R v Warwick (No.80)

1. [1]

   This is a trial without a jury on an Indictment, first presented by the Crown on 3 March 2017, against the Accused, Leonard John Warwick, which contains 24 counts arising from seven discrete Events that occurred between 1980 and 1985.

2. [2]

   The Accused is charged with the following offences:

3. [3]

   In addition to these 21 counts, there are three further counts charged in the alternative, which are lesser offences.

Crown Case – An Outline

1. [4]

   There have been many earlier judgments of the Court in this trial. This outline of the Crown case here repeats what has been described in earlier judgments. This is done for the sake of convenience.

2. [5]

   The Crown’s case, which is a circumstantial one, is that the Accused was responsible for each of the seven Events, which have given rise to the charges in the Indictment.

3. [6]

   The seven Events can be described in the following way:

4. [7]

   The Crown has submitted that the context surrounding each of these Events is that, during the period in which these Events occurred, there were proceedings in the Parramatta Registry of the Family Court of Australia between the Accused and his wife, Ms Blanchard. The Accused and Ms Blanchard were married on 19 October 1974. They separated on 17 March 1979. The proceedings primarily concerned the custody of, and access arrangements with respect to, their daughter Trudi, who was born in June 1978. As well, the proceedings included claims with respect to the division of property and, in particular, the sale of the former matrimonial home in which the Accused lived.

5. [8]

   For the reasons explained in R v Warwick (No.2) [2017] NSWSC 1225, the evidence of each Event has been admitted as coincidence and tendency evidence with respect to each other Event. In proof of its case, the Crown relies upon inferences to be drawn from the improbability that each of the Events was committed by a different perpetrator and that the occurrence of each of the seven Events was a mere coincidence.

Procedural Background

1. [9]

   As earlier mentioned, the Accused was arraigned before me on 3 March 2017. He entered pleas of not guilty to each of the counts. Although the trial was originally fixed to be heard by a judge and jury commencing in February 2018, it was adjourned and scheduled to commence later in 2018. Published judgments on a variety of pre-trial applications explain in detail the course of the trial in the first half of 2018. Prior to the start of the trial on its adjourned date, the Accused elected to be tried by judge alone: R v Warwick (No.21) [2018] NSWSC 654.

2. [10]

   The trial began on 15 May 2018, when the Crown delivered its opening address, but the taking of evidence was adjourned and did not commence until 16 July 2018. Evidence was taken from that date until 21 December 2018. The trial was then adjourned to recommence at the start of the new Law Term in late January 2019. For reasons which again can be found in previously published judgments, evidence did not commence to be taken again in the trial until 26 August 2019.

3. [11]

   On 31 October 2019 (day 142 of the trial), the Crown closed its case. In its entirety, the Crown case involved the calling of a total of 225 witnesses and the tendering of approximately 560 exhibits. During the course of the Crown case, the Accused tendered approximately 111 exhibits.

A No Case to Answer Application

1. [12]

   After the close of the Crown case, as had been earlier foreshadowed, the Accused sought an adjournment so as to prepare for, and make, an application that he had no case to answer. The adjournment was granted and the application was stood over to commence on Wednesday 6 November 2019.

2. [13]

   On Monday, 4 November 2019, Mr Conolly appeared for the Accused. He made an application for a further adjournment to allow the lawyers for the Accused more time to prepare their submissions. The hearing was adjourned to Monday, 11 November 2019. The application commenced on that day, and occupied five hearing days.

3. [14]

   On Thursday 21 November 2019, I made orders dismissing the no case to answer application. I indicated that detailed reasons would be published in due course. These are the reasons why the application was dismissed.

Legal Principles - No Case to Answer

1. [15]

   A no case submission by an accused is an application for a ruling by a trial Judge on a question of law. Because this is a trial by Judge alone, it needs to be emphasised that in determining this application, it is both unnecessary and inappropriate for me, as the trial Judge, to make any finding of fact.

2. [16]

   At this stage, what is to be determined is the legal question of whether the Crown has led evidence which, if taken at its highest, is capable of supporting a verdict of guilty on each of the counts on the Indictment. Such an application can succeed in respect of all or some of those counts. If the application is unsuccessful, as the tribunal of fact in a judge alone trial it will be for me, after completion of any further evidence and closing submissions, to consider the factual question of whether the Crown has proved beyond reasonable doubt the guilt of the Accused on each of the counts on the Indictment.

3. [17]

   The appropriate test to be applied in considering this application has been considered in a number of cases, principally those involving a trial by jury. The language employed in the judgments reflects this. But there is no difference in principle between the test to be applied when a jury is empanelled to determine the guilt of an accused, and where the decision is one for a judge (or magistrate) who is hearing defended criminal proceedings without a jury: Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 at [50] per Ipp AJA (Powell and Giles JJA agreeing); Cox v Salt (1994) 12 WAR 12 at 14.

4. [18]

   Recently, the High Court of Australia in The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106 considered the test for sufficiency of the evidence at the close of the prosecution case. At [88], Kiefel CJ and Keane J reaffirmed the test adopted in Doney v R [1990] HCA 51; (1990) 171 CLR 207 where Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 214-215:

5. [19]

   It is important to keep in mind that at this stage, a trial Judge is required to look at the Crown case at its highest and not to weigh up all of the evidence nor to consider evidence which may favour an accused. In Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, Barton J, at 651-652, described the question as being whether the evidence is:

6. [20]

   This approach is consistent with authority in the United Kingdom. Lord Widgery CJ said in R v Barker (1977) 65 Cr App R 287 at 288:

7. [21]

   That the decision being made on a no case application is a legal one undertaken without considering the weight to be given to any evidence is clearly apparent from the decision of the High Court of Australia in May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654. There, the High Court was dealing with an appeal arising from a summary criminal prosecution being heard before a magistrate. It said at 659:

8. [22]

   This statement, based upon the clear differences between a decision of law that evidence is capable of establishing guilt and a decision of fact that guilt is established beyond reasonable doubt, is equally applicable in a trial on indictment before a trial Judge sitting without a jury. Importantly, a trial Judge conducting a trial without a jury needs to approach their ultimate decision regarding the guilt of an accused, by firmly adhering to a direction of law that a decision by an accused not to give evidence or not to call evidence to contradict the Crown case, cannot give rise to the Court drawing any adverse inference against the Accused. The absence of evidence either given or called by the Accused cannot be used to strengthen the Crown case or to assist the proof of the Crown case beyond reasonable doubt.

9. [23]

   As noted earlier, here the Crown seeks to prove the guilt of the Accused by circumstantial evidence. Accordingly, in all such cases it bears the onus of persuading a jury (or a Judge engaged in the fact-finding process) that it has excluded all reasonable hypotheses consistent with the innocence of the Accused: Chamberlain v The Queen [No.2] [1984] HCA 7; (1984) 153 CLR 521 at 536 per Gibbs CJ and Mason J; The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at 323-325.

10. [24]

    However, that legal principle has no relevance when a trial Judge is considering a no case to answer submission. On this issue, the Full Court of the Supreme Court of Victoria in Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416, said this:

11. [25]

    The NSW Court of Criminal Appeal cited that test with approval in R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404, which was followed and applied by the NSW Court of Criminal Appeal in R v JMR (1991) 57 A Crim R 39. As a matter of principle, it is clear that it is the role of the jury to consider any competing inferences arising from the Crown case. A trial Judge considering a no case to answer submission is not required to consider whether the Crown case can negative all other reasonable inferences that are inconsistent with the guilt of an accused. This is even so where there is a reasonable hypothesis consistent with innocence available to an accused.

12. [26]

    A recent example of the application of this principle in this Court was in R v Le; R v Loeung [2019] NSWSC 632 at [34]. There, N Adams J approached the decision on the basis that a trial Judge should not engage in an exercise of considering the inferences that are available to be drawn consistent with innocence nor should an acquittal be directed on the basis that other reasonable inferences are open. Her Honour held that this was because it is the role solely of the jury to balance those competing inferences and arrive at a conclusion about the guilt of an accused beyond a reasonable doubt.

13. [27]

    In considering the Crown case at its highest, it is necessary as this is a circumstantial case, to keep in mind the other legal principle that the evidence is not to be looked at by a jury in a piecemeal fashion: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48].

14. [28]

    Rather, the Crown’s case as a circumstantial one necessitates the consideration of all of the evidence, and the inferences which are capable of being drawn from the combination of facts which are capable of being proved.

15. [29]

    In Chamberlain [No.2] at 535, Gibbs CJ and Mason J said:

16. [30]

    Their Honours draw attention with approval to the remarks of Dixon CJ in Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 242 where he said:

17. [31]

    Chamberlain [No.2] made plain that in a circumstantial case, acceptance of the evidence of a particular fact is done not by considering the evidence directly relating to that fact in isolation, but considering it in light of all of the evidence. Similarly, the question of whether an inference of guilt can be drawn is to be considered from the basis of a combination of facts, although none of which viewed alone would support such an inference.

Crown Case Against the Accused

1. [32]

   The Crown submitted that the evidence which it has adduced (which will be more fully described below) is capable, if taken at its highest, together with the inferences which are capable of being drawn from that evidence, of sufficiently proving that the Accused was the person responsible for each of the seven Events.

2. [33]

   What follows is the Court’s own summary of the various Crown oral and written submissions on this application. It is presented in a form which will enable past relevant rulings on the admissibility of evidence to be adopted. It is not intended that this presentation be viewed as complete with all relevant evidentiary references, nor all arguments which may be advanced by the Crown, if required in due course.

3. [34]

   It is also to be kept in mind that the legal principles to which earlier extensive reference has been made do not require the Court to arrive at any conclusion about the evidence. Rather, the issue being a legal question is whether the evidence is capable of amounting to sufficient proof of guilt. Reference to evidence and the constituents of the Crown case need to be understood in that way. I am not engaged in making any findings of fact or drawing any conclusion as to the guilt of the Accused.

4. [35]

   The steps relied upon by the Crown start with a proposition: that, leaving aside the identity of the offender, the seven Events that form this trial all occurred, and the specific offences deriving from each of those seven Events are capable of being proved to have occurred. This proposition is not the subject of dispute in the trial. The central contested issue is whether the Crown’s case is capable of proving that the Accused committed the offences.

5. [36]

   The second principal step which relies upon the ruling given in R v Warwick (No.2) is that the Crown was permitted to lead evidence of each Event as coincidence and tendency evidence in relation to each other of the Events. At [129] of the judgment, I said:

6. [37]

   I went on to express this conclusion at [130]:

7. [38]

   The evidence adduced by the Crown in its case does not cause me to review the capacity of coincidence and tendency reasoning to be applied in this case.

8. [39]

   Nor does it cause me to reach any conclusion other than that the fact-finding tribunal is capable, by use of coincidence and tendency reasoning, of reasonably inferring that each Event and the offences were committed by the same person and that their occurrence was not a mere coincidence.

9. [40]

   Against the background of these two steps, the guilt of the Accused, according to the Crown, is capable of being established in this way:

The Wishes of the Accused

1. [41]

   The evidence in the Crown case is capable of establishing the following facts:

2. [42]

   These facts are capable of giving rise to an inference that the Accused wished to remain living in the house at Casula, and that he wished to have significant periods of access to, and ultimately custody of, his daughter Trudi.

3. [43]

   The evidence in the Crown case is further capable of establishing the following facts:

4. [44]

   The conduct of the Accused, and the behaviours which he exhibited, are capable of supporting an inference that he had a controlling personality and his attitude toward his wife was such that he appeared determined to succeed in the Family Court proceedings.

The Crown Case on Event 7

1. [45]

   It is convenient to consider, and draw attention to, some of the evidence in the Crown case which the Crown submits leads to a conclusion that the evidence is capable of establishing that the Accused was responsible for the Kingdom Hall bombing

2. [46]

   The Crown case is that Event 7 occurred in the course of the Family Court proceedings and, accordingly, the feelings engendered in those proceedings to which earlier reference has been made were continuing to be circumstances which motivated the Accused to place and explode the device in the Kingdom Hall.

3. [47]

   The Crown points to evidence of specific antipathy on the part of the Accused to members of the Lurnea Congregation, and Jehovah’s Witnesses generally. This feeling of antipathy can be inferred from the following evidence:

4. [48]

   The evidence discloses that on the evening of 13 July 1985, a Saturday night, there was a break-in at the Kingdom Hall at Casula, which was first discovered by members of the Lurnea Congregation on the morning of Sunday 14 July 1985. The break in apparently occurred through a window on the south-east corner of the Kingdom Hall near the stage.

5. [49]

   It is the Crown case that the Accused was the intruder at the Kingdom Hall.

6. [50]

   The evidence in the Crown case is capable of establishing these facts:

7. [51]

   It is the Crown case that the fact finding tribunal can infer that the purpose of this break-in was to inspect the inside of the Hall and determine, by viewing from the rear of the raised stage area, whether it was possible to place an item, such as a bomb, beneath the stage area which would be concealed and not be visible. As well, it is open to conclude that this break-in also informed the Accused that there could be a covert break-in which would not be detected at the time by reason of a neighbour hearing the smashing of the window, or else by a burglar alarm being set off.

8. [52]

   The Crown’s case with respect to the Kingdom Hall bombing next turns to consider the events of the evening of Saturday 20 July 1985 and Sunday 21 July 1985.

9. [53]

   The evidence in the Crown case is capable of establishing these facts:

10. [54]

    The bomb caused the death of Mr Wykes, significant injuries to many members of the Congregation, and the substantial destruction of the Kingdom Hall. The size of the bomb and the fact that it was timed to explode during a meeting of the Lurnea Congregation gives rise to an inference that the person who placed it intended to harm any members of the Lurnea Congregation, who were in the Kingdom Hall at the time.

11. [55]

    On 31 July 1984, the Accused’s house was searched by Police. Observed during that search was a Diamond-brand mechanical alarm clock which was not keeping the correct time, and was found amongst a number of items stacked on a bench. Later investigations of debris from the explosion discovered components of a Diamond-brand mechanical alarm clock which, on the Crown case, was the device which initiated the explosion. The evidence is capable of establishing that there was a significant similarity between the alarm clock found at the Accused’s house and the device used to initiate the explosion.

12. [56]

    The combination of all of these facts and circumstances is such as to be capable of giving rise to an inference that it was the Accused who broke into the Kingdom Hall and undertook a reconnaissance of it on the first weekend, and then the following week broke into the Hall again and placed the bomb which ultimately exploded causing the death of Mr Wykes and serious physical injury and harm to members of the Lurnea Congregation. The Crown submitted that in this way its case is capable of establishing the guilt of the Accused of the offences arising from the bombing of the Kingdom Hall.

13. [57]

    It is necessary to keep in mind that because this is a circumstantial case, individual pieces of evidence are not to be considered in isolation but, rather, as one or more facts established in the context of, and as a part of, all of the facts in the Crown case. In considering whether the Crown case, taken at its highest, is capable of proving the guilt of the Accused, I have kept in mind all of the evidence. Those parts of the evidence to which specific reference has been made are not the only matters to which I have had regard, and I do not here recount in detail all of the matters capable of supporting the conclusion I have reached.

14. [58]

    The application calls for the Court to consider the Crown case regarding Event 7 at its highest. Evidence in favour of the Accused is to be disregarded. The weight to be attributed to evidence is also to be disregarded. It follows that it is not onerous for the Crown to satisfy the Court that the evidence in its case is capable of proving the guilt of the Accused on Event 7.

15. [59]

    The Crown submitted that it is open to the fact finding tribunal appraised of all of the facts and circumstances about the Family Court proceedings, and the relationship between the Accused and his former wife, to accept that the Accused carried out the bombing of the Kingdom Hall and, by application of coincidence reasoning, to conclude beyond reasonable doubt that the Accused committed each of the offences on the Indictment.

Submissions on Behalf of the Accused

1. [60]

   In their submissions, the lawyers for the Accused accepted that the Crown case is capable of proving that each of the offences on the Indictment was, in fact, committed. What the lawyers put in issue is whether the Crown case is capable of proving that the person responsible for each of the seven Events (and the offences) was, in fact, the Accused.

2. [61]

   The oral submissions of the lawyers for the Accused were very lengthy and regularly strayed from a focus on the application of the legal principles described above.

3. [62]

   Indeed, it appeared at one stage that Mr Conolly, the lawyer making submissions for the Accused, was urging the Court to approach his application that the Accused had no case to answer as though it was a determination being made in accordance with, and consequent upon, a “Prasad direction”: R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45. It was submitted that such a direction remained open in a trial by a Judge alone, notwithstanding the recent decision of the High Court of Australia in Director of Public Prosecutions Reference No.1 of 2017 [2019] HCA 9; (2019) 93 ALJR 424. Ultimately the submission was not pressed as Mr Conolly accepted that if it was open as he contended, such a direction was only able to be given after a determination was made that there was a case for the Accused to answer.

4. [63]

   In my view, such a direction is no longer open to be given in any trial on Indictment whether before a jury or being conducted by a Judge alone. That is because any such direction is inconsistent with the essential features of an adversarial trial and would have the effect that the trial was not conducted in accordance with the law: see Director of Public Prosecutions Reference No.1 at [56]-[57].

5. [64]

   The submissions for the Accused often urged the Court to reject the evidence of one or more witnesses because such evidence:

6. [65]

   These submissions are contrary to the legal principles identified earlier in this judgment. Submissions of that kind cannot for that reason be upheld. They do not require further analysis.

7. [66]

   It was accepted by Mr Conolly for the Accused that the following points were an accurate and adequate summary of his submissions that the Accused had no case to answer:

   1. (1)

      that the Court should not consider the sufficiency of the Crown case by reference to any coincidence or tendency reasoning, because, although there was evidence which was admitted for such a purpose, the inferences said to arise from any such reasoning are not capable of being drawn by the fact finding tribunal;

   2. (2)

      that, to the extent that the Crown suggested that the Accused had a motive to commit the crimes which arose from the Family Court proceedings between he and his former wife, Ms Andrea Blanchard, there is nothing in those proceedings which is capable of establishing the existence of any motive, let alone that contended for by the Crown, as demonstrated by an examination of Exh 2 in this trial (the Family Court file of the proceedings) or any other evidence;

   3. (3)

      that there is no evidence of any kind that is capable of establishing that the Accused was seen to be at the scene of any of the crimes;

   4. (4)

      that the evidence adduced by the Crown is not capable of establishing that the Accused had the requisite knowledge or skills, particularly in the use of explosives, which were necessary to undertake the steps to design, construct, place and initiate the explosive devices which were used in Events 3 to 7 (inclusive);

   5. (5)

      that the evidence adduced by the Crown is not capable of establishing that the Accused had the opportunity to commit each of the crimes. There were two separate components to this submission. First, that because the Crown had not adduced any evidence to show that the Accused was not on duty as a fireman by reason of having been recalled to duty (as opposed to being only rostered for duty) at the relevant time, an inference is not capable of being drawn that he had the requisite opportunity. Second, there was no evidence capable of establishing that it was possible for the Accused to travel from his place of work at the Fairfield Fire Station at the end of his rostered shift at 6pm on 23 June 1980 to Edgecliff Road, Woollahra in sufficient time to murder Justice Opas by shooting him at about 7.10pm on that evening;

   6. (6)

      that it is a relevant consideration on this application, for the Court to have regard to the fact that one or more identified individuals, other than the Accused, have been identified in the Crown case, as more likely to be the perpetrator of one or more of the Events;

   7. (7)

      that it is a relevant consideration on this application, for the Court to have regard to the adverse effects on the evidence in the Crown case related to the delay between the time of the events and the time of the trial. Again this submission encompassed two aspects. First, the effects are those described by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 where he said that where delay exists, the whole quality of justice deteriorates and further that where significant delay exists that it must happen that “ … important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed”. Second, the delay led to the circumstance that the police investigators dealing with the matter in recent times (since 2013) made deliberate choices as to what would be facts and allegations would be reinvestigated, rechecked or re‑examined and what would not be;

   8. (8)

      that it is a relevant consideration on this application, for the Court to have regard to the failure by the Crown to disclose to the Accused and/or to tender in evidence as part of its case all appropriate documents which recorded or evidenced the range of police investigations and the results of all of those investigations;

   9. (9)

      that in hearing this application in the context of a complex and lengthy trial, the Court has to be vigilant with respect to expert evidence generally in terms of what it is capable of proving. The Accused submitted that particularly with the DNA evidence adduced by the Crown, the Court should reject, and not consider at all, the expert opinion of Dr David Bruce because it had not been demonstrated by the Crown to be the product of appropriate scientific rigour and requisite scientific standards; and

   10. (10)

       that the evidence of Mr Robert Barnes should be wholly ignored when considering the sufficiency of the Crown case because the whole of the evidence adduced, including that going to his credit, is incapable of being accepted by the fact-finding tribunal in the consideration of the guilt of the Accused.

Crown Submissions in Response

1. [67]

   The Crown drew attention to two previous judgments which dealt with the admissibility of the expert evidence of Dr Bruce, the principal Crown expert on DNA, and also to documents which supported his opinion. The Crown further noted the expert evidence of Mr Robert Barnes, a metallurgist, who undertook extensive investigations during the 1980s into some features of the Events. The Crown drew attention to the fact that the evidence had been admitted and, to the extent necessary, it relied upon it’s submissions made when the issue of admissibility was being debated as providing a basis for a conclusion that the evidence was capable of being considered by the fact finding tribunal and that parts of the evidence were capable of proving relevant facts.

The Accused’s Submissions in Reply to the Crown’s Submissions

1. [68]

   In reply, the Accused was content to rely on the contents of a written document commenting on the Crown’s evidentiary references. Similar kinds of submissions to those identified in [64] above were made. Some comments sought to argue that inferences favourable to the Accused were available and were the appropriate ones to draw rather than those contended for by the Crown as being open on the evidence. All of the comments have been carefully read and considered.

Discernment

1. [69]

   It is worth repeating that on this application the Court must arrive at a conclusion, as a matter of law, as to whether the Crown case is capable of proving the guilt of the Accused, based upon facts which are capable of being proved and rational inferences that are capable of being drawn from the facts.

2. [70]

   In addressing this application, I have not considered, or come to any conclusion about, whether the evidence in the Crown case has excluded the reasonable alternative hypotheses that other persons were responsible for one or more of the Events - including but not limited either Mr Mariti or Mr Abroo. That consideration is for the tribunal of fact at the conclusion of the trial. This approach accords with the authorities referred to in [23]-[26] above. No further analysis is necessary. This approach also means that the submissions of the Accused in [66(6)] above must also be rejected.

3. [71]

   The first submission for the Accused was that the fact-finding tribunal could not rely upon coincidence and tendency reasoning to conclude that the same person was responsible for all of the Events. I have earlier discussed the issue at [36]-[39] above. Although the submissions of the Accused concentrated on identifying a number of differences in the facts of each of the Events, many of those differences were identified during the making of submissions about admissibility, and were taken into account in my earlier judgments. Any additional differences now identified have not been of a kind, nature or type as would mean that coincidence and tendency reasoning is not capable of being used by the fact-finding tribunal. The submission of the Accused in [66(1)] above is therefore rejected.

4. [72]

   The second submission deals with motive. That submission is that the evidence is not capable of establishing that the whole or any part of the Family Court proceedings between the Accused and his former wife, Ms Blanchard, when properly examined, is capable of establishing the existence of any motive, let alone that contended for by the Crown. The Accused submitted that an objective and reasonable view of the Family Court proceedings was that they were nothing more than a typical or usual dispute not uncommonly seen in that Court at that time.

5. [73]

   The fact that the existence of a motive is not an essential element of any offences with which the Accused is charged means that a fact finding tribunal could find the Accused guilty of the offences without any motive being established by the Crown. By reference to this simple proposition alone, the submission set out in [66(2)] above must fail.

6. [74]

   Nevertheless, the Crown submitted that there is evidence capable of establishing a motive for the Accused to have committed the offence. The Crown pointed to the fact that the events of 18 December 1979, involving Stephen Blanchard, were one of the areas of dispute with respect to whether the Accused could have ongoing access to his daughter, Trudi, and whether that access ought to be increased, as sought by the Accused in the Family Court proceedings. The Crown submitted that the evidence it has adduced from Ms Blanchard is capable of establishing that Stephen Blanchard was present with his sister on that evening and could corroborate the events which occurred, including that the Accused had deliberately not complied with the Family Court orders for access. The Crown submitted that it is open to a fact-finding tribunal to conclude that the Accused considered that his position in the Family Court proceedings would be advanced if there were no independent corroboration by Stephen Blanchard as to what had occurred that evening.

7. [75]

   I have earlier mentioned some of the particular incidents during the Family Court proceedings referred to in the Crown case which were capable of engendering feelings of hostility and antipathy on the part of the Accused, in particular at paragraphs [41] and [43]. It is unnecessary to repeat them here.

8. [76]

   During the period of the Family Court proceedings, Mr Watts, who was the solicitor for Ms Blanchard in his capacity as a partner of the firm Ledlin Watts, pursued the Accused with court process with respect to the arrangements for the sale of the matrimonial home. The evidence is capable of proving that the Accused opposed being required to sell the house, did not wish to vacate it, and was doing all that he could to avoid compliance with the orders of the Family Court, including refusing to accept service of court documents and refusing to attend Court when proceedings were being heard.

9. [77]

   The Crown submitted that the persistence and diligence of Mr Watts in pursuing the Accused, in particular having him evicted from the house and then putting in place arrangements to sell the house, was a sufficient course of conduct to have engendered significant feelings of hostility by the Accused towards him and a sufficient basis for a motive, on the part of the Accused, to harm Mr Watts.

10. [78]

    I have earlier discussed the Crown’s case with respect to a motive for harming members of the Lurnea Congregation at [45]-[59]. The Crown’s case is capable of establishing a motive in the Accused to initiate the bomb at the Kingdom Hall.

11. [79]

    The substance and effect of the submissions for the Accused is that, if one was to take an overall view of the Family Court proceedings, there was nothing out of the ordinary with respect to them and nothing which could give rise to a motive. Assuming that is so, it is not necessarily inconsistent with, nor does it mean that the Crown’s case is not capable of being made out.

12. [80]

    The Crown case, taken at its highest for the purpose of this application, means that the Court at this stage is not obliged to consider the evidence or the inferences which are favourable to the Accused. The Family Court proceedings are capable of being regarded as combative and marked by entrenched disagreement as to the appropriate orders, particularly in the absence of compliance by the Accused with agreements, directions and orders of the Court. This non-compliance necessitated strict orders for compliance on the part of the Accused.

13. [81]

    In my view, the Family Court proceedings and the relationship between the Accused and Ms Blanchard are capable of giving rise to strong feelings of the kind described in the Crown case. That is to say, they are capable of giving rise to a motive for the Accused to have committed the offences.

14. [82]

    The next submission was that there was no evidence of any kind that was capable of establishing that the Accused was seen at the scene of any of the Events. This submission clearly refers to evidence which consists of observations or evidence of a direct kind about the presence of the Accused. So much can be accepted because the Crown does not point, as part of its case, to any such direct evidence. The Crown relies on the totality of the proved circumstances as described above at [40] to prove the guilt of the Accused. It does rely on the inference available for the finding of the blood, and DNA, of the Accused at the Kingdom Hall at Casula.

15. [83]

    The lack of any direct evidence identifying the Accused at the scene of any of the crimes is a single fact. It cannot be considered in isolation, on its own and without more, as standing against the existence of a circumstantial Crown case of the guilt of the Accused which is capable of being accepted by a jury.

16. [84]

    The fourth submission made on behalf of the Accused was that the evidence adduced by the Crown is not capable of establishing that he (the Accused) had the requisite knowledge or skills in the use of explosives, and which were necessary to design, construct and place the explosives in Events 3 to 7 inclusive, and then to initiate them in each of those Events except for Event 6.

17. [85]

    The Crown contended that there is sufficient material in the evidence which would enable a conclusion to be drawn that the Accused had sufficient skill to design, construct and plant the bombs in each of Events 3 to 7. As well, the Crown pointed to evidence capable of establishing the availability in the public realm of sources of knowledge for an individual who wished to inform themselves about how to carry out the bombings.

18. [86]

    The Crown pointed to the following facts and circumstances in evidence which were capable of being established and which are capable of giving rise to the appropriate inferences:

    1. (1)

       the Accused had a close relationship with his father, who worked in the coal mining industry as a shot firer’s assistant. In such a role, commonly, the duties would include helping the deputy to handle and lay explosives. Although the Accused’s father may not have done all of the things which a deputy did, they were done in his presence as the shot firer’s assistant. A person who held such a role would be well familiar with the principles behind the use of explosives, including detonators and safety fuses. The Crown says that an inference is available that the Accused and his father discussed, in detail, matters relating to features of his father’s work as an ordinary incident of a father and son relationship;

    2. (2)

       there was found in the Accused’s possession a book called “Practical Coal Mining” which could be regarded as a manual of information relevant to those engaged in coal mining. The evidence is capable of proving that the contents of that book included a chapter on explosives, which included descriptions of various kinds of high explosive compounds, types of detonators (including the appropriate detonator to be used having regard to the quantity and type of explosives) and methods of initiation including by safety fuse or by use of electric fuses;

    3. (3)

       the Accused had sufficient knowledge, skill and the necessary equipment to carry out welding at a standard exhibited in the pieces of pipe recovered after the explosion at the Family Court (Event 3);

    4. (4)

       the evidence of Mr Owen Muhn, in particular the reaction which Mr Muhn observed on the part of the Accused, is capable of establishing that the Accused had knowledge in the 1990s about the basics of explosives, the use of sticks of gelignite and where it might be obtained (either legally or illegally). It would be open to infer that the Accused had such knowledge in the 1980s, if not earlier; and

    5. (5)

       The evidence of Mr Muhn is further capable of establishing that the Accused had knowledge of and/or access to a book or publication from Paladin Press which provided instructions or information with respect to different explosives and use of weapons.

19. [87]

    The Accused submitted that Mr Muhn’s evidence was not capable of belief. He submitted that the Court does not need to “weigh the evidence of Mr Muhn”. He submitted that Mr Muhn’s evidence is the result of a fantasy about military matters and should be rejected. He says the evidence is unreliable and that there are obvious inconsistencies in the evidence which have not been investigated by the Police. As will be clear from what I have earlier written, these submissions do not address the appropriate legal principles for the current application and need to be disregarded.

20. [88]

    It would be open to a fact finding tribunal to accept some or all of Mr Muhn’s evidence. To the extent that his evidence is relied upon by the Crown, Mr Muhn did not qualify it or withdraw it or in any way accept that it was not worthy of any weight. To the contrary, under cross-examination Mr Muhn maintained that his evidence was correct. Taken with the evidence of the availability in Australia of publications by Paladin Press, and the content of some of the publications which were available, it is open to the fact finding tribunal to conclude that the Accused may have acquired knowledge at the relevant time sufficient to enable him to design, construct, place and initiate the bombs about which there has been evidence in the proceedings.

21. [89]

    Finally, the Crown pointed out that it is not limited in its case to proving that the Accused himself did all of the things associated with the design, construction and initiation of the bombs, because the Crown’s case encompasses the possibility that he obtained assistance from an unknown person or persons to do these things.

22. [90]

    In my view, there is some evidence from which a fact finding tribunal could draw an inference that the Accused had sufficient knowledge to enable him to undertake each of the relevant Events. It was not in doubt that the Accused had knowledge of and was skilled in firearms, being both long-arms and handguns. I therefore do not accept the submissions of the Accused as summarised in [66(4)] above

23. [91]

    The fifth matter raised by the Accused was that the Crown had not adduced evidence sufficient to demonstrate that the Accused had adequate opportunity to commit each of the crimes. Further, the Accused challenged the case for the Crown on the basis that he the Accused did not have an opportunity to drive from the Fairfield Fire Station to Woollahra in sufficient time after the conclusion of his rostered shift to enable him to shoot Justice Opas.

24. [92]

    The Crown’s case included the tendering of the records of the NSW Fire Brigade which contained the rosters of the Accused at the relevant times. This evidence is capable of establishing that at times relevant to the commission of the offences, the Accused was not rostered on duty. The evidence of the retired Senior Fire Brigade Officer, Mr Jurgeit, is also capable of establishing that it was a not uncommon event for firemen to leave the fire station, assuming that there was no fire underway, before the end of their designated shift. That happened because firemen coming on duty ordinarily arrived before the commencement time of their shift, thus enabling relief of the fire officer who had been on duty.

25. [93]

    Mr Jurgeit’s evidence was also capable of establishing that if a fireman was recalled to duty in excess of their ordinary roster, that recall would be noted in the Occurrence Book of the home station. The records tendered are capable of establishing that at the relevant times, the Accused was not recalled to duty at his home station and so was not working at the time relevant to any of the offences. It is possible that he was recalled to duty at another station. There was no evidence that the Accused was in fact working as a fireman at any other station at any relevant time. A fact finding tribunal would be capable of inferring from the evidence that the Accused was not on duty, either on roster or because he was recalled, at the relevant times and therefore had an opportunity to commit each of the offences.

26. [94]

    The Crown pointed to the contents of Exh 367 as providing evidence that at a time and on a date within a week of the murder of Justice Opas, the travel time between Fairfield Fire Station (where the Accused was then stationed) and the premises where Justice Opas lived in Woollahra, was 50 minutes. If accepted, this evidence is capable of establishing that there was more than sufficient time, even assuming the Accused left at the end of his shift at 6pm, for him to drive to, and be in the vicinity of, Justice Opas’ home in sufficient time to carry out his murder.

27. [95]

    The evidence led by the Crown is capable of establishing that with respect to each of the Events, the Accused had the opportunity to carry them out and was not rostered on duty at the time nor was he working. I do not accept the submissions of the Accused on this issue as summarised in [66(5)] above.

28. [96]

    As referred to in [66(7)] above, the Accused next submitted that the Court should take into account the consequences of delay on the evidence comprising the Crown case. He submitted that such delay has meant that there is evidence which is now no longer available and which is not known to have once been available, but which may have been available, to assist the Accused or to contradict the Crown case. The Accused relies upon the fact that police investigators have not re-investigated every issue that they have come across to demonstrate that not all relevant evidence has been put before the Court.

29. [97]

    This is not a relevant consideration at this stage for the purposes of this application. That is because the impact of delay upon evidence goes to the quality of the evidence and the weight which a fact finding tribunal may give it. As the legal principles referred to above show, the quality of, and weight to be attributed to, evidence in the Crown case is not an issue that is properly to be considered at this stage of the trial. This submission must be rejected.

30. [98]

    To the extent that there is evidence which is no longer available or which, by reason of the conduct of the police, is not available and therefore may not be able to be taken into account in support of the Accused, is also not a relevant consideration during this application. As has been earlier made clear, this application is a consideration by the trial Judge of whether such evidence as has been led by the Crown is capable of establishing the guilt of the Accused.

31. [99]

    Put differently, the effect of this submission by the Accused is that there is evidence which the Crown has not led but which may well have been available to be led at an earlier point in time if the trial had taken place at a time much closer to the Events. That is simply beside the point. Unless the failure by the Crown to lead evidence has meant that an essential element of any one of the offences has not been proved, then this submission must be rejected.

32. [100]

    The High Court of Australia in a unanimous judgment in The Queen v Edwards [2009] HCA 20; (2009) 983 ALJR 717, said at [31]:

33. [101]

    A fortiori the position here. The Crown’s case is to be made out by the evidence which it has led. It is impermissible to speculate as to what the Crown’s case might have comprised at an earlier point in time. Nor is it necessary to consider, for the same reasons, an issue asserting that the Crown could have but did not, tender all documents which it had.

34. [102]

    The eighth submission for the Accused relates to the asserted inadequacies of disclosure by the Crown, and its failure to tender relevant documents.

35. [103]

    The assertion that there has been inadequate disclosure is contradicted by Crown witnesses. Their evidence is capable of leading to the conclusion that disclosure was adequate. As this conclusion tends to favour the Crown, I will ignore the evidence to the contrary, if such there be. That is because I must take the Crown case at its highest. But even if non-disclosure was unequivocally established, or else documents were not tendered which it is said ought to have been, the Court is confronted by an absence of evidence. It cannot speculate on what the documents if disclosed may have revealed, nor if tendered, what they may have established. The submission in [66(8)] is therefore rejected.

36. [104]

    The ninth and tenth submissions made by the Accused can be considered together because they both address a similar topic, namely, expert evidence, the qualifications of the expert to give evidence, and what the evidence of that expert proves, and the quality of it.

37. [105]

    The two experts who were challenged in this respect are: Dr David Bruce, who gave evidence with respect to the recovery and interpretation of DNA profiles on various samples taken from the Kingdom Hall; and Mr Robert Barnes, an expert metallurgist, who was involved in the early investigations of these Events.

38. [106]

    Objection was taken by the Accused to the tender of the expert reports of Dr Bruce. For the reasons given in R v Warwick (No.48) [2018] NSWSC 1557, the reports were admitted with a limitation on use pursuant to s 136 of the Evidence Act 1995. Later in the course of the trial, on 2 November 2018, the limitation on use was removed: R v Warwick (No.55). Accordingly, the expert opinion of Dr Bruce can be considered without limitation or restriction.

39. [107]

    Dr Bruce’s expert opinion, which is capable of acceptance by the fact finding tribunal, is that a DNA profile which is overwhelmingly likely to be that of the Accused, was found on two items – a piece of cardboard and a piece of carpet which were located at the Kingdom Hall on the day of the explosion. Dr Bruce’s evidence is that the most likely source of the recovered DNA profiles is the blood of the Accused.

40. [108]

    The Crown submits that these DNA results are consistent with the evidence of Dr Goetz who undertook some testing of blood stains on the carpet and cardboard shortly after the explosion and identified that the blood grouping of the stains was the same as the Accused’s blood group. This conclusion provides a measure of corroboration of the expert opinion of Dr Bruce.

41. [109]

    Although the Accused submitted that the fact finding tribunal would disregard the evidence of Dr Bruce, I do not accept that submission. The evidence has been admitted. It is capable of being accepted as an expert opinion. It is based on specialised knowledge relating to an identified scientific field, namely the science of DNA. The underlying facts upon which this opinion has been based have been led by the Crown in evidence and are capable of being accepted by a fact finding tribunal. Accordingly, it is open to the fact finding tribunal to give the evidence considerable weight in its deliberations.

42. [110]

    If the fact finding tribunal accepts the evidence of Dr Bruce, that the Accused was at the Kingdom Hall about one week prior to the explosion, that is a fact to which significant weight can be accorded in the consideration of the guilt of the Accused on the offences relating to the Kingdom Hall explosion.

43. [111]

    The Accused also attacked the evidence of Mr Barnes, and submitted that the evidence was not capable of being taken into account, or being given any consideration at all on this application because, such is his lack of expertise and a lack of credibility, any evidence he gives is incapable of being accepted by any fact finding tribunal.

44. [112]

    Mr Barnes was an expert metallurgist employed in the Materials Research Laboratory which was part of the Defence, Science and Technology Organisation of the Commonwealth of Australia. He worked there from 1970 to 1986. It was whilst working there that he undertook investigations at the request of NSW Police with respect to some of the Events with which the Accused is charged.

45. [113]

    Mr Barnes gave evidence which would enable a conclusion to be drawn that he had significant training and practical experience in post-blast analysis, the identification of debris from an explosion, and the effects of explosions on components. The evidence was also capable of establishing that he had considerable expertise in the examination of ordinance and explosives of different kinds and in the undertaking of demolition or other work with improvised explosive devices. He said that he also qualified as an explosives ordinance disposal officer.

46. [114]

    Mr Barnes’ evidence was taken on the voir dire and then, after submissions, was admitted over the objection of the Accused for the reasons given in R v Warwick (No.62) [2018] NSWSC 2028.

47. [115]

    At [18]-[30] of that judgment, I set out reasons as to why the evidence of Mr Barnes’ was capable of acceptance by the fact-finding tribunal acting reasonably. There is no need to repeat what was there said, which were the reasons given after the conclusion of Mr Barnes’ evidence. There has been nothing further adduced in evidence which would cause me to reconsider those reasons, or to come to a different conclusion. There is no need for me to repeat all that was there written.

48. [116]

    The attack on Mr Barnes’ evidence in the course of this application relates to whether or not he is truly an expert, and whether or not his credit was such that a fact finding tribunal acting reasonably could not accept his expert opinion. As the authorities referred to earlier in this judgment show, these are not matters which fall for consideration in the course of this application. Mr Barnes’ evidence was admitted and is to be taken at its highest in the consideration of this application. I do not accept the submission of the Accused that his evidence should be entirely disregarded. I reject this submission of the Accused that the evidence of Dr Bruce and Mr Barnes cannot or ought not be relied upon. See [66(9)] and [66(10)] above.

Conclusion

1. [117]

   The case for the Crown when taken at its highest, after considering the facts which are capable of being found to be proved and the inferences which are capable of being drawn from the facts, is sufficient to prove that the Accused committed each of the offences with which he has been charged.

2. [118]

   This conclusion does not mean that the fact finding tribunal will, in the absence of any further evidence, inevitably convict the Accused. That is because the determination of this application does not involve any finding of fact about the guilt of the Accused.

3. [119]

   For these reasons, on 21 November 2019, I dismissed the application for the entry of verdicts of not guilty at this stage of the trial on the basis that the Accused has no case to answer.

Orders

1. [122]

   On 21 November 2019, I made the following order:

   1. (1)

      Application for the entry of verdicts of not guilty on the basis that the Accused has no case to answer is dismissed.