidence, that he did not believe that pressure in the area of the bruise could have caused vagal inhibition.

There was no evidence of injuries, to the hyoid bone or otherwise, which either of Drs Breusch or Staraj saw as indicative of manual strangulation. Dr Staraj also said that sometimes people do die without leaving a visible cause of death, for example a heart attack, or in the middle of strenuous physical activity such as sexual intercourse.

The evidence in relation to the appellant's earlier training in Karate, and his alleged claims to knowledge of how that form of martial arts could be employed, through application of force to pressure points so as to cause death, has to be considered in a context where the Crown could not show clearly or unequivocally that vagal inhibition had in fact been the cause of death.

In this regard, the appellant said that he did not know the pressure points in the neck, and that he had little strength in his right hand by reason of the injuries suffered in the motor accident, which had caused him to give up Karate many years earlier.

This last mentioned circumstance the Crown sought to use to its advantage since it asserted that the presence of the haematoma to the left side of the neck was consistent with the offender using his left hand. That would only be true, however, if the assailant approached the victim from behind and was able both to restrain her and to apply the necessary pressure using one hand – a possibly dubious proposition.

By reason of the uncertainty as to the cause of death, there had to be at least a possibility left open that it was not the result of some deliberate or intended act of another party. (b) The Laundromat Evidence

It was the Crown case throughout, that the deceased was killed at the appellant’s flat, and then taken by him in her car to the Pipeclay Creek Bridge area where her body was dumped. If the person seen in the Laundromat between 9.00 and 9.30 pm had been the deceased, then, unless she had returned to his flat after that time, his premises being some distance from the Laundromat, this case could not be established.

Reference has already been made to the evidence concerning this aspect of the case, which, so far as the Crown was concerned, should be accepted as having involved a mistaken identification by Mr Dawson of the deceased as the lady in the Laundromat.

In the appellant’s favour was the contemporary nature of the identification in terms strongly descriptive of the deceased; the observation which Mr Dawson recalled of the lady’s intention to catch the 11.00 pm bus for Brisbane; the absence of any evidence suggestive of any of the 13 passengers upon that bus having been into the Laundromat, or having spoken to Mr Dawson, or even of any one of them having a similar appearance to that of the deceased; and the absence of any response to public requests for anyone, who had used the Laundromat that night, to come forward.

Mr Dawson’s recollection of hearing the sound of a vehicle starting after her departure, and of later noticing the absence of the vehicle, which he had earlier seen in the car park, were of some relevance.

If the person in the Laundromat had not been the deceased, then, at the least, her stated intention of catching the 11.00 pm bus would have constituted an extraordinary coincidence; as would the fact that Mr Dawson saw, in the car park, a white or cream Ford or Holden of the kind generally matching the contemporary description given by the appellant of the vehicle in which, on his account, the deceased had driven away with the young man who had come to his flat.

On the other hand, there were reasons for questioning whether the lady, who was in the Laundromat, was the deceased, including the fact that Mr Dawson had not previously known her, and that he made the identification from a single small photograph of the family.

Then there was no apparent reason why she would want to wash or dry clothes at that time of the night, having washed her clothes earlier in the day, and having arranged to meet her friends at the hotel. Furthermore, there was no suggestion, by the appellant, that she had taken any clothes with her, or a coat, when she had left his premises at about 6.30 pm. To have taken clothes to the Laundromat she would have had to return to his premises, or at least to her car, and then to have either walked back to the Laundromat, or to have been driven there by someone else, since her vehicle was found outside the appellant’s flat.

Moreover, there was the mystery of the green trousers, which clearly did not belong to the deceased. No friend or student ever came forward to suggest that she had agreed to wash any clothes for him or her. Nor was there any suggestion, in the absence of a claimant to them, that they may have been left over from an earlier wash than that undertaken by the woman seen by Mr Dawson.

In addition, it appears to have been the case that there were other cars in the car park at the time of his observations, including the metallic silver blue Sigma of Ms Meale.

This evidence, in our view, however did leave open a possibility that the deceased was still alive at 9.30 pm, as well as the possibility that she had in fact been taken to the Laundromat by a person of the kind described by the appellant, each of which possibilities would have been inconsistent with the Crown case.

A separate ground of appeal was pursued in relation to the caution, which his Honour gave in relation to Mr Dawson’s evidence. That will be addressed later in these reasons. (c) Physical Evidence

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. (d) The Geological Evidence

Again it was the case that by the time of the trial the dust samples from the jeans of the deceased, and from the rear compartment of her car, had been lost or destroyed, so that both the Crown and the defence were unable to subject them to more modern techniques of analysis, which may have either established or disproved a similarity between them. This appeal must be considered in the light of that disadvantage, but also in the light of the fact that the likely result of any such testing is unknown, and hence speculative.

It is convenient to review that evidence in relation the various tests which were undertaken, and in the light of the conflicting opinions offered by the expert witnesses.

In that regard, it may be noted that the most positive expression of opinion, in support of the Crown case, was that expressed by Mr Stroud. It was his evidence that, not only was the wheel dust very similar to the bridge dust, but, in his opinion, it could have come from no other road in New South Wales. None of the other experts called in the Crown case were prepared to go so far. His qualifications as a geologist, who lived in the area, but who had no training in forensic geology, or expertise in the comparison of dust samples, and his methodology, and hence the question of the admissibility of his evidence generally, are dealt with as a separate ground of appeal.

In dealing with this ground of appeal, its admissibility will be assumed, recognising, however, that, if it were inadmissible, then the Crown case must be regarded as significantly weakened. (i) Colour of the Wheels Dust and Bridge Dust

Dr Byrnes’ comparison led him to the conclusion that the colour of the samples was different, a matter of potential relevance, having regard to his evidence that if two samples of soil have different colours, then they have a different chemical composition. The slight difference in colouring observable in the present case, he explained, was not of great significance, as iron, the cause of the different colouring, has different oxidation states. In cross examination however, he agreed that the differences in colouring did suggest that there was more iron in the wheels dust, and that in terms of chemical analysis, the wheels dust and bridge dust were not similar. (ii) Chemical Analysis of the wheels dust and bridge dust

As has been observed, the chemical comparison undertaken by Mr Karaolis led him to the view that there was only a very poor similarity between the samples. Dr Byrnes agreed that the samples were far from identical. As previously mentioned, Mr Stroud recalculated these figures so as to compare the samples on an anhydrous basis, and so as to normalise them.

His recalculations were however variously criticised by the other experts either in relation to each adjustment, or in relation to one of the 2 adjustments, which he had made.

Even when readjusted, he conceded that the results did not match for the major oxides. He acknowledged that a rational explanation, for the differences between the results, was that there were two sets of samples, which came from different sources. (iii) Mineralogical Comparison of the Bridge and Wheels Dust

Mr Stroud’s opinion was that this comparison showed “a remarkable similarity” between the bridge dust and wheels dust. Dr Byrnes’ opinion was less strong, being expressed in terms that the wheels dust was “similar to and could have been derived from” Weirs Road.

Leaving aside the question of Mr Stroud’s qualifications, and lack of prior experience in comparing dust samples, there were some obvious problems with his analysis, which depended, in part, on the fact that there were basically 3 rock types, granite, basalt and chert, along with the minerals commonly associated with them, in the bridge and wheels dust samples.

All three rock types were accepted as being common around Armidale, and in cross examination Mr Stroud accepted that the appearance of the radiolarian in the chert fragments was consistent with the majority of the radiolarians found around Armidale. That circumstance was also conceded by Dr Byrnes, who said that the appearance of the radiolarian was neither unique nor particularly unusual.

As previously noted, there was a compounding difficulty for Mr Stroud’s opinion, in that many roads in the Armidale area had been resurfaced before and after 1982 with chert extracted from McMillan’s Quarry, which was off Weirs Road. The possibility of other dirt roads in the area having a similar composition or features was not therefore excluded. Mr Stroud also conceded that the ferruginised lithic clasts, and the pyrite cubes found in the chert, and contained in the sample, were not rare.

While in the respects mentioned there were similarities, there were also differences identified in the mineralogical composition of the samples. They included the fact that the chert in the bridge dust contained an unusual radiolarian, being infiltrated with clay, whereas that was not found in the wheels dust; as well as the fact that Dr Byrnes found oxidised pyrite cubes in the bridge dust, but not in the wheels dust. Mr Stroud accepted that the bridge particles were larger than the wheel clasts; that there were discrete particles of plagioclase and olivine in the wheels dust, but not in the bridge dust; and that there were large differences in the proportions of opaques and quartz between the bridge and wheels dust.

Mr Stroud accepted that the dust samples were not identical, but offered the explanation that no two geological samples are ever identical – a circumstance accepted as correct by Dr Byrnes in relation to rugged terrain, although not in relation to flat and uniform terrain. (iv) The geographical information system (GIS) test

Mr Stroud placed a good deal of reliance on this test, which used a computer based system recording information about the composition of underlying rock beds, in order to exclude roads other than Weirs Road as the possible source of the wheels dust.

As previously observed, the test depended upon the selection of appropriate criterion in order to establish search parameters. The criteria were based upon the area of Weir’s Road as the “training area”; where the bridge dust was located. His methodology, as has earlier been noted, was criticised, in that it did not exclude the possibility of other combinations of geological factors producing the wheels dust. Moreover, there was evidence that chert, a major component of the wheels dust, had been used to resurface many roads in the Armidale area, but that it does not show up on the GIS maps.

In that regard, Professor Gilkes emphasised that it was unsafe to assume that the soil under one’s feet was necessarily of the same composition as the underlying minerals, indicated by the GIS study. In that regard consideration was not given to the topography and to whether rocks of a particular type were upstream or downstream of a particular site.

Among the criteria for Mr Stroud’s parameters were that any relevant area to be considered should be more than 0.5 of a Kilometre and less than 1.5 Kms from tertiary basalt. However, he conceded that there was no scientific principle, which would support such criterion, and accepted that the wheels dust could be found on either side of the boundaries so determined, even up to 50 metres from tertiary basalt, in the correct conditions. A similar concession was necessary for the remaining criteria. In fact, Mr Stroud’s site visits showed that basalt was closer for a number of sites than the GIS indicated, leading to the necessary concession that there were more areas than the 14 roads, which he had nominated, which could give rise to the wheels dust.

He also conceded that the dust on the wheels of a vehicle would reflect not just the last dirt road on which it had travelled, but other dirt roads on which it had been previously driven. It could comprise a mixture of dust collected from a number of roads.

Professor Gilkes was quite critical of Mr Stroud’s criteria, so far as they depended on distances, asserting that they had no scientific basis in fact or theory, being entirely arbitrary. It was his expectation that there would be a much greater area around Armidale where the wheels dust could have been accumulated.

Mr Stroud acknowledged, in cross examination, that there were in fact differences between the wheels and bridge dust, some particles being found in one and not in the other, and different proportions of other fragments being found between the two. He accepted that a number of roads in the Armidale area had been resurfaced over the years, and that this would not be shown up by GIS. He also accepted that inaccuracies within the GIS concerning basalt, could lead to the conclusion that there were areas other than the 14 roads which he had field tested, and which could produce soil, similar to the wheels and bridge dust samples.

In relation to the use of the GIS system, it needs to be noted that the radiolarian chert from the McMillan Pit off Weirs Road had been used on other roads in the Armidale area.

Even if the wheels dust had originated from Weirs Road, it did not necessarily follow that it had been picked up on the evening of the death of the deceased. According to Detective Hawkins, the deceased’s vehicle was dusty and untidy, and there was nothing to say that she had not driven along there previously. Moreover, Mr Stroud accepted that quite a length of Boolarong Road, which was on the route to the Dumaresc Dam, matched his geological criteria. The dam is a popular picnic spot and it was a location to which the deceased sometimes took her children. (iv) Comparison of the Jeans Dust with the Rear Compartment Dust

Dr Byrnes’ opinion, at its highest, was that the dust on the jeans of the deceased had “some similarity” with the dust from the rear compartment of her car.

There were however, a number of difficulties with any comparison, commencing with the concession of Dr Byrnes that, by reason of the limited sample, he was only able to use “semi-quantitative methods”, and hence could not reach any greater confidence level then one expressed in terms of “some similarity”.

Dr Byrnes accepted that the combination or mixture of dust from the buttocks area of the jeans and from the linear markings constituted “ a very severe disadvantage ” for the exercise which he had gone on to perform, involving electron microscopic analysis. While the results of the analysis suggested a similarity between the dust from the jeans and that from the rear compartment of the vehicle, it is clear that his test for similarity was undemanding – being one dependant upon a 50% similarity. Dr Byrnes conceded that this testing was of a lesser order of reliability than his other tests. (v) Probative worth of this evidence

When properly weighed, taking into account the conflicting opinions, and the difficulties and concessions mentioned, it seems to us that, at best, this body of evidence pointed to some degree of similarity between the bridge dust and wheels dust, and a lesser degree of similarity between the jeans dust and rear compartment dust. So viewed, it may be that it was consistent with the Crown case theory.

It did not, however, go so far as to establish beyond reasonable doubt that the appellant had taken the body of the deceased out to Pipeclay Creek. That element of the Crown case, we consider to have been an intermediate or essential fact, which needed to be proved beyond reasonable doubt, having regard to the quality of the remaining evidence. (e) The relationship evidence and motive

As has been noted there was a good deal of evidence concerning various witnesses perceptions of the relationship between the appellant and the deceased, or concerning observations, which the deceased had made in relation to him. There was also his concession, in his first record of interview, that he knew that his wife had been having affairs with a number of men and that this had caused him to be “resentful” although, he added, he “coped with it”.

Several observations may be made in relation to this evidence, both generally, and in relation to individual witnesses.

First, it is the fact that the witnesses, who appeared to know the appellant and the deceased best, were less likely to suggest that their relationship, although troubled at this time, had been one punctuated by violence. Secondly, as has already been observed, most of the observations of those who claimed to have witnessed signs of violence, or to have heard threats by the appellant towards the deceased, did not emerge until many years after they were first spoken to by police.

The Allisons, who probably had the longest knowledge of the Roses, between 1979 and 1982, and who had lived close to them, at the same caravan park, for part of the time, never saw or heard of any violence or physical abuses having been directed by the appellant towards the deceased. While Mrs Allison had a recollection of the deceased saying, late one night, that “Jeffrey knows ways of hurting people without leaving marks”, she acknowledged that she had been half asleep at the time and had not mentioned it to police until 1999. In any event the remark, even if true, could equally have referred to emotional cruelty, as it could have referred to the infliction of physical pain, in a way which did not leave bruising.

Joanne Fuller similarly had never seen the appellant assault the deceased, nor had she seen any physical signs of violence upon her. She did say that the deceased had once made mention of the appellant “throwing her out” of the caravan where they were living. Again, there was a potential ambiguity in this remark, as to whether it conveyed some form of physical ejection, or merely a verbal order to get out of the caravan. To some extent this account was enhanced by Julie Wragg’s evidence that the deceased had once informed her that the appellant had picked her up by the throat and thrown her around the caravan. This remark was not, however, reported by her to police until the year 2000.

Rhonda Craig was the only witness to have given a history suggestive of ongoing violence on the part of the appellant, however there were a number of unsatisfactory aspects to her evidence. For example, she was obviously in error in asserting that she had known the deceased in Armidale for 7 or 8 months between mid 1981 and February or March 1982, when in fact, the deceased had not arrived there until early 1982. She claimed to have been closer to her than her own sisters, yet she was not sure of how many children she had, or of their names, other than one of them. Her claim to have seen injuries on one occasion, which were so serious as to require the attention of Dr Henschke, had no support from him.

Her evidence of the appellant threatening to strangle the deceased if he ever saw her with another bloke, in the presence of herself, Ken Whackett, and Harry Eames, and of observing Harry Eames and the deceased naked and having sex later that day, had no support from them. Nor did Superintendent Becke support her evidence of having reported the appellant's threat to strangle the deceased, to him, in 1982. She also disputed his account of her having informed him that the deceased had been having affairs with 3 men, whom she had named.

Perhaps most significantly, however, her evidence, to the effect that for most of the 7 months she had seen the deceased with visible injuries, had no support whatsoever from any other witness. In fact, to the contrary, was the evidence from Eva Cawthorne who said that, when the deceased had asked for emergency accommodation, she had expressly said that she had no fear of her husband; and from Mark Arnold, the family counsellor, and from Denise Coombs, their babysitter, each of whom said that the appellant and deceased had remained good friends, even though separated.

The relationship evidence was not relied upon as evidence going to propensity or tendency. Rather, it was suggested to be relevant as settling a context in which the remaining evidence, particularly that going to a possible motive of jealousy or annoyance relating to the affairs of the deceased, and her planned visit to Brisbane, should be understood. In that regard, reliance was placed on Anastasia (Stacie) Adamedes’ evidence, that the appellant had been jealous after seeing the card from her brother, Peter.

The evidence of the appellant, and the records of interview, were somewhat equivocal as to the extent to which he knew whether the relationships, in which the deceased had been engaging with other men (in particular Peter Adamedes), were sexual relationships or friendships. Whatever be the case in that regard, Mr Arnold’s assessment, that he appeared to be resigned to, or accepting, both of her behaviour, and of the fact that there was only a remote chance of a reconciliation, was not unimportant.

In relation to the appellant’s account of the deceased leaving with another man (a version which the Crown rejected as a fabrication) reliance was placed upon what were said to be inconsistencies in the various accounts, which he had given, as to where precisely he had been in the flat when the person had arrived, and as to the credibility of him commencing his search for her at the hotel, rather than at the Bowling Club. On the other hand, there has been a consistency of account by him as to that central fact, and whether or not there was a clue to it being a fabrication, in the details which he gave, or anything strange in him going to the hotel, rather than the club, having regard to the time that the deceased was expected to be meeting her friends, is debatable.

In relation to each of the witnesses, who said that they had heard the appellant speaking of his knowledge of pressure points, and their application of force to them so as to cause death, there were some difficulties. In the case of Diane Bourke, there was a question as to whether the person to whom she had been referring was sufficiently identified as the appellant. Moreover, the person, Wendy Ellis, in whose presence it was said to have occurred, was not called by the Crown.

Both Anne-Marie Reeves and Michelle Long mentioned the conversations, which they said that they had overheard, well after the event. Although, according to them, they had expected their parents, who they said had also been present during the various conversations, to pass the information on to police, that had not occurred, even though they were in fact in contact with, and knew, the investigating officers. In Mr Powell’s case, this was a potentially significant omission, since he had been actively assisting police in the investigations, and could hardly have overlooked any claim by the appellant to the relevant knowledge, let alone any statement of an intention to kill his wife. Additionally, each of these witnesses had themselves been in contact with police over the intervening 18 years, without raising it themselves.

Finally, the suggestion, which each made, to the effect that the appellant had expressed an interest in marrying Michelle, at about the time of his wife’s death, beggars belief, not only by reason of the difference in their ages, but also by reference to the absolute stupidity of such a remark, had he been planning to kill her, or had he just killed her.

The relationship and motive element were clearly important for the Crown case, and may fairly be assessed as having given rise to suspicion, even strong suspicion, that the appellant had killed his wife, out of jealousy and annoyance in connection with her decision to take on undergraduate life, or in connection with her affairs.

The evidence concerning it, however, suffers from the several deficiencies mentioned, and there was also evidence suggestive of the appellant having accepted the situation, albeit not being entirely comfortable with it. Otherwise the case was not one involving, so far as the evidence seems to have shown, any contributing factor, of the kind commonly encountered, relating to custody of, or access to, the children, which may have triggered an explosive argument and a homicidal response. (f) Suggestion that the appellant had been drinking and hence was inebriated

This is the subject of a separate ground of appeal, having regard to the manner in which the evidence was introduced. For the purposes of the present ground of appeal, however, such evidence as there was, seems to have been so inconclusive, or to have been so lacking in force, as not to have advanced the Crown case at all.

At its highest, the Crown submission depended upon some hearsay evidence, and a concession initially made by the appellant in cross examination, but later withdrawn, when reminded of what he had said in 1982, that he must have had 3 to 4 beers that day with Les Powell. However none of the witnesses who saw him that afternoon or night, that is Mr Arnold, Mr Delforce, Ms Fuller and Ms Roberts, made any suggestion of him having been intoxicated, nor were they asked a single question to that effect. So far as the Crown relied on Ms Long’s evidence that the appellant had been drinking with her parents on the riverbank some 2 weeks or so before the disappearance of the deceased, that had no probative value whatsoever, as to his state on 30 April 1982.

In the circumstances, it did little credit to the Crown for it to have advanced a submission at trial, or on appeal, suggestive of alcohol having contributed to the appellant behaving in the way charged. The evidence in this respect had, on any view, little if any probative value. (g) The Appellant’s behaviour

There were indications of the appellant having behaved, during the period of the deceased’s disappearance, and more recently in a way that was inconsistent with his complicity in the murder.

They included the circumstances that: (i) He invited Mr Delforce, Ms Fuller, and Ms Roberts (Mr Delforce twice, the others once each) into his home on 2 separate occasions, on the night of 30 April; and also allowed Mr Delforce and Ms Wragg to enter the premises to look around on the following day; (ii) He agreed to provide a blood sample, and twice participated in records of interview, in which he repeated the account he had always given, in relation to the young man arriving at the flat; (iii) He permitted police to search his flat; (iv) He appeared to have been genuinely upset or concerned by the deceased’s disappearance, when speaking to her friends on the night of 30 April, and subsequently when speaking to the counsellor. (v) He said nothing of an incriminatory kind when subject to telephone surveillance, even though prompted to discuss the killing; (vi) He gave sworn evidence at his trial, and was not caught out in any lies or inconsistencies as to details which could not have fairly been accounted for by reason of the passage of time.

Perhaps the one exception to this was the remark attributed to the appellant by Patricia McPherson, after the discovery of the deceased “no one else can have her now”. However, while she claimed that she had mentioned this to police in 1982, at committal she had accepted that she had not done so, and she could provide no explanation for such an omission.

By and large, this evidence tended to be inconsistent with the appellant’s guilt. Certainly there was nothing incriminatory in it. Conclusion

The end result of this review of the evidence, even allowing for such advantage as the jury may have had in hearing and seeing the witnesses, leads us to the conclusion that it ought to have entertained a reasonable doubt. In relation to each aspect of the Crown circumstantial case, commencing with the cause of death, and including what appears to have been an essential intermediate element, namely the carriage by the appellant of the deceased‘s body to the place of its discovery, there are significant question marks. While individually, none may have given cause for a reasonable doubt, it is our conclusion that, in combination, they must do so. Moreover, there was no forensic investigation which positively incriminated him, or connected him with the death of the deceased.

While there certainly was reason for suspicion in relation to the appellant’s involvement, it is the law that suspicion, even strong suspicion, does not equate with proof beyond reasonable doubt.

In all of these circumstances we are of the view that this ground has been made good. Ground 5

This ground was based upon s 79 of the Evidence Act1995, and upon the decision of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. We have read in draft the judgment of Smart AJ in relation to this ground, and agree with his conclusions and reasons.

We would accordingly reject Ground 5, although, as previously noted, we have reached the conclusion, from our own independent assessment of the entirety of the evidence on this topic, that there were sufficient uncertainties and difficulties overall, for it not to have advanced the prosecution case, to any significant degree. Ground 6

We have also read in draft the judgment of Smart AJ in relation to this ground, and agree with his conclusion and reasons. Ground 7 His Honour erred in admitting evidence of Superintendent Alan Leonard Becke, to the effect that he spoke to 300 students and asked them if they had ever seen the deceased with a person in a white Ford Fairlane, and none responded positively.

In order to attempt to disprove the possibility that the deceased had been picked up by a young man in a white Ford Fairlane motor vehicle as the appellant had alleged, the Crown sought to lead evidence from Superintendent Becke, who at the time of the disappearance of the deceased, was a Detective Sergeant of Police stationed at Armidale, of investigations undertaken by him at the New England University campus. Objection was taken by defence counsel to part of this evidence and his Honour heard a voir dire examination of the witness to determine the admissibility of the evidence.

Superintendent Becke gave evidence that, during the days shortly after 9 May 1982, he carried out inquiries on the University campus in the course of which he visited each of the classes that the deceased had attended. He showed each class a large photographic slide of the deceased and asked them a number of questions in relation to her associates both on and off the campus. In the course of these inquiries he asked whether any person knew of the deceased's association with a person who drove a white Ford Fairlane or a similar vehicle. He was unable to find any student who said that they had ever seen the deceased with a person with such a vehicle.

In all the Superintendent spoke to 300 students. The procedure he adopted was to go before a class and outline the fact that the deceased had gone missing, that police were trying to locate her and that they had some evidence that she had gone off with a person in a 1973 white Ford Fairlane. He then asked the assembled students whether anyone had seen the deceased with that person. Although two persons came forward to indicate that they knew the deceased, neither could assist as to her associates.

No objection was taken to the fact that the Superintendent had made these inquiries. The part of this evidence to which objection was taken was that he had received a negative result to his inquiry about any association between the deceased and a young man having a white Ford Fairlane or similar motor vehicle. Defence counsel submitted that, if by this evidence the Crown sought to assert that there was no such relationship, it was hearsay evidence and that no ground had been established for its admission under the relevant provisions of the Evidence Act .

Kirby J held that the evidence was not hearsay because there was no representation made by those persons who did not come forward in answer to the Superintendent’s inquiry. His Honour was of the view it was open to the jury to draw an inference from the officer’s inquiry and from the fact that only two persons came forward. The evidence was then led before the jury. The Crown did rely upon the evidence as part of its case to disprove the appellant’s account of the circumstances in which the deceased disappeared.

In summing up to the jury the trial judge briefly summarised the evidence of Superintendent Becke. When recounting the Crown’s arguments to the jury as to why they would find that the version given by the appellant was false, his Honour summarised eight matters upon which the Crown had relied. The third of those was: “… it pointed to the inquiries at the university which met with no response ”

Part 3.2 of the Evidence Act is concerned with hearsay evidence. The rule which generally prohibits the reception of hearsay evidence is contained in s 59 of the Act as follows; “ 59 The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. ” The Dictionary to the Act includes the following relevant definitions: “previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. representation includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.”

Division 2 of the Evidence Act concerns first hand hearsay evidence and its admissibility provided that certain pre-conditions have been met. Section 62 is as follows: “62 Restriction to “first-hand” hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.”

In criminal proceedings first hand hearsay can be received, notwithstanding the hearsay rule, under the provisions of sections 65 and 66. Section 65 relevantly provides: “ 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made .” The Dictionary to the Act contains the following provision relating to the unavailability of persons: “4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact.”

Section 66 relates to evidence where the maker of the representation is called to give evidence and is not presently relevant. Section 67 requires the party seeking to lead hearsay evidence to give notice of that fact. The Crown did not give a notice under that section in relation to this evidence. Although the trial judge could have given leave to the Crown to call the evidence notwithstanding the absence of notice, there was no need for him to consider whether leave should be granted, because he was of the view that the evidence was not hearsay.

Of course, it should not be overlooked that, by reason of s 60 of the Act, evidence of a hearsay nature may be admitted, if it has some relevance other than to prove the truth of that which is asserted in the previous representation, see for example Papakosmas v The Queen (1999) 196 CLR 297 and Adam v The Queen (2001) 207 CLR 96. We shall return to consider the application of this section shortly.

The argument in support of this ground is as follows. A previous representation for the purpose of Part 2.3 includes an implied representation by conduct. The failure of any person to respond to the Superintendent’s inquiry was conduct that gave rise to an implied representation that no person had any information in answer to the Superintendent’s question whether any person was aware of the deceased’s relationship with a person owning a white Ford Fairlane or similar vehicle. If the Crown intended to rely upon that representation as evidence that there was no such relationship, it was hearsay evidence. As such it was not admissible under s 65 because no notice had been given in compliance with s 67 and there was no material before the court to establish that any of the 300 persons to whom the Superintendent spoke was unavailable.

In Lee v The Queen (1998) 195 CLR 594 the High Court had occasion to consider the provisions of Part 3.2 of the Act. In reference to the operation of s 59, the Court stated (omitting references to footnotes): “ [21] "Representation" is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them. It may, therefore, seem to be an unusual word to use in this context. But it is clear from the Interim Report of the Law Reform Commission on evidence that, in the proposals that were later formulated in the Act, the term "representation" was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer. It is also clear that the proposal was intended to resolve "the issue of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule" In its Interim Report, the Commission went on to state why it excluded unintended implied assertions from the operation of a hearsay rule and its exceptions. Chief among those reasons was the conclusion that it is unlikely that the person making some implied assertion would deliberately attempt to mislead if the implied assertion was not intended. [22] Section 59 must be understood in this light. The rule's operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that that "previous representation" is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it.”

In answer to this ground of appeal the Crown has submitted that a representation for the purpose of s 59 cannot arise from silence or, in this case, the failure of a person to come forward in answer to the Superintendent’s inquiry. The Crown relies upon Hall v The Queen [1971] 1 WLR 299 as support for that submission. In Hall the Privy Council were concerned with the application of Rex v Christie [1914] AC 545 to a particular factual situation. In Christie it was held that in some circumstances the silence of a person when confronted with an allegation might be taken as an admission that the allegation was true. But in Hall it was held that Christie could not be applied in a situation where an allegation put to suspect was met with mere silence. This was because, as the suspect had a right to silence, there was no obligation upon him to answer the police officer and, therefore, no inference could be drawn from his failure to answer the allegation.

But there are instances in the law where silence gives rise to an implied representation of fact. Christie itself is one. Silence in the face of an allegation can amount to a representation that the allegation is true where in the circumstances it is reasonable to expect that the allegation would be answered by an explanation or denial. In Hall the implied representation did not arise because there was no such reasonable expectation where a suspect is being confronted by a police officer. In the law of estoppel a failure to speak, where there is a duty to do so, may give rise to a representation of existing fact: Legione v Hateley (1983) 152 CLR 406 at 438-439. In R v Evans (1992) 142 FLR 319 this Court considered whether silence could amount to an untrue representation for the purposes of an offence under 29B of the Crimes Act (Cth) . In deciding that it could, Gleeson CJ, with whom the other members of the Court agreed, stated (at 320): “ Whether failure to disclose information involves, or amounts to a representation, depends upon the circumstances of the case. Whether suppression of the truth involves suggestion of falsehood is, in any given case, a question of fact. There is no principle of law which either requires or permits that a finding of fact about such an issue may, on the one hand, be significant for purposes of the civil law, but must, on the other hand, be disregarded for purposes of the criminal law. Of course, in a criminal case questions of onus of proof may be important. However, facts are facts, whether the proceedings be civil or criminal. It cannot be correct as a general [proposition] that it is impossible to make an untrue representation by omission. For examples of cases where it has been said that silence can amount to a representation: see Legione v Hateley (1983) 152 CLR 406 at 438-439; Union Bank of Australia Ltd v Puddy [1949] VLR 242 at 247; Westpac Banking Corporation v Robinson (1993) 30 NSWLR 668 at 688 .”

There is no reason why the word “representation” as used in the Evidence Act should not encompass a communication made by silence or a failure to respond. As the judgment in Lee points out, in the portion quoted above, the Commission intended that the word be given a wide application so that “ .. … the term "representation" was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer.”

Whether a representation does arise from the silence or non-action of a person on any particular occasion will depend upon the circumstances and, in particular, whether an inference can be drawn that the person by silence or non-action made a representation of fact, regardless of whether or not the person intended to convey the representation.

Let it be supposed that in the present case the facts had been that the police officer had spoken to each individual student and asked whether he or she had seen the deceased with a person owning a white Ford Fairlane, and each student had answered, “No”. There could be no argument that, if the police officer wished to give evidence of that question and answer before the jury, the evidence of the response might be first person hearsay depending upon the use to be made of the answer. If it were to be placed before the jury as evidence of the truth of the assertion that the person had not seen the deceased and such a person, it would be hearsay.

Similarly, if the lack of response to the Superintendent’s inquiry was to be placed before the jury as evidence that none of the 300 students spoken to had seen the deceased with a person who owned a white Ford Fairlane or similar vehicle, it was hearsay evidence. The asserted fact being relied upon in the prior representation made by each student’s silence was that the student had not seen the deceased with such a person.

The Crown argued that the evidence of the response, or lack of response, to the Superintendent’s inquiry was led for no other purpose than to prove that no student came forward in answer to the inquiry. But what was the relevance of that fact, unless the jury was asked to draw from it an inference that, because the students had not seen the deceased with such a person, she had never been with such a person and, therefore, no such person existed? This appears to be the way the evidence was used by the Crown.

The evidence of the inquiry made by the Superintendent was admitted as part of the general police inquiries that followed the disappearance of the deceased. This was admitted to ensure that the jury did not speculate about the extent of the police investigation into the disappearance of the deceased shortly thereafter. It has been held that, for a similar reason, the Crown is permitted to lead evidence of investigating police questioning or attempting to question the accused and his or her response to that questioning, even where the accused refused to answer the questions asked, R v Reeves (1992) 29 NSWLR 109. But admitting evidence of the extent of police inquiries in order to avoid speculation on that subject is one thing, and admitting the response to those inquiries is quite another.

If the evidence of the response to the police inquiry at the campus was relevant for other than a hearsay purpose, it was admissible and s 60 would operate to permit the jury to use it as evidence of the truth of any representation made by it. But in the present case, the fact that none of the students responded to the Superintendent’s inquiry was irrelevant. That fact could not “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings”, see s 55 of the Act. The jury could draw no inference from the failure of the response to the inquiry by the Superintendent to support a conclusion that the deceased was not picked up from home in a white Ford Fairlane vehicle. The failure of response by any one of the students could have been a result of the fact that the student did not recall seeing the deceased at all let alone in the company of any particular person, or that the student did see the deceased in company of such a person but was not prepared to say so, for example because he or she did not wish to get involved or wanted to protect the person. The significance of the failure of response in the circumstances of this case was a matter of speculation.

But even if the failure to respond could have given rise to an inference that each of the students had not seen the deceased in the company of such a person, unless there were evidence as to the significance of that fact, it had little or no probative weight. For example, in order to assess the importance of that evidence it would be necessary to know on how many occasions the deceased had been seen by the particular student, the circumstances in which she had been seen and whether there was an opportunity to know whether the person seen in company with the deceased owned a motor vehicle. In any event, the fact that the deceased had not been seen by students at the campus in the company of such a person said little or nothing about the probability that she was in company of such a person on a particular day.

The evidence of the response to the Superintendent’s inquiry ought not to have been admitted into evidence. It could not form any basis, either by itself or in conjunction with other evidence, for proving that the appellant’s version of the circumstances in which the deceased went missing was false. The jury should have been told not to speculate about the result of police inquiries generally, or those of Superintendent Becke in particular, and that they could draw no inference from the fact that the inquiries were conducted or the absence of any material resulting from them. However this was a matter very much on the periphery, and, standing alone, we would not have regarded it as justifying a new trial. Ground 10 The learned trial judge erred in permitting the Crown Prosecutor to cross-examine the appellant as to whether he had an alcohol problem, despite the fact that there was no evidence [that] the appellant was affected by alcohol the day the deceased disappeared

As part of the material concerning the relationship between the appellant and the deceased, the Crown led evidence, the only significance of which was to suggest that the appellant was likely to resort to violence when affected by alcohol. Whatever might have been the reliability of that evidence or the weight to be attributed to it by a jury, as has already been noted, there was no significant evidence that the appellant was intoxicated to any degree on the evening that the deceased went missing. The only evidence of Crown witnesses as to whether the appellant was intoxicated on the day of the deceased's disappearance was given by Robert Delforce who, in cross-examination, stated that the appellant was not slurring his words or smelling of alcohol when he was in his company after 10:30 pm.

The issue of the appellant’s involvement with alcohol was introduced by the Crown Prosecutor, very shortly after the cross-examination of the appellant commenced, when he was questioning the appellant about his conduct toward the deceased during their relationship as follows: “ Q. Did you ever hit her before you went to Armidale? A. Never. Q. Never hit her in your life? A. No. Q. What about when you were drunk, did you ever hit her there then? A. No. Q. Did you have a problem with alcohol? A. Not more than average. Q. Not more than average. Is that what you are saying? A. That's right. Q. Did you ever receive treatment for an alcohol problem? A. Not for alcohol, no” .

The Crown returned to this issue a short time later when questioning him about an assault upon a person whom the appellant believed had made a pass at the deceased and whether he was drinking alcohol at the time. Again the appellant denied that he had an alcohol problem. When the Crown sought to explore this matter by referring the appellant to a letter that the appellant had written, objection was taken to this line of cross-examination on the basis that there was no evidence to suggest that the appellant was drunk on the day of the disappearance of the deceased. The trial judge overruled the objection holding that the cross-examination was concerned with the break-up of the appellant's marriage to the deceased and did go to an issue before the jury.

The Crown Prosecutor then embarked upon a line of questioning concerned with the effect upon the marriage of the appellant's involvement with alcohol and his attendance at a dependency unit for counselling from a doctor in relation to alcohol. The following then occurred: “ Q. And you never had a drop of alcohol after you saw that doctor until at least the 30th of April 1982, is that right? A. Would be about right. Q. Never-you never touched anything? A. No. Q. And you certainly didn't have anything on the 30th of April 1982? A. No. Q. You certainly had no alcohol then? A. No. Q. Are you positive? A. Yes”

The Crown Prosecutor then went on to question the appellant about his consumption of alcohol over the period leading up to the disappearance of the deceased and its effect upon him. This series of questions, which takes up four pages of transcript, ended with the following question: “ Q. Wasn't it the fact that you recognised that you got violent when you had alcohol and that was the reason that [the deceased] left? A. I’m not a violent person .”

During the course of his questioning the appellant about his movements on the day of the deceased's disappearance, the Crown Prosecutor asked on a number of occasions whether he had consumed alcohol at a hotel in the afternoon after his appointment with the counsellor, Mr Arnold. The appellant conceded that he might possibly have gone to the hotel, although he did not think that he did, but he denied having a drink there. At one stage, having been shown a document, the appellant conceded that he must have attended the hotel and had “three or four beers with Leslie Powell”. The Crown Prosecutor put to the accused that he had consumed alcohol that afternoon because he was upset that the deceased was going to Queensland but the appellant denied it. Ultimately at the conclusion of the cross-examination, the Crown put a number of propositions to the appellant about what happened on 30 April including the following: “ Q. I suggest that you had a few beers that day. What do you say about that? A. No. Q. You deny it? A. I deny it.”

In the course of his address the Crown referred the jury to this part of the cross-examination and asked them to find that the appellant did go to the hotel after visiting Mr Arnold and had consumed alcohol there. He referred to the appellant’s concession that he must have had three or four beers with Mr Powell on the afternoon of 30th April and then made the following submission: “ What significance would that have on his account? On his evidence it means, what is clear evidence in cross-examination, that he had not had a drop for some time, that on the afternoon that he knew that his wife was leaving to go to Brisbane he has touched a drop. Again that he has and is or was at least to a degree affected by alcohol during that afternoon shortly prior to him going back and seeing [the deceased] at the flat. So the Crown points to that as highly significant in this case entirely supportive of the proposition that what followed thereafter at some time was significant violence towards his wife involving her death by pressure being placed against her neck in some fashion and producing a haematoma in the location - we have been through all that evidence before - but certainly in the location of the vagal sheath, and on Dr Breusch’s evidence, in close proximity to the carotid sinus .”

It is clear that what had started as evidence which might have been relevant to the relationship between the appellant and the deceased and the break-up of the marriage, had by the time of the Crown's address taken on the complexion of propensity reasoning; that is, that the appellant was inclined to violence when under the influence of alcohol, that he had consumed alcohol on the afternoon that the deceased went missing and, therefore, he was violent with the deceased because she was going to Brisbane.

At the time the objection was taken to cross-examination of the appellant as to the effect of alcohol upon him, his Honour was, with respect, correct to allow the cross-examination to continue for the reason he gave. But the cross-examination had to be confined to evidence of relationship and not allowed to become propensity evidence unless there had been compliance with s 97 of the Evidence Act . Unfortunately defence counsel did not take the objection again when the cross-examination clearly extended past evidence of relationship, but he had made the point, that, without clear evidence of the appellant being intoxicated on 30 April, the evidence was not admissible in the way that the Crown ultimately used it.

In our view the Crown went too far in its cross-examination of the appellant in respect of his use of alcohol and, in particular, as to whether he had consumed alcohol on the day the deceased went missing. Even if it were accepted that the evidence of his use of alcohol during the on-going relationship with the deceased was relevant to the nature of that relationship and why it had broken-up, it had no relevance to the issue of whether he was violent to the deceased on the day she went missing. The evidence as to whether he had a problem with alcohol and had sought counselling in that respect had little, if any, relevance except perhaps to his credit but it carried the real risk of leading the jury into the propensity reasoning upon which the Crown relied in his address.

The Crown had the difficulty of indicating a motive for the appellant to have used violence to the deceased. The suggestion that he might have been under the influence of alcohol on the afternoon before she went missing, that his use of alcohol on that day was because he was upset that she was going to Queensland and that he tended to be violent to the deceased when under the influence of alcohol, provided the Crown with the motive that it was otherwise missing. But that reasoning, even if it had been permissible, had the most tenuous basis: a concession by the appellant which was based upon a document he was handed and which was later withdrawn in re-examination, that he must have had two or three beers that afternoon. The evidence as to his consumption of alcohol on 30 April was too prejudicial when it was adduced by the Crown in cross-examination in light of the evidence as to the propensity of the appellant to violence against the deceased when under the influence of alcohol. In any event, the evidence was used by the Crown as propensity evidence although it had not been adduced or admitted on that basis and although no notice had been given by the Crown that it intended to rely upon tendency evidence or without leave having been granted.

The trial judge directed the jury in full and appropriate terms that they could not use evidence of relationship as tendency evidence to reason that, because the appellant had been violent to the deceased in the past, he must have murdered her. There was little reference in the summing up to the Crown’s cross-examination on this issue except when his Honour summarised the defence submissions in answer to it. There was no request made for any further direction by the defence counsel in relation to either relationship evidence generally or the issue of the accused’s intoxication in particular. But the erroneous use of the evidence by the Crown was not insignificant and the risk of impermissible use by the jury of what was ultimately improper cross-examination of the appellant remained.

This ground has been made out. Ground 11 The judge erred in giving in effect a 'Domican type direction … in relation to … Mr Dawson, who gave evidence that he saw a woman he identified as the deceased at a time when on the Crown case, the appellant had already murdered her.

The evidence and circumstances giving rise to this ground of appeal are set out in the judgment of Smart AJ which we have had the benefit of reading in draft. The relevant passages from the trial and Kirby J’s summing up are set out by his Honour as are the definition of “identification evidence” contained in the Dictionary to the Evidence Act and s 165 of that Act. We will not lengthen this judgment further by setting them out here.

It is, however, necessary in our view to also note Part 3.9 of the Act, which deals with the admissibility of “identification evidence” in criminal proceedings, and in particular s 116 which is as follows: “116 Directions to jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury.”

As Smart AJ notes, subs 165(1)(b) does not apply to the situation that Kirby J faced because the evidence given by Mr Dawson did not fall within the definition of “identification evidence”. But Kirby J thought that the evidence of Mr Dawson was “evidence of a kind that may be unreliable” within the opening words of s 165, as to which see R v Stewart (2001) 52 NSWLR 301. If his Honour were correct in his view that the section did apply, then as a party, in this case the Crown, had requested a warning under the section, Kirby J was required to give a warning or provide information to the jury concerning the unreliable nature of the evidence unless there was good reasons for not doing so, see s 165(3).

The question, which arises then, is does the section, referring as it does specifically to “identification evidence” in s 165(1)(b), apply to evidence of visual identification not falling within that definition? Notwithstanding the arguments to the contrary set out in the judgment of Smart AJ, we believe that it does.

Smart AJ traces the history of the requirement to give a warning in respect of visual identification evidence called by the Crown in criminal trials. With respect, we do not believe that the history is instructive of how the section should be construed on this particular issue. It is understandable that the reported cases and statements of high authority referred to by his Honour should be concerned with the warning to be given in respect of visual identification implicating an accused person in the commission of an offence. It is not surprising that the risk of wrongful conviction based upon such notoriously unreliable evidence would lead to a jurisprudence developing as to the steps to be taken by a trial judge to ensure that an accused person received a fair trial when such evidence was adduced and relied upon by the Crown.

But, in our opinion, the formulation of such rules say nothing about what a trial judge should or should not do to ensure a fair trial for the Crown where such evidence is introduced by the defence or by the Crown in fulfilling its duty to call all relevant witnesses. Simply because no case can be referred to in which this issue has been considered by an appellate court, it does not follow that a jurisprudence should not be developed to deal with it or that the provisions of the Evidence Act should not be applied, if to do so would not be inconsistent with the terms of the provisions it contains or the legislative policy enunciated in those provisions.

Visual identification evidence of a particular person is no more reliable because the person being identified is not the accused. Nor does the potential unreliability of such evidence diminish because it is being led in civil proceedings rather than in a criminal trial. The concern about the use to be made of such evidence is that its inherent unreliability can be masked by the jury’s perception of the witness as generally plausible. Honesty is rarely an issue and, therefore, the jury might give more weight to the evidence than it deserves overlooking the possibility of an honest mistake. Because the evidence may, by its very nature be unreliable regardless of the honesty or general reliability of the witness, it is the kind of evidence to which some form of warning or information should attach if a jury might use it adversely to a party without giving due regard to its potential frailty. Why then should some warning not be required where the party relying upon the evidence is other than the Crown in a criminal trial?

Where the Crown relies upon this type of evidence, the risk is that the jury may use it to wrongfully convict the accused. That risk is such a serious one that a special warning is appropriate and is contained in s 116 of the Act. The section requires the trial judge to inform the jury that there is a special need for caution before accepting such evidence and the reasons for the need for that caution both “generally and in the circumstances of the case”. That warning is to be given regardless of whether it is requested by a party. In light of that provision, s 165 appears to have little work to do in relation to “identification evidence”.

Some discussion of the interaction of sections 116 and 165 is contained in Clarke (1997) 97 A Crim R 414. It is unnecessary to detail the facts of that case or to quote from the various judgments given by the members of the Court. It is enough for present purposes to note that all members of the Court were of the view that the special nature of the caution required under s 116 referred to the court’s knowledge of the risk of wrongful conviction where the prosecution relies upon evidence of identification of the accused and it is under that section that the judge is required to alert the jury to this risk. It is this section rather than s 165 which reflects the common law’s concern about the reliance upon identification evidence by the Crown which found its most recent expression in Domican v The Queen (1992) 173 CLR 555.

With respect, we cannot accept Smart AJ’s conclusion that, because of the specific reference to “identification evidence” in s 165, it was intended that the section would not apply to other kinds of evidence of visual identification. There appears to us to be no logical reason for such a decision to have been made and no indication that either the Australian Law Reform Commission or the Parliament intended such a result. Although, as Smart AJ points out, the Commission found no evidence to suggest that identification in civil trials needed to be treated specially, that did not mean that it intended to exclude such evidence from the scope of s 165. At the paragraph of the Commission’s report No 26 referred to in the judgment of Smart AJ, the Commission was dealing with the rules for admissibility of visual identification as well as the treatment of identification evidence once admitted. Visual identification evidence of a person may not be a matter of such importance in a civil trial as to require special rules for its admissibility or for directions in respect of it such as contained in s 116. But there appears to us to be no good reason why a party in civil proceeding, against whom such evidence is led, should not have the benefit of a warning of the type provided by s 165 where appropriate.

We can see no policy reason for limiting the requirement for a warning about the unreliability of identification evidence to that which falls within the definition of “identification evidence”. The particularly persuasive nature of evidence falling within that definition, to which Smart AJ refers, is met by the warning required under s 116. There are many occasions when evidence of identification will assume importance in both a criminal and civil trial, yet it will not fall within the scope of “identification evidence”. The fact that this particular area of identification generally has been emphasised by the Commission and thus is specified in s 165(1)(b) as well as s 116, does not lead us to the view that other potentially unreliable identification evidence should be excluded from the operation of the section.

Junior counsel for the appellant, who argued this ground of appeal, sought to draw an analogy between identification evidence which tends to exculpate an accused, on the one hand, and evidence of a witness who would come within subs. 165(1)(d), that is a person who might reasonably be considered to be implicated in the offence charged against the accused, but who gives evidence exculpating the accused, on the other. In such a case it has been held that a warning as to the potential unreliability of such evidence ought not to be given or at least should be limited to such evidence as assists the Crown; Jamieson (1992) 60 A Crim R 68; R v Baker [2001] NSWCCA 151. But there is no true analogy. The potential unreliability of that kind of evidence disappears when the evidence is being used to exculpate an accused. There is no longer a risk that the witness is implicating the accused in the offence charged in order to obtain an advantage or to downplay his or her own part in the offence. Visual identification evidence remains potentially unreliable no matter what use is made of it.

But, even if we were wrong in the view we take of the scope of s 165(1), s 165(5) makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter where the judge believes it is necessary to do so in the interests of justice. If the particular evidence under consideration does not fall within the scope of s 165(1), the trial judge has power to give a warning or provide the jury with information although there is no requirement to do so. In our view it was open to Kirby J to conclude that in fairness to the Crown the jury should be alerted to the general difficulties involved evidence of the nature of that given by Mr Dawson.

Although we are of the opinion that identification evidence generally falls within the scope of s 165, it does not follow that a warning has to be given. Nor is it necessary for a judge to give a warning of any particular kind and, certainly, not one of indicating the special caution required by s116. As Hunt CJ at CL pointed out in Clarke , not all identification evidence has the potential for unreliability that attaches to visual identification of a person. Identification of an inanimate object, such as a motor vehicle, may be less likely to be open to mistake and it may not be so persuasive. The trial judge is required to make a discretionary judgment in all the circumstances of the case whether to give a warning and what the content of the warning should be. In R v Stewart , above, it was held that s 165(3) applies to each of the matters set out in s 165(2), so that, for example, a trial judge may find that there is a good reason not to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, as required by s 165(2)(c).

In the case of evidence of a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence. Clearly there would be no basis for the trial judge to warn the jury that mistaken identification has led to erroneous convictions. Generally speaking it would not be necessary for the trial judge to caution the jury in terms of s 165(2)(c) although we would not hold that such a caution could never be given. In our view, what Kirby J said to the jury about the evidence of Mr Dawson in the summing up was appropriate. Although we do not believe that it was correct for the trial judge to tell the jury, the day after Mr Dawson’s evidence was given, that, in respect of identification evidence, “caution must be exercised in dealing with such evidence when you come to address it”, we do not believe that in the circumstances of this particular case that remark might have led to a miscarriage of justice in light of what his Honour said to the jury in the summing up many days later.

We do not consider that this ground has been established. Ground 12 His honour erred in not directing the jury that as the Crown had called the witness, Detective Becke, and he had not give evidence of attending the residence of Mr Powell looking for the accused, the jury could infer that he did not do so

As previously mentioned, evidence was called of the relationship between the appellant and the deceased in order to prove to the jury that the appellant was, on occasions, violent to the deceased in order to explain why he might have killed her.

Part of the evidence relied upon in this respect was that of the witness Anne-Marie Reeves, previously mentioned, to the effect that the appellant had come to the home of her parents (Mr and Mrs Powell) and while there had said, amongst other things, that he hated the deceased, that he knew about pressure points and that he could kill someone easily. The witness identified the occasion of this conversation as that on which Superintendent Becke had come to her parents’ home looking for the appellant, because the deceased's body had been found.

The appellant, as well as denying that he had made the statements attributed to him by Ms Reeves, also denied ever meeting her or having ever gone to her parents’ home. A relevant matter for the credibility of Ms Reeves might have been whether Superintendent Becke had gone to the home of Mr and Mrs Powell on the day that the deceased's body was found. Although the Detective was called to give evidence, neither counsel asked him whether he had done so.

Later in the trial it apparently occurred to defence counsel that he had omitted to ask Superintendent Becke this question. He approached the Crown Prosecutor and requested that he be recalled. However, there appeared to be some difficulty in having him return to court. Defence counsel informed the Crown that, in the absence of the officer being recalled so that he could ask him whether he did attend the residence of Mr and Mrs Powell on the day that the deceased's body was located, he would address the jury on the basis that they should infer from the failure of the witness to be asked about the matter, that any evidence he could give on that question would not assist the Crown: see Jones v Dunkel (1959) 101 CLR 298. The Crown Prosecutor raised no objection to this course. The officer was not recalled and defence counsel made that submission to the jury in the course of his address.

After the jury had retired to consider its verdict, his Honour received a note from the jury containing a number of questions. The fourth question was as follows “ Did Detective Becke go and look for [the appellant] at Mr Powell’s place after discovering Kristine Rose’s body?”

During the course of the summing-up, defence counsel had requested that the trial judge give a Jones v Dunkel direction to the jury in respect of this aspect of the case. His Honour, being appraised of the circumstances in which the Detective had not been asked that question, had declined to give such a direction.

If it would be appropriate to give what is commonly referred to as a Jones v Dunkel direction in relation to the failure of a party to call a witness, a similar direction can also be given in respect of the failure of party to ask a witness a particular question which is of importance to the issues before the court. The principles derived from Jones v Dunkel have been applied in this way in the Court of Appeal, Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at per Handley JA applying Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896) and referred to in R v Beserick (1993) 30 NSWLR 510 at 532.

In R v Bulejcik (NSWCCA, 21 July 1994, unreported) a question arose as to the identification of the voice of the accused on a tape recording in evidence before the jury. The defence called the accused’s former de facto wife to give evidence but she was not asked to listen to the tape and give her opinion about whether the voice on the tape was that of the accused. The trial judge gave a Jones v Dunkel direction in favour of the Crown as to the failure of defence counsel to ask the witness about the voice on the tape. This Court held that there was no error in his Honour doing so. Although an appeal from this Court’s decision was allowed by the High Court, see Bulejcik v The Queen (1996) 185 CLR 375, special leave was not granted in respect of that issue.

The application of Jones v Dunkel to a criminal trial was however recently considered by the High Court in Dyers v The Queen [2002] HCA 45. The majority of the Court held that, except in an exceptional and rare case, a direction could not be given by a trial judge in respect of the failure of the defence to call a witness. Gaudron and Hayne JJ in their judgment went somewhat further and held that the direction should also not generally be given in respect of the failure of the Crown to call a witness. Their Honours stated: “ [5.] As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi [(2001) 205 CLR 50 at 74]. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence. [6] Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.”

It is unnecessary for the resolution of the present ground of appeal to determine whether, in light of Dyers , it would be appropriate to give a direction in respect of the failure of a party in a criminal trial to ask a question of a witness who is called to give evidence. As the law stood at the time of the appellant’s trial, it was open to his Honour to give the direction sought in an appropriate case. However, the trial judge was correct, in our view, in declining to give the direction in the particular circumstances surrounding the failure of either party to ask this question of the police officer.

The direction derived from Jones v Dunkel is based upon the assumption that it is open to the jury to draw an inference from the failure to call a witness, or to ask a particular question, that the failure was a result of a conscious decision made by the party upon whom the obligation fell to call the witness or to ask the question. If the failure can be reasonably explained, that is shown not have been due to a conscious, tactical decision, then no inference can be drawn about what the witness could or could not have said.

After receiving the jury’s note, the following discussion ensued between the trial judge and counsel: “ His honour : "Did Detective Becke go and look for Mr Jeff at Mr Powell's place after discovering Christine Rose's body? Again, there is no evidence, neither the Crown nor you asked. Stratton : That is the case. In relation to that question I would ask that your Honour remind the jury of the submission which I made to them, which is that they can assume that had they done that they would have heard him give that evidence in chief. Crown prosecutor : My learned friend spoke to me about this and said that basically he had omitted to ask it in cross-examination. I omitted to ask it in examination in chief and this was at a stage where the Crown case closed and I think we - we may have had difficulties getting Becke back and my learned friend said I want to - I think he said "can you get him back" or "can I make that submission" and I didn't oppose him making that submission, so, there is no evidence on it, that is true. HIS HONOUR: But once I say that, Mr Stratton, what worries me, it is something they heard, and something you said but once I say it, it becomes a direction of law and I don't know that it is appropriate, given that neither of you asked. STRATTON: That is true but my friend has very fairly related to your Honour a conversation that we had about it, and in my submission it is both true as a matter of law and a matter of fact that had he done that that he would have said so. That we would have heard about it. HIS HONOUR: Except that I rather gather from what the Crown said, no inquiry has ever been made of Detective Becke on that issue by the Crown so that is really quite misleading. I mean you being allowed to make the submission, the jury have that and they are a fairly attentive jury. I mean ultimately they would know the onus is upon the Crown. STRATTON: In my submission it is not too different to a Jones v Dunkel situation in that this was obviously peculiarly within Detective Becke's knowledge, not anyone else's but the Crown called him and never asked him. HIS Honour: I think it is very different, I have to say. I think you could have asked the question yourself. One can understand forensically why you wouldn't, if you didn't know the answer . STRATTON: That is exactly right. HIS Honour: But it is very different to a witness not being called because that, one assumes, is a deliberate decision, whereas a question not being asked is capable of a number of constructions, the most obvious of which is, if it is plainly relevant, as it is, is that it is an oversight. I am somewhat troubled by repeating that, I think the appropriate response, frankly, is that there is simply no evidence. Stratton : Your Honour, particular given what the Crown has put to your Honour, my application is that your Honour would at least remind them of my submission on that point. That is, that they would have, had he done so, they would have expected to hear that evidence, in his evidence in chief. HIS HONOUR: What do you say Mr Crown? CROWN PROSECUTOR: Well your Honour, the question is directed to what he said, whether there is any evidence of that, and the answer to it is that there isn't. That is the answer. My learned friend has made that submission, but they are not asking for - the question is not, for a repeat of some submission that is made. It is whether there is any evidence. HIS HONOUR: I think that is right and I don't think that that is unfair, Mr Stratton. The jury has heard your submission. They do know the onus is upon the Crown and if there is a hiatus, as there clearly is, then the Crown no doubt may be visited with the consequences, but I don't think it is appropriate that I should repeat your submission.”

This exchange indicates that his Honour was right to reject the application for the reason he indicated. It is clear that there was no considered decision made by the Crown Prosecutor to decline to ask the question, or not to recall the police officer, so that the question could be asked. Although the Crown Prosecutor agreed that he would not object to defence counsel making the submission, which he had foreshadowed, that agreement could not bind the trial judge to reinforce it by way of a direction. During his discussions with the Crown, defence counsel had no right to assume, if he in fact did so, that the trial judge would give the direction if he were asked to do so. The trial judge was entitled to come to the view that it would be at least misleading for him to tell the jury that they could infer that, by reason of the failure of the police officer to be asked the question, the answer would not assist the Crown. Such an inference was simply not open and it would have been wrong for the jury to be told that it was.

This ground fails.

By reason of our conclusion that the verdict was unreasonable and could not be supported on the evidence, we would allow the appeal, and quash the conviction and sentence. We are of the view that a verdict of acquittal should be entered.

SMART AJ: The facts and circumstances are set out in the joint judgment of Wood CJ at CL and Howie J. I agree with what they have written except as to Appeal Ground 11. Ground 11 The judge erred in giving in effect a 'Domican type direction … in relation to … Mr Dawson, who gave evidence that he saw a woman he identified as the deceased at a time when on the Crown case, the appellant had already murdered her.

Mr Dawson was called by the Crown in its case. He was independent of the applicant and the deceased and owned a laundromat in the Centrepoint Arcade in Armidale. About 9 pm on Friday, 30 April 1982 he went down to the laundromat and saw a lady operating two washing machines. He left the laundromat and returned about 25 minutes later. He saw a vehicle in the car park attached to the Arcade. The vehicle could have been white or cream. The lights were not very bright where it was standing and he did not take much notice of the vehicle. It was either a Holden or a Falcon.

Mr Dawson said that when he returned the clothes were in the dryers. He had some conversation with the lady about the weather. She told him that she was on her way to Brisbane and wanted to get the clothes dry before she left. Mr Dawson told her to go ahead and dry them. He told her that he normally closed earlier, but not to hurry. He told the police a few days later that she was about five feet eight inches tall with shoulder length hair. She was a slim lady. She was wearing a brown coat which went down below her waist level. The coat had a heavy collar. She was wearing glasses and faded blue jeans. She was about 30 years old.

She left the laundromat about 9.30 pm and drove away. He turned off some taps, locked the door and left straight away. He noticed that the white or cream vehicle had left. It seems that the lady and Mr Dawson were in the laundromat together for about five minutes. This was not a case of fleeting visual identification. A couple of days after this he was at home watching TV. He saw a photograph of a man, a lady and three children. The lady was the subject of a missing person's announcement. He recognized the lady in the photograph as the lady who had been in the laundromat. The following day he went to the police station and told the police that he had seen the lady in the laundromat. When the police showed him the photograph of Mrs Rose he told them " I am certain that was the lady in the laundromat ." He made his statement on 4 May 1992.

He had never known or met the applicant. Mr Dawson had particular reasons to recall Friday, 30 April 1982. He had been entertaining guests at his home to dinner that night and because of this did not go down to the laundromat at 8.30 pm, his usual time to close up.

Mr Dawson gave his evidence on the morning of 8 October 2001. A little later that morning the Crown Prosecutor asked the judge to give a warning pursuant to s.165 of the Evidence Act 1995 to the jury at that point as to the evidence of Mr Dawson because of the notorious unreliability of identification evidence. There was discussion as to this. Other evidence was taken. On the following morning the judge told the jury that he anticipated that in his summing-up he would deal with some categories of evidence. Amongst other things he said: " And the third area which I anticipate will be covered by the summing-up will concern what is referred to sometimes as identification evidence and caution must be exercised in dealing with such evidence when you come to address it ." The judge did not give a warning in respect of the first two categories he mentioned, namely, relationship evidence and hearsay.

Particular exception was taken to the judge telling the jury that they must exercise caution in dealing with identification evidence, which, in the circumstances must have meant Mr Dawson's evidence.

At SU162 the judge told the jury that he was going to deal with two matters which were inconsistent with the applicant's guilt. At SU163-4 the judge said: "…it Is the obligation of the Crown to exclude beyond reasonable doubt any possible reasonable explanation that is inconsistent with guilt. So that you must consider the evidence of Mr Dawson, and his evidence relating to the laundromat … in that context. Might the accounts of Mr Dawson be true? If it be true can you be satisfied beyond reasonable doubt that all reasonable possible explanations inconsistent with guilt have been excluded. So you must carefully consider and evaluate the evidence of Mr Dawson. Now, perhaps we have all had the experience of mistaking one person for another. There are a number of issues that may commend themselves as matters which you might consider in this context. First, for instance, there is an issue as to whether or not the person who makes the identification knew the person who is identified? The suggestion being that it is perhaps easier to mistake someone you don't know than someone you know. The second is that you must, perhaps, look at the circumstances of identification. Are they fleeting, and what was the opportunity of the person to make the observations which they made. In this case, I think it is – I will go to the evidence in a moment, Mr Dawson did not know Kristine Rose. On the other hand his evidence is that he saw her face to face, and in a fairly confined space, and indeed had a conversation with her. Another matter that may be relevant is that it is perhaps possible that someone may unconsciously be influenced by publicity, including photographs. And the fourth issue I suppose is whether or not the photograph that he sees is a good likeness of the person. Well here I will go to the evidence in a moment but there is very little evidence as to precisely what the publicity was."

The judge then observed that Mr Dawson was an old man and reminded the jury that he was speaking of events that happened 20 years ago. The judge did not add that Mr Dawson had made a contemporaneous statement at the time of the offence. The judge then summarised the evidence which had been given bearing upon the deceased being in the laundromat as recounted by Mr Dawson.

The evidence of Mr Dawson was of considerable importance. The Crown had to establish that it was not reasonably possible that Mr Dawson's identification was accurate. As to its accuracy, Mr Dawson recognized the deceased from a photograph shown on television; the lady he spoke to fitted the general description of the deceased, that lady told him that she was getting the bus to Brisbane that night and she did not get the bus. The only known person who intended to get the bus to Brisbane that night but did not was the deceased. These factors reinforced the accuracy of Mr Dawson's identification. Further, she was in his presence for a considerable time.

It was common ground at the trial that s.116 of the Evidence Act 1995 requiring the judge to tell the jury that there was a special need for caution before accepting identification evidence and the reasons therefor did not apply to Mr Dawson's evidence.

By virtue of the Dictionary to the Evidence Act identification evidence is defined thus: "identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (II) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion." That definition limits the meaning of that term to evidence which incriminates a defendant and to criminal proceedings. Further, the identification must be of a person present at or near a place where the offence was committed or an act connected to that offence was done.

Section 165 provides: "165. Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d)) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person – evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) If there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury,"

Section 165(1)(b) does not apply because of the definition of identification evidence and the judge did not rely on this sub-paragraph. He thought that the evidence of Mr Dawson was evidence of a kind that may be unreliable even though it was not "identification evidence" within the definition of that term in the Act. The judge placed considerable reliance on the generality of the opening words of s.165(1).

In Reid (Junior) v The Queen (1990) 1 AC 363 at 378 et seq, the Privy Council (per Lord Ackner) pointed out that it was only in comparatively recent times that identification evidence had emerged as a class of its own. Lord Ackner continued: "… in the People (Attorney General) v Casey (No 2) [1963] IR 33, the Supreme Court of Ireland decided that it was desirable in all cases where the verdict depended substantially on the correctness of visual identification of the accused, that the attention of the jury should be drawn in general terms to the fact that in a number of instances visual identification of an accused person had been established, after conviction, to have been erroneous, and therefore to the possibilities of mistake. This gave rise to the necessity for caution when considering such evidence."

Lord Ackner referred to two much publicised cases some ten years later (about 1973) where a miscarriage of justice was established despite the apparent strength of the identification evidence.

The question of identification evidence was dealt with in the 11th Report of the Criminal Law Revision Committee in 1972 and the report of the Departmental Committee of the Home Department in 1977 under the chairmanship of Lord Devlin. Shortly after the publication of the Devlin Committee's report a number of appeals where identification was the essential issue were listed before the Court of Appeal to give it the opportunity to lay down guidelines. This resulted in R v Turnbull [1977] QB 224, a seminal and very well known decision, which has frequently been applied in Australia.

Domican v The Queen (1992) 173 CLR 555 authoritatively stated the common law in Australia as to the directions to be given where identification is an important issue. At 561-2 the Justices stated: "Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case.' A warning in general terms is insufficient. The attention of the jury 'should be drawn' to any weaknesses in the identification evidence.' Reference to counsel's arguments is insufficient."

This statement of principle is directed to identification evidence alleged to implicate an accused. I have been unable to find and counsel were unable to find any statements of principle directed to cases where the identification evidence, whether visual or otherwise, is exculpatory of an accused. In the present cases the evidence of Mr Dawson did not purport to identify the accused but the deceased.

As pointed out by counsel for the appellant the Australian Law Reform Commission considered that the control and treatment of identification evidence was only an issue in a criminal trial, because of, inter alia, the balance struck in criminal proceedings in favour of an accused to minimise wrongful convictions. Research had not revealed any need or demand for the special treatment of identification in civil trials. See para 824 of ALRC Report 26, Evidence.

It will be seen from the decision of the Privy Council quoted earlier and Domican that the present law as to identification evidence is of relatively recent origin. An insight into the law as it previously stood is to be gained from the speech of Lord Morris (with whom Lords Reid, Hodson and Diplock agreed) in Arthurs v Attorney General for Northern Ireland (1971) 55 CAR 161. At 168 he said: "It is manifest that in cases where the vital issue is whether the identification of the accused person is certain and reliable the judge must direct the jury with great care. However careful is his general direction as to the onus of proof, the judge will feel it necessary to deal specifically with all the matters relating to identification." These remarks were endorsed by Gibbs J in Kelleher v The Queen (1974) 131 CLR 534 at 551.

Lord Morris referred to the interesting judgment of the Irish Supreme Court in The People v Casey , supra. However, he did not think it would be helpful to prescribe that in certain defined or described circumstances a judge must use certain words, eg, warning of the dangers of convicting an innocent person. Nor did he think that references to cases in the past was either necessary or desirable. Lord Morris stated that a summing-up would be deficient if it did not give suitable guidance in regard to identification and emphasised the need for the summing-up to be related to the particular features of the case.

However, as the result of the miscarriages to which Lord Ackner referred and the report of the Devlin Committee the law moved on and the Turnbull guidelines were enunciated and applied.

I would place some emphasis on the history of the development of the law as to identification evidence, including visual identification evidence. It has not been applied in civil proceedings nor to exculpatory identifications, that is, of an accused or a witness or, as in the present case of a victim (or deceased victim).

The question remains whether the general words of s.165, namely "evidence of a kind that may be unreliable" requires the judge to comply with s.165(2) and give the warning and caution there specified in a case where the visual identification evidence of the deceased victim as being at a particular place at a particular time is capable of causing the jury to have a reasonable doubt as to the guilt of the accused. The answer to that question must be approached in the light of the history of directions as to identification evidence and the deliberate choice made by the Legislature in its definition of identification evidence. It would have been easy to leave the definition in general terms and not to restrict it to an assertion by a person that a defendant was at or near a place where the offence, for which the defendant is being prosecuted, was committed. This identification did not take place where the offence was allegedly committed nor where an act connected to that offence was done.

While s.165(1) is inclusive and does not purport to be exhaustive it would nevertheless be anomalous when the legislature has specified what identification evidence requires a warning and caution for it to be held that a warning and caution are required for other types of identification evidence because of the general words of s.165(1).

There could be no objection to a judge pointing out to a jury particular weaknesses of particular identification evidence where it is exculpatory, always bearing in mind that an accused has to prove nothing but it would seldom if ever be correct to give a caution or warning in respect of such evidence. Sometimes alibi evidence involves identification evidence. Of course, the judge would also have to point out the strengths of the identification evidence.

The appellant submitted that exculpatory identification evidence should not attract the usual inculpatory identification evidence directions, such as people have falsely been convicted on in the past as a result of mistaken identifications, except perhaps in an exceptional case. The appellant reminded the Court that the evidence of Mr Dawson was the only piece of evidence in the trial that attracted a warning from the judge of the need for caution. In a case where the contemporaneous identification evidence of Mr Dawson was strong, having taken place in a lighted shop, involving face to face discussions, lasted about five minutes and there was the reference by the lady to catching the bus to Brisbane that evening, such a caution was unfortunate and unfair. Further, Mr Dawson's general description of the lady he saw generally corresponded with the deceased. The witnesses were speaking of events which had happened 19 years previously.

In view of the definition of identification evidence in the Act and the history of directions as to that I do not accept that the correct approach is to say that all visual identification evidence should be classed as evidence of a kind that is unreliable, whether inculpatory or exculpatory and whether of the offender or the deceased and whether near the place of the offence or not. There is a real difference between the identification of an accused near the scene of the offence and identification of somebody else, for example, at a place away from the offence. The alleged presence of an accused near the scene of the offence has a cumulative effect and there is fear and tension quite often on the part of the observer, for example if allegedly the accused is seen at the scene of an armed robbery. I do not think that the Courts can say that they have experience of mistaken exculpatory identifications especially where they take place away from the scene of the offence in calm circumstances where there is an appreciable time for observation.

Thus I would reject an approach that the Court should regard all visual identification evidence as being of a kind that is unreliable but refuse the request for a warning because the evidence is exculpatory, that being a good reason for not giving the warning. The first step is to decide whether exculpatory identification evidence is of a kind that is unreliable. I do not agree that it is. If I am wrong in that view and have defined the category of unreliable evidence too narrowly, it would be necessary to consider whether there is good reason not to give a warning. The fact that the evidence is exculpatory would be a good reason. In most cases the difference in approach will not affect the result.

The appellant submitted that even if the correct approach was, contrary to his submissions, that just described there were good reasons in the present case for not giving a warning and that the judge erred in giving a warning. Those good reasons included that the evidence of Mr Dawson was independent and exculpatory, that the contemporaneous identification was not affected by factors which cast doubt upon it, indeed, quite the reverse and the unfairness of singling out Mr Dawson's evidence for a warning.

Having discussed the applicable principles it is necessary to return to what the judge said. There is substance in the appellant's complaint that the judge neutralised Mr Dawson's evidence by telling the jury, on the day following that on which it was given, that caution must be exercised in relation to it. The statement that he would deal with the matter in the summing-up does not reduce the effect of the warning which he gave. That was clear, simple and cogent. Mr Dawson's evidence was significant, perhaps the most important evidence in favour of the appellant.

The appellant placed much greater reliance on what the judge said shortly after Mr Dawson gave evidence than on what was said in the summing-up. There could be no objection to the judge reminding the jury (as he did in the summing-up) that we have all had the experience of mistaking one person for another, that Mr Dawson did not know the deceased and that they should look at the circumstances of the identification, namely that he saw her face to face in a fairly confined space and had a conversation with her.

The judge stated that someone may unconsciously be influenced by publicity including photographs raising a point for consideration but as he said there was very little evidence as to precisely what the publicity was. In these circumstances it was a point better not raised, and may have had the effect of casting doubt on Mr Dawson’s evidence when no base existed for doing so. The reference to whether the photographs was a good likeness was innocuous.

It was submitted that the judge’s direction on the day after Mr Dawson’s evidence would have receded in prominence in the jury’s mind during the lengthy trial and that they would have ended up concentrating on what the judge said in his summing-up. That submission has some force. However,oweverHowever there is a real risk that the judge’s injunction to the jury to use caution when dealing with the evidence of Mr Dawson would have lasted throughout the trial. That direction was not justified. This complaint of error has been established. In view of the conclusion reached on Ground 1 it is not necessary to decide whether in this case that error alone would necessitate a new trial, a matter about which my mind has fluctuated. Appeal Ground 5 The … judge erred in permitting the Crown to lead evidence from a geologist, William James Stroud, to the effect that the ‘wheel dust’ found on the wheels of the deceased’s motor vehicle could have come from Weir’s Road, Armidale but from no other road in the Armidale area, in that: - Mr Stroud was not qualified to give that opinion; - there was no rational basis for the opinion; - the witness did not furnish the jury with criteria with which to evaluate the validity of his conclusions.

These grounds were based on s.79 of the Evidence Act 1995 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. In his oral submissions Senior Counsel for the appellant acknowledged that he was shifting the angle of attack somewhat from the appellant's written submissions. Counsel contended that Mr W J Stroud lacked the relevant expertise.

Mr Stroud’s evidence was significant in that he expressed the opinion that the dust collected from the wheels of the deceased’s car was remarkably similar to the dust collected from the bridge on Weir’s Road. Over further objection the judge admitted evidence from Mr Stroud that on the basis of a GIS (Geological Information System) analysis there were no other dirt roads in the Armidale area “that met the same geological criteria as Weir’s Road” and that he could not “find any other road apart from Weir’s Road that could have produced that wheel dust.”

Mr Stroud stated that, while “anything is possible” and thus it was possible that there were other areas in the Armidale region which could produce wheel dust similar to the thin section wheel dust other than Weir’s Road it was not “necessary” to look for such areas “because … of the way the GIS had been applied and using my common sense as a geologist who knows the geology around the Armidale area.”

Senior Counsel submitted that Mr Stroud’s ultimate opinion was inadmissible pursuant to s.70 of the Evidence Act 1995 or ss.137/135 and that evidence of the GIS analysis should have been held inadmissible under ss.137/135. In particular, under s.79: (1) an opinion must be at least based on specialised knowledge (2) the reasoning process leading to the formulation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (M akita , supra; Bellavista Pty Ltd v Sovereign Motor Inns Pty Ltd [2002] NSWCA 279 per Sheller JA at [62]). (3) the specialised knowledge upon which the opinion is substantially based must be established to be a reliable body of knowledge and experience: Velevski v The Queen 76 ALJR 402 at [82], [154]; R v G (1997) 42 NSWLR 451 at 459.

Senior Counsel further submitted that even if Mr Stroud’s evidence was admissible under s.79 such evidence should still be excluded under ss.137/135 as its probative value was minimal and there was a very real danger of the jury giving the evidence too much weight.

Mr Stroud was the senior geologist in charge of the State’s Geological Survey Office at Armidale. He completed an Honours Degree in Geology at the University of New England at the end of 1970. After 18 months in the Army as a National Serviceman he worked as a geologist in the Sydney office of the Geological Survey where he compiled geological maps of the New England and Southern Sydney areas. He moved to Broken Hill in 1975 and compiled geological maps of the Broken Hill area. In mid-1983 he moved to Armidale and since then he has been compiling geological maps and mineral deposit maps of the New England region. Thus at the date of the trial Mr Stroud was an experienced geologist with about 30 years in active practice, much of it in the Armidale and New England regions. He had lived for many years on a property on Weir’s Road and had been along it countless times on foot, on a bicycle and in a car. He was very familiar with the geology of Weir's Road. Mr Stroud said that he was familiar with geochemistry and used it as part of his job. He was in charge of geochemistry within the Armidale office of the Geological Survey and was familiar with using geochemical data about analyses of rocks.

Mr Stroud explained that preparing geological maps involved going out in the field and looking at all the different sorts of rocks which occur on the ground, determining what they are and their relationship to each other. The various rocks are mapped as are any mineral deposits which are found. Samples of the rocks found are taken and examined geochemically, thereby looking at them in more detail. Mr Stroud said that his expertise lay in accurately determining the geological makeup in the rocks and minerals of a particular area. The area for which he was responsible covered from north of Newcastle to the Queensland border across to Moree, down to Gunnedah and across to north of Newcastle, about one-sixth of the state. In the Armidale office there were about nine other staff members. In recent years he has exercised a supervisory role. Mr Stroud had published in both national and international journals, articles about Broken Hill and New England geology and mineral deposits. Over the previous six to seven years the geologists had put together a GIS (Geological Information System) for the New England region. This has been used by government bodies to ascertain where particular rocks exist, for example, where the best rocks or areas of land are to find gold. A great deal of information is fed into the system including all roads and creeks and the geological information which the Geological Survey held.

Mr Stroud said that he obtained access to some thin sections of dust prepared by Dr Byrnes in about 1983. The dust in two sections was said to come from the wheels of vehicle GLE109 (the deceased’s vehicle) and in five sections from an area near the bridge over Pipeclay Creek on Weir’s Road, Armidale. Those thin sections were held in the Geological Survey’s Thin Section Library in Sydney. Mr Stroud conducted certain tests in relation to them. By using a polarising microscope he was able to identify and look at the relationship of those minerals with each other. This enabled him to work out the minerals in the different rocks and the types of rocks which produced those minerals. Mr Stroud compared the contents of the two thin sections of wheel dust with the five thin sections of bridge dust using a petrological microscope.

Mr Stroud said that in using the GIS he was seeking to find other areas in the New England area that met the same criteria that he found for the bridge dust and the wheels dust. He found 14 other possibly similar roads within the New England area. He visited nine of these areas and studied the other roads in the topographical map. He concluded that none of those roads would have produced the same material that was found in the wheel dust or the bridge dust.

An extended voir dire was held. Mr Stroud said that this was the first time he had been involved in a criminal investigation and the first case in which he had given evidence. He was a geologist, not a soil scientist. He had never been asked to say whether soil from a particular sample came from the same source as soil from another sample. It was a common procedure in geology to be asked to look at two thin sections and ascertain if they came from the same source. He added that a geologist collected samples all the time when he goes out mapping, makes thin sections of them, does a chemical analysis of them and compares the samples with each other. In the course of his work he would hardly ever be called upon to look at a thin section of minerals and try to work out where it came from. However, it was an integral part of his training as a geologist to look at a thin section of rocks and minerals and ascertain where they came from. He would try and work out its geographic history and its source.

Mr Stroud said that a geologist often had to compare rocks which are collected next to each other or five kilometres away and work out “whether this granite or this sediment or this metamorphic rock or this volcanic rock is the same as the one over the hill.” Mr Stroud had never been called upon to say if a particular thin section of minerals and rock must have come from a particular road and no other road. Neither had that been part of his academic training. Mr Stroud said that he had received no training in forensic geology. This does not matter. Many of the expert scientists and engineers who give evidence have had no training in the forensic aspects of their discipline but give valuable evidence.

Mr Stroud said that he had expertise in the field of contrasting chemical analysis. He did not do comparisons of soil or analysis of soil. He did have expertise in the comparison of small mineral and rock grains. This was his only experience of comparing dust samples. Mr Stroud said his experience of geochemical analysis of rock samples was extensive but his experience of geochemical analysis of dust samples, strictly speaking, was limited to the present case. This passage appears in Mr Stroud's evidence: "Q. You are in a position to comment on the appropriate test for a chemical comparison of dust samples even though that is an area about which you have no expertise? A: It is spliting (sic) hairs. Because the dust samples compr(om)ise minerals and rocks of which I do have experience. I see no problem with me commenting on their chemical analysis. Strictly speaking I have no experience in dust samples but it has been shown that those dust samples consist of rocks and minerals which I have extensive experience. Therefore, I feel I am qualified to comment on their chemical analysis."

In that passage a key is to be found to Mr Stroud's expertise. While he has had no experience with dust samples as such he has had experience with the rocks and minerals found within the dust samples. It was Mr Stroud's contention that the dust on the wheels of the vehicle was collected by travel of that vehicle along Weir's Road or a road of very similar geological and mineral composition.

Mr Stroud agreed that one rational explanation for the differences in the iron and potassium content of the bridge and wheels dust samples was that they came from different sources.

Mr Stroud said that when he was looking for other dirt roads which would match Weir's Road, he used 14 criteria, including a dirt road, six geological criteria and seven geographic criteria. These criteria were taken from Weir's Road. They were explored in cross-examination on the voir dire. They included the shape of the radiolarian, the appearance of the lithic clasts and the presence of the distinctive pyrite cubes in the cherts. Mr Stroud agreed that apart from major installations or works the GIS did not take into account the effects of transporting minerals as a result of human endeavours.

Mr Stroud agreed that the wheels dust could reflect an aggregation of dirt on a number of roads including roads on which roadworks were being carried out. Once you get dirt from driving along a dirt road on your wheels it stays there until it is washed off. It appeared that the part of Weir's Road near the quarry could be described as a lover's lane. There were many used condoms. The deceased was known to have had a number of affairs.

At T742 and T746 the judge ruled that Mr Stroud could give evidence of the matters to which he deposed and that the various objections and criticisms of the appellant went to the weight of the evidence. The judge added: "… the witness has given evidence about the outcome of the journey along Weir's Road and then Clark's Road and Kirby Road and the difference between each and the inference he seeks to draw from each and I think that furnishes some basis for inference ultimately in relation to the sample whether it's a reliable basis and how far and precisely it gets the Crown at the end of the day in terms of the tests they must satisfy I think is a matter of argument and submission but I don't see that as a matter of admissibility that it excludes it."

Much of the evidence given on the voir dire was repeated before the jury, often in an expanded form. As to the last matter there was evidence that about 9 February 2001 a clean vehicle was driven along Clark's Road to Kirby Road and then down Weir's Road to Booralong Road. The rims of that vehicle were vacuumed and the dust collected. The vehicle was washed and then driven from the sealed surface on Booralong Road along Weir's Road to just north of the bridge over Pipeclay Creek and returned. Again the rims were vacuumed and the dust collected. Mr Stroud subsequently tested those samples. In 2001 there were not as many fragment types as in 1982 and the proportions were different. This reflected the change of surface by the topping which had taken place. The section of the road from the intersection of Booralong Road up to the entrance to the quarry had a much higher quartz content. It has no ferruginised lithic fragments. It contains no basalt fragments but it contains quartz, chert and plagioclase. After that intersection the road changes in character. The geology changes. The geology from Booralong Road to the quarry turn-off is entirely with pieces of rock and minerals associated with Dumaresq Creek. It is called alluvium. North of the quarry nearly to the bridge over Pipeclay Creek there is an outcrop of rock. The road reflects the geology of the different rock types along that section of the road. That was significant in that Mr Stroud saw in the thin samples of wheel dust geological evidence consistent with the stretch of road beyond the quarry up close to Pipeclay Creek. In other words, the bridge dust sample and the wheel dust sample taken in 1982 each reflected the outcropping of or fragments of Weir's Road beyond the quarry.

Mr Stroud explained that the February 2001 tests had two purposes. Firstly to detect whether dust would adhere to wheel rims driven over dusty roads. It did. Secondly, to see whether there was any difference between the dust collected on each of the two routes mentioned.

Mr Stroud said that the dust collected from the vehicle in 1982 was consistent with the travel of that vehicle along Weir's Road or a road of very similar composition. That caused him to turn to the GIS to see if there were any other dirt roads which met the same geological criteria as Weir's Road, as any other road yielding similar dust would have to lie within the same geological units and be close to other geological units represented in the material found in the thin sections. Earlier, reference was made to the criteria applied. He could find no other road apart from Weir's Road that could have produced the wheel dust in 1982. Mr Stroud said that the wheels dust exhibits those extra materials that you would expect if that dust had been collected from dust along that part of Weir's Road from Dumaresq Creek crossing to Pipeclay Creek, namely chert with radiolarian, weathered lithic fragments, basalt fragments and granite fragments.

In cross-examination in the trial this passage appears: " Q: Is comparison of samples of dust outside your area of expertise? A: If those samples contain rocks and minerals I can within my field of expertise comment on the rocks and minerals contained within the dust sample."

I interpolate that it was the pieces of rock and minerals, including the mineral clasts found in the samples of dust which formed the basis of Mr Stroud's evidence and opinions. Mr Stroud agreed that he did not have dust samples to compare and that he did not have expertise in the area of comparisons of samples of dust. He had thin sections, taken from two dust samples and Dr Byrnes’ report.

Mr Stroud rejected the suggestion that having regard to the material available to him in the thin sections there was no basis upon which he could reach the conclusion that there was a remarkable similarity between the sections taken from the wheel dust and those taken from the bridge. It was being suggested that the amount of material available was too small to enable a sound conclusion to be drawn. He did not agree. The samples were not identical and he indicated the differences but attached little significance to them. Nevertheless he thought the similarities were "remarkable".

As to the accuracy of information in the GIS this passage appears: "Q: I take it you are confident in terms of its accuracy? A: No. One can't be confident in terms of its accuracy … you do have to be very careful of the information put in any computer and that information of the GIS is only accurate to about one in 100,000 scale mapping. Q: Well that is fairly accurate? A: It is fairly accurate." A little later this passage occurs: "Q: There may well be other areas in the Armidale area which don't meet the geological criteria for Weir's Road but which nevertheless produce dust similar to the wheels dust? A: That's – as a scientist I've got to say of course there may be, anything is possible."

During the cross-examination of Mr Stroud it was frequently put to him that alternatives to what he propounded were, in effect, possible and he often agreed but the tone of his replies was that while possible they were unlikely. By "possible" he often seemed to imply that the alternative was a bare possibility.

The appellant attacked the seven geological factors selected by Mr Stroud as constituting the criteria which it was necessary to find before a geologist would say that a site containing these would be likely to yield sections of dust with marked similarities to those found on the wheels or the bridge. There were two criteria that drastically reduced the number of possible sites, namely, to produce similar sections the site had to be more than half a kilometre and less than 1.5 kms from tertiary basalt and greater than 1.5 kms and less than 3 kms from granite. Mr Stroud conceded that it was possible to get a dust sample similar to the wheel sample if tertiary basalt was 0.4 km away but it was less likely if the tertiary basalt was 1.6 kms away.

Mr Stroud conceded that the answers he had given in relation to distances just outside his criteria applied equally to all other criteria. Mr Stroud agreed that if the criteria he used were widened that may result in more than 14 potential sites. He agreed that samples of dust had not been taken from any of those sites nor had sections been taken.

Mr Stroud explained: " I made a geological inspection of those roads and based on that inspection of those roads I concluded that if dust in fact was sampled from those roads it would be different in composition to either the wheel dust or the bridge dust."

He did not make a microscopic geological comparison of the 14 sites with the wheels dust and the bridge dust. Mr Stroud stated that some of the sites which he thought might be potential matches tended not to be when the topography of those sites was taken into account. Mr Stroud further stated that his field examination of the 14 sites indicated that there were some inaccuracies in the GIS. For example on one site, Edward's Drive, basalt occurred closer than was indicated in the GIS.

Mr Stroud said that if the Geological Survey had a perfect map more areas would have been excluded than included because basalt would have extended with a perfect map to more areas. He was asked to take the hypothetical example of there being no basalt between 0.5 and 1.5 kms from the potential site according to the GIS, but a field inspection showed that there was basalt within that band. He agreed that in such a case inaccuracies in the GIS could lead to potential sites which would produce soil (dust) similar to the wheel dust and the bridge dust. On that hypothesis, there could be areas other than the 14 potential sites which could produce dust similar to the wheel dust and the bridge dust.

Mr Stroud relied on his intimate and detailed knowledge of Weir's Road and the rock and mineral geology of Armidale. He had had many years of practical experience and he relied on this and his skill as a well qualified geologist. His list of publications was substantial and they touched, amongst other things, on the geology of the New England region. For the jury to have convicted the appellant it almost certainly relied upon Mr Stroud's evidence.

Mr Stroud had extensive geological knowledge and experience including knowledge of geochemical matters. His evidence was based on that knowledge and experience and his detailed and specialised knowledge and experience of the Armidale region and Weir's Road. On the evidence before the jury it was open to them to take the view that he was a master of the geology of the Armidale region. He made it clear that he was relying on the pieces of rock and pieces of minerals which he found in the sections of the samples of dust taken in 1982. He exposed his reasoning and was cross-examined closely upon it.

A detailed examination of the evidence of Mr Stroud has persuaded me that he had specialised knowledge, based on his training, study and experience and that his opinions were substantially based on that knowledge. His initial opinion that there was a remarkable similarity between the sections of the wheels dust and those of the bridge was based upon the pieces of rock and minerals which he found in those sections. Those were the fingerprints which he used.

The attack on Mr Stroud's evidence developed by Senior Counsel in this Court focussed not on the point just mentioned but on his evidence that there were no other roads in the Armidale area that met the same geological criteria as Weir's Road and that he could not find any road, apart from Weir's Road, that could have produced the wheels dust.

It was submitted that Mr Stroud was wrong to conclude that the wheels dust could only have come from Weir's Road or a road of similar mineralogical composition as this excluded the possibility that the wheels dust was produced by the combination of dust from two or more roads. This criticism should not be sustained. Mr Stroud appreciated that the wheels dust could have represented the aggregation of dust from two or more roads. He was aware of the difference between the geology of the bridge section of Weir's Road and that of other sections of Weir's Road, Clark's Road, Kirby's Road and Booralong Road. He was moved by the marked similarities of the rock pieces and mineral pieces in the wheels dust and the bridge dust. That pointed to at least a portion of the wheels dust probably having come from the bridge area or from a road of similar composition. While it was theoretically possible that the wheels dust could have picked up the particular composition of geological and mineral similarities from a number of roads, ie, a number of similarities from each, this was unlikely.

The appellant further complained that in an attempt to find whether "a very similar road" existed in the Armidale area, Mr Stroud used GIS analysis to isolate roads in the area which were very similar in macroscopic geological/geographical terms to Weir's Road assuming that the wheels dust could only have come from a road very similar in macroscopic geological/geographical terms to Weir's Road. The appellant submitted that even if the wheels dust came from a single road the second assumption was flawed because the GIS maps were often wrong and it excluded the possibility that dust similar to that found on Weir's Road was on a road which was not similar in macroscopic geological/geographical terms to Weir's Road.

Dr Byrnes agreed that geological maps are often wrong. Mr Stroud thought that it was putting the matter too high to say that the GIS maps were often wrong. Mr Stroud readily conceded that there were inaccuracies. This is to be expected in such a wide ranging venture. Mr Stroud said that if the Geological Survey had a perfect map more areas would have been excluded than included because basalt would have extended to more areas.

Mr Stroud also conceded that it was a possibility that dust similar to that found on and around the bridge might be found in an area which was not similar in geological and geographic terms to the bridge area of Weir's Road. This could arise from the transportation of material by, inter alia, streams and water or from the quarry. However, he regarded this as unlikely.

Senior Counsel also submitted that Mr Stroud's opinion that it was not "necessary" to look for all areas in the Armidale region that may contain wheels dust similar to the thin wheels dust sections examined because "of the way the GIS had been applied and using my common sense as a geologist who knows the geology around the Armidale area" did not expose the reasoning process leading to the formation of the opinion that there were no areas in the Armidale region which could produce the wheels dust other than the section specified in Weir's Road.

Mr Stroud was looking for areas of similar mineral and geological composition. He used the GIS for this purpose acknowledging its limitations. He relied on his knowledge of the region, for example, that basalt tended to be more widespread than shown in the GIS. It was not incorrect for Mr Stroud to use the GIS in his effort to find areas of geological and mineral composition similar to the area on and around the bridge area of Weir's Road. The criticism that Mr Stroud did not expose his reasoning process is incorrect. Whether the process he adopted was correct was a matter for debate.

Counsel submitted that Mr Stroud concentrated on the wrong issue. His materials did not enable him to identify those roads which were composed of materials similar to those found in the wheels or bridge dust. All he could do was identify some areas which have geological characteristics similar to a section of Weir's Road. Counsel submitted that this was a significant difference. In answer to this contention it was Mr Stroud's point that use had to be made of the material available. The road dust reflects the underlying composition of the rock pieces and the mineral pieces. It was also possible to identify what had been introduced, for example, the cherts from the nearby quarry. What emerged was an underlying geological and mineral composition which was markedly individual.

The appellant's submissions tended to evaluate the admissibility of Mr Stroud's evidence by reference to that called on behalf of the appellant. The evidence of the appellant's highly qualified experts was highly critical of the evidence of Mr Stroud on fundamental aspects and regarded Mr Stroud's evidence as erroneous on important issues. That does not make Mr Stroud's evidence inadmissible. The appellant contended that Mr Stroud's ultimate opinion was not based substantially on reliable specialised knowledge but essentially on impermissible speculation without any rational foundation. That submission is not correct. Mr Stroud did rely on his specialised knowledge and experience. Section 79 of the Evidence Act 1995 does not preclude the admissibility of Mr Stroud's evidence. Of course, the evidence of the appellant's experts was highly relevant on the ground that the verdict was unreasonable.

The appellant submitted that Mr Stroud's evidence should have been excluded under s.137 or s.135 of the Evidence Act 1995 as its probative value was low and its prejudicial value was high. It was submitted under s.137 that the probative value of Mr Stroud's evidence was outweighed by the danger of unfair prejudice. Under s.135 it was submitted that the probative value of Mr Stroud's evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant. The appellant emphasised that the Crown had invited the jury to place great reliance on Mr Stroud's evidence. The appellant submitted that because of the weaknesses of Mr Stroud's evidence and the disproportionate impact Mr Stroud's evidence was capable of having this was one of those unusual cases where the Court would exercise its discretion to exclude it.

In making submissions under ss.137 and 135 the appellant placed emphasis upon Mr Stroud's use of the GIS and his use of the geological and mineral composition of the dust from Weir's Road on and around the bridge. It was submitted, in effect, that his approach to the question of whether there were other roads from which the wheels dust could come was self evidently, fundamentally flawed. Nor, it was submitted, could Mr Stroud's local knowledge of the geology and topography and his common sense as a geologist assist him.

The probative value of Mr Stroud's evidence including his use of the GIS was, if accepted, high. His evidence was very prejudicial to the appellant. However, there was no aspect of that evidence which made it unfairly prejudicial. The possibilities which Mr Stroud admitted and which were capable of eroding or destroying the value of his evidence were regarded by him as highly unlikely. He thought his explanations were the simplest and best from the data available. Mr Stroud's evidence and his approach turned out to be controversial. His evidence was quite complex and to follow it required sustained concentration. However, there are many cases where juries have to assimilate complex technical evidence and where complex expert evidence is controversial. That does not lead to its rejection. The jury were aware of the strong criticisms of Mr Stroud's evidence. In the context of this trial and the way in which the issues were canvassed this is not a case where the jury was likely to give undue weight to Mr Stroud's evidence merely because of his local knowledge.

There was no case for refusing to admit Mr Stroud's evidence under s.137 or s.135 and no case for refusing to allow him to give evidence of the use of the GIS and the conclusions he drew.

I would reject Ground 5. Appeal Ground 6 The … judge erred in permitting the Crown to recall a witness, Dr John Graham Byrnes, after he had been examined in chief and cross-examined and ask[ed] his opinion of the conclusions of another Crown witness, William James Stroud.

Dr J G Byrnes was a highly qualified and experienced geologist with the Department of Mineral Resources in which he had held a variety of positions over the years. In 1982 he was at the Geological and Mining Museum and part of his duties involved examining specimens and samples which the police brought to the Museum for forensic comparisons and generally assisting the police in their investigations. The police in late May 1982 and on 2 June 19812 delivered various samples and items to the Museum. They included Item 4, Dust removed from the four wheels of the vehicle GLE 109, Sample 3473, thin sections T41738 and 41739 and Item 6, Dust removed from unknown bridge on Weir's Road, Armidale, Sample 3469 and thin sections 41736, 41737, 42591, 42675 and 42676.

In his evidence in chief Dr Byrnes covered a variety of matters. This ground of appeal only touches upon a couple of matters albeit important ones. Such matters bear upon significant aspects of Mr Stroud's evidence. At T510 Dr Byrnes said that he had concluded in his report that the dust from the wheels of the vehicle GLE109 contained basaltic, granitic and supplementary rock detritus that was similar to and could have been derived from the area where the body of the deceased was found.

Dr Byrnes said (T512) that it was concluded from tests that some of the marks on the deceased's jeans came from the body site under the bridge. Dr Byrnes (T572-3) said that the visual microscopic examination was vital. The chemical test was important but not as vital. Dr Byrnes said that he knew that what was in the wheels dust would match what was at the site both from what was on the geological map and from the composition of the thin sections made from the site samples. He added that he did not have any idea whether you could find dust of the same composition just anywhere around Armidale. He would have sought the assistance of a local geologist with local knowledge. In 1982-3 the GIS did not exist. Dr Byrnes had read the relatively recent reports of Mr W J Stroud.

Dr Byrnes said that the colour of the dust samples was quite influential in indicating whether the samples were identical or not. It was his opinion and that of two colleagues at the Museum that the wheels dust was slightly more orange or reddish than the bridge dust. Tests revealed that there was greater iron content in the wheels dust.

Dr Byrnes said that the wheels dust and the bridge dust were constituted basically of granite basalt and chert or of minerals which could be readily attributed to those rocks. They were very common. There were radiolarian-rich rock fragments in the New England area and they were common.

Dr Byrnes regarded the wheels dust and the bridge dust as broadly similar but he was aware that another expert saw them as different. Dr Byrnes said that in the context of chemical analysis he had written in his report, "… the wheels dust did not indicate strong similarity to the bridge dust." Chemically, he estimated a similarity of 50/50.

Dr Byrnes agreed that geological maps are often wrong. Further, even despite the geological structures being of the same kind you would commonly find variations in the dirts recovered. Allowance had to be made for people dumping materials or transporting materials. He cautioned Det Murphy that geological evidence should not be the only evidence implicating the appellant.

Despite a lengthy examination in chief and a lengthy cross-examination Dr Byrnes was nowhere asked directly, to deal with the methodology and conclusions of Mr Stroud.

That omission was going to make the jury's task even harder. The judge appreciated that this was going to leave the evidence in an unsatisfactory state and drew the parties' attention to it.

In his reasons for granting leave to the Crown to further examine Dr Byrnes, the judge noted that Mr Stroud had given evidence that he had examined the work of Dr Byrnes and agreed with his conclusion as to the differences between the wheels dust and the bridge dust. He had also prepared certain tables of his own findings based upon his examination of the thin sections. The wheels dust and the bridge dust were, in a number of respects, said to be strikingly similar.

The judge noted that for reasons beyond everyone's control, the adducing of the geological evidence had been somewhat disjointed. The judge recorded that the evidence of Dr Byrnes was interrupted after cross-examination and before re-examination in order to call certain evidence from Mr Stroud. That was to facilitate the view being held in Armidale, the trial taking place in Sydney. The judge remarked: "…it was not obvious to me whether the work that [Stroud] had done, based on the thin sections, which had been collected by Dr Byrnes, was the same as that undertaken by Dr Byrnes."

The core of the judge's reasons is expressed in this passage: "Dr Byrnes, when giving evidence in chief, and indeed in cross-examination, had not been invited to comment upon the tables prepared as a result of Mr Stroud's examination, nor upon the conclusions reached by Mr Stroud. In the absence of the jury I asked counsel about this issue. As a consequence of that discussion the Crown later sought leave to ask certain further questions of Dr Byrnes in chief. Mr Stratton complains that were leave given it would, 'Undo a day's cross-examination.' It was, therefore, unfair to Mr Rose [s 192(b)]. Dealing with other criteria referred to in s 192, unquestionably the length of the examination of Dr Byrnes would be prolonged if leave were given and so would the trial, though not, in my judgment, unduly so [s 192 (2)(b)]. I believe that there is an element of hyperbole in Mr Stratton's submission. His cross-examination concerned many matters, not simply the issue which I believe could, with advantage, be addressed were leave given. The unfairness to Mr Rose, such as it is, has to a degree been ameliorated, in my view, through Mr Stratton being given the right to examine Dr Byrnes on these issues on the voir dire. In the circumstances, where the geologists had used the same basic data in order to form their conclusions, namely the thin sections, supplemented by the chemical analysis of the original samples, there is an obvious issue as to whether their views coincide. I believe that issue would occur to the jury as it occurs to me. Indeed, I believe I would have been entitled to ask the question in the presence of the jury, which I chose to raise in the absence of the jury in order to allow counsel the opportunity of making submissions. Having heard those submissions, I remain of the view that the extent to which the geologists using the same basic data agree with each other, and specifically the extent to which Dr Byrnes agrees with the tables of Mr Stroud (Ex AA), and the conclusions reached by Mr Stroud based on those tables, is important. I believe it would be helpful to have Dr Byrnes taken to Dr Stroud's tables, and his conclusion, and invited to comment, as the Crown now seeks to do. In the circumstances, and taking account of the matters identified in s 192(2), leave should be given to the Crown."

Following the judge's reasons Dr Byrnes gave further evidence in chief. He was reminded of Mr Stroud's evidence that the remarkable similarities included that the ferruginised lithic clasts in both the bridge dust and the wheels dust were indistinguishable and that some of the chert fragments with radiolarian in the wheels dust were identical with some of the fragments in the bridge dust. Those fragment types were distinctive. Dr Byrnes said that there were only very slight differences between his opinion and that of Mr Stroud. Dr Byrnes continued: "I think we both described the same rock types. He said numbers for particular grades, which I hadn't said. So it has gone a bit more quantitative in a sense, He has used the word 'distinctive'. Although I would agree that there is, in this case comparisons might even look the same, I think some of those things like the radiolarian particles, if you looked hard enough in other areas you would probably find similar appearance material."

In cross-examination Dr Byrnes confirmed that he stood by his report. He was struck by the similar range of features which occurred in both samples but added that those features could be found elsewhere. It was not particularly unusual. While he did not know, what he saw in the wheels dust would probably be found over a wide area of New England, but it would not be uniformly so.

Dr Byrnes agreed that he had written in his report: "The uncommon type encountered in the present case was a radiolarian clay possibly grading to radiolarian ooze infiltrated clay."

He had set out in that report thin sections in which he found that uncommon type of radiolarian. When dealing with the wheels dust he did not mention that unusual or uncommon type of radiolarian being present. It is apparent from the cross-examination of Dr Byrnes that counsel for the appellant was able to cross-examine Dr Byrnes effectively on the additional evidence he had given in chief. Counsel used Dr Byrnes 1983 report to which he adhered to suggest that his evidence of substantial agreement with Mr Stroud's opinions differed from the opinions which he had expressed in the 1983 report. Specific sections of the 1983 report were put to Dr Byrnes. As a result of the cross-examination there was a real basis for suggesting that Dr Byrnes had shifted ground somewhat. While the Crown case gained some support from the additional evidence led in chief, the appellant was able, by cross-examination, to raise doubts as to the accuracy of Dr Byrnes' additional evidence. From the point of view of the jury the evidence was complicated and important matters were not left up in the clouds.

The appellant correctly submitted that the general rule is that cross-examination of a witness is not to take place before the end of the examination in chief, unless the Court otherwise directs: s.28 of Evidence Act 1995 . It otherwise directed in the present case.

The appellant submitted that there was an unfairness in permitting the Crown to ask Dr Byrnes to comment for the first time on Mr Stroud's evidence after the cross-examination had been completed. The judge correctly thought that this was not so. It was undesirable for the Crown not to have led the additional evidence in chief. That should not have happened. However, the position of Dr Byrnes as to the conclusions expressed by Mr Stroud should not have been left up in the air. That would have been puzzling for the jury. The interests of justice required that the matter be clarified. The evidence was technical, quite complex and not easy to understand.

Counsel for the appellant on the voir dire examination of Dr Byrnes as to the additional evidence tested it, investigated it, and ascertained what questions should and should not be asked when the jury returned. The result was a concise and effective cross-examination. If the additional evidence had been given in chief prior to any cross-examination the form of cross-examination may have taken a different form but the substance of the cross-examination overall would not have differed. There is no substance in the complaint in Ground 6.

The exercise of the discretion by the judge is not fairly open to attack. Indeed, the judge was correct for the reasons which he gave. Subsequent events confirmed that this was so.

Appeal Ground 6 should be rejected.

I agree with the orders proposed in the joint judgment.