R v Warwick (No.93)

1. [1]

   Between 1980 and 1985, the Family Court of Australia, its judges and a practitioner were the targets of a number of episodes of extreme violence, each of which were well publicised and many of which had tragic consequences. These episodes, alongside two others not apparently connected to the Family Court of Australia at that time, are the seven distinct Events which make up the subject of this trial.

Indictment

1. [2]

   Leonard John Warwick was arraigned before me on 15 May 2018 on an Indictment dated 21 August 2017.

2. [3]

   The Accused was charged with, and pleaded to the offences on the Indictment as follows:

3. [4]

   It can be seen from the Indictment that the Accused is charged with the following offences:

4. [5]

   In addition to these 21 Counts, there are three further Counts charged in the alternative. No further description of those charges is presently required.

5. [6]

   As noted, upon arraignment, the Accused pleaded not guilty to each of the Counts on the Indictment.

Elements of the Offences

1. [7]

   It is necessary to set out the necessary elements of each of the offences charged so that from the outset it is clear what the Crown must prove beyond reasonable doubt before the Accused can be convicted of any of the offences.

2. [8]

   The Crown must prove beyond reasonable doubt each of the following elements, at the time and place specified:

3. [9]

   The Crown must prove beyond reasonable doubt each of the following elements, at the time and place specified:

4. [10]

   The Crown must prove beyond reasonable doubt each of the following elements at the time and place specified:

5. [11]

   The Crown must prove beyond reasonable doubt each of the following elements at the time and place specified:

6. [12]

   The Crown must prove beyond reasonable doubt each of the following elements at the time and place specified:

7. [13]

   The Crown must prove beyond reasonable doubt each of the following elements at the time and place specified:

8. [14]

   The Crown must prove beyond reasonable doubt each of the following elements at the time and place specified:

9. [15]

   The Crown must prove beyond reasonable doubt each of the following elements at the time and place specified:

10. [16]

    In each of Counts 4, 5, 8, 10 and 12 to 24, the Crown is required to prove that the offender acted maliciously. To prove that the offender acted maliciously, the Crown must prove that relevant act was:

11. [17]

    In Counts 1, 2, 4, 6, 8 and 12 to 24, the phrase “grievous bodily harm” is used as a part of the element of the each of the offences charged. Grievous bodily harm means really serious bodily injury and includes any permanent or serious disfiguring of a person.

The Trial – A General Description

1. [18]

   On 11 May 2018, I made an order pursuant to s 132(1) of the Criminal Procedure Act 1986, that the Accused be tried before a judge alone and without a jury. This order was made at the request of the Accused. It was consented to by the Crown. [1]

2. [19]

   The trial commenced before me with the Crown opening on 15 May 2018. It then proceeded (although not on a continuous basis) until the last day of submissions on 6 April 2020. This was the 207th day of trial. I then retired to consider my verdict.

3. [20]

   At the request of the Accused, and without opposition from the Crown, the Accused attended and was present at his trial by audio-visual link (“AVL”) from the institution where he is being held in custody.

4. [21]

   After the Accused first appeared before me on 3 March 2017, when he was first arraigned, I heard and decided 32 separate pre-trial applications. This was prior to the commencement of the taking of evidence on 16 July 2018.

5. [22]

   During the course of the trial, I heard and decided a further 59 applications, including rulings on evidence. A list of all of my judgments is contained in Annexure B.

6. [23]

   At the direction of the Chief Justice of New South Wales, Fullerton J heard and determined an application by the Accused for a permanent stay of the trial. That application was heard between 5 August 2019 and 14 August 2019. Fullerton J, for the reasons which she published on 16 August 2019, dismissed that application. [2]

7. [24]

   The Crown called 193 witnesses to give oral evidence. Some were recalled to give further evidence or for further cross-examination. The Accused did not give evidence but called 11 witnesses to give oral evidence in answer to the Crown case.

8. [25]

   I directed that the submissions of the Crown and Accused be delivered orally. Both the Crown and the Accused provided written material containing their submissions to supplement their oral submissions and to assist the Court in following them. All of the written submissions have been marked for identification, and have been referred to when necessary to gain a comprehensive understanding of the submissions of each of the Crown and the Accused.

Some Features of this Judgment

1. [26]

   It is appropriate to describe my approach to this judgment at the outset. The oral evidence in the trial was very lengthy and the documentary exhibits are contained in over 36 lever-arch A4 folders. The submissions, as set out in the documents provided, occupy at least 800 pages. It is neither possible nor necessary in this judgment to comment upon the evidence of every witness, nor to comment upon every exhibit which was tendered. However, the evidence of every witness has been considered and every exhibit has been carefully read, or if it is a physical exhibit – carefully examined by me in the course of my deliberations. No submission has been overlooked.

2. [27]

   In the course of this judgment, through the use of footnotes, I have included references to evidence which is the source of various findings. These footnotes do not refer to every piece of evidence which may be relevant to the findings, but are a guide to where evidence is to be found which is relevant.

3. [28]

   This judgment is required by s 133 of the Criminal Procedure Act to include the principles of law applied by me, and the findings of fact upon which I have relied. Where I would have been required to give a warning to a jury, I must take such a warning into account in dealing with any particular matter.

4. [29]

   I will, in this initial part of my judgment, set out the principles of law which are applicable and by which I am bound. They will be repeated as appropriate at different times in the judgment. For ease of reading and understanding the judgment, such repetition of these principles of law will be made by me by reference to a short description of the principle. Although only a short description of the principle is used, that carries with it the entirety of the principle as it is set out in this Introduction.

5. [30]

   There will also be times during this judgment where it is necessary to refer to findings of fact, matters or circumstances which have elsewhere been referred to. Sometimes, the most convenient course has been simply to repeat what has earlier been written. Sometimes it has been sufficient to refer to that material without repeating it. This depends upon the context and circumstances.

Crown Case Description

1. [31]

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

2. [32]

   The seven Events can be described in the following way:

3. [33]

   The Crown submitted that over the years when each of these Events occurred, there were proceedings in the Parramatta Registry of the Family Court of Australia between the Accused and his wife, Ms Blanchard. These proceedings 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. The Accused and Ms Blanchard were married on 19 October 1974. They separated on 17 March 1979.

4. [34]

   The Crown’s case is that each of the seven Events was connected to, or arose out of, the course of the Family Court proceedings.

5. [35]

   It will be seen that the first two Events occurred about four months apart in 1980. The other five Events occurred over a period of about 15 months in 1984 and 1985. The two Events in 1980 were carried out with the use of a .22 calibre firearm. In 1984 and 1985, all Events involved the use of what has been various described as an improvised explosive device (“IED”) or else a bomb. These terms are interchangeable.

Case for the Accused

1. [36]

   The Accused denies that he was the offender responsible for each of the seven Events. He denies that he is guilty of any of the offences charged in the Indictment.

2. [37]

   In respect of all Counts on the Indictment, other than Counts 12 to 24, the Accused accepts that the evidence called by, and tendered by, the Crown adequately establishes every element of every offence, save for the element which identifies the Accused as the offender. In relation to Counts 12 to 24, the Accused also puts the Crown to proof of whether the injuries sustained by each of the named individuals constituted grievous bodily harm. The Accused does not concede that the Crown has established this element, but he does not make any submissions which suggest that it is not open to the Court to conclude that the element has been proved beyond reasonable doubt.

Police Investigation

1. [38]

   In order to provide context for the evidence, and the factual findings, it is appropriate to comment upon the way in which the Police went about their investigations. Each Event was investigated by the Police. Immediately following Event 5, the Watson bombing, a joint task force was formed which consisted of members of the Australian Federal Police (“AFP”) and members of various units of the NSW Police. It was called the Joint Bomb Task Force (“JBTF”). The JBTF was assisted by other government agencies from time to time. The JBTF became responsible for investigating each of the seven Events.

2. [39]

   During the period of the investigation carried out by the JBTF, Inquests were held by the NSW Coroner into the deaths of Mr Stephen Blanchard, Justice Opas, Mrs Pearl Watson and Mr Graham Wykes. The Inquests into the death of Mr Blanchard and Justice Opas were heard and completed in 1982. The Accused was represented by senior counsel at these Inquests. The Inquest into the death of Mrs Pearl Watson was held at various times between December 1984 and 27 May 1987. The Inquest into the death of Mr Graham Wykes was held in April 1986. The Accused was represented at each of these Inquests by counsel. [3]

3. [40]

   The Police investigations, in the state they were in at that time, were put before the Coroner in each Inquest.

4. [41]

   The JBTF continued its investigations until the conclusion of the final day of all of the Inquests in May 1987. The JBTF wound down its operations leading up to that final day and was finally disbanded by July 1987.

5. [42]

   From time to time, it seems that there are reviews or further paper investigations conducted by the NSW Police about homicide crimes which are unsolved. As part of this process, the Events the subject of this trial were reviewed from time to time. No further substantive investigations occurred until July 2013, when a decision was made by the Officer in Charge of the Unsolved Homicide team to commence a further investigation of the Events. A task force was assembled and given the name Reddan. The work that Task Force Reddan did was often referred to in the trial as “Operation Reddan”. Over time, the terms came to be used interchangeably.

6. [43]

   The work of Task Force Reddan commenced with locating and identifying the documents and records of the previous investigations, including the JBTF, and also the identification and location of physical exhibits. [4] As part of its work, Task Force Reddan also set out about interviewing a wide range of individuals, including police who had been part of the JBTF, and undertaking a range of further enquiries. Additional scientific tests were undertaken.

7. [44]

   Detective Mathieu Russell became the Officer in Charge of Task Force Reddan in December 2013. [5] Detective Matthew Heffernan was the second in command. He had commenced in July 2013 when the Task Force started.

Chronology of Arrest, Committal and Trial

1. [45]

   On 29 July 2015, the Accused was arrested and charged with the offences which are contained on the Indictment.

2. [46]

   As was required by order of the Local Court, a very extensive Police Brief was served on the lawyers for the Accused in the course of 2015. The Brief was in separate parts. Documents contained within that Brief were identified by a footer which noted the words “Police Brief” and a date when the document was served, including in which part of the Brief. It comprised at least 8,500 pages.

3. [47]

   The Accused was committed for trial on 14 December 2016. Orders were made by me on 3 March 2017 which provided for service by the Crown of all relevant documents which comprised the Crown Brief. In February 2018, the Crown was ordered to serve the entirety of the Crown Brief in electronic form. That was done. It consisted of 19,146 numbered pages. Documents were referred to from time to time in the course of the trial by reference to the page numbers on the electronic Crown Brief.

4. [48]

   The purpose of this chronology is to give context to the evidence in the trial which consisted of the results of enquiries and investigations undertaken in two distinct time periods, 1980 to 1987 and then from July 2013 until the trial. The officers of Task Force Reddan did not include any of the officers who had been involved in the investigation in the 1980s.

Records of the Police

1. [49]

   The way in which the members of the JBTF went about their duties was described in evidence by Detective Woods, a member of the JBTF, as follows:

2. [50]

   Detective Inkster, a member of the JBTF, described the running sheet as being like notes, and as being an aide-memoire for the investigator which would be followed by a formal statement where appropriate. [7]

3. [51]

   The JBTF had up to 130 police officers working on the investigation, at least in the initial stages. [8]

4. [52]

   Two NSW police officers were responsible for maintaining the records of the JBTF. Those officers were Detective Helen Curtin and Detective Vivienne Crawford. The paper copies of the running sheets were filed by those two detectives. They were also responsible for creating and maintaining a computer database. The JBTF was the first police enquiry to use a computer database to store information. The details of the running sheets were typed into the computer database, which could then be searched by a keyword search. [9] All records created by officers of the JBTF were entered into this database. [10]

5. [53]

   The Crown tendered what was, I am satisfied, a printout from a part of the computer database used by the JBTF. [11] The format which can be seen there supports the earlier description to which I have just referred about the record system. The evidence of Detective Russell, which I accept, was that Task Force Reddan had access to many thousands of running sheets recording investigations undertaken by the JBTF.

6. [54]

   The Accused tendered the report of an expert, Mr Warwick Tate, [12] to give evidence about the nature and type of computer databases which he said would be likely to have been maintained by the NSW Police in the 1980s. Mr Tate made no reference to the evidence to which I have just referred which provided a reasonable description of what was in fact in use in the JBTF officers. It was unclear if it was drawn to his attention. For that reason alone, I am not satisfied that Mr Tate’s opinions are soundly based or at all relevant.

7. [55]

   There is a second reason why Mr Tate’s opinions are of no weight in this trial and that is because he had no relevant experience, knowledge or understanding of what databases did in fact exist in the NSW Police, or any other NSW government department or agency, in the 1980s. His Curriculum Vitae [13] does not disclose that he had any experience of working in or else working with any NSW government agency, including the NSW Police, or any other government agency of any kind which would enable him to have a sufficient knowledge of, or experience about, computer databases in these organisations. He therefore lacks a sound basis upon which to express a relevant opinion about the nature and type of databases relevant to the investigation in the 1980s by the JBTF.

8. [56]

   It is clear that the Accused, during this trial, did not have access to the electronic database of the investigation of the JBTF in the 1980s (because it no longer existed by the time of his arrest). However, I am not satisfied that this is a significant disadvantage to him, because I am satisfied that the paper records of the JBTF, where relevant, were in existence.

9. [57]

   For the investigations conducted by Task Force Reddan, all statements, records of interview and other relevant documents were stored on an electronic database called E@gle.i. The entirety of that database remained in existence at the time of the trial.

10. [58]

    The evidence in the trial contained reference to other standard police documents. The evidence established that detectives kept what was called a “Duty Book”, which they were obliged to complete for each day spent on duty. I am satisfied that a Duty Book was in effect a daily diary in which each detective recorded their start and finish times, the time they took their meal break, the location from which they were working (including if it changed to any other location), and a very broad or general description of the work they were doing. I am satisfied that the Duty Book did not contain any note of the content of any interview or note of the content of any investigation or document. It simply recorded the duty upon which each detective was engaged. Some of the Duty Books of Detective King were tendered. They demonstrate the typical use by a detective of a Duty Book. [14]

11. [59]

    The Accused also cross-examined many of the detectives who had been members of the JBTF regarding the existence and availability of their standard issue police notebooks. It cannot be doubted that, as a matter of course in the 1980s, all police officers were issued with a police notebook. The evidence in this trial satisfies me that detectives did not use those notebooks to record the results of any of their investigations. Rather, they used a variety of forms of note-taking, which then made their way into running sheets which were regarded as the accurate records of the investigation. Some of the original notes, particularly those made on A4 paper by members of the Ballistics Unit after the information was transferred into running sheets, were placed into a file kept by the Ballistics Unit. However, that was not necessarily a universal practice. I am satisfied that in the organisation and running of the JBTF, it was the running sheets which formed the central, original police records of the JBTF investigations.

12. [60]

    Submissions were made by the lawyer for the Accused on a number of occasions which were critical, indeed trenchantly so, of the quality of the Police investigations. In particular, the lawyer for the Accused made extensive criticism concerning the asserted absence of police records, both those from investigations carried out in the 1980s (including at the scene of each of the Events) and those from investigations carried out by Task Force Reddan. However, it is necessary to note that it is no part of my role in this trial to undertake an enquiry of the kind seen in Royal Commissions into the overall performance of the whole of the police investigations into these crimes. My role in this trial is to decide whether on the evidence proved in the trial, the Crown has satisfied me beyond reasonable doubt of the guilt of the Accused.

13. [61]

    To the extent appropriate I will consider the evidence, including any gaps in the evidence when considering, with respect to each Event, whether the Crown has discharged its onus of proof.

Lengthy Period between Events and Trial

1. [62]

   As is obvious, this trial was heard between 35 and 40 years after each of these Events occurred. It is notorious that evidence today of an event, fact or circumstance which occurred in the 1980s will not be of the same quality as evidence of that event, fact or circumstance given a short time after the occurrence of that event, fact or circumstance.

2. [63]

   A contemporaneous statement of observations, taken shortly after the fact in a formal way, is likely to be more accurate than an unrefreshed recollection of that event taken at a time which is between 35 and 40 years after the event. This does not mean, by itself and without more, that a particular present day recollection is unable to be regarded as truthful or accurate. However, in considering the weight to be given to any evidence, I need to be, and I am, conscious of the extent the delay between the subject of the evidence and the time when it is given can impact the quality of the recollection. I am also conscious that whether the evidence has been given in circumstances where the witness has been able to refresh their recollection from a contemporaneous or reasonably contemporaneous document which is a record of the earlier event can impact the quality of the recollection.

3. [64]

   A question arises as to whether it is either necessary or appropriate to give a specific direction of law with respect to the delay which has occurred. Section 165B of the Evidence Act 1995 is, in my view, applicable to a judge alone trial, and it enables a direction to be given where the Court is satisfied that an accused has suffered a significant forensic disadvantage because of the consequences of delay.

4. [65]

   Both the Crown and the Accused submitted, and I accept, that it is appropriate for the Court to give itself a direction in respect of all exhibits which consist of statements, records of interview or coronial evidence which have been tendered because the witness in question has died or alternatively is unable to give evidence. Both the Crown and the Accused submitted this direction ought cover the significant forensic disadvantage suffered by the Accused from the inability of the Accused, through his lawyers, to cross-examine those witnesses in this trial or to otherwise challenge the accounts which they give directly. I am conscious, and will keep in mind, that significant forensic disadvantage when considering any evidence of any witness who falls into the category just described.

5. [66]

   Both the Crown and the Accused agreed that this direction could be given in a general form, as I have just done, and be applicable to each witness falling within the description noted above, rather than giving such a direction with respect to the evidence of each witness separately.

6. [67]

   Ultimately, at the conclusion of the addresses of the Crown and the Accused, in accordance with an earlier request, an opportunity was provided to the Accused to seek any specific direction under s 165B of the Evidence Act. This opportunity was to enable the Accused to seek any specific directions under s 165B of the Evidence Act if he had identified any particular area in the evidence about which he wished to submit that there was a significant forensic disadvantage, as opposed to the more general warning and direction just given. The Accused made no such application for any specific direction of law with respect to significant forensic disadvantage. Accordingly, no additional direction is given pursuant to s 165B of the Evidence Act.

Directions of Law

1. [68]

   It is appropriate now to set out the directions of law which are given as part of this judgment. These directions set out the principles of law which are to be applied and which I will apply where appropriate in this judgment: s 133(2) Criminal Procedure Act.

2. [69]

   It is the Court’s duty and responsibility to consider whether the Accused is guilty or not guilty of each of the charges and to return a verdict according to the evidence which has been admitted in the trial.

3. [70]

   The Court is to disregard any publicity about any of the events either before the trial commenced or during it. The Court is to disregard what it has heard during pre-trial proceedings, or motions heard during the trial, unless some part of those proceedings has become evidence in the trial. The case is to be decided solely on the evidence admitted in the trial, which consists of the evidence given orally by witnesses, and the contents of any document, or any physical item, tendered by the Crown or the Accused and which has been marked as an Exhibit.

4. [71]

   I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.

5. [72]

   In considering my verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in the determination of the Counts on the Indictment. My task must be undertaken free of prejudice or sympathy in any of its forms.

6. [73]

   The burden of proof of the guilt of the Accused wholly rests on the Crown. That onus rests upon the Crown in respect of every element of each of the offences with which the Accused is charged. It is for the Crown to prove the guilt of the Accused and to prove it beyond reasonable doubt.

7. [74]

   There is no onus of proof on the Accused, who is presumed to be innocent unless and until he is proved guilty beyond reasonable doubt.

8. [75]

   The words “beyond reasonable doubt” are words of ancient origin in the law and are plain words which do not require elaboration. If I have a reasonable doubt about the guilt of the Accused on any one or more of the offences, he is entitled to be acquitted on that offence or for those offences.

9. [76]

   The Accused has called witnesses and tendered documents in answer to the Crown case. By so doing, the Accused does not assume any onus of proof. The onus of proof remains upon the Crown throughout the trial.

10. [77]

    The fact that some or all of the evidence put before the Court by the Accused may not be accepted does not affect the Crown’s onus of proof, and it does not relieve the Crown from proving the guilt of the Accused beyond reasonable doubt.

11. [78]

    The onus which rests on the Crown is to prove the elements of the offences beyond reasonable doubt. The Crown does not have to prove every single fact in the trial beyond reasonable doubt, unless the fact is deemed an intermediate fact.

12. [79]

    I am obliged to consider and assess the evidence given by various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the content and the context of what the witness had to say, the manner in which the witness said it and the general impression which any witness made upon me in giving evidence.

13. [80]

    In considering whether to accept the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part, and reject part, of the evidence of the same witness. In other words, the fact that I do not accept a portion of the evidence of the witness does not mean that I must necessarily reject the whole of the witness’ evidence. I can accept part of the evidence of a witness if I think it is worthy of acceptance.

14. [81]

    The Accused on a number of occasions chose not to participate in interviews with police officers, chose not to answer questions asked of him by police officers and chose not to answer any questions which might have been asked of him during a number of coronial inquests. In so doing, the Accused was exercising his right to silence, which he has in common with all Australians.

15. [82]

    The silence of the Accused on any of these occasions cannot be used against the Accused in any way at all. That is because the Accused was simply acting in accordance with his right to silence in respect of which he had received legal advice from a number of lawyers.

16. [83]

    The Accused has not, in the course of this trial, given any explanation himself in response to the Crown’s case by giving evidence from the witness box. Although an accused may give evidence in relation to the whole or any part of the Crown’s case, an accused may equally elect to give no such explanation. There is no obligation on an accused to give evidence in trial. The Accused is entitled to say nothing and make the Crown prove his guilt.

17. [84]

    The silence in Court of the Accused cannot be used against him. The election of the Accused not to offer an explanation for the whole or any part of the Crown’s case by giving evidence himself does not constitute any form of admission by the Accused and no such inference can be drawn. Nor must an election by the Accused not to give evidence be used to fill in any gaps in the evidence tendered by the Crown. It must not be used in any way in assessing whether the Crown has proved its case beyond reasonable doubt. In particular, I must not speculate about what might have been said in evidence if the Accused had himself given evidence.

18. [85]

    An expert witness is a person who has specialised knowledge based on their training, study or experience. Because they have such knowledge, they may express an opinion on relevant matters that fall within their expertise.

19. [86]

    To the extent that there is any conflict within the evidence of an expert, or else between experts, it is for me to decide which part or parts of the evidence of the experts I accept, and which part or parts I reject. I must remember that any expert evidence relates only to part of the case and that whilst it may be of assistance to me in reaching a verdict, I must reach my verdict having considered all of the evidence which is applicable.

20. [87]

    If, having given the matter careful consideration, I do not accept the evidence of any of the experts, then I do not have to act upon the evidence of the expert in question. I do not have to accept even the unchallenged evidence of an expert.

21. [88]

    The Crown case against the Accused is a circumstantial one. Because of this, I cannot return a verdict of guilty upon any of the charges unless the circumstances are such as to be inconsistent with any reasonable hypotheses other than the guilt of the Accused. To enable me to be satisfied beyond reasonable doubt of the guilt of the Accused on any one or more of the offences, it is necessary that the Crown persuade me beyond reasonable doubt, that the guilt of the Accused is a rational inference, and that it is the only rational inference that the circumstances would enable me to draw.

22. [89]

    This means that the Crown must exclude all reasonable hypotheses consistent with the innocence of the Accused.

23. [90]

    For a hypothesis to be a reasonable one, it must rest upon something more than mere conjecture or supposition, and for an inference to be rational it must rest on something more than mere conjecture or supposition. A bare possibility of innocence does not prevent a conclusion that the Accused is guilty of the offence, so long as the inference of guilt is the only inference open to a reasonable person upon a consideration of all of the facts in evidence.

24. [91]

    In deciding whether there is a hypothesis reasonably open on the evidence that is consistent with the Accused’s innocence in the Crown case, all of the circumstances established by the evidence are to be considered and weighed. The evidence is not to be looked at in a piecemeal fashion, but is to be considered as a whole.

25. [92]

    I remind myself that in a circumstantial case, each fact can inform an understanding of the significance of other facts. Therefore, it is the understanding of the combined significance of all of the facts which informs the issue of whether the Crown has proved beyond reasonable doubt the guilt of the Accused in respect of each of the offences.

26. [93]

    I will refer, for convenience, to the directions of law in the previous five paragraphs as the circumstantial evidence direction.

27. [94]

    The Crown accepts that in the proof of Event 7, which is the bombing of the Kingdom Hall at Casula (being the offences in Counts 11 to 24 on the Indictment), the fact that it was the Accused who broke into the Kingdom Hall on the evening of 13 July 1985, or else in the early hours of 14 July 1985, is an intermediate fact which is an indispensable link in the chain of reasoning which points to the guilt of the Accused on those Counts. Although this fact is not an element of any of the offences, it is necessary for the Crown to establish this fact beyond reasonable doubt.

28. [95]

    In seeking to prove beyond reasonable doubt this intermediate fact, namely, that the Accused was the intruder into the Kingdom Hall on 13 or 14 July 1985, the Crown primarily relied on two circumstances. The first circumstance was that the DNA profile of the Accused is present on two items, a piece of cardboard and a piece of carpet, each of which were stained by blood shed during the break-in on 13 or 14 July 1985. The second circumstance was that this blood shed was the same blood group as that of the Accused.

29. [96]

    The Crown accepted that these two circumstances were central to the proof of the intermediate fact. Consequently, the Accused submitted and I accept that I could not be satisfied beyond reasonable doubt about the intermediate fact unless I was also satisfied by the Crown beyond reasonable doubt of the following matters:

    1. (1)

       that the bloodstains on the cardboard and the carpet left by the intruder were the same blood group as the Accused;

    2. (2)

       that the DNA profile found on the cardboard and the carpet was that of the Accused; and

    3. (3)

       that the DNA profile found on the cardboard and the carpet was sourced from the bloodstains on the items, and not from some other source.

30. [97]

    The Accused submitted that if there remains a reasonable possibility that his DNA was not recovered from the bloodstains on either or both of the cardboard or carpet and therefore not deposited on these items at the time of the first break-in, then he is entitled to be acquitted.

31. [98]

    In my view, each of those circumstances is of central importance in the proof of the intermediate fact. I therefore must be satisfied of each of them, beyond reasonable doubt, by the Crown before the Crown can prove that the intermediate fact as a circumstance in the chain of reasoning is proof of the guilt of the Accused beyond reasonable doubt.

32. [99]

    The Crown has led evidence for the purpose of establishing that the Accused has a tendency to act in a particular way and to have a particular state of mind. Each of these tendencies is relied upon as a circumstance relevant to the guilt of the Accused of each of the offences.

33. [100]

    I direct myself that any evidence that the Accused has either or both of the suggested tendencies cannot be considered as a relevant circumstance in the Crown’s case unless I make several findings. First, I must find that one or more of the acts relied upon by the Crown as tendency evidence actually occurred as an act of the Accused. In making that finding, I do not consider each of the acts in isolation, but consider all of the evidence to determine whether the act relied upon actually took place.

34. [101]

    Secondly, I must find that these acts which I am satisfied occurred prove that the Accused had the particular tendencies alleged by the Crown.

35. [102]

    If I am satisfied both that the acts relied upon have been proved and that either or both of the tendencies posited have been proved, then I am entitled to take the proved tendency or tendencies into account in determining whether the Crown has proved the guilt of the Accused beyond reasonable doubt.

36. [103]

    In so considering, I must bear in mind that the fact that a person has a tendency to have a particular state of mind or to act in a particular way does not mean that he must have had that state of mind or must have acted in that way on the occasion in issue. It is also necessary to keep in mind that I should not underestimate the number of individuals who may have the tendency proved by the Crown, and therefore I must avoid giving disproportionate weight to the tendency evidence.

37. [104]

    In this trial, the Crown relies upon coincidence reasoning. This means that the Crown argues coincidence is not an explanation for the Events which occurred, rather that the Events are causally linked.

38. [105]

    If established, such evidence is available to provide a foundation from which I can draw an inference that the Accused did a particular act. I direct myself that in conducting the process of reasoning from which such an inference may be drawn, I must be satisfied that:

39. [106]

    I direct myself that I cannot reason that because the Accused may have committed one or more of the offences, he is the type of person who will commit criminal activity generally, or that he is a person who is likely to have committed the offences charged.

40. [107]

    I warn myself that a voice identification, which is a part of the evidence in the Crown case, may be unreliable and has been shown to be so in the past. The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that identification evidence, of whatever kind, may turn out to be mistaken. There have been some notorious cases in which witnesses have given evidence of identification which has later been demonstrated to be wrong after innocent people have been convicted.

41. [108]

    Evidence that the Accused’s voice has been identified must be approached with special caution before I accept it as reliable. Even if I think the relevant witness was entirely honest, I must still approach the task of assessing the reliability of this evidence with special caution. The identification of a voice is notoriously liable to be mistaken.

42. [109]

    I must bear in mind that, where an accusatory statement is made in the presence of the Accused, it is not evidence against the Accused of the facts stated, except insofar as the Accused accepts it. It will only be evidence of the facts stated if I find that the Accused’s response or lack of response amounts to an admission that those facts are true.

43. [110]

    Evidence was given during the trial that the Accused made certain oral admissions to police officers. I direct myself that I must approach the evidence of the police officers with caution. This is because the circumstances in which it is alleged that the admissions were made may make the evidence unreliable.

44. [111]

    There are a number of reasons why the evidence may be unreliable. Generally, they indicate that it is easier for police officers to fabricate their evidence than it is for the Accused to have evidence available to challenge what they have said.

45. [112]

    First, although police did have available to them equipment and facilities to record interviews with suspects, in this case there was no electronic recording made. Even if I accept any explanation that was given for no electronic recording being made, the fact remains that there is no confirmation that those admissions were made independent of the police who say that they were made by the Accused.

46. [113]

    Secondly, there was no-one present during the conversation except the Accused and the police officers. That state of affairs is not improper. The police officers were perfectly entitled to interview the Accused alone. What this means, however, is that there was no independent person present who might have been able to support the Accused’s challenge to the police evidence.

47. [114]

    Another matter I must take into account is that the Accused had no opportunity to make any note of his conversation with the police officers at the time of that conversation. A note made by the Accused at the time might have enabled him to challenge the evidence of the police officers more persuasively.

48. [115]

    I must also take into account that police officers are generally experienced in giving evidence in court. It is not an easy task to decide whether a practised witness is telling the truth or not. If a witness appears to be confident and self-assured, it does not necessarily follow that the witness is giving honest evidence.

49. [116]

    It is necessary, although there are multiple counts on the Indictment, that I give consideration to the counts individually, and that I bear in mind that the mere fact that the Accused may be guilty of one of the counts of the Indictment, does not mean that he is thereby guilty of all counts on the Indictment. It is necessary to consider the evidence with respect to each count and reach a conclusion with respect to each count.

Judgment Architecture

1. [117]

   In this judgment I have not considered the Crown case by following the Events in chronological order. I am not obliged to consider it in that way. It is open to me to analyse the evidence in any sequence which I choose.

2. [118]

   I have commenced with an analysis of the last Event in time, Event 7 – the bombing of the Kingdom Hall.

3. [119]

   A significant part of the Crown case relies upon coincidence reasoning and tendency evidence. As the directions which I have just given demonstrate, before I can engage in coincidence reasoning or rely on any tendency evidence, I need to be satisfied that the guilt of the Accused has been demonstrated beyond reasonable doubt in respect of at least one Event.

4. [120]

   Accordingly, my analysis concerning Event 7 does not rely on either tendency or coincidence reasoning. I have followed my conclusions on Event 7 by turning to consider the Crown case insofar as it relies upon coincidence reasoning and tendency evidence.

5. [121]

   I have followed that by considering the Events in an order which seemed to me to be logical and appropriate.

6. [122]

   Where the Accused has made submissions in relation to a particular Event that the Crown has failed to exclude a hypothesis reasonably open on the evidence which is consistent with the innocence of the Accused, as the Crown is obliged to do with a circumstantial case, I have dealt with that submission insofar as it relates to the particular Event.

7. [123]

   However, the Accused submitted that with respect to Dr Silvano Mariti, Mr Shoukat Abroo and the members of an organisation known as the Family Law Action Group (“FLAG”), the Crown has not excluded these alternatives with respect to a number of Events. I have considered each of these three potential hypotheses in a separate part of my judgment, because it is more convenient to do so separately from each Event.

8. [124]

   I have at all times kept in mind that the Crown’s case is a circumstantial one and that I must comply with the circumstantial evidence direction. I have also kept in mind that all times the onus of proof of the guilt of the Accused rests upon the Crown, and that onus is beyond reasonable doubt. Each of these directions has been in the forefront of my mind in all of the considerations which follow.

9. [125]

   At approximately 10.04am on Sunday 21 July 1985, device bomb detonated at the Kingdom Hall of Jehovah’s Witnesses, in Verbena Avenue, Casula, resulting in the death of Graham Wykes and serious physical injuries to a number of other members of the Lurnea Congregation which was meeting at the Kingdom Hall at that time.

Counts on the Indictment

1. [126]

   The murder of Graham Wykes is Count 11 on the Indictment. Counts 12 – 24 concern the alleged grievous bodily harm suffered by 13 members of the congregation who were present in the Kingdom Hall. Those individuals are: Joy Wykes (Count 12), Miranda Wykes (Count 13), Alaine Wykes (Count 14), Sue Schultz (Count 15), Peter Schultz (Count 16), Jodie Edwards (Count 17), Jesse Mazzotta (Count 18), Susan Rushan (Count 19), Paul Hahn (Count 20), Rita Ridikas (Count 21), Ioan Toplicescu (Count 22), Lillian Hinds (Count 23) and David Winder (Count 24).

2. [127]

   It is not in issue that the person who placed and caused the explosion murdered Graham Wykes.

3. [128]

   I have found in [803] that I am satisfied beyond reasonable doubt that the physical injuries suffered by each of these named individuals amounted to grievous bodily harm. It is accepted and not contentious that the explosion caused injuries to the individuals named on the Indictment and that, given the nature of the explosion, the perpetrator of the explosion would have intended to cause such harm.

4. [129]

   The only outstanding issue requiring a determination for Counts 11 to 24 on the Indictment is whether the Crown has proved beyond reasonable doubt that the Accused was the person who placed the bomb, and caused the explosion at the Kingdom Hall on Sunday 21 July 1985.

Crown Case in Summary

1. [130]

   The Crown case is that the Accused constructed the bomb using a high explosive, which was Molanite, and then placed the bomb under the platform at the Kingdom Hall at some time on the night of Saturday 20 July 1985 or early in the morning of Sunday 21 July 1985. The bomb, which was activated by a timing mechanism, detonated at 10.04am during the Sunday meeting of the Lurnea congregation, which had commenced at about 9.30am.

2. [131]

   The Crown alleged that the Accused was acting in retaliation against the Lurnea congregation for the role some members of that congregation played in assisting his ex-wife, Andrea Blanchard, and their daughter, Trudi, to move from Sydney to a place on the mid-North Coast of NSW without his knowledge or consent. This had the effect of preventing the Accused from exercising his Court-ordered access rights to Trudi. The context for these events was the ongoing Family Court proceedings between the Accused and Ms Blanchard. The Family Court proceedings involved two primary disputes: a custody and access dispute which continued to control the Accused’s access to Trudi and a property dispute concerning primarily whether the former matrimonial home (in which the Accused lived) ought to be sold.

3. [132]

   It is an essential part of the Crown Case that a break-in occurred at the Kingdom Hall a week before the explosion, namely at some time on the night of Saturday 13 July 1985 or early in the morning of Sunday 14 July 1985. The Crown alleged that the intruder on this occasion was the Accused, and that he was undertaking a reconnaissance to find out how the Kingdom Hall could be entered covertly and where a bomb may be placed without being discovered. The Crown noted that the same window was observed as broken in the same manner a week later by members of the Lurnea Congregation, right before the explosion on 21 July 1985.

4. [133]

   The Crown case that the Accused was the intruder of the first break-in relies upon DNA profiles which were developed from blood stains observed at different locations on 14 July 1985 including on the carpet inside the Kingdom Hall and on a piece of cardboard which was originally a part of a pile of cardboard cartons stacked in a storage area behind the raised platform in the Kingdom Hall. Those items were retrieved during the investigation after the bomb exploded on 21 July 1985. It is the Crown’s case that the DNA profiles obtained from those bloodstains are of the Accused.

5. [134]

   The Crown’s case relied on tendency and coincidence reasoning to link the two break-ins to the Kingdom Hall one week apart as being the work of the same person, namely the Accused.

Accused Case in Summary

1. [135]

   The Accused denied constructing, planting or detonating the bomb at the Kingdom Hall. The Accused submitted that a reasonable hypothesis consistent with his innocence was that another individual was responsible for those acts, with the result that the Crown case against him was not proved beyond reasonable doubt.

2. [136]

   The Accused submitted that because it is accepted by the Crown that his presence in the Kingdom Hall on 13/14 July 1984 (or his identity as the intruder at the first break-in on 13/14 July) is an intermediate fact in a chain of reasoning in proof of his guilt beyond reasonable doubt, the Crown is obliged to prove that his DNA is sourced from the bloodstains on the cardboard and carpet found in the Kingdom Hall, also beyond reasonable doubt. The Accused submitted that if there remains a reasonable possibility that his DNA was not recovered from either or both of the bloodstains on the cardboard or carpet, and therefore not deposited on these items at the time of the first break-in, he is entitled to be acquitted.

3. [137]

   Put differently, the Accused raised the reasonable possibility that his DNA was deposited on the carpet and cardboard at a later time and not when the intruder’s blood was shed as a hypothesis consistent with his innocence.

4. [138]

   The Accused submitted that there were issues with the continuity of the two exhibits containing the bloodstains (the carpet and the cardboard).

5. [139]

   The Accused raised questions about the evidence of Detective Sheather and Constable Constable, and alleged inconsistency in their accounts of when the carpet and cardboard was handed from Sheather to Constable. The Accused relied on the lack of contemporaneous notes or records corroborating the accounts of Detective Sheather and Constable Constable to support a submission that the continuity of handling of these items may have been broken.

6. [140]

   The Accused further submitted that the Crown cannot exclude the reasonable possibility that the bloodstains on the carpet and cardboard were from one of the number of victims of the bombing, given the two items were collected after the bombing and not after the first break-in.

7. [141]

   Finally, the Accused submitted that the Crown is unable to establish that the storage of the items was sufficient to preserve their integrity or that they were not tampered with over the decades that they were held in police custody.

8. [142]

   The Accused noted that various members from the Lurnea Congregation gave evidence in the trial that there was a substantial amount of blood found in the Kingdom Hall after the first break-in. When the Accused was detained by Detectives Wood and Gersbach on 30 July 1985, neither Detective observed any injury to his body.

9. [143]

   In the Accused’s submission, the fact that no injury was observed raises a reasonable doubt in the Crown’s case. The Accused submitted that a wound or scarring would have been visible on his body 16 days later if he were the intruder and had sustained an injury which caused him to lose a substantial amount of blood, as the witnesses had described.

10. [144]

    The Accused pointed to evidence that an unidentified man went to the surgery of Dr Ewan Watson on Monday 15 July 1985 with a deep laceration on his right hand. The Accused submitted that having regard to all of the circumstances surrounding this surgery visit, the Crown could not exclude this unidentified individual from carrying out the bombing at the Kingdom Hall.

Kingdom Hall – General Layout

1. [145]

   Before considering the substantive Crown case, it is first appropriate to consider the layout of the Kingdom Hall as established by the evidence in the trial.

2. [146]

   The building, which was generally rectangular in shape, fronted Verbena Avenue, Casula. It was aligned in a generally east-west direction. The main entrance was at the western end, nearest to Verbena Avenue. After going through the main entrance, access to the main Hall could be obtained by going through the lobby area. The main Hall had a wooden parquetry floor when it was constructed. By the time of the explosion, the floor had been fully carpeted.

3. [147]

   At the far, or eastern, end of the Hall was a raised platform area. Behind the platform were two small storage areas. These areas were located respectively on the north-eastern corner and south-eastern corner of the Kingdom Hall. They were connected by a narrow passageway, about half a metre in width, along which an adult could pass. [15] The north-eastern storage area had a door which permitted access back into the Hall.

4. [148]

   Adjacent to this north-eastern storage room were a set of double doors which opened from the main Hall to the outside of the building. These doors opened to a driveway and rear area which, via three or four steps, led up to an area used as a carpark. [16] The double doors were fitted with a lock and ordinarily were kept locked at all times (unless in use). The door could be opened from the inside without a key, but a key was required to gain entry from the outside. [17]

5. [149]

   The platform area did not extend fully across the width of the Hall and was similar in shape to a half hexagon when viewed from the centre of the Hall. The rear of the platform, being the other half of the hexagon shape, was concealed by side and rear curtains. Above the platform was a timber canopy which largely replicated the shape of the platform.

6. [150]

   Two doors led from the platform to the rear areas used for storage: one to the north-eastern storage area and the other to the south-eastern storage area.

7. [151]

   The platform was constructed with timber frames and supports. The floor of the platform was timber with carpet laid over it. The carpet was the same type and pattern as that in the main part of the Hall. The front or external part of the platform was finished with decorative wood panelling in the space between the floor of the Hall and the floor of the platform. The stage appeared to be a solid structure with no points of access when viewed from the main Hall. Mr Redfern, who together with his father assisted in the construction of the platform, confirmed that beneath the platform was a flat bare concrete floor which was smooth. This concrete slab was the base of the entire building, [18] but the part under the stage had not been covered with either timber or carpet. The height between the concrete floor and the platform was about 30cm or perhaps a little more. An adult male could slide their body, on their stomach or back, into the space between concrete floor and the platform. [19]

8. [152]

   Exhibit 32, which is a series of (not to scale) sketches drawn by Mr Redfern of the typical construction of a platform in a Kingdom Hal which was replicated in Casula, indicated that the stage was supported by timber beams which were about 4 inches x 2 inches in size. [20] The beams were supported by noggins which were spaced vertically between an upper beam (immediately under the stage floor) and a lower beam, which rested on the concrete floor. The beams ran in an east-west direction and were connected immediately under the platform floor by joists. At the rear of the platform a similar beam ran in a perpendicular direction to the other beams. It was supported by noggins which did not rest on a large beam, but rather rested directly on the concrete slab.

9. [153]

   The consequence of this was that access could readily be gained to the space underneath the platform from the rear of the platform. This rear access point was the only way to gain access to the area under the platform, as there was no access point from the main Hall in front of the platform. [21] Access from the rear of the platform was limited only by the horizontal distance between the beams which ran in an east-west direction, which was about 1 metre. [22] Generally speaking, the platform was not of particularly heavy construction. [23]

10. [154]

    The only things of value kept in the Kingdom Hall were the electrical sound system and a piano. [24] No records were kept in the Hall. [25]

11. [155]

    Along each outside wall of the building, which faced respectively north and south, were a series of windows which were each of an identical design and construction. There were two sets of windows with a set of double doors on the northern wall of the building. There were five identical windows on the southern wall of the building, four of which opened into the main Hall. [26]

12. [156]

    The design of each window had three components. There was a fixed pane of glass at the top and bottom of the window. The centre and largest pane, which was hinged at the top, could open outwards at the bottom. The opening of this window was achieved through a winder mechanism which was mounted on the horizontal piece of timber which separated the lower fixed pane and the hinged pane. According to Mr Redfern’s evidence, the maximum opening of the hinged window was about 12 inches, which he thought was a sufficient space to enable a person to climb through if they wished. [27] Mr Clapp, another member of the Lurnea congregation had opened the windows over the years prior to July 1985. He estimated that the windows could be opened for a distance of 30‑40cm. [28] Mr Biddle, another member of the congregation, said that the windows opened about a foot, [29] which is consistent with the previous estimates.

13. [157]

    These three witnesses were doing their best to give an accurate estimate of the distance which the window could open. It is not possible to make a precise factual finding about this distance. It is not essential to do so. I am satisfied that the window pane could be wound open to at least 30cm and up to a maximum of 40cm. There may have been a variation within this range depending on the state of maintenance and repair of any particular window.

14. [158]

    In cross-examination, Detective Russell agreed with the proposition put to him by the lawyer for the Accused, that the distance the window would wind out to was about 30-45cm (12-18 inches approximately). He also expressed the opinion that a person could fit through the open window with a gap in the range he identified whilst the winder was still attached. [30] In re-examination, Detective Russell explained the basis of his opinion, which included his observation of a male climbing through a replica window which was open to a distance of about 30cm. The replica window had been produced by a manufacturer based upon information provided by the Police. I am satisfied that the replica window was a reasonably accurate reproduction of the windows in the Kingdom Hall. I am also satisfied from both the evidence of Mr Redfern and Mr Clapp, which I accept, and the opinion of Detective Russell, which I accept was soundly based on a reconstruction with the replica window, that it was possible for an adult male to climb through the hinged window into the Hall when it was opened to about 30cm.

15. [159]

    I am also satisfied that a gap at the bottom of a hinged window of the kind in the Kingdom Hall in 1985 which was at least 30cm would be more than sufficient for an adult male of average size to climb through.

16. [160]

    The storage areas at the rear of the Hall were used, on the evidence, for a range of different purposes. No doubt that reflected the activities that occurred in the Hall from time to time. However, one regular use of the storage areas was to keep cardboard boxes which had been used to transport books and publications from the central offices of the Jehovah’s Witnesses at Ingleburn to the Kingdom Hall at Casula for distribution to, and use by, the members of the various congregations which used the Kingdom Hall. [31] Once the boxes were unpacked, the publications were kept in a room at the front (i.e. the western end) of the Kingdom Hall. The boxes were flattened and put into one or other or both of the storage areas. At intervals, usually monthly, the boxes were taken out by one of the members of a congregation to be burnt in an incinerator, which was located at the back of the Kingdom Hall in the carpark area. [32]

17. [161]

    The cartons were cheaply manufactured, but capable of holding about 30 bibles of the ordinary size. Mr Redfern said that the cartons were stood up against the back wall and were not stored under the platform. It seems that the cartons were also stored flat on the floor of the storage areas. Mr Redfern gave a description of the size of the cardboard boxes as being 18 inches x 12 or 15 inches, “… so that their depth and height would be roughly the same and a fraction longer in their length”. [33] Mr Finlay estimated the boxes to be about 18 inches x 12 inches x 12 inches. [34]

18. [162]

    The Kingdom Hall was secured when the only two external doors were closed and locked. The main door at the front led into the foyer and the second external door were the double doors which led into the Hall on the northern wall towards the north-eastern corner. The keys were held by the Elders of the three congregations which used the Hall, and as well, designated members of each of those congregations. The doors required keys to open them from the outside, but did not require keys to open them from the inside of the Hall. [35] There was no burglar alarm fitted to the Kingdom Hall in 1985.

Kingdom Hall – General Use

1. [163]

   In 1985, the three separate congregations that used the Kingdom Hall were the Lurnea, Liverpool and Casula congregations. Each congregation met on two days each week and used the Kingdom Hall at different times. [36] There was a sign at the front of the Kingdom Hall which showed when each congregation was due to meet. As at July 1985, the sign was inaccurate as to the time on a Sunday that the Lurnea congregation was due to meet.

2. [164]

   As at July 1985, the Lurnea congregation met at the Kingdom Hall at 9.30am on each Sunday. That was a regular meeting time for the congregation during that year. Meeting times were rearranged by the congregations annually. [37]

First Break-In at Kingdom Hall – 13/14 July 1985

1. [165]

   The first significant aspect of the Crown case is the alleged break-in that happened on the evening of 13 July 1985 or the morning of 14 July 1985, one week before the explosion at Kingdom Hall.

2. [166]

   On the morning of Sunday 14 July 1985, members of the Lurnea congregation arrived at the Kingdom Hall for their meeting which was due to start at 9.30am, and discovered that a break-in had occurred.

3. [167]

   Leaving aside the issue of what was observed by a number of individuals about the location, nature and amount of observable blood in the form of blood-stains, the accounts of those who attended on that morning were substantially consistent (with variations which I do not regard as significant).

4. [168]

   I am satisfied of the following facts with respect to the first break-in:

5. [169]

   The Police were contacted by a member of the Lurnea congregation. Two uniformed officers attended and were shown the damaged window and the bloodstains, including the areas behind and to the side of the platform. There was no evidence in this trial which identified these two police officers, or any enquiries which they made to identify the intruder.

6. [170]

   The evidence is not consistent as to when the police officers attended. One witness recalled them being present before the meeting commenced. Another recalled that it was after the meeting had concluded. Nothing of consequence turns on this particular difference as to when the police officers attended, because no evidence came from anything which they may have done. It will in due course be necessary to return to consider the evidence about the observation of the volume or amount of blood, and particular features of it, which is the subject of some degree of conflict in the evidence. This further analysis will be dealt with as part of the body of evidence upon which the Crown relies to prove as an indispensable link in the chain of reasoning to the guilt of the Accused on each of the 13 counts which comprise Event 7, that the Accused was the person who broke into the Kingdom Hall on 13/14 July because it was his blood that was deposited on various items in the process.

Second Break-In and the Explosion at the Kingdom Hall – 21 July 1985

1. [171]

   One week later, on 21 July 1985, the explosion occurred in the Kingdom Hall. The Crown case is that this explosion was preceded by a second break-in with significant similarities to the first break-in.

2. [172]

   Mr Manfor Rebolledo was a member of the Casula congregation which also used the Kingdom Hall. It was a predominantly Spanish-speaking congregation. His role was to ensure the security of the Kingdom Hall after use by the Casula congregation. [46]

3. [173]

   The Casula congregation was accustomed, in July 1985, to meet on Wednesday evenings and on Saturday afternoons between 5pm and 7pm. On Saturday 20 July 1985, Mr Rebolledo was at a social function with other members of the congregation at the home of Mr Capparelli. At about 11.15pm, having been told mistakenly that the Kingdom Hall had been broken into, Mr Rebolledo, Mr Capparelli and Mr Novion went to the Kingdom Hall to ascertain whether it had been broken into and to check on its security. These three men carefully checked the Kingdom Hall and confirmed that there had not been any break‑in, there was no damage to the property and that the Kingdom Hall was secure. [47]

4. [174]

   I am satisfied that by the time they left, which was around 11.40pm, the Kingdom Hall was secure and undamaged.

5. [175]

   On the following morning, Sunday 21 July 1985, the Lurnea congregation was again scheduled to meet at 9.30am.

6. [176]

   A number of members of the Lurnea congregation, who arrived in advance of the meeting, gave evidence of what they observed and what they did up until a bomb exploded at about 10.04am.

7. [177]

   From their evidence, I am satisfied of the following facts:

8. [178]

   The meeting commenced at 9.30am. Shortly afterwards, a guest speaker, Mr David Winder, commenced his address. [52]

9. [179]

   The address by a guest speaker generally lasted about an hour. At about 10.04am, a bomb, which was situated under the platform, exploded. The explosion caused the death of Mr Graham Wykes, serious injuries to many of the congregation and extensive damage to and the substantial destruction of the Kingdom Hall. The time of the explosion was most accurately and poignantly recorded by the clock on the western wall of the Hall, which was later photographed as having stopped at 10.04am. [53]

10. [180]

    The explosion of the bomb left a large crater in the concrete floor under the platform. The crater is clearly visible in a large number of photographs (which are exhibits) that were taken on the day of the explosion and over subsequent days.

11. [181]

    I accept the evidence and measurements of Detective Sheather as to the crater size and its location, recorded contemporaneously on 1 August 1985. [54] Detective Sheather’s measurements were:

12. [182]

    This assessment means the bomb would have been positioned (prior to the explosion) under the platform and on the left (northern) side of the centre line of the platform when viewed from the Hall. It also placed it about 1.1 metres from the rear edge of the platform.

13. [183]

    My own assessment from the many photographs tendered in evidence accords with the observations and measurements of Detective Sheather.

14. [184]

    Since the front and top of the platform were completely covered, either by timber panelling or else by floorboards and carpet, the most obvious point of access in order to position the bomb under the platform was from the rear of the platform. As I have earlier described, the rear of the platform was open and easily accessible from the narrow passageway which linked the north‑eastern and south‑eastern storage areas. It was also easily accessible from either of the storage areas. Exhibit 86 is a diagrammatic representation which demonstrates how this could be achieved.

15. [185]

    I am satisfied that when members of the Lurnea congregation arrived on Sunday 21 July 1985, for their meeting, there was no damage or other indication that the timber panelling which sealed front of the platform had been removed and replaced. Nor was there any indication that the carpet and floor boards on top of the platform had been lifted and replaced.

16. [186]

    I therefore consider that there is no reasonable possibility that the bomb was positioned under the platform through any method other than being inserted from the rear of the platform. This could have been achieved by lifting the bomb and placing it there, or alternatively by laying it on a sheet of cardboard or plywood and sliding it into position on the concrete floor in the position directly above where the crater was later discovered.

17. [187]

    I am satisfied that the bomb was inserted from the rear of the platform. I am also satisfied that the intruder on the occasion of the second break-in must have accessed the storage area by walking from the area of the broken window, across the platform, and through one of the doors at the rear of the platform either directly into the northern-eastern storage area or else via the south‑eastern storage area along the narrow passageway behind the platform.

Were the Two Break-Ins a Coincidence?

1. [188]

   The Crown submitted that I would be satisfied that the two break-ins, one week apart, did not occur by coincidence. The Crown relies on coincidence reasoning to establish that the intruder was the same person on each occasion beyond reasonable doubt. I am persuaded beyond reasonable doubt that the Crown has established the two break-ins did not occur by coincidence.

2. [189]

   In my assessment, the following facts and circumstances constitute similarities of such a specific and striking nature that it is highly improbable that the successive break-in occurred by coincidence:

   1. (1)

      the break-ins each occurred between late Saturday evening and Sunday morning, seven days apart – i.e. on successive weekends;

   2. (2)

      the break-ins preceded the Sunday morning meetings of the Lurnea congregation and not meetings of the other two congregations which used the Kingdom Hall;

   3. (3)

      the same south-eastern window was broken on each occasion to facilitate entry. The same pane of glass was broken and the window wound open to permit entry by an adult into the Kingdom Hall;

   4. (4)

      on each occasion, nothing was taken, no damage was done (except to the window pane used for entry) and nothing was interfered with;

   5. (5)

      the intruder walked one path on the first occasion as indicated by the presence of blood on the carpet, the concrete floor of the storage area and the pile of cardboard boxes and, I am satisfied, must have walked the same or substantially similar path again on the second occasion in order to position the bomb under the platform from the rear;

   6. (6)

      on neither occasion were any neighbours or passers-by alerted to the presence of the intruder in the Kingdom Hall. This meant that the intruder on both occasions had to minimise the noise of breaking glass, and also to not use the lights in the Kingdom Hall or torchlight where they could be observed by the neighbours or passers-by; and

   7. (7)

      although not apparent until after the bomb exploded on Sunday 21 July 1985, I am satisfied that both of the break-ins were linked by the intention of the intruder. On the first occasion, the intruder was carrying out a reconnaissance to test the best method of entry and to find where it might be possible to place a bomb which would be concealed from members of the congregation. The second break-in was to achieve the objective of placing the bomb beneath the platform.

3. [190]

   To me, in the application of my common sense, two events happen by coincidence if they do not have any apparent causal connection but have occurred independently of each other and in that respect, randomly.

4. [191]

   The facts and circumstances to which I have referred above demonstrate factual similarities in the method and timing of breaking into, and the mode of entry to, the Kingdom Hall. They also demonstrate a clear connection or similarity of purpose. In combination, I am satisfied that no conclusion is open other than that the break-ins were not coincidental in the sense that they occurred randomly. This provides a sufficient basis for me to be satisfied beyond reasonable doubt that the intruder was the same person on each occasion.

Was the Intruder the Accused?

1. [192]

   Since I am satisfied the intruder was the same person on both the first and second break-in, it is now necessary to turn to consider whether the Crown has proved beyond reasonable doubt that the intruder was the Accused. The guilt of the Accused on Counts 11 to 24 depends upon proof of that fact beyond reasonable doubt.

2. [193]

   In order for the Accused to be found guilty of counts 11-24 on the Indictment, it is essential that the Crown prove beyond reasonable doubt that the intruder was the Accused. That is because it is the Crown case that it was the intruder who was responsible for placing and detonating the bomb.

3. [194]

   The Crown’s case in relation to Event 7 (Counts 11 to 24) is a circumstantial one. It is necessary in considering the sufficiency of the evidence in the Crown case in proof of the guilt of the Accused that I keep in mind and apply the circumstantial evidence directions fully set out at [88]-[92] above.

4. [195]

   The Crown submitted that the following circumstances are relevant in determining whether it has proved beyond reasonable doubt that the Accused was responsible for the two break-ins and the explosion of the bomb at the Kingdom Hall:

   1. (1)

      opportunity – the Accused was not on duty for the NSW Fire Brigade, at the Liverpool Fire Station, which was his workplace, and consequently was free to commit the break-ins and to place the bomb;

   2. (2)

      physical proximity – the Accused lived in physical proximity to the Kingdom Hall. In a straight line, his house was about 400m from the Kingdom Hall; on foot or by car the distance was approximately 1km – but still very close. Accordingly, the Accused could easily travel to the Hall from his home;

   3. (3)

      motive – there is evidence that the Accused disliked the members of the Lurnea congregation because they had assisted his ex-wife, Ms Andrea Blanchard, to leave Sydney with their daughter, Trudi, and had refused to provide any assistance to him when he made enquiries as to where they were living;

   4. (4)

      bloodstains – the DNA profile found in the blood deposited during the first break-in on 13/14 July 1985, which was recovered from a piece of carpet and a piece of cardboard after the bomb exploded on 21 July 1985, matched the DNA profile of the Accused; and

   5. (5)

      facial wounds - when he returned to duty on the roster immediately after 14 July 1985, being Monday 15 July 1985, the Accused had a number of facial wounds. These wounds could have been sustained during the break-in and could have been the source of the bleeding inside the Kingdom Hall.

Opportunity

1. [196]

   Whether the Accused had the opportunity to commit the crimes is one circumstance which is relevant to whether the Crown has proved beyond reasonable doubt the guilt of the Accused of each of Counts 11 to 24 on the Indictment, arising from the explosion of the bomb at the Kingdom Hall at Casula and the other counts more generally. This circumstance primarily hinges on whether the Accused was not at work, or undertaking some other work-related activity, at the time any of the offences on the Indictment were committed.

2. [197]

   The Crown called Mr Christopher Jurgeit, who had formerly been a long‑serving member of the NSW Fire Brigade. He started employment with the Fire Brigade in 1979 and retired in 2016, having reached the rank of superintendent. He had occupied the role of Staff Officer for the Deputy Commissioner of Emergency Management. He had been the Station Officer at Liverpool Fire Station whilst the Accused worked there. At the request of investigating police, Mr Jurgeit examined a number of original Occurrence Books for the Liverpool Fire Station and also one from the Fairfield Fire Station.

3. [198]

   An Occurrence Book was a standard record kept at every Fire Station. [56] The officer assigned to Watch Room duties was required to keep a record contemporaneously of who was and was not on duty, which officers were on annual or sick leave, and whether any officer who attended for their rostered duty was deployed to another fire station for that shift. [57] As well the Occurrence Books recorded when a fire happened, or when the personnel and vehicles on duty left the station for any reason. At the end of each shift, the Station Officer, who had been in charge of the shift would sign the Occurrence Book entries for that shift, thereby certifying their accuracy.

4. [199]

   I am satisfied that the Occurrence Books are contemporaneously kept records by different individuals who had no interest in doing anything other than accurately recording what had occurred. In my view they are accurate and reliable records.

5. [200]

   Mr Jurgeit, whose evidence I entirely accept and which was not the subject of any challenge or adverse submission as to its accuracy, examined the following Occurrence Books:

6. [201]

   Mr Jurgeit’s evidence was that by reference to the Occurrence Books, [58] copies of which were tendered in evidence, the Accused was not rostered to work at any of the times of any of the Events. He also was not in attendance at either of these fire stations at the times of the incidents for any other reason. Put differently, the effect of Mr Jurgeit’s evidence was that either at the specific time of an Event, such as the shooting of Justice Opas or else at the relevant time leading up to the Event (i.e. when it might be thought that the perpetrator was engaged in planning and undertaking the placement of a bomb), the Accused was not rostered on duty and was not in attendance at the fire station from which he ordinarily worked.

7. [202]

   Mr Jurgeit knew the Accused because he had worked as a Station Officer at the Liverpool Fire Station whilst the Accused also worked there. He observed this with respect to the Accused:

8. [203]

   This remark was not challenged.

9. [204]

   The information provided by Mr Jurgeit corresponded with the entries in the Occurrence Books, [60] and also the statement of the late Superintendent, Athol Baker dated 16 September 1985. [61] I am abundantly satisfied from all of these sources that the Accused was not on a rostered shift or otherwise in attendance at his home fire station at any of the relevant times described above, i.e. in the period leading up to the placing of a bomb and at the time that any of the Events occurred.

10. [205]

    During the period between 1979 and 1986 (at least), it was possible for a fireman to be on duty at a different fire station during some of the four day period when they were not rostered on for duty at their usual fire station. This was a practice known as “Recall”. In the event that a fire station needed additional staff, the District Officer was entitled to, and did, “recall” a fireman to duty at that station. If that occurred, a record would not ordinarily be kept in the Occurrence Book of the fireman’s usual station, rather a record would be made in the Occurrence Book of the station where the duty was being served. [62] However, the Station Officer at the fireman’s usual station would keep a record of such duty for the purpose of ensuring that payment was correctly made to the fireman based there. However, that record was separate from the Occurrence Book.

11. [206]

    The Accused made submissions to the effect that, because the Crown did not exclude the possibility that the Accused may have been on Recall when the events occurred, the Crown could not establish that the Accused had requisite opportunity to commit the offences on the Indictment.

12. [207]

    The Accused did not ever make a submission or seek a specific finding that he was actually on Recall, let alone specify a station to which the evidence suggested that he was recalled or a person who may have served on Recall with him. Rather, the submission appeared to be that because the Crown did not exclude this as a general possibility, the Crown case on opportunity must fail.

13. [208]

    There is no evidence of any day or days when the Accused was “recalled” to duty at a fire station which was not his usual one. Nor is there any evidence that as a matter of practice or routine, firemen were made the subject of Recall regularly or, alternatively, evidence that they were the subject of Recall for an average number of days per month (or other period).

14. [209]

    Such evidence, if it had been adduced either in cross-examination of any of the firemen who gave evidence, or from a witness in chief, might have enabled an inference to be readily drawn as to if and when the Accused might have been recalled to duty. Such evidence may have enabled an assessment to be made of the likelihood that the Accused may have been on recall at a time relevant to one or more of the Events. There was no such evidence.

15. [210]

    Ms Blanchard was not asked whether, during the period of their marriage and cohabitation, the Accused worked periods on Recall on days which were otherwise his rostered days off.

16. [211]

    There is some evidence (obtained in a leading fashion during cross‑examination) from Mr Gore, a fellow fireman, [63] that the Accused did work overtime, an expression which may have included Recall, but which did include estimated hours at the home station. However, there were no facts identified by Mr Gore as to the basis for the evidence given by him. After all, if a fireman were to be recalled to duty, it would be while they were not on their rostered duty. The other firemen in their platoon would also be on their rostered days off and would not have known of any Recall unless they too were recalled to the same home station.

17. [212]

    I did not get the sense, from observing and listening to Mr Gore during this part of his cross-examination, that he was at all comfortable with his knowledge of any detail about actual occasions when the Accused was recalled to duty. I am unable to place any real weight on this aspect of his evidence, which I thought was unconvincing. Particularly was this so because of the leading nature of the questioning which resulted in the evidence.

18. [213]

    There exists little no evidence in the trial upon which to base a hypothesis that the Accused was actually on Recall at the time of, or leading up to, the explosion at the Kingdom Hall.

19. [214]

    There was evidence in the trial that the Accused gave two interviews with the media on 11 April 1986, during the Coronial Inquest into the explosion at the Kingdom Hall and the death of Mr Wykes. The topic of whether he was at work at the time of any of the Events occurring was touched upon in one of those interviews. [64]

20. [215]

    In the interview with David Reid, the Accused was asked this question, and gave this answer:

21. [216]

    In the course of this interview, the Accused did not say anything about the practice of Recall, or that at any particular time relevant to any of the Events, he was in fact on Recall at any particular Fire Station. I accept that the Accused was not under any obligation to respond to any questions asked of him by a broadcaster. However, the fact is that this evidence does not include any reference to Recall, and so does not provide any evidentiary basis that the Accused had been recalled to duty at any particular time, or on any particular day.

22. [217]

    The question for resolution is whether the Crown has proved on the balance of probabilities that the Accused had the opportunity to carry out the two break-ins to the Kingdom Hall, and on the second break-in to position the bomb under the platform. The Crown’s case is that, based on Mr Jurgeit’s evidence, the Accused was not rostered on for duty at the Liverpool Fire Station at or around the time when the break-ins occurred.

23. [218]

    There is evidence of a work practice that it was possible for firemen to carry out overtime, either at their home station or else by being recalled to work at a different Fire Station.

24. [219]

    There is some, but not very convincing, evidence that the Accused did work some overtime. If that was carried out at his home Fire Station, then it would have been recorded in the Occurrence Books which have been examined by Mr Jurgeit. I am satisfied that the Accused was not working overtime at his usual home Fire Station.

25. [220]

    There is no evidence that on any particular day or at any particular time, the Accused was recalled to duty at a Fire Station other than his home Fire Station. But the evidence does not provide any information about how often firemen, generally, were recalled to duty, and whether the Accused himself was ever recalled.

26. [221]

    The Station Officer for the Accused said of him that he did not go out of his way to do more work than necessary, which suggests that the Accused was unlikely to have sought out any working during his rostered days off by way of Recall.

27. [222]

    Having regard to this evidence, I am satisfied that the Crown has proved on the balance of probabilities that it is most unlikely that at any of the times relevant to the offence the subject of the Indictment, the Accused had been recalled to duty. I do not regard the evidence about the practice of Recall as establishing a reasonable possibility that the Accused was recalled to duty at any relevant time.

28. [223]

    I am satisfied that the Crown has established that the Accused had the opportunity to break in to the Kingdom Hall on 13/14 July 1985 and the following week, 20/21 July 1985, because he was not carrying out any work as a fireman either at his usual or home Fire Station, or at any other Fire Station.

29. [224]

    Having regard to all of these matters and circumstances, including Mr Jurgeit’s assessment that the Accused did not do any more work than was necessary, I am satisfied that at no time relevant to the carrying out of Events 1 to 7 (inclusive) was the Accused working either on a rostered shift, in attendance at his usual fire station, or else doing overtime, having been recalled to duty at another fire station during rostered days off. I am satisfied that the Accused had the opportunity to carry out each of the Events in respect of which there are charges on the Indictment because he was not committed to or performing any work or work-related activity.

30. [225]

    In relation to specifically Event 7, it is also relevant to record [65] that the Accused lived nearby to the Kingdom Hall at Casula. It was about 1km for the Accused to walk from his home in Tallowood Avenue, although it was only about 400m in a straight line. The Accused could easily have accessed the Kingdom Hall at Casula at any time in the early hours of both 14 and 21 July 1985, and in that way also had the opportunity to commit the offences relating to the explosion at the Kingdom Hall.

31. [226]

    It is also relevant to note that the Accused had spent the afternoon of Saturday 20 July 1985 with a friend of his, Mrs Smith, and her daughter. He left their company at about 5pm. The Accused did not respond to a query from Mrs Smith about where he was going. [66]

32. [227]

    One issue raised in evidence with direct relevance to at least Event 2, if not all of the Events, was a regular and common practice in the Fire Brigade during the period from 1979 to 1986 (if not longer) that firemen who were attending at their usual fire station at the start of their shift would arrive early (somewhere between 30 minutes and one hour before their shift commenced). The ostensible reason for this was that it was said that they did not wish to be late for their shift, having been caught unexpectedly by traffic delays or transport interruptions. Once a fireman had arrived then it was standard practice for a fireman on the shift that was coming to an end, and who was being relieved, to finish their shift early and leave the Station. Mr Gore gave evidence of this practice. [67] He was not challenged about it, rather the existence of the practice was put to him in the course of cross‑examination. I am satisfied this practice existed over the period of time covered on the Indictment. The existence of the practice is not to be doubted. No record was kept in the Occurrence Book when a fireman left early during this “cross-over time”.

33. [228]

    As will be remarked upon later, the existence of this cross-over time and the practice of leaving early may well be relevant to the timeframe within which the Accused was able to travel from the Fairfield Fire Station where he was then stationed, to Woollahra at the time of the murder of Justice Opas, which is Event 2.

Motive – Event 7

1. [229]

   The Crown’s case is that in the context of the ongoing Family Court proceedings between the Accused and his former wife, Ms Blanchard, the Accused was motivated to bomb the Kingdom Hall because of his resentment at the interference of the members of the Lurnea Congregation of the Jehovah’s Witness faith (who used the Kingdom Hall at Casula) in the arrangements for the access of the Accused to Trudi, his daughter.

2. [230]

   The Accused submitted that he had no reason to be at all concerned about, or resentful of, the members of the Lurnea Congregation or their conduct, and so had no reason to place and detonate the bomb at the Kingdom Hall on 21 July 1985.

3. [231]

   I direct myself that the Crown is not obliged to prove beyond reasonable doubt, or at all, the existence of any motive in the Accused to do what has been alleged. Motive is not an element of any of the offences giving rise to the Counts on the Indictment. However, the existence of a proved motive is a circumstance which may be taken into account as being relevant to whether the Accused committed the offences charged. Evidence of motive is often regarded as being relevant to the question of whether an accused has committed the offences because people are more often killed for a reason than for no reason at all.

4. [232]

   I also direct myself that the proved absence of a motive is equally relevant to whether the Accused committed the offences charged.

5. [233]

   The absence of a proved motive and the proved absence of a motive are both matters and circumstances which weigh in favour of an accused as pointing to the likelihood that he did not commit the offences charged.

6. [234]

   With these directions in mind, it is necessary to enter upon a consideration of whether the Crown has established a motive in the Accused to perpetrate Event 7. The question of whether the Crown has established a motive for the Accused to plant and detonate the bomb at Kingdom Hall requires an examination of the state of the Family Law proceedings as at the end of 1984 and the start of 1985, the conduct of Ms Blanchard and her sister, Ms Judy Morier, in effecting the move with Trudi in secret to an address in Forster on the mid-North Coast of NSW, and the behaviour of the Accused relating to these events at and after that time.

7. [235]

   Many of the events in the Family Court proceedings will be described in detail elsewhere in this judgment, where they are relevant to other Events on the Indictment. It is necessary for the purposes of Event 7 to simply state that there were ongoing, unresolved issues in the Accused’s family law proceedings at the end of 1984 and the start of 1985. Primarily, these issues were threefold:

   1. (1)

      a custody application made by Ms Blanchard regarding Trudi and, more generally, ongoing disputes concerning the Accused’s access arrangements for Trudi. There was a continuing issue about the way in which the Accused had exercised access to Trudi, which included occasions when he had not been complying with the Family Court’s orders and Police were empowered by the Court to enforce the access orders made;

   2. (2)

      Ms Blanchard’s enforcement of the orders for the sale of the former matrimonial home, in which the Accused still lived at the time. There was an issue about whether the Accused had failed to co-operate in any of the steps required to give effect to the Family Court orders of April 1981 and 19 July 1983 (as made by Justice Gee) that the matrimonial home was to be sold; and

   3. (3)

      the division of the assets accumulated during the marriage.

8. [236]

   The Accused had been personally present in Court on 7 December 1984 (with his solicitor Mr T F Byrne) before Justice Renaud when an order was made, by consent, to stand the application made by Ms Blanchard on 25 September 1984 over for a hearing as a short matter on 15 February 1985. [68] The application was one compelling the Accused to forthwith vacate and remain away from the matrimonial home, and to give Ms Blanchard occupation of the former matrimonial home for the purpose of ensuring that it be sold.

9. [237]

   After the hearing on 7 December 1984, the Accused (in mid to late December 1984) terminated his instructions to Mr Byrnes to act for him. Mr Byrnes filed a Notice of Ceasing to Act. [69]

10. [238]

    On 15 February 1985, Justice Gee, in determining the application of Ms Blanchard made on 25 September 1984, said that he was satisfied that the Accused had wilfully refused to co-operate with the orders for sale of the former matrimonial home. He ordered that the Accused vacate the former matrimonial home within 21 days and he granted Ms Blanchard the right to exclusively occupy the property for the purpose of effecting the sale. The order to vacate the matrimonial home was not complied with by the Accused.

11. [239]

    Justice Gee concluded in his orders on 15 February 1985 that, based on the Accused’s past conduct, the Accused would continue to refuse to implement the orders of the Family Court and that this was an attitude the Family Court could not tolerate. On the evidence before the Court in this trial, I similarly accept that the Accused showed a consistent disregard for the orders made by the Family Court and was generally uncooperative in his interaction with the Family Court. I base this conclusion on evidence before me concerning continued non-compliance of the Accused with orders of the Court throughout his Family Court dispute (both in relation to the matrimonial home and custody issues), the withdrawal of his instructions to his solicitor and the failure by the Accused to appear on 15 February 1985.

12. [240]

    There was no further compliance by the Accused, either with the earlier orders regarding vacation of the former matrimonial home or with the orders of 15 February 1985, at any time prior to the explosion of the bomb at the Kingdom Hall.

13. [241]

    This failure is abundantly clear from the material put before Justice Baker on 25 July 1985 (four days after the Kingdom Hall explosion), [70] when further orders were made to provide a mechanism for the sale of the former matrimonial home. Justice Baker caused a Writ of Possession to issue on that day. [71]

14. [242]

    By looking back through the history of the Accused’s Family Court dispute, it can be seen that at all times before the explosion at the Kingdom Hall (over a period of some years), the Accused had deliberately defied the orders of the Family Court about co-operating in the sale of the former matrimonial home. These orders were first made by Justice Gee in April 1981 and further orders were made by him in July 1983, and again in February 1985.

15. [243]

    During this period of wilful non-compliance with these orders dealing (largely but not exclusively) with the division of property assets including the sale of the former matrimonial home, the Accused did not file any application at all in the Family Court to deal with a variation of, or to appeal from, the property orders which had been made. He simply chose to ignore them. The only application which was made by the Accused’s lawyer was an oral one to change the venue of the proceedings from Parramatta to Sydney. That application seems to have fallen by the wayside and was not pursued, at least by 25 May 1983, when the Accused failed to return to court to prosecute that application. [72]

16. [244]

    The conclusion which I draw from this review of the Accused’s attitude to the Family Court proceedings, and in particular the orders about the sale of the former matrimonial home, is that he chose to ignore the Court orders, chose not to engage in the appropriate use of the Court’s processes and merely took matters into his own hands to achieve his end goal, namely, with respect to the former matrimonial home, that he retain it and pay Ms Blanchard as small a sum as he could reasonably succeed in doing.

17. [245]

    With respect to access, the Accused similarly showed open contempt for the Court and the orders made in the matter regarding Trudi. At the time of Event 7, the extant order was that by Justice Watson on 6 March 1984, [73] namely that the Accused have access to Trudi from 9am to 5pm on each alternate Saturday. That access was to be effected by the Accused collecting Trudi from Ms Blanchard’s address at Ashfield and then returning her to that address. The Accused was restrained from retaining Trudi outside those hours.

18. [246]

    The evidence before the Family Court indicated that the Accused had regularly been in breach of the Family Court orders about when he was entitled to have access to Trudi throughout his Family Court matter. In an affidavit sworn by the Accused, he admitted that he had not complied with the access orders which then existed, including taking his daughter away from Sydney between 17 March 1983 and 7 April 1983, in circumstances where his wife did not consent. This was a clear defiance of the Court’s orders and indicated, as with the Accused’s behaviour concerning the property orders, that he simply acted as wished and took matters into his own hands to achieve what he wanted, namely, unrestricted access to Trudi.

19. [247]

    I am satisfied that the Accused told Ms Charrett in 1980, that he was determined to obtain full custody of his daughter, Trudi. This approach was, I am satisfied, consistently maintained by him throughout the whole of the family law proceedings. [74]

20. [248]

    The aim of the Accused with respect to his daughter Trudi was also made clear in his affidavit of 18 April 1983, when he said “… in future, I want that access [to Trudi] expanded and not restricted … as she becomes older I want unrestricted access to my daughter at my discretion”. [75]

21. [249]

    In July 1983, Justice Gee made orders with respect the Accused’s access to Trudi. These were contrary to the Accused’s interests and the outcome that the Accused sought, as articulated in his April 1983 affidavit. Those orders had the effect of reducing the Accused’s guaranteed minimum access considerably, from two days per week to two (or three) days per month – being each alternate Saturday, and then only between 9am and 5pm. [76]

22. [250]

    In January 1984, the Accused, having exercised access to his daughter on Saturday 21 January 1984, did not return her to Ms Blanchard as the Court’s orders required. Rather, Trudi remained with the Accused until Ms Blanchard successfully applied to the Family Court for the issue of a warrant addressed to the Australian Federal Police [77] for Trudi’s return to her. She obtained that warrant which was executed late on the evening of 31 January 1984. [78] This was clearly contrary to the Court’s orders concerning custody and access. It is another example of the attitude of the Accused towards any limitation on his access to Trudi.

23. [251]

    Justice Watson, on 6 March 1984, after hearing from counsel for Ms Blanchard and having regard to the history which was before him [79] , made orders with respect to access restraining the Accused from keeping Trudi outside the defined access hours. He also ordered that any member of the Australian Federal Police, or a NSW Police Officer, was authorised and directed to give such assistance as was necessary to enforce the access orders by delivering Trudi to Ms Blanchard. [80]

24. [252]

    In light of the material before Justice Watson, I am satisfied that those orders were made because the Accused had demonstrated by his ongoing conduct an unwillingness to comply with the orders of the Family Court and, conversely, so far as access was concerned, had simply chosen what he wanted to do without returning to the Family Court to have the orders varied.

25. [253]

    Just over two weeks later, Ms Blanchard swore out a complaint of a domestic violence offence against the Accused in the Local Court at Burwood. In that complaint, she alleged that the Accused had said to her when attended her home to obtain access on a Monday (which was not a permitted access day): “Don’t worry. I’ll see my daughter whenever I like”. [81]

26. [254]

    I accept the truth of the contents of Ms Blanchard’s domestic violence complaint. The attitude of the Accused, as disclosed by what he said and did, was entirely consistent with his behaviour up until that time. In an affidavit filed on 30 October 1985, [82] Ms Blanchard recounted a series of occasions in the period between late March 1984 and February 1985 dealing with access by the Accused to Trudi. In cross-examination in this trial, Ms Blanchard gave evidence that the contents of the affidavits in the Family Court were drawn from facts recorded by her contemporaneously in a diary kept by her for the purpose of that litigation. [83]

27. [255]

    The events in this affidavit were first written by Ms Blanchard in her diary and then recorded in her affidavit. [84] Ms Blanchard was cross-examined in some detail about the accuracy of her account of some of these events. She maintained that her account was entirely accurate. The Accused was under police surveillance for a period of about two weeks in late July and into August 1985. [85] Some of those records were tendered by the Accused. [86] There were no surveillance records in evidence which contradicted the factual account given by Ms Blanchard about the way in which the Accused exercised access to Trudi up to February 1985.

28. [256]

    I accept the accuracy of Ms Blanchard’s evidence on the matters about the access by the Accused to Trudi in the period up to February 1985 as set out in her affidavit of 30 October 1985, and as affirmed in this trial. I am satisfied that the contents of the affidavit of 30 October 1985 were derived from contemporaneous diaries or diary notes made at the time at the request of her lawyers, for the purpose of having such a record to be used in the Family Court proceedings.

29. [257]

    The affidavit records a continuing pattern of behaviour by the Accused, with respect to access to Trudi, of paying no, or only limited, regard to compliance with orders of the Family Court and of proceeding to take his own course with respect to the way he exercised access.

30. [258]

    I draw from this summary of the Accused’s behaviour that, at the time leading up to and relevant to the Kingdom Hall explosion, the Accused sought to achieve two ultimate goals. First, retain the former matrimonial home whilst paying Ms Blanchard as little as reasonably possible. Secondly, achieve unrestricted access to his daughter Trudi at a time of his choosing and as it suited him. In seeking these goals he did not (at least before July 1985) engage the processes of the Family Court – he made no application after a contempt application in 1980, and certainly not with respect to the making of any variation to the arrangements regarding access. Rather, he simply did what he wanted in the way he thought would best achieve his goals.

31. [259]

    As is apparent, the Accused had no access to Trudi after February 1985. That was because she had been removed to an address in Forster of which he was unaware. It seems to me to be of importance that between that point in time and the explosion at the Kingdom Hall, the Accused did nothing in the Family Court by way of an urgent application or otherwise, to seek the return of his child to Sydney so as to enforce access. No explanation was offered in any evidence in the Family Court as to why the Accused did not do so.

32. [260]

    I am satisfied that, having regard to his past conduct in not engaging the Family Court by way of any application, the Accused formed the opinion that he thought the better way to proceed was to achieve his desired outcomes in his own manner, rather than engage with Court processes. This conclusion as to the Accused’s mindset is reinforced by the Accused’s consistent and ongoing attempts to have access to or to retain Trudi outside the Court’s ordered access times or those agreed to by Mrs Blanchard.

33. [261]

    In that context, it is necessary now to examine the involvement of the Lurnea congregation in assisting Ms Blanchard and Trudi, together with Ms Morier, move out of Sydney. This move had the effect of denying the Accused access to Trudi completely for a lengthy period of time. That denial of access was entirely contrary to the access the Accused had been having and, I am satisfied, wished to continue to have.

34. [262]

    Ms Blanchard and Ms Judy Morier are sisters. Ms Morier is the elder of the two. In 1985, Ms Morier had two children who were 8 and 6 years old respectively. Trudi was at that time aged about 6. Ms Morier became interested in the Jehovah’s Witness faith in 1981 and was baptised in October 1983. [87] She became a member of the Lurnea congregation, which used the Kingdom Hall at Casula for their meetings. Ms Morier, who lived in Lurnea, undertook some paid work as the caretaker of four tennis courts which were located not far from her home. That role involved her maintaining the courts, ensuring that they were unlocked for competition play, making arrangements for the hiring out of the courts, providing keys to the hirers and receiving the hiring fee. People who wanted to hire the courts would usually telephone her to make the necessary arrangements. [88]

35. [263]

    As a consequence of two phone calls from the Accused, which I accept that Ms Morier found threatening, and an encounter with the Accused at Ashfield Swimming Pool, Ms Morier and Ms Blanchard decided to move to Forster with their children.

36. [264]

    The precipitating event for the move to Forster was an encounter on 18 January 1985 at the Ashfield Swimming Pool. Ms Morier recorded her recollection of that encounter in a document written on 4 February 1985. [89]

37. [265]

    In the course of the encounter, the Accused leant into Ms Morier’s car through the passenger window and said “You stay away from my daughter”. Ms Morier replied “If I want to see Andrea, I can”. The Accused replied “Stop brain washing her”. Ms Morier denied that she was doing so. [90]

38. [266]

    There were two earlier phone calls by the Accused to Ms Morier which provide the context for this encounter. [91] The first phone call was in December 1984, during which the Accused asserted contrary to what Ms Morier said that she did know where Ms Blanchard was. In January 1985, there was a second phone call during which the Accused, in an aggressive tone, accused Ms Morier of lying when she said that she did not know the whereabouts of Trudi.

39. [267]

    I accept the accuracy of Ms Morier’s evidence and of her notes of what occurred because of the reasonable contemporaneity of those notes with the Events. Ms Blanchard gave evidence in largely similar terms of the occurrence. [92] The encounter caused Ms Morier a degree of distress, and it made her anxious for the safety of her children.

40. [268]

    In my view, Ms Morier was correct to perceive that this was a threatening conversation intended by the Accused to deter her from preventing him from exercising access to Trudi in the way he wished. This is particularly given the context of the two previous telephone conversations with the Accused. The behaviour of the Accused in this encounter and in the previous phone calls reflects the attitude described earlier with respect to his dealings with the Family Court.

41. [269]

    The move to Forster took place on Saturday 9 February 1985. Ms Morier was living at Lurnea. A truck was hired by her ex-husband, Stephen, to pack her belongings in and then to transport them to Forster. She was helped by a number of members of the Lurnea congregation including Joy Wykes, three members of the Tiler family (Peter, Janet and Tony) and Mr Greg Hahn. [93]

42. [270]

    Ms Morier had made arrangements to rent her home in Lurnea to Garry and Anne Biddle, [94] who were members of the Lurnea congregation and who, having been recently married, were looking to move into a house on their own.

43. [271]

    Ms Morier also made arrangements with Greg and Inge Redfern, who were regular tennis players and members of the Lurnea congregation, to take over her role as caretaker for the tennis courts. This included undertaking all of the hiring arrangements. [95]

44. [272]

    Whilst her house was being packed up on Saturday 9 February 1985, Ms Morier received a telephone call from her sister reporting an incident which had just occurred with the Accused. [96]

45. [273]

    Ms Morier went to Ms Blanchard’s flat in Ashfield on the afternoon of that day. A second truck was hired to move Ms Blanchard’s belongings that afternoon. Ms Morier was accompanied by two members of the Tiler family and also Mr Hahn. [97] Once that second truck was loaded, it left for Forster. It met up along the way with the truck which had Ms Morier’s belongings in it. It became apparent that a second trip would be necessary to transport all of Ms Blanchard’s household items. That took place the following day. [98]

46. [274]

    The only people that Ms Morier told about her destination were two members of her congregation – Cathy and Larry Roberts, with whom she was friendly. [99] As well, the members of the Lurnea congregation who helped with the move would have known of her new destination, including in some cases, her actual address.

47. [275]

    The day planned for the move to Forster was not one of the days upon which the Accused could exercise his access to Trudi in compliance with the Family Court orders. Nevertheless, unannounced, the Accused arrived at the Ashfield unit where Ms Blanchard was living and which she was packing up for the move to Forster.

48. [276]

    I accept Ms Blanchard’s evidence as to what happened when the Accused arrived. [100] The Accused decided he would take Trudi away with him asserting that it was for an access visit. There was a confrontation as Ms Blanchard tried to prevent that from happening. She was struck in the face by the Accused and suffered bruising. Whilst that was happening, Trudi ran away from the Accused and back inside the flat. Ms Blanchard followed and she stayed inside the flat. [101]

49. [277]

    At about 2pm that afternoon, the removal truck arrived at Ashfield. Ms Blanchard’s belongings were loaded onto the truck with the assistance of the members of the Lurnea congregation. The truck left for Forster at about 5pm. As remarked upon earlier, not all of her belongings could be loaded.

50. [278]

    It is necessary to note that this move being made by both Ms Morier and Ms Blanchard, and in particular the loading of the boxes onto the trucks being used to transport them, had occurred in daylight. Packed boxes were taken from either Ms Morier’s house or Ms Blanchard’s flat and packed into the relevant trucks. It would have been obvious to anyone observing the process that they were each moving; and it would have been obvious to anyone observing it that they were being assisted in their move by a group of people.

51. [279]

    By the time of the move to Forster, Ms Blanchard had attended a number of meetings of the Lurnea congregation at the Kingdom Hall. [102] Trudi had accompanied her on a couple of those occasions, and had also accompanied Ms Morier and her children to meetings of the Lurnea congregation at the Kingdom Hall. [103]

52. [280]

    In the course of cross-examination, Ms Blanchard agreed that the Accused did not know that she had been to meetings of the Jehovah’s Witness faith. I take that answer to mean that she had not told the Accused that she had been to those meetings, and that he had said nothing to her directly about her attendance. She also said that Trudi had not told her that she had informed her father (the Accused) about the meetings at the Kingdom Hall. This does not mean that she had not done so, merely that she had not told her mother (Ms Blanchard).

53. [281]

    However, I am satisfied on the basis of the Accused’s comment to Ms Morier in January 1985, that the Accused knew that Ms Morier was a member of the Jehovah’s Witness faith and that by taking Ms Blanchard to meetings of the Lurnea congregation, the Accused felt that she was “brain washing” her. I make no conclusive factual finding as to how he came to know this, merely that the comment shows he had obtained the knowledge. It is to be recalled that the Accused lived a short distance from the Kingdom Hall at Casula.

54. [282]

    This conclusion also derives support from a conversation which the Accused had with Mr Edwin Archbold on 10 August 1985. [104] During that conversation, the Accused told Mr Archbold that since Ms Blanchard “… had become involved with the Jehovah’s Witnesses, they brainwashed her”.

55. [283]

    There is further support for this conclusion from a remark made by the Accused to Ms Charrett in 1980, that Ms Blanchard was going to a “different church” where the elders were telling her to do certain things. [105]

56. [284]

    In evidence in the Family Court on 6 January 1986, the Accused said of Ms Blanchard [106] that she was a weak-minded person who was being controlled by others. The Accused also instructed his lawyer that this was the case.

57. [285]

    On 6 January 1986 [107] his lawyer made the following submission to the Court:

58. [286]

    In all of the circumstances, the reference to “a religious sect” can only have been to the Jehovah’s Witness faith in general and the Lurnea congregation in particular, which was the one with which Ms Morier was connected.

59. [287]

    These statements by the Accused, or upon his instructions, confirm for me that for a very long time the Accused had known of the occasional attendance of Ms Blanchard and Trudi at the Kingdom Hall at Casula with Ms Morier. Further, they confirm that the Accused was prepared to assert that the Jehovah’s Witnesses were “brainwashing” Ms Blanchard and Trudi, and that they were inappropriately influencing Trudi’s upbringing.

60. [288]

    The Accused asserted to Mr Archbold that he had only learnt of the role of the Jehovah’s Witnesses in the life of his former wife and the upbringing of his daughter since being told by Police in the week following the bombing of the Kingdom Hall in July 1985. However, I am satisfied that this statement was untrue. I am satisfied that the Accused knew about the alleged role of the Lurnea congregation of the Jehovah’s Witnesses and their connection to his wife and daughter when he first accused Ms Morier of brainwashing Ms Blanchard.

61. [289]

    After Ms Blanchard moved to Forster, and up until orders of the Family Court in January 1986, the Accused had no access to his daughter. He made no application to the Family Court seeking access. In light of his professed interest in having access to his daughter, I would have thought that the Accused would quickly have returned to the Family Court seeking orders enabling his access to Trudi.

62. [290]

    It is now relevant to consider the conduct of the Accused in the time after the move to Forster occurred.

63. [291]

    According to a record of interview given by Mr Archbold to Police on 16 August 1985, the Accused described to him the endeavours he had made to find his daughter. He told Mr Archbold that “… he had tried all avenues that are open to him”. [108]

64. [292]

    I am satisfied that what the Accused was referring to includes a number of telephone contacts which were made after Ms Blanchard moved to Forster in February 1985, and before the explosion of the bomb in the Kingdom Hall in July 1985, with members of the Lurnea congregation of the Jehovah’s Witness faith. It clearly did not include bringing proceedings in the Family Court.

65. [293]

    I have earlier noted that Mr and Mrs Redfern took over Ms Morier’s job of looking after the tennis courts. Shortly after they took over the role, I accept Inge Redfern’s evidence that she received a phone call from a male, who did not to identify himself and who sounded a bit agitated. [109] The words spoken in the course of that telephone call made her feel as though she was lying when, in answer to the caller’s question, she said that she did not know the new address and contact details of Ms Morier. She indicated in that call, without knowing, that the new address was perhaps up north, maybe The Entrance or Gosford.

66. [294]

    The male caller asked where Ms Morier had moved to. He did not make any enquiry about hiring the tennis courts. At no time did he give his name or return telephone number. [110]

67. [295]

    The caller asked if he could call again and speak to her husband. There were a number of unsuccessful calls seeking her husband, because he was not at home. Eventually, Mr Greg Redfern spoke to the male caller. An enquiry was made about where Ms Morier had moved to. The enquiry was repeated in a manner or tone which conveyed to Mr Redfern that the caller thought that he, Mr Redfern, was not telling the truth when saying that he had no idea where Ms Morier was. [111] Both Mr and Mrs Redfern were palpably honest witnesses whose evidence about these conversations I entirely accept.

68. [296]

    In cross-examination, [112] Mrs Redfern was asked when she was first asked to identify the voice she had heard on the telephone. It seems that she was asked shortly after the television interview occurred between Terry Willesee and the Accused. [113] She said that the voice on that show sounded the same as the male caller.

69. [297]

    That answer was not challenged or further explored in cross-examination. She said that the show was broadcast shortly after she had given evidence in the Coronial Inquest. [114] In re-examination Mrs Redfern identified the voice as that of the Accused which she recognised by the same tone of voice.

70. [298]

    With respect to this voice identification evidence, I direct myself that I must approach it with special caution before I accept it as reliable. This is not a direction concerned with the honesty of Mrs Redfern which, as I have said, I accept. But the special caution is necessary because it is notorious that voice identification is apt to be mistaken. The experiences of criminal courts over the years in Australia and elsewhere have demonstrated this. I direct myself that I must carefully consider the circumstances in which Ms Redfern heard the voice, and how she came to identify that voice as that of the Accused. That is because those circumstances can affect the reliability of the evidence. Special caution is particularly needed where, as here, the voice identification of the Accused is that of a person not known to Mrs Redfern. And also because of the lapse of time, namely some years, between when the phone calls were received and when the Willesee interview was telecast.

71. [299]

    Keeping these directions of law in mind, I have decided not to take into account this voice identification evidence. This decision reflects the notorious unreliability of voice identification evidence and does not reflect on the honesty of Mrs Redfern, my recognition of her honest belief that the voices were the same or the acceptance by me of her evidence generally.

72. [300]

    However, from the circumstances recounted, leaving aside the various identifications, I am satisfied on the balance of probabilities that the calls to Mr and Mrs Redfern were made by the Accused. Ms Morier’s former husband, Stephen, knew the address to which she and their children had moved because he drove of the trucks used in the move to Forster. There was no-on else close to Ms Morier who needed to know her new address. As well, she had told two of her close friends, members of the Lurnea congregation, where she was moving to. They would have made contact with her at any time if they or any member of the congregation needed to do so. Former users of the tennis courts did not need to know of her new address. They could make any arrangements about the tennis courts with Mrs Redfern.

73. [301]

    On the evidence, the only person who needed to know the address where Ms Morier had moved to was the Accused. The content and tone of the conversations is to be more consistent with the attitude of the Accused towards anyone he perceived as interfering with his access to Trudi. The timing of the conversations and the fact that calls were made to Ms Morier’s replacement as the tennis court caretaker suggests to me that the caller knew of the potential source of information about the whereabouts of Ms Morier, and also Ms Blanchard and Trudi.

74. [302]

    Mrs Anne Biddle, who moved into Ms Morier’s house, kept the same phone number as Ms Morier. [115] Within a couple of months of moving in, during the day, she received a phone call from a male who did not identify himself, but who forcefully demanded details of Ms Morier’s whereabouts and where she had moved to. The male caller was persistent and put pressure on Mrs Biddle to reveal details to so that Ms Morier could be contacted. Mrs Biddle said that she did not know where Ms Morier was, or her contact details. The same male caller made a second call. [116]

75. [303]

    On neither occasion did the caller leave his name or any contact details. Nor did the caller give any reason for seeking the information. I accept Mrs Biddle’s account of this telephone call.

76. [304]

    Mr Thomas Geier was in 1985 the Secretary of the Lurnea congregation of the Jehovah’s Witness faith. He had died by the time of trial. His evidence is contained in a written statement and also a record of interview together with evidence which he gave a Coronial Inquest. [117] In his statement, which was given on the day of the bombing of the Kingdom Hall, he told Police that he thought, in addition to the broken window which had occurred on 14 July 1985, that the “circumstances surrounding Judy Morier” were relevant to the question of who might be responsible for the bombing. This statement was followed up by Police with a record of interview on 29 July 1985. [118]

77. [305]

    Mr Geier told Police that his telephone number was listed in the Sydney telephone directory as the contact number for the Lurnea congregation of the Jehovah’s Witnesses. He said that about four or five weeks after Ms Morier moved, he received a phone call from an unidentified male asking for the whereabouts of Ms Morier. He responded that he did not know. The male caller said “You don’t know, or you don’t want to tell me?” Mr Geier again responded that he did not know and the call ended. The caller said that he was a friend of the family. [119]

78. [306]

    On 30 July 1985, during a search of the Accused’s house, the Police seized three sheets of notes which I am satisfied were in the Accused’s handwriting. [120] I am so satisfied because of three matters: first, the notes were found in the Accused’s home at a time when no one else was living there. Secondly, a forensic document examiner, Mr Dean Swift, gave an expert opinion, [121] which I accept, that the handwriting was likely to be that of the Accused. Thirdly, Ms Blanchard also gave evidence, which I accept, that she recognised the handwriting as being that of the Accused. [122]

79. [307]

    The handwritten notes contained five sets of addresses and telephone numbers. Each of these addresses appeared in the Central Coast District Yellow Pages Directory under the listing for Jehovah’s Witnesses. [123] The sixth entry contained a name and a phone number. I note that some of the suburbs on the notes were slightly different from the names recorded in the telephone directory. For example, the “Gosford” entry in the telephone directory was noted as “Springfield” on the handwritten notes, and the “Jilliby” entry included “Wyong” as the address on the handwritten notes.

80. [308]

    Against one of the addresses are written the words “ring back in week”. Against another is the word “no”, and against a third are the words “NH” which I would take to be an abbreviation for not home.

81. [309]

    I am of the view that these notations were made by the Accused after he contacted the telephone numbers listed, and was given a response by the person who answered the phone call.

82. [310]

    On 29 July 2015, the Police seized, from a storage shed on the Accused’s property, a Central Coast UBD Street Directory – 2nd Edition, which was published in 1984 and which was current in 1985. [124] Map 25 had its corner turned down when found. [125] This map includes the Meadow Road address which the telephone directory describes as Gosford, but which Map 25 and the adjoining map in the street directory, and the handwritten notes of the Accused, record as “Springfield”.

83. [311]

    I am satisfied that the Accused wrote the addresses and telephone numbers, having looked for contacts of the Jehovah’s Witness faith in the Central Coast telephone directory, and after looking up the addresses in the Central Coast UBD Street Directory. He also recorded the responses that he obtained from the phone calls when they were made.

84. [312]

    I am satisfied that the Accused, having been told by Mrs Redfern that Ms Morier was maybe at Gosford or the Entrance, set out to establish where he might find Ms Morier, Ms Blanchard and Trudi by reference to available numbers and addresses for the Jehovah’s Witness congregations that were in or nearby to these areas. The evidentiary basis for this conclusion is a combination of the contents of the handwritten notes written by the Accused, the public details of five of the members in the telephone directory being listed as the contacts for the Jehovah’s Witness faith and the street directory.

85. [313]

    This, together with the other surrounding circumstances (including that the Accused knew that Ms Morier was a member of the Jehovah’s Witness faith and suspected that Ms Blanchard was being brainwashed by that faith), leads me to conclude that the unidentified male caller to each of Mrs Redfern, Mr Redfern, Mrs Biddle and Mr Geier was the Accused. I am satisfied that the calls shared sufficient similarity that they were done by the same person, and that that person in the circumstances was the Accused. Each of the people whom he rang in Sydney were members of the Lurnea congregation. They were unable to help him. He was aggressive and persistent in demanding to know the whereabouts of Ms Morier (and therefore Ms Blanchard and Trudi).

86. [314]

    On each call he accused the recipient of, in effect, lying to him by not disclosing the address of Ms Morier. With Mr Geier, who was contacted only because he was the publicly listed contact number for the Lurnea congregation, the Accused suggested that he was deliberately declining to help. Each of these calls occurred during February or March 1985.

87. [315]

    I am abundantly satisfied that, by that time, the Accused had formed the view that members of the Lurnea congregation knew the whereabouts of Ms Morier (and therefore Ms Blanchard and Trudi), and were deliberately concealing that from him. On the probabilities, the Accused knew or believed that the members of the Lurnea congregation had helped Ms Morier and Ms Blanchard to leave Sydney. The effect of this knowledge and belief was that the Accused was being frustrated by the members of the Lurnea congregation in preventing him from achieving his goal of having access to Trudi on his terms, but also preventing access in accordance with the order of the Family Court.. These feelings, I am satisfied, would have led to resentment on the part of the Accused towards the members of the Lurnea congregation because of their continuing interference with his relationship with his daughter.

88. [316]

    These feelings of frustration and resentment particularly in the context of the view of the Accused that Ms Blanchard had been “brainwashed” by the Jehovah’s Witnesses, I am satisfied, were strongly held and in circumstances where the Accused was disinclined to return to the Family Court to seek the assistance of that Court to order Ms Blanchard to facilitate access to Trudi. I am therefore satisfied that they were a motive or reason for the Accused to place and detonate the bomb in Kingdom Hall whilst they were meeting there, for at least two possible reasons (or a combination of these reasons). First, to exact revenge upon members of the Lurnea congregation for assisting Ms Morier and Ms Blanchard with their move to Forster and keeping their whereabouts a secret from him. Secondly, in the hope that it would cause one or more members of the congregation to break their silence and reveal to him the address of Ms Morier.

89. [317]

    In summary, I am satisfied that the Crown has established the existence of a motive in the Accused to place and detonate a bomb in the Kingdom Hall.

90. [318]

    It is necessary to consider if the Crown has established that members of the Lurnea Congregation were the intended target of the bomb, as opposed to the members of other congregations which also used the Hall.

91. [319]

    The bomb was placed sometime between 11.30pm on Saturday 20 July 1985, when members of the Casula Congregation last checked the Hall, and 9.00am on Sunday 21 July 1985, when members of the Lurnea Congregation began to arrive for their meeting. The meeting of the Lurnea Congregation began at 9.30am, as scheduled. As has been established, the bomb exploded at 10.04am on Sunday 21 July 1985, during the meeting of the Lurnea Congregation.

92. [320]

    Detective Sheather gave evidence that, based on items collected from the scene of the explosion and the facts and circumstances generally available to him, the bomb was a time-delayed device. [126] This means it was a bomb designed to explode at a designated time. This is generally achieved through the use of a clock in the bomb configuration. I accept this evidence from Detective Sheather.

93. [321]

    This conclusion is corroborated by the report of Mr Robert Barnes, who considered evidence found at the scene of the explosion and concluded that there were clock mechanism fragments, clock casing fragments, clock frame fragments and clock body attachment fragments found at the scene. [127] Mr Barnes concluded that these fragments came from a Diamond Alarm Clock. [128]

94. [322]

    In particular, the one of the clock body attachments fragments found (the winder) had been modified by a drilled hole. [129] I am satisfied this drilled hole was a modification which enabled the alarm clock to be used for the purpose of closing the circuit, through which a battery powered current could flow, to set off the bomb at the designated time.

95. [323]

    Mr Frank Lawton, an expert witness called by the Accused, expressed the opinion the bomb was initiated by a time device, [130] probably an alarm clock. [131] Mr Anthony O’Reilly, another expert witness called by the Accused, accepted that clock fragments were found, and that it was not unreasonable to conclude that a modified alarm clock was the initiating device. [132]

96. [324]

    I accept the contents of Mr Barnes’ opinions in Exhibit 348 about the bomb and its explosion at the Kingdom Hall. My findings in relation to this report, and Mr Barnes more generally, are discussed in greater detail in my consideration of coincidence and tendency later in this judgment. [133]

97. [325]

    I am satisfied the bomb was a time-delayed device which was set to explode at 10.04am at the Kingdom Hall. This was well into the scheduled meeting time for the Lurnea Congregation. I am therefore persuaded that the bomb was constructed and set up to explode during the meeting of the Lurnea Congregation.

98. [326]

    I am satisfied that members of the Lurnea Congregation were the intended target of the Kingdom Hall bombing.

Was the Blood Deposited on the Cardboard and Carpet at the Kingdom Hall on 13/14 July 1984 that of the Accused?

1. [327]

   As earlier indicated, the Crown must persuade me beyond reasonable doubt that the Accused was the intruder who broke into the Kingdom Hall on 14 July 1985. It does so by reference to a number of facts and circumstances, including those to which reference has earlier been made.

2. [328]

   However, the principal circumstance by which the Crown seeks to persuade me that the Accused was the intruder on 13/14 July 1985 (and therefore the intruder on 20/21 July 1985) is that the intruder on the first break-in left bloodstains on the carpet in the area between the broken south-eastern window and the platform, and as well on parts of a cardboard box retrieved from the south-eastern storage area. Both of these items were retrieved after the explosion one week later. The Crown case seeks to prove that the blood on these items was shed by the Accused on two bases: first, when the items were tested in 1985, human blood which was Group O (which matched the blood group of the Accused) was detected; and secondly, when the items were tested in 2013 and 2017, the DNA profile extracted from the samples taken from the bloodstains on the items, came from the blood of, and matched the DNA profile of, the Accused.

3. [329]

   I have earlier noted that the Crown accepts that the presence of the Accused in the Kingdom Hall on 13/14 July 1984, that is to say, that he was the intruder who broke into the Kingdom Hall on that occasion, is an intermediate fact in the chain of reasoning in proof of the guilt of the Accused beyond reasonable doubt.

4. [330]

   The Accused submitted that, as that intermediate fact was proved by the presence of the DNA profile of the Accused in the blood shed during the first break-in, and the fact that the blood shed was also the same blood group as that of the Accused, each of these facts are required to be proved by the Crown beyond reasonable doubt.

5. [331]

   In my view, such is the importance of each of those facts, that I must be satisfied of each of them, beyond reasonable doubt, by the Crown before the Crown can prove the intermediate fact as a circumstance in the chain of reasoning is proof of the guilt of the Accused beyond reasonable doubt.

6. [332]

   The proof by the Crown of the intermediate fact as part of its chain of reasoning to the guilt of the Accused, and the two underlying facts beyond reasonable doubt, requires that I am satisfied of six separate matters. They are:

   1. (1)

      were the bloodstains found on the carpet and cardboard deposited on those items by the intruder on 13/14 July 1985;

   2. (2)

      were the bloodstained items of carpet and cardboard still present in the Kingdom Hall to be collected after the explosion on 21 July 1985;

   3. (3)

      did the Police take possession of those bloodstained items and keep them securely until providing them to the Department of Forensic Medicine (“DFM”), and the Division of Analytical Laboratories (“DAL”) for testing;

   4. (4)

      what happened to the bloodstained items at the laboratories of the DFM and the DAL;

   5. (5)

      storage of the bloodstained items in police custody, and the discovery of them in 2013; and

   6. (6)

      provision of the bloodstained items to the Forensic and Analytical Science Services (“FASS”) and the obtaining of DNA profiles.

7. [333]

   I will now deal with each of these six matters.

8. [334]

   The analysis of whether the Crown has proved its case commences with the observations of blood in the Kingdom Hall on 14 July 1985. The Crown must establish that the blood found on the carpet and cardboard was deposited on the items by the intruder on 13/14 July 1985.

9. [335]

   As has earlier been described, a number of members of the Lurnea congregation observed what they believed to be blood in the Kingdom Hall when they arrived on 14 July 1985. I accept that what they saw appeared to them to be, and was on later analysis, confirmed to be human blood. In reaching that conclusion, I have taken into account that there was a broken glass windowpane which appeared to have blood on it; that the carpet adjacent to the broken window appeared to be stained with blood; and a trail of blood was observed to go from the broken window across the carpet onto the platform, and then into the storage areas and the narrow passage way behind the platform.

10. [336]

    The Kingdom Hall was not a place where animals were kept or to which animals could gain access. There is no reason, having regard to the purpose of the Kingdom Hall and its usage, for any animals to be on the premises at any time. Therefore, I accept that the blood which was observed did not come from any animal, but from a person.

11. [337]

    The broken glass windowpane and the proximity of the blood to the broken glass (being on it, and on the carpet adjacent to it), together with the hinged window being in the open position, points strongly and, in my view, irresistibly, to the blood being shed in the course of the break-in. A reasonable inference can be drawn that this human intruder has suffered a cut or cuts from the glass in the course of breaking in to the Kingdom Hall. This cut has then caused blood to drip undetected from that person onto the carpet, the concrete floor in the storage areas and narrow passageway behind the platform, and onto the pile of cardboard boxes stored there.

12. [338]

    I am therefore satisfied that, on the basis of the observations of the members of the congregation who discovered the first break-in and the surrounding facts and circumstances, the blood is that of an intruder who sustained injury by way of laceration and who consequently shed blood onto the carpet inside the Kingdom Hall and the pile of cardboard boxes stored there on 13/14 July 1985.

13. [339]

    The unchallenged evidence, which I accept, was that the blood was cleaned off the window, the curtains and the concrete floor behind the platform and in the storage areas. [134] No attempt was made to clean the blood from the carpet in the area between the south-eastern broken window and the platform. [135] The pile of cardboard boxes was not removed at any time between 14 and 21 July 1985, and none of the cardboard boxes were destroyed or burnt at that time.

14. [340]

    Based upon the following evidence, which was not challenged and which I accept, I am satisfied that the carpet and the cardboard boxes onto which the intruder’s blood had been deposited were still present and in their original locations prior to the bomb exploding on 21 July 1985:

15. [341]

    The evidence of these individuals, which I accept, was unsurprising. The evidence is further reinforced by evidence that there was a routine in place where the cardboard boxes were regularly destroyed by being burnt in the incinerator (see [160] above). [140] The boxes were in a storage area which was not always in use or accessed. There is nothing in the evidence to suggest that they needed to be removed and destroyed between 14 and 21 July 1984. As well, the nature of the pattern on the carpet was such as to make stains of any dark fluid less obvious than they would be on a pale or unpatterned carpet. A decision not to have the carpet immediately commercially cleaned or else removed and replaced is an understandable one which, no doubt, all congregations using the Hall would have had to consider given the associated cost. In those circumstances, to my mind it is not surprising that a week would have passed by before either a decision was made, or else any steps were taken, to clean the blood from the carpet or to replace the carpet.

16. [342]

    Put differently, the evidence given by the individuals named above provides facts which, not only do I accept, but are unsurprising and are consistent with what one would expect of ordinary human behaviour in the circumstances.

17. [343]

    I am satisfied on the basis of these facts and circumstances that the bloodstained area of carpet and the bloodstained pieces of cardboard, which were identified on 14 July 1985 by various members of the Lurnea congregation, were still present in the Kingdom Hall in an unchanged state on 21 July 1985 when the bomb which had been placed under the platform was detonated.

18. [344]

    At the time of the bomb explosion at the Kingdom Hall, the officer in charge of the Ballistics Unit of the Scientific Investigations Service (which was the specialist unit of the NSW Police which attended to crimes involving the use, or attempted or threatened use, of a bomb) was Detective Sergeant Jesse Sheather. [141] The Ballistics Unit was also referred to as the Bomb Squad – the names were interchangeable. [142]

19. [345]

    Detective Sheather was called to, and first attended, the Kingdom Hall on 21 July 1985 at about midday. [143]

20. [346]

    On the following day, 22 July 1985, Mr Clapp was driven from his home to the Kingdom Hall. Whilst there, he showed a number of police officers, whose names he did not recall but which did include Detective Sheather, [144] where the bloodstained carpet was. He also located and showed the police officers the pile of cardboard boxes upon which blood had been shed. These were the items Mr Clapp had previously identified on 14 July 1985 and on the morning of 21 July 1985 prior to the explosion [145] as being bloodstained.

21. [347]

    Detective Sheather gave evidence that on 22 July 1985, at the Kingdom Hall, he was introduced to Mr Clapp. At this time, Mr Clapp told him about the break-in to the Hall on 14 July 1985 and what he believed to be blood on the carpet and the cardboard boxes. Mr Clapp then pointed out to Detective Sheather where the bloodstained carpet was later found below the debris. He also indicated where the cardboard boxes were later found. [146]

22. [348]

    Immediately after Mr Clapp had pointed out the two locations, Detective Sheather lifted (no doubt with assistance) some of the building debris and identified the cardboard boxes that Mr Clapp had referred to. He selected one of the boxes which had bloodstains on it, took possession of it, and secured it in a paper bag. [147] The bag that the cardboard was put into was written on by Detective Sheather in red marker pen with the words “Bloodstained cardboard from s/east corner”. [148]

23. [349]

    Either later that day, or early on the following morning (Tuesday 23 July 1985), Detective Sheather, with his staff, cleared the area where the carpet had been pointed out to him by Mr Clapp. After the debris was removed, Detective Sheather observed an area of carpet with what he believed to be bloodstains on it. [149] He cut a piece from the carpet, which was probably about 1m x 55cm. Detective Sheather took possession of that piece of carpet and secured it.

24. [350]

    Detective Sheather’s evidence was that the universal practice at that time was to place large exhibits, such as the carpet and cardboard, into large paper bags. [150] He followed that practice with the two items and secured them, initially, in the locked boot of his police vehicle.

25. [351]

    Detective Sheather’s evidence was that he took the paper exhibit bags containing the carpet and the cardboard to the Ballistics Unit office in the city. He gave them to Constable Constable, an officer of the Ballistics Unit and told him to take the items to the DFM for examination. [151]

26. [352]

    In the course of his evidence during cross-examination and in re-examination, Detective Sheather expressed the conclusion that, although he had no specific recollection of doing so, he must have cut the two pieces of cardboard which were ultimately submitted to the laboratory of the DFM from the single cardboard carton which he seized from the Kingdom Hall.

27. [353]

    Detective Sheather explained that cutting up the cardboard carton was most likely done to make it easier to handle, and because large areas of the cardboard carton did not have any apparent blood on it. I accept his evidence. I am prepared to accept this last fact as a matter of common sense - given the cardboard boxes which were stored had been flattened, not all of the surface of a carton would have been exposed. [152] As well, the piece of cardboard, which is now an exhibit, has the appearance of being an end flap which could be easily cut away from the rest of the cardboard carton [153] .

28. [354]

    Detective Sheather completed a standard Police Exhibit Examination Form when he gave instructions regarding the carpet and cardboard to Constable Constable. [154] The form contained a request addressed to the Laboratory of the DFM to examine the items and establish a blood grouping. The form contained a short description of the items: “two pieces of cardboard believed to be bloodstained” and “a piece of carpet believed to be bloodstained”.

29. [355]

    The form also records a short history of the bomb explosion. It includes the following statement:

30. [356]

    This description, a contemporaneous one, accords with the evidence to which I have earlier referred, and which I accept. The form records that Detective Superintendent Harry Blackburn, who was the Superintendent in charge of the Scientific and Technical Services Branch, authorised the submission of the items for examination. It records that the items were in the custody of Constable Constable and that they were, on 24 July 1985, conveyed by him to the Laboratory at the DFM. The items were received by Mr Goetz on that same day. [155]

31. [357]

    Constable Constable gave evidence that he signed this form on 24 July 1985, took possession of the items described on it and delivered them to Mr Robert Goetz at the DFM (as the form indicates). [156] He said that he received the form and the items from Detective Sheather at the offices of the Ballistics Unit in Surry Hills. [157] Having received the items from Detective Sheather, Constable Constable said he would have checked them to see that the items were those described on the form. [158]

32. [358]

    Although Constable Constable said in an earlier statement prepared for the Coronial Inquest into the death of the late Mr Wykes, that he received the items at the Kingdom Hall, I am persuaded that this version was erroneous. I accept his evidence referred to above, corroborated as it is by the contemporaneous form. [159] He makes no reference to the form in his earlier statement and was apparently not shown this form at the time of making the statement.

33. [359]

    The evidence of Detective Sheather about removal of the piece of carpet by cutting it out from the floor of the Kingdom Hall in the area of the south-eastern windows is corroborated by a photo of the Hall at a time when the debris had been removed. [160] In the photo one can see clearly that an area of carpet has been removed. The piece of carpet [161] and two photos of it [162] show that the shape of the removed piece of carpet matches the area of the removed carpet shown on the floor of the Kingdom Hall after the explosion.

34. [360]

    As well, the evidence of Detective Sheather is corroborated by the handwriting which he identified as his own on the large paper bag, to which I have earlier referred. The paper bag is in evidence, [163] as is a photo of the bag [164] . Detective Sheather attested to the accuracy of the writing which was placed on the bag.

35. [361]

    I accept Detective Sheather’s evidence. I found Detective Sheather to be a very impressive and, I thought, patently honest witness. Having regard to his seniority, and length of experience in 1985 as a police officer in the Ballistics Unit, I am satisfied that he would have been careful in the way he went about taking, keeping and storing items such as the cardboard and carpet which had been obtained by him from the scene of the explosion at the Kingdom Hall. Additionally, it is significant that in material respects his evidence is corroborated by contemporaneous photographs, documents and the items themselves.

36. [362]

    Although Constable Constable gave an earlier police statement in 1986 which was in conflict with his evidence at trial about where he received the items from Detective Sheather, I am well satisfied that his evidence in this trial is to be preferred over that contained in his 1986 statement. In short, it seems to me highly improbable that the typewritten form [165] would have been prepared by Detective Sheather whilst he was on the scene at the Kingdom Hall. It is unlikely that the signature of Detective Superintendent Harry Blackburn would have been available at the scene at Kingdom Hall. Both of those things are overwhelmingly more likely to have occurred in the offices of the Ballistics Unit. The form was a document intended to record the movement of exhibits and to track them. It is the very sort of work which would be carried out in the offices of the Ballistics Unit, rather than at a crime scene.

37. [363]

    There seems to be no reason why, once collected, the items given their obvious significance would have remained on-site at the Kingdom Hall where they could not be appropriately secured, rather than being returned to the security of the Ballistics Unit offices.

38. [364]

    In summary, I am satisfied that Detective Sheather collected a bloodstained cardboard box from the Kingdom Hall which had been there on both 14 and 21 July 1985, and took it back to his office in a paper bag. He cut two pieces of apparently bloodstained cardboard from the box and sent them for examination and analysis of the blood group of the blood. He disposed of the balance of the cardboard box.

39. [365]

    I am also satisfied that Detective Sheather cut a piece of the carpet from the floor of the Kingdom Hall in the area where bloodstaining had been observed on both 14 and 21 July 1985, placed it into a large paper bag, and took it back to his office in the Sydney CBD.

40. [366]

    I am also satisfied that the two pieces of cardboard and the carpet were handed to Constable Constable by Detective Sheather at the Ballistic Unit offices. Constable Constable then conveyed the two pieces of cardboard and the carpet from the Ballistics Unit offices to the laboratory of the DFM at Glebe, where they were received by Mr Goetz.

41. [367]

    As the signature of Mr Goetz on the relevant form [166] records, he received the cardboard and carpet at the laboratory of the DFM at Glebe on 24 July 1985. [167] Mr Goetz at that time held qualifications as a forensic biologist. He was employed by the Department of Health and worked in the laboratory of the DFM at Glebe. [168]

42. [368]

    The receipt of the items into the laboratory of the DFM was also recorded in the DFM Register [169] as having happened at 2.30pm on 24 July 1985. Mr Goetz in his own handwriting in the Register recorded the allocation of a laboratory case file number, 85/306, generally preceded by the initials “FS”, as being the identifying number for the items whilst in the possession of the laboratory. The same number is also used for any work documents produced by the laboratory with respect to the items. As is recorded in the Register, on 6 August 1985, one piece of cardboard was removed by Detective E H Campbell of the Homicide Squad. It will be necessary to return to this later. Having received the items into the laboratory, Mr Goetz, at the time he examined them, wrote the case file number, FS85/306, on each of the items to enable the identification of them at any later time. [170]

43. [369]

    Mr Goetz carried out two tests on the items, and supervised other scientists who did additional and different tests. Mr Goetz as the biologist in charge of the case carried out the ABO test. The purpose of this test was to identify the blood group of the bloodstains on the items. From both the carpet and the cardboard, he established that the blood group was “O”. [171] His evidence was that this blood group at that time was to be found in about 48% of the population.

44. [370]

    Mr Goetz also undertook the HP (or heptoglobin) test. That test looks for a serum protein which is present in bloodstains. [172] There are three different types of serum protein. Mr Goetz established that the blood serum on both the carpet and the cardboard had the same serum protein marker: 2-1. [173] The combination of group “O” blood and an HP2-1 serum protein marker is found in about 25% of the population. [174]

45. [371]

    Although the results of these two tests pointed strongly to the bloodstains on both the carpet and cardboard being from a human being, another test carried out in the laboratory, being the Precipitin test (which involved crossed over electrophoresis), determined that the bloodstains on the items were human blood. [175]

46. [372]

    A number of other tests were carried out in the laboratory at DFM which looked for various protein and other markers or components in the blood stains. Some of those tests were successful and others were not. With respect to each test which was undertaken, the results were read and interpreted by two scientists in the laboratory. [176] I note in passing that Mr Goetz had conducted an O-tolodine test (“O-Tol”) on the bloodstains prior to any further testing. The O-tol test, as it is known, will react positively to the possible presence of blood. [177] Here, the O-tol tests on the items were positive, and as noted above, the later Precipitin test determined that the stains on both of the items of cardboard and carpet were of human blood.

47. [373]

    The totality of the test results, being those obtained by Mr Goetz himself or by other scientists under his supervision, produced a combination of identifying features which Mr Goetz assessed as being found in approximately 7% of the population. [178]

48. [374]

    The findings of Mr Goetz were recorded in a typed certificate dated 15 August 1985, the original of which was addressed to the Police. An earlier handwritten draft of Mr Goetz was dated 14 August 1985. [179]

49. [375]

    In the course of his evidence in the trial, Mr Goetz was asked to look at the single piece of cardboard which was tendered as an exhibit in the trial. [180] He identified his handwriting, being “FS85/306-2” on the bottom right-hand side of the piece of cardboard in pencil. [181]

50. [376]

    Having examined the piece of cardboard, I am satisfied that those letters and numbers were written on it. I accept the evidence of Mr Goetz that they are in his handwriting and that he wrote that description on the cardboard when he examined it on 24 July 1985. [182]

51. [377]

    Mr Goetz also wrote the same case file number in red on the underside of the piece of carpet. He noted that fact in his 1985 worksheet. [183] In his evidence in the trial, he was shown a magnified photo of the underside of the carpet. He was able to identify his writing and, although part of it was hard to distinguish, he also identified the case file number. I have also examined the carpet, and I could see sufficient of the red writing to identify the case file number. I accept the evidence of Mr Goetz that he wrote the case file number on the underside of the piece of carpet when he examined it on 25 July 1985. [184]

52. [378]

    I am also satisfied that I should accept the evidence of Mr Goetz about receiving, examining, labelling and testing of the cardboard and carpet, which were seized by the Police from the scene of the explosion at Kingdom Hall. My own examination of the cardboard and carpet, which have been tendered as exhibits in the proceedings, supports the evidence which Mr Goetz gave. Mr Goetz impressed me as a careful and methodical witness who was very professional in the way he went about his work. But, equally importantly, the evidence of Mr Goetz is entirely corroborated by the contemporaneous records and worksheets of the laboratory at the DFM which have been tendered in evidence. [185]

53. [379]

    I am completely satisfied that the carpet [186] and cardboard [187] , which have become exhibits in this trial are the items pointed out to Detective Sheather by Mr Clapp at the Kingdom Hall, which were then seized by Detective Sheather and ultimately examined and tested by Mr Goetz. No other conclusion is open.

54. [380]

    It is here appropriate to note and comment upon the procedure followed in the laboratory by Mr Goetz. His evidence is the only source of that procedure. I accept it. It is to be recalled that Detective Sheather took possession of a cardboard carton and then cut two pieces from it and disposed of the remainder of the carton. Those two pieces of cardboard were taken to the laboratory at the DFM and were received by Mr Goetz. The allocated case file number was FS85/306. The two pieces of cardboard were given the added number “-1” and the carpet was given the added number “-2”. These numbers reflected the descriptions on the Police Exhibit Examination Form which requested the examination and testing. [188] The numbers allocated did not refer to the total number of individual items.

55. [381]

    The policy of the laboratory which was in place in July and August 1985 was that in a case where two pieces from an item were supplied by Police, only one piece would be examined. [189] If there were sufficient material (blood in this instance) for a successful testing procedure, the second item, here the second piece of cardboard, would not be examined or tested.

56. [382]

    The evidence of Mr Goetz was that even though only one piece of cardboard was tested, both pieces would have been returned to the Police. I accept that evidence. [190]

57. [383]

    As earlier mentioned, Detective Eric Campbell (who was then with the Homicide Squad) attended at the DFM at Glebe on 6 August 1985 and collected one of the two pieces of cardboard which had been taken to the DFM Laboratory at Glebe. This event is recorded contemporaneously in the Register kept by the DFM. The removal of the cardboard is confirmed by Detective Campbell’s signature in that Register. [191]

58. [384]

    Detective Campbell took the piece of cardboard to the Division of Analytical Laboratories (“DAL”) of the Department of Health on 7 August 1985, which was located at Lidcombe. [192] According to the NSW Police Specimen/Exhibit Examination form, the piece of cardboard was being submitted to DAL for examination with a view to establishing whether or not preservatives had been added to the bloodstains which were on the cardboard. This NSW Police Specimen/Exhibit Examination form was at the least prepared in the presence of Detective Campbell, if not by him, and was a form he signed indicating his approval of the contents.

59. [385]

    Along with the piece of cardboard, Detective Campbell took a control sample of blood to DAL which had been prepared for transfusion and therefore contained a form of preservative. This control sample was collected from the NSW Blood Transfusion Service in the Sydney central business district. Both items (cardboard and sample blood) were taken by Detective Campbell to DAL on 7 August 1985, and upon arrival handed to Mr James Gothard, an analyst. [193]

60. [386]

    This account is confirmed by the contemporaneous records of DAL. The Register kept by DAL, records that on 7 August 1985, Detective Campbell delivered material to DAL which was received and given the DAL work number 4241. The Register also records that a report was prepared on 14 August 1985 by Mr Gothard as the analyst. [194]

61. [387]

    Having examined the piece of cardboard, Mr Gothard concluded that he could not detect, in the dried blood on it, the existence of any citrate additive which was present in the sample of blood obtained from the NSW Blood Transfusion Service. [195]

62. [388]

    The substantive effect of this conclusion was to eliminate, as a possible source of the blood on the cardboard, any blood (or blood products) produced by the NSW Blood Transfusion Service which may have been brought to the Kingdom Hall after the explosion to assist the injured.

63. [389]

    The DAL Register also records that one exhibit, which I conclude refers to the piece of cardboard, was taken from DAL on 20 August 1985 by Constable Ratjens. Constable Ratjens was at that time a police officer involved in the investigation of the explosion at Kingdom Hall. [196]

64. [390]

    Constable Ratjens was called as a witness. In 1985, he was based at the Coroners Court at Glebe and was principally engaged as a courier of items or specimens, samples or exhibits which were held by the Coroner. [197] This largely involved him taking exhibits from the Coroners Court or the DFM to the DAL at Lidcombe. [198] In some cases, he later returned those items to the Corners Court or the DFM. In other cases he transported the items from the DAL to police located in the Sydney central business district. [199]

65. [391]

    Although he gave evidence in the trial that in 1985 he took any such items to the exhibits storage area at the Sydney Police Centre (“SPC”), I am satisfied that he was wrong about this destination because the SPC did not open until about two years later - in the early part of 1987. I think it is probable that the exhibit which he collected on 20 August 1985 was returned to the exhibit storage area in use at the time for the Ballistics Unit in the Sydney CBD, which was not at the SPC.

66. [392]

    In 1985, exhibits such as the pieces of cardboard and carpet in this case, which were the responsibility of the Ballistics Unit, were stored in the archives of the Unit. The Ballistics Unit was located in the building on the corner of Smith and Campbell Streets in Surry Hills. [200] In my view, on balance, the probabilities are that Constable Ratjens took the item of cardboard from the DAL to those archives at the Ballistics Unit on 20 August 1985.

67. [393]

    There is no evidence or documentary record which describes how the remaining piece of cardboard and the carpet, which remained at the laboratory of the DFM after examination and testing, left the custody of the DFM and were returned to the Ballistics Unit. But I have not the slightest doubt that this did happen and very likely, during 1985, not long after they were examined and tested.

68. [394]

    There are a number of circumstances which contribute to this conclusion. First, as is later described, in the circumstances recounted, these two items – the remaining piece of cardboard and the carpet – were located in the exhibits storage area used by the Ballistics Unit in 2013. Secondly, the laboratory at the DFM was not a storage facility. Rather, it was a testing facility, the purpose of which was to receive items, perform tests upon them and then as the DFM Register indicates, to return the items to the relevant section of the police force - here the Ballistics Unit. Thirdly, in accordance with the usual practice at the DFM, after the items were tested, Mr Goetz placed them into a fresh brown paper bag and wrote on that paper bag sufficient to identify the contents of it. He wrote:

69. [395]

    That bag, containing his writing, was discovered in 2013 by Detective Heffernan in the exhibit storage area at the SPC. [201] Fourthly, there is nothing in the evidence, or in the practices adopted by the Ballistics Unit, which would suggest that there was any reason with respect to these items and the investigation which the Unit was engaged in, that anything other than the usual course of procedure would be followed. Fifthly, as is later described, Detective Hoffman saw the carpet in the Ballistic Unit exhibits storage area at a time after it was seized and prior to February 1986.

70. [396]

    I am therefore satisfied all three items (two pieces of cardboard and one piece of carpet) were returned to the Ballistics Unit at some point after they were delivered for testing to DFM and DAL respectively, most likely in 1985.

71. [397]

    Detective Chief Inspector Wayne Hoffman retired from the Police in September 2018 after 35 years of service. He worked in the Ballistics Unit for one month in 1984. On 17 June 1985, he worked in the Photo and Crime Scene Unit, which was located in the building on the corner of Campbell and Smith Streets in Surry Hills. The Photo and Crime Scene Unit offices were located immediately next to the exhibit and records storage area for the Ballistics Unit. On 3 February 1986, he transferred from the Photo and Crime Scene Unit to the Ballistics Unit. [203]

72. [398]

    During a period leading up to his transfer to the Ballistics Unit, he received training from the Ballistics Unit. This training included being shown where the Ballistics Unit stored the exhibits from the investigations being conducted at the time into the various events the subject of this trial being Events 3 to 7. During that training he saw, but did not handle or touch, the section of carpet which had been cut from the floor of the Kingdom Hall. I have no hesitation in accepting this evidence.

73. [399]

    It follows that in the period between August 1985 and no later than 3 February 1986, the carpet had been returned from the DFM to the Ballistics Unit. I am satisfied on the probabilities that the second piece of cardboard would also have been returned at the same time and was being stored with the carpet.

74. [400]

    An exhibit list which is apparently dated 6 February 1996 [204] lists the matters in respect of which exhibits were held in the Ballistics Unit archive room. It records that exhibits are there held in respect of the murders of Mr Wykes and Justice Opas. This contemporaneous record corroborates the evidence of Detective Hoffman that exhibits were moved from the exhibit storage area used by the Ballistics Unit in the building on the corner of Smith and Campbell Streets at Surry Hills, into the SPC.

75. [401]

    The exhibits in the Ballistics Unit and its archives were kept in locked areas. The officer in charge held the keys and any access would only occur with his approval. [205]

76. [402]

    In contemporaneously kept records of exhibits tendered at the Coronial Inquest into the death of Mr Wykes, which was completed in April 1986, it is clear that neither the piece of the cardboard or the carpet were tendered as exhibits. [206]

77. [403]

    From that fact, I am able to safely conclude that it is most unlikely that neither leading up to the commencement of the Inquest, nor at any time during it, was there any reason for these two exhibits to be accessed in the Ballistic Unit exhibit storage facilities, and removed from that storage.

78. [404]

    In the early part of 1987, the SPC, which was newly constructed in Goulburn Street, Surry Hills, was opened. The Ballistics Unit moved there from its previous offices. Detective Hoffmann was responsible for drawing up the plans for, and overseeing, the relocation of all exhibits, records and other material held by the Unit. [207] All of that material was moved in the period 16 to 26 February 1987. Detective Hoffmann’s evidence was that all of the exhibits were moved to one of two dedicated exhibit storage spaces in the SPC. He also said that nothing was left behind. [208]

79. [405]

    The offices of the Ballistics Unit in the SPC were on level 5. On that level there was a front counter at which all exhibits were received. There was a storage area adjacent to the front counter. As well, on that level, there was a working exhibits room which was part of the laboratory. Exhibits were stored there whilst in use. On the basement level there was secure store room for the exhibits of the Ballistics Unit. It was not shared with any other unit or section. [209] Generally, the exhibits in the basement storage area comprised exhibits which were historic in nature from the years prior to the move to the SPC. [210]

80. [406]

    The exhibit rooms on Level 5 of the SPC could only be accessed by an authorised police officer using a pass code on a keypad. The basement level storage area required the use of both a pass code entered into a keypad and, as well, the use of a key which had to be obtained from Detective Hoffmann or his predecessor as officer in charge. [211]

81. [407]

    I am satisfied that the exhibits of the Ballistics Unit, including the pieces of carpet and cardboard seized from the Kingdom Hall in 1985, remained in storage at the SPC except during a period in or after 2005, when the exhibit storage area at the SPC was renovated. [212]

82. [408]

    When at the SPC, Detective Hoffmann sighted the carpet as part of his regular auditing process of the exhibit storage area. The storage at the SPC, as earlier indicated, was locked and secure. Any person who wished to access the exhibit storage area required the approval of the Commander of the Ballistics Unit, who after 1996 was Detective Hoffmann. To obtain approval, that person required a proper reason to go to the exhibit storage area.

83. [409]

    During the period of renovation of the SPC exhibits area, all Ballistics Unit exhibits were moved to storage at the Weapons and Ordnance Disposal Unit (“WODU”), which was located in Zetland. [213] It was a high security facility which was protected by security guards who were on duty 24 hours a day, seven days a week, CCTV cameras which covered the inside of buildings and the outside compound and as well by a high chainmesh fence topped with barbed wire. At the WODU premises, the Ballistics Unit exhibits were stored in a 40 foot long shipping container which was sealed against the weather. That shipping container was kept locked at all times. [214] The keys were held in a safe in Detective Hoffmann’s office at the WODU. The WODU office building in which Detective Hoffman’s locked office was located kept the keys to the shipping container in a locked safe. The office building was itself a secure building to which only authorised police officers had access. It required the entry of a passcode onto a keypad to obtain that access. [215]

84. [410]

    The WODU compound, including the building and storage facilities, was provided with a high level of security because of the nature of many of the items ordinarily kept there. This included thousands of weapons and tonnes of ammunition, all of which were awaiting destruction. [216]

85. [411]

    The inside of the container was checked regularly by Detective Hoffman, at least weekly, looking for moisture, water leakage or insect infestation or damage. [217] Detective Hoffman gave evidence, which I accept, that the inside of the shipping container was at all times dry and safe. [218]

86. [412]

    Access to the shipping container to obtain exhibits only rarely occurred, probably no more than six times per year. [219] Detective Hoffman said that at no time, to his knowledge, was the piece of carpet ever removed from his custody or control. [220] I infer because they were likely to have been stored together, that the pieces of cardboard were also not removed from his custody or control.

87. [413]

    As mentioned above, it was Detective Hoffman’s practice whilst exhibits were at WODU to conduct periodic audits or checks to ensure that the exhibits were not contaminated or damaged by water or pests. During these checks, Detective Hoffman said that he distinctly recalled seeing the exhibits relating to the Events covered by the Indictment, and in particular he remembered seeing the carpet. [221]

88. [414]

    Exhibits remained stored in the WODU shipping container until towards the end of 2011, when the WODU and the Ballistics Unit were required to vacate the site because the property was no longer available to them. All exhibits were returned from WODU to the exhibits storage area of the Ballistics Unit at the SPC by officers of the Ballistics Unit. [222] At no time, whilst the exhibits were in either the Exhibit Room on the basement level of the SPC or at WODU, were there any incidents by way of security breaches or unauthorised access to those exhibits. [223]

89. [415]

    At a point in time which cannot be identified with any accuracy, except that it was whilst the exhibits relevant to this trial were stored in the shipping container at WODU at Zetland (therefore before December 2011), Detective Senior Sergeant Horn contacted Detective Hoffman to make arrangements to sight the exhibits relating to the Events, the subject of this trial. After that happened, Detective Hoffman made arrangements for those exhibits to be returned to the SPC so that they could be more easily accessed by officers of the Unsolved Homicide Squad. The transfer occurred shortly after the conversation with Detective Senior Sergeant Horn. [224]

90. [416]

    There was no evidence from Detective Sergeant Horn in the trial. He was described as being from the Forensic Services Group. An internal police record [225] dated 15 November 2006, records that Detective Horn was at that time conducting enquiries in relation to the location of exhibits relating to the death of Mr Stephen Blanchard at Local Area Commands and crime scene units through NSW. This note is consistent with the evidence of Detective Hoffman as to his understanding of the role of Detective Senior Sergeant Horn – which was that he was charged with identifying the locations of all of the exhibits concerned with the Events the subject of the Indictment in this trial.

91. [417]

    The evidence of Detective Heffernan, which I accept on this issue, is that in October 2013 he received advice from Detective Senior Sergeant Horn that the contents of a shipping container had been transported to the exhibits storage area of the Ballistics Unit at the SPC. As a result of receiving that information, on 9 October 2013, Detective Heffernan and Detective Bradley went to the SPC. [226] Detectives Heffernan and Bradley were accompanied by two other detectives from Task Force Reddan, being Detective Tse and Detective Davidson. [227] Detective Heffernan spoke with Detective Schey, who permitted him and his fellow detectives to access the exhibits storage area in the basement level. [228] The detectives began searching for any exhibits which might relate to the Events in issue in this trial.

92. [418]

    The storage area contained a compactus, [229] with moveable shelves and partitions. In the compactus there were eight moveable bays containing shelving which was substantially full. The detectives examined each of the shelves looking for any relevant exhibits.

93. [419]

    At about 10.20am, Detective Heffernan located a brown paper bag on the bottom shelf of the last bay in the compactus. [230] It caught his eye because vertically down the side of it was the word “Sheather”. [231] The bag was taken outside the exhibit room for examination. The detectives took the appropriate precautions against contamination by changing their gloves. Detective Heffernan observed that the paper bag was unsealed.

94. [420]

    The front of the paper bag carried the following words: [232]

95. [421]

    I have found as a fact earlier at [394] that these were the words written on the paper bag by Mr Goetz at the DFM when he finished his examination and placed the exhibits into a paper bag so that they could be returned to Detective Sheather at the Ballistics Unit. [233]

96. [422]

    When the outer or large paper bag was opened, two further bags were identified inside it. One was a clear plastic bag and one was a smaller brown paper bag. The clear plastic bag contained the piece of carpet to which earlier reference has been made, and which has become an exhibit in this trial. [234] Photographs taken by Detective Bradley at the time [235] and which show that there was the following writing on the clear plastic bag “Stained carpet inside window southeast corner”. The evidence did not establish whose writing this is or when it was first put on the plastic bag. The small paper bag had within it one of the two pieces of cardboard which had been seized from the Kingdom Hall by Detective Sheather, to which earlier reference has been made. It also became an exhibit in this trial. [236]

97. [423]

    The words written in red marker pen on the small paper bag were those referred to at [348] above as having been written by Detective Sheather on the bag into which he placed the cardboard box from which the two pieces of cardboard were taken, recovered from the Kingdom Hall before the pieces were first sent to the laboratory at the DFM. [237]

98. [424]

    The detectives did not remove either the carpet or the cardboard from the plastic and smaller brown bags in which the items had respectively been found. Rather, they took the items which they had found to the Metropolitan Exhibits and Property Centre at Potts Hill (“MEPC”).

99. [425]

    At the time the large paper bag was first examined at the SPC, a length of grey coloured material was also found inside it. [238] However, the photographs [239] appear to show that the grey material was inside the clear plastic bag which also contained the carpet when the bag was first examined and photographed. [240] Detective Heffernan agreed that that was in fact the position on 9 October 2013, when the discovery occurred. [241]

100. [426]

     Once the items were taken to the MEPC, each one was sealed into fresh police exhibit bags, given an EFIMS number and entered into the EFIMS system. [242] EFIMS is the electronic database used by NSW Police to record and track exhibits. [243] The new bags were sealed and entered into the secured storage system at the MEPC.

101. [427]

     Through the use of allocated unique barcoding, the EFIMS system tracks, any movement of an exhibit from its place of secure storage to any other facility. The system was accessible by staff at the laboratories of the Forensic and Analytical Science Service (“FASS”). [244]

102. [428]

     FASS is a body within NSW Health Pathology, which is part of the Department of Health.

103. [429]

     On 10 October 2013, Detective Heffernan returned to the MEPC, where he was provided with the carpet and cardboard from the secure storage. He then took the freshly sealed bags in which those items were contained to the FASS facility, which was then located at Lidcombe, where he handed the items over to staff for the purpose of an examination to see if DNA could be found on them.

104. [430]

     Lest there be thought to be any residual issue about continuous custody, I am satisfied beyond reasonable doubt that the piece of cardboard and the piece of carpet which were provided by Detective Heffernan to FASS for examination and testing were the same items as those which had been seized by Detective Sheather from the scene of the bombing at Kingdom Hall. I am also satisfied that the only time when the items left the custody of police after they were first seized from the Kingdom Hall was when they were taken to the laboratory of the DFM at Glebe for examination by Mr Goetz in 1985. The carpet and one piece of cardboard were then returned to the Ballistics Unit after that examination and remained in police custody thereafter.

105. [431]

     My conclusion is also that the second piece of cardboard, which was initially taken to the DFM but which was not tested by Mr Goetz, was in fact the piece of cardboard which was released by the DFM and taken to the DAL at Lidcombe in 1985. At DAL, it was tested for preservatives by Mr Gothard. It was returned by Constable Ratjens to the Ballistics Unit, but it has subsequently been lost or misplaced. It was not tendered as an exhibit in this trial. Ultimately, its absence does not affect any findings which I have made about the continuity of possession of the pieces cardboard and the carpet items which were tendered in this trial.

106. [432]

     When the items were delivered by Detective Heffernan to FASS, they were recorded as being received there under the case file number of FS13/7104. The cardboard was allocated the item number 6 and the carpet was allocated the item number 7. The reason why these items were given those numbers is that in August 2013, items which were relevant to Task Force Reddan’s enquiries had been delivered to FASS for testing and had been allocated items number 1 through to 5. [245]

107. [433]

     The cardboard and carpet were first examined by Ms Nicole Campbell, a specialist forensic scientist working in the Evidence Recovery Unit. Ms Campbell gave evidence, which I accept without qualification, about what she did with the items. She kept contemporaneous notes in a document described as a “work sheet”. These notes recorded her observations and what she did. [246] It was not suggested in cross-examination or in submissions that her notes or her evidence were not accurate. I am well satisfied that I can rely on the accuracy and integrity of her work, and her evidence.

108. [434]

     Ms Campbell examined both the carpet and the cardboard. She determined that samples should be taken from a number of areas which she identified as being possibly blood stained areas. These were chosen at her discretion and on the basis of what she could see of the items at that time in the laboratory. Her purpose was to remove from the cardboard a sufficient sample which would allow for testing for the presence of human blood and also for the presence of DNA. Her work notes and accompanying photographs demonstrate beyond any doubt that she was removing samples for testing from the items which originally came from the Kingdom Hall.

109. [435]

     With respect to the cardboard (item 6), on 11 October 2013, Ms Campbell sampled two areas, 6(i) and 6(ii). Both areas were O-tol positive, indicating the likely presence of blood. [247] Both were tested with the Hematrace test which is a test to confirm the presence of human blood. Sample 6(i) was positive for human blood. Sample 6(ii) was negative on the Hematrace test. Both of these results were confirmed by another scientist at FASS, Mr Stephen Tighe, in accordance with the usual laboratory procedure. Ms Campbell noted with respect to sample 6(ii) that only a small quantity of the sample was available for the Hematrace test. Sample 6(ii) was a much smaller stain than sample 6(i). [248]

110. [436]

     Both samples were allocated a unique barcode number and were sent for DNA testing.

111. [437]

     Ms Campbell examined the carpet on 11 and 14 October 2013. She observed several areas which had been outlined in red and which contained patches of dark flakes. She queried whether those areas had been the subject of a previous examination. She re-tested all those areas with the O‑tol test. One area gave a weak O-tol positive reaction and the others gave a negative reaction. [249]

112. [438]

     Ms Campbell continued her examination of the carpet. She noted that the edges of the carpet were frayed and that small areas of the carpet were missing, exposing underlay. She observed three additional areas of dark flakes. She outlined them in green to distinguish them from any possible areas of previous examinations outlined in red. They were tested with the O‑tol test and each tested positive to that test. [250]

113. [439]

     Ms Campbell went on to sample one area which was the largest of the three additional areas of dark flaking which she had outlined in green. She cut the flakes out of the carpet and put most of them into a tube which was sent as a sample for DNA testing. That was sample 7(i) which was also allocated a unique barcode number. The other flakes were submitted for Hematrace testing. This Hematrace test was positive, thereby confirming the presence of human blood. [251]

114. [440]

     As well as testing the carpet, Ms Campbell also tested the piece of grey material which was found in the same bag as the carpet. With one exception, the areas tested were O-tol negative. The one sample which was O-tol positive was then tested with hematrace, where it proved negative for the present of human blood. [252] Three samples from the grey material with unique barcode identifiers – 7(a)(i), 7(a)(ii) and 7(a)(iii) were submitted for DNA analysis.

115. [441]

     Both the carpet and the cardboard were submitted to further analysis in 2017. It will be necessary to come to the results of that analysis in due course.

116. [442]

     As earlier noted, samples 6(i) and 6(ii) from the cardboard and sample 7(i) from the carpet were submitted for DNA testing.

117. [443]

     Dr David Bruce is a senior forensic biologist employed at the Forensic Biology DNA Laboratory of FASS. [253] His role is the analysis and reporting of exhibits for testing including DNA testing. He holds a primary university degree in science and has been awarded a Doctor of Philosophy. He is well experienced in the field of DNA science. He has undertaken and been involved in the analysis of DNA since 2001. His experience extends to the extraction of DNA and analysis of DNA profiles from aged blood stains including some which pre-date the Events of this trial.

118. [444]

     Dr Bruce received the results of the DNA process in the form of electropherograms (EPGs) which contain DNA profile information from the DNA recovered from items of evidence submitted to FASS. [254] Once he received the EPGs he undertook an analysis of them. Ultimately, Dr Bruce’s opinion is set out in his first Certificate of Analysis dated 6 December 2013. [255]

119. [445]

     Dr Bruce expressed the following conclusions:

120. [446]

     The DNA profiles obtained by Dr Bruce were described by him as being of the same but an unknown male. That conclusion was arrived at after a comparison search was made of all known DNA profiles recorded on a database for NSW and on a national database. [257] These databases store nuclear DNA profiles and not mitochondrial DNA profiles.

121. [447]

     By the time that he came to undertake a further analysis, Dr Bruce was in possession of the DNA produced from a buccal swab of the daughter of the Accused. [258]

122. [448]

     As recorded in his Certificate of Analysis dated 6 December 2013, [259] Dr Bruce compared the DNA profile of individual A with the DNA profile of the daughter of the Accused, Trudi. He formed an opinion and expressed his conclusion about sample 7(i) in this way:

123. [449]

     Dr Bruce’s Certificate of Analysis of 6 December 2013 also analysed the samples from the piece of grey fabric. On two of the samples he identified a mixture of DNA. On one of those two mixed samples he was able to give the opinion that the major component of the mixture was consistent with originating from an unknown female, Individual B. On the third sample, Dr Bruce identified that the DNA profile was consistent with originating from an unknown female, Individual B. No other profile, including that of the male Individual A, was able to be identified.

124. [450]

     On 12 August 2015, Dr Bruce issued a further Certificate of Analysis. [260] The purpose of this certificate was to report on the comparison of the DNA profiles of Individual A which were obtained in 2013 with the DNA profile which had been obtained from a buccal swab taken from the Accused after his arrest in 2015. In that Certificate Dr Bruce expressed these conclusions: [261]

125. [451]

     The statistical figure of 1 in 100 billion individuals was described by Dr Bruce in his evidence as the highest level of confidence presently used for reporting on DNA comparison. [262]

126. [452]

     In late 2017, the cardboard and carpet were resubmitted by Police for further examination and testing at FASS.

127. [453]

     On 29 November 2017, a forensic biologist, Mr Bao Khan Nguyen, received and examined the piece of cardboard in the laboratory of the Evidence Recovery Unit. Mr Nguyen was a very well experienced scientist, having started working at FASS in 2001. I entirely accept his evidence. He knew that the cardboard had been submitted for an earlier examination by FASS. He chose, correctly in my opinion, not to enquire about the details of that previous examination. He took five further samples from the piece of cardboard. He chose the areas of the piece of cardboard which were to be sampled. Two of the areas he chose for sampling, which became samples 6(iv) and 6(v), were of two stains located between the two areas which had previously been sampled by Ms Campbell. The other three samples were taken by means of a tape-lift, one on the side of the cardboard which contained the handwritten label “FS 85/306” (labelled 6(iii)) and two from the other side of the piece of cardboard. They were labelled 6(vi) and 6(vii).

128. [454]

     According to his worksheets which were completed contemporaneously with his examination and testing, Mr Nguyen obtained these results: [263]

129. [455]

     On 29 November 2017, Mr Nguyen also examined the carpet which had been resubmitted. [264] He identified two areas for further examination which were within the areas previously outlined in green. These were smaller areas. He identified two further samples (7(ii) and 7(iii)). He drew these conclusions:

130. [456]

     Mr Nguyen concluded that the first O-tol test on sample 7(ii) was a false result.

131. [457]

     Each of the samples for the cardboard and carpet which were submitted for DNA testing were allocated a unique barcode number in accordance with the practice of the laboratory and were reported on by Dr Bruce in a Certificate of Analysis dated 31 January 2018. [265]

132. [458]

     From only three of these samples was DNA able to be extracted. Those samples were reported upon by Dr Bruce as follows:

133. [459]

     The DNA profile from the minor contributor in sample 7(iii) was not suitable for identification and comparison.

134. [460]

     With respect to the first Certificate of Analysis dated 6 December 2013 [266] and the second Certificate of Analysis dated 31 January 2018, [267] Dr Bruce noted that for each of the samples from which a DNA profile had been successfully extracted and analysed, there had been either a confirmed test for human blood (samples 6(i), 6(iv) and 7(i)) or else a positive screening test for blood (samples 6(ii), 6(v) and 7(iii)).

135. [461]

     There were a large number of witnesses called to prove that the various processes in the FASS laboratory through which each of the samples passed on their way to the production of the DNA profile EPGs were properly conducted. This evidence does not warrant close analysis now, as it is apparent that the EPGs could not be successfully provided to Dr Bruce for his analysis, nor could a DNA profile be identified, unless each of the steps in the DNA processing system had been undertaken appropriately and the results were adequate to permit the sample to proceed to the next test.

136. [462]

     As well, there was no cross-examination of Dr Bruce which challenged the conclusions which he reached, as set out in any of his Certificates of Analysis. Dr Brian McDonald, the DNA expert called by the Accused, accepted the results and the statistical analysis carried out by Dr Bruce as correct. Dr McDonald expressed confidence that the DNA which had been extracted from the samples and which had been identified by Dr Bruce was the DNA of the Accused. Dr McDonald said in evidence that: [268]

137. [463]

     Whilst I am not obliged to accept any expert opinion, I accept without question the opinions of Dr Bruce as set out in his three Certificates of Analysis dated 6 December 2013, 12 August 2015 and 31 January 2018. Those certificates, together with the evidence of Ms Campbell, Mr Nguyen and Dr Bruce corroborated by their contemporaneous records, was compelling. They were respectively very careful witnesses who gave me the clear impression that they were each highly experienced and careful individuals who went about their work professionally, competently and carefully. I gained the further impression that each of them undertook their work with full knowledge of the ultimate forensic importance of what they were doing.

138. [464]

     My ultimate acceptance of their opinions is strengthened by the fact that Dr McDonald did not challenge the conclusions they reached. As well, my acceptance of their opinions is further strengthened by the fact that there is no contrary evidence against their findings and conclusions.

139. [465]

     Accordingly, I am satisfied beyond reasonable doubt that the DNA of the Accused has been identified at four separate locations on the piece of cardboard in areas of apparent bloodstaining, which had formed part of a cardboard box stored in the south-eastern storage area of the Kingdom Hall and which was observed, both on 14 July 1985 and before the bomb exploded on 21 July 1985, to have bloodstains on it.

140. [466]

     I am also satisfied beyond reasonable doubt that the DNA of the Accused has been identified at two separate locations on the piece of carpet, retrieved from an area under the south‑eastern window, a pane of which was broken on both of 14 and 21 July 1985 and which was observed to have blood stains on it both after the break-in on 14 July 2015 and before the bomb explosion on 21 July 1985.

141. [467]

     Further, as I have found earlier, I am satisfied beyond reasonable doubt that the cardboard and carpet, from which the DNA of the Accused was extracted, were seized from the Kingdom Hall after the bomb explosion by Detective Sheather. I am equally satisfied that the items remained under the control of the Ballistics Unit until they were provided to FASS for DNA testing in 2013 and 2017, except whilst they were tested at the laboratory of the DFM by Mr Goetz in July and August 1985.

142. [468]

     Having regard to the findings inherent in the previous six matters, it is now necessary to consider whether the Crown has proved beyond reasonable doubt that the DNA identified by Dr Bruce on the cardboard and carpet was from the blood deposited on the items during the break-in to the Kingdom Hall which occurred on 13/14 July 1985.

143. [469]

     The Crown’s case asserts that the DNA profiles of the Accused, which were identified in a number of locations on the cardboard and carpet, were deposited there at the time of, and as part of the blood which was shed onto the items, when in the Accused broke into to the Kingdom Hall on 13/14 July 1985.

144. [470]

     Put differently, the Crown has assumed the obligation to prove beyond reasonable doubt that the blood which was shed onto the carpet and cardboard at the Kingdom Hall was that of the Accused.

145. [471]

     Since proof of this fact is an essential underlying fact in the proof by the Crown that the Accused was the intruder on 13/14 July 1985. I direct myself that I must be satisfied beyond reasonable doubt that the Crown has proved this underlying fact beyond reasonable doubt.

146. [472]

     It is appropriate to record the respective submissions of the Crown and the Accused in relation to the source of the Accused’s DNA on the items.

147. [473]

     In proof of the underlying fact that the Accused was the intruder into the Kingdom Hall on 13/14 July 1985, the Crown relies on:

     1. (1)

        the expert opinion of Dr Bruce identifying the DNA of the Accused on the piece of cardboard and carpet;

     2. (2)

        the body of facts which concern the observable presence of blood on the carpet and cardboard including the testing carried out in 1985;

     3. (3)

        the identification of the DNA profile in the particular areas identified on the carpet and cardboard;

     4. (4)

        the fact that blood is well recognised as, and accepted as, being a rich source of DNA;

     5. (5)

        the fact that there is no evidence of any alternative source of the DNA of the Accused on the carpet and cardboard other than from blood;

     6. (6)

        the absence of any reasonable hypothesis on the evidence which may provide an explanation for the DNA of the Accused being sourced from other than blood; and

     7. (7)

        the range of other facts and circumstances which connect the Accused to the Kingdom Hall and to the Lurnea Congregation at that time.

148. [474]

     The Accused submitted that the Court would not be satisfied beyond reasonable doubt that his DNA identified in the FASS laboratory in 2013 and 2017 was associated with, or sourced from, the blood found on the carpet and cardboard.

149. [475]

     The Accused pointed to a number of reasons why the Crown had not established beyond reasonable doubt the fact that the Accused was the intruder on 13/14 July 1985. They were:

150. [476]

     I have already dealt with the issue of whether the Accused had a motive to cause harm to the members of the Lurnea congregation and there will be no need to repeat my reasoning on this issue.

151. [477]

     In considering these competing submissions for the Crown and the Accused, I am entitled to give them such weight as I think they deserve having regard to my assessment of the evidence upon which the submissions are based. The submissions are not evidence. They are advanced either by the Crown or on behalf of the Accused as one way in which the evidence before the Court can be analysed. I am entitled to analyse the evidence in a different way reminding myself at all times that my analysis must be reasoned, rational and tethered to the evidence, and the facts I consider are established by the evidence..

152. [478]

     I note that a significant part of the evidence in the trial which is to be considered in proof of this underlying fact that it was the blood of the Accused which was shed onto the cardboard and carpet on 13/14 July 1985, comes from two experts: Dr David Bruce for the Crown and Dr Brian McDonald who was called for the Accused. Much of their evidence does not involve significant, if any, disagreement. However, some of their respective evidence contains different expert opinions.

153. [479]

     I remind myself that the weight of any expert opinion in proving facts in issue is dependent upon the reliability and accuracy of the material which the expert used to reach their opinion.

154. [480]

     The weight of the opinion of an expert also depends upon the degree to which, where possible, the expert analysed the material upon which the opinion was based and the expert is able to explain the skill and expertise used in formulating the opinion.

155. [481]

     The expert evidence is admitted as a part of all of the evidence and may assist me in determining whether the Crown has proved the underlying fact beyond reasonable doubt.

156. [482]

     I remind myself that I am not bound to accept or act upon the evidence of either or both of these experts, particularly where the facts upon which their opinion is based do not accord with the facts which I find. To the extent that there is a conflict in the expert evidence, I am entitled to consider the expert evidence in the context of all of the evidence that has been admitted in the trial. I can also accept the whole or part of the opinions which either expert expresses.

157. [483]

     It is convenient to commence with identifying those areas of both factual and expert opinion upon which Dr Bruce and Dr McDonald are agreed. Agreement here is used to include areas of complete or express agreement and also areas where there is no serious dispute between the two experts. These areas relevantly include:

158. [484]

     In light of these matters, each of which I accept has been established on the evidence, it is necessary first to consider whether I accept Dr Bruce’s expert opinion that the DNA of the Accused came from the blood on the carpet and cardboard. If I do not, then the Crown’s case must fail. However, the fact that I accept his opinion does not mean that, without more, I can be satisfied beyond reasonable doubt that the Crown has proved that the Accused was the intruder into the Kingdom Hall on 13/14 July 1985. That is because, even if Dr Bruce’s opinion is correct, there may be other facts or expert opinions which cannot be dismissed and which mean that a reasonable doubt must exist which would result in the Crown failing to prove its case beyond reasonable doubt.

159. [485]

     I accept based upon Dr Bruce’s expert opinion that the Crown has satisfied me beyond reasonable doubt that the DNA profiles which Dr Bruce analysed and identified as being those of the Accused (with the statistical certainty earlier referred to) came from the blood shed onto the carpet and cardboard. What follows are my principal reasons for that conclusion.

160. [486]

     First, the opinion accords with the facts, does not strain credulity and, by the application of common sense, accords with what is likely to have happened. The blood stains on the carpet and cardboard were caused by blood dropping vertically onto the items. [276] The bloodstains were obviously associated with the broken glass pane discovered on 14 July 1985 and, as I have earlier found, were associated with an intruder. There is simply no factual basis to find that the blood stains were anything other than human blood. Any suggestion, and none was explicitly made, that the blood came from an animal and not a human is, having regard to the nature of the Kingdom Hall and its purpose, patently absurd and fanciful. This is particularly so when it is to be observed that the path followed by the person whose blood was falling onto the carpet, involved going through a door which was ordinarily kept closed.

161. [487]

     As blood is a rich source of DNA profile, it would be expected that the 28 year old bloodstains, if tested for DNA, would provide a DNA profile of the person whose blood it is. All of the bloodstains which resulted in DNA profiles being obtained tested positive for human blood as a consequence of the use of either or both of the O-tol test or the Hematrace test. The stains on the carpet and cardboard looked like blood stains when first observed by members of the Lurnea Congregation, Detective Sheather and Mr Goetz, and looked like aged bloodstains when observed in and after 2013 by a number of expert forensic biologists and the DNA experts.

162. [488]

     Four of the bloodstains on the cardboard were successfully tested for DNA and all four returned DNA profiles of the Accused. The samples on the cardboard were obtained by removing the remnants of the stain by scraping or by tape lift from the stained area. Two of the bloodstains on the carpet were successfully tested for DNA and each returned the DNA profile of the Accused, with only one sample containing a mixed profile which was indicated by three of the small amplicons in the profiles [277] which did not belong to the Accused. The samples consisted of cutting the carpet fibres upon which were dark flakes of blood.

163. [489]

     All of these facts strongly support my acceptance of Dr Bruce’s opinion that the DNA of the Accused came from the blood which was dropped onto the carpet and cardboard on 13/14 July 1985 when he was the intruder into the Kingdom Hall.

164. [490]

     Secondly, Dr McDonald, having accepted the adequacy and integrity of the work carried out by the laboratory at FASS, and the correctness of the analysis carried by Dr Bruce that the DNA profiles are those of the Accused (with the statistical conformational levels attributed by Dr Bruce), does not express an opinion that the DNA profiles could not have come from the blood on the carpet and cardboard. On the contrary, he explicitly agreed when asked that it was possible for the DNA to have come from the blood, and further that the DNA profiles were not inconsistent with being deposited 28 years before they were analysed. [278]

165. [491]

     As Dr McDonald said in his first expert report: [279]

166. [492]

     Thirdly, to the extent that some of the tests carried out to establish the presence of human blood are said to have produced inconsistent and therefore unreliable results, there exists a rational reason why that would be so. In other words, the results are not irrational and fall within a range of rational scientific explanation. It is to be recalled that the testing of six samples produced DNA profiles of the Accused. Three of these tests (samples 6(i), 6(iv) and 7(i)) returned positive results from both the O-tol and Hematrace tests. The DNA profile of the Accused was identified in each of these samples. The three remaining tests (sample 6(ii), 6(v) and 7(iii)) were positive for blood when tested with the O-tol test, but negative on the Hematrace test. These three samples also produced DNA profiles of the Accused.

167. [493]

     The three samples that produced negative Hematrace results are pointed to by the Accused to advance two hypotheses. The first hypothesis is that the inconsistent results indicate a general inadequacy of testing, such that Dr Bruce’s opinion was unsoundly based. Alternatively, it was said that these samples, although appearing to be blood stains, were not proved to be so and therefore the DNA profiles could not have been extracted from the blood.

168. [494]

     In his evidence, which I accept, Dr Bruce explained that the results were not inexplicable or unsound because a negative result for a Hematrace test can occur when insufficient material has been used for the test. By way of example, for sample 6(ii), [280] Ms Campbell recorded in her worksheet that only a small quantity of the sample was used for that Hematrace test. This would be a ready explanation for the negative result. The other explanation which is available is that the material used for the O-tol test had been removed from the substrate and was no longer available. This would explain, for the carpet, why sample 7(iii) had such a result. In the end, I am satisfied that the discrepancies pointed to by the Accused do not mean that Dr Bruce’s opinion is erroneous nor that it should not be accepted. As well, I am not satisfied that the inconsistency of test results meant that the DNA profiles could not have come from the blood.

169. [495]

     Fourthly, I am satisfied that Dr Bruce is a well-qualified scientist who has considerable experience in the field of forensic biology and DNA analysis. At the time he formed his opinions relied upon in this case by the Crown, he was a senior forensic biologist at FASS whose role involved undertaking DNA analysis regularly. He had been doing so for over 10 years. As well, he had experience in examining aged bloodstains and extracting DNA from them, including a bloodstain which was about 50 years old i.e. considerably older that the bloodstains in this trial. Whilst the demeanour of an expert witness is not a matter to which any weight should ordinarily be given, the content of the expert's answers together with the expert’s manner can readily provide material from which it is appropriate to form an impression of whether an expert witness is careful and thoughtful. Dr Bruce gave me such an impression. I found him to be careful and thoughtful and that there were no obvious inconsistencies in the answers which he gave. All of these matters add to the other reasons why I accept his opinion.

Second Transfer Hypothesis

1. [496]

   It is now necessary to consider whether there is any other available explanation or hypothesis which may account for the DNA of the Accused being on the carpet and cardboard without it being associated with the bloodstains on those items.

2. [497]

   It is appropriate here to remind myself of the directions set out above at [90] above when considering whether the hypothesis is a reasonable one, and that something more than mere conjecture or supposition is necessary.

3. [498]

   Dr McDonald gave evidence that a hypothesis existed which he said was properly scientifically based, and which might account for the presence of the DNA of the Accused without it coming from the blood which was deposited on the carpet and cardboard in 1985.

4. [499]

   Dr McDonald hypothesised that, given the variable degradation in the DNA profiles identified and the differing test results on three samples of blood as between the O-tol test and the Hematrace test, the DNA profiles identified came from a source other than the blood. This source, according to Dr McDonald, would have had a different history to the 1985 deposition of the blood. [281]

5. [500]

   This can conveniently be referred to as the “secondary transfer hypothesis”.

6. [501]

   Dr McDonald explained the steps necessary to support the secondary transfer hypothesis. They were:

   1. (1)

      that the DNA originally contained within the blood deposited in 1985 had been, by 2013, degraded to such an extent as to be entirely undetectable, when the samples were tested. Dr McDonald later added that the DNA could have been removed in some other way which he was unable to identify; [282]

   2. (2)

      the DNA of the Accused had been transferred from another source onto the cardboard and carpet in the areas which were sampled by FASS in 2013 and 2017, and which produced a DNA profile of the Accused; [283]

   3. (3)

      the process of transfer could not have been akin to that of trace DNA, i.e. it could not have occurred by an inadvertent DNA transfer happening by relatively short-term contact;

   4. (4)

      the “other source” had to have a substantial DNA presence on it, because at least one of the samples (7(i)) had substantial DNA extracted; and

   5. (5)

      the transfer of DNA occurred at a point in time which cannot be identified, which is sometime after 1985 and closer to 2013.

7. [502]

   Whilst Dr McDonald articulated the secondary transfer hypothesis, he agreed that in order for it to be an available hypothesis in the circumstances of this case, there were a number of essential facts, each of which would need to be established to enable the secondary transfer hypothesis to be something more than a text book or theoretical hypothesis.

8. [503]

   As I understand, those essential facts were:

   1. (1)

      that the Accused had never been physically present in the Kingdom Hall at any time;

   2. (2)

      that the Police would have needed to be in possession of an item or object which contained a substantial amount of the Accused’s DNA which could be the “other source” of the DNA profiles which were detected; and

   3. (3)

      that the carpet and cardboard were accessed at a time closer to 2013 than 1985, and the “other source” was brought into contact with the carpet and cardboard for a sufficient period to enable the transfer to have occurred.

9. [504]

   I should note that it was suggested in the evidence of Dr McDonald that it was theoretically possible that, if the DNA profiles did come from the blood of the Accused, the blood itself could have been taken to the Kingdom Hall “without him” which means that it must have been in some form of container and then spilt from that container onto the carpet and cardboard, thereby mimicking the fact that the Accused had been there and had shed blood onto those items. [284] There is no evidence that this could possibly have occurred. There is no basis in the evidence for concluding that this was a rational or reasonable hypothesis. The statement made in evidence by Dr McDonald was nothing more than pure speculation. Neither the Crown nor the Accused dealt with this statement in their submissions. It can be put to one side and completely disregarded as being of any relevance.

10. [505]

    Dr McDonald was careful when cross-examined about the secondary transfer hypothesis. He made it clear that he was neither qualified nor in possession of any information which would enable him to explain whether, or how, the secondary transfer could have occurred such as to make the secondary transfer hypothesis a rational or reasonable one.

11. [506]

    I concluded from what he said in cross-examination that the secondary transfer hypothesis that he had identified was what I would describe as a “text book theory” or “a theoretical explanation”. That is to say the theoretical explanation might be an explanation, but that Dr McDonald was not expressing a formed and considered expert opinion that the theory had any rational application in the circumstances which the Court is considering.

12. [507]

    His evidence in cross-examination about the secondary transfer hypothesis included these statements:

13. [508]

    All of these answers combine, in my opinion, to demonstrate that the secondary transfer hypothesis being articulated by Dr McDonald was not based upon any fact or circumstance established directly or by inference from the evidence in this trial. As Dr McDonald made plain, the theory depended upon a factual assumption that he was asked to make – namely, that the Accused had never been physically present in the Kingdom Hall at any time.

14. [509]

    To be considered in the circumstances of this case as anything more than a mere theoretical explanation, or just speculation, this factual assumption needs to be found in the evidence.

15. [510]

    There was no evidence from any witness, or contained in any document, which could provide a basis, whether directly or by inference, to prove the fact that the Accused had never been into the Kingdom Hall at Casula. Dr McDonald agreed that this was the starting point for his theory. [292]

16. [511]

    There is no evidence in this trial that at any time prior to 14 July 1985, the Accused had ever been inside the Kingdom Hall. Equally, there is no evidence that at no time had the Accused entered the Kingdom Hall. The issue of the Accused either being, or not being in, the Kingdom Hall is simply unaddressed by any of the evidence. It follows that the essential factual starting point for the secondary transfer hypothesis is non-existent. The secondary transfer hypothesis fails to be capable of being regarding as a rational or reasonable one applicable in this case. It does not stand against the acceptance of Dr Bruce’s opinion as to the source of the DNA of the Accused on the carpet and cardboard.

17. [512]

    Contrary to the submissions of the Accused, the presumption of innocence to which the Accused is entitled does not extend to fill in any factual gaps in the evidence in favour of the Accused. Put differently, where no evidence has been adduced that indicates whether a specific fact did or did not occur, an accused cannot rely upon the presumption of innocence alone as the basis for submitting that the tribunal of fact ought make a positive finding of necessary fact in their favour.

18. [513]

    A finding that the Accused has never been in the Kingdom Hall prior to 14 July 1985 is a necessary factual finding for the secondary transfer hypothesis. The Accused cannot rely on the presumption of innocence alone as a basis for submitting that I should find that he had never been in the Kingdom Hall. There must be some evidentiary basis adduced to support that finding. There is none. Consequently, the factual basis of Dr McDonald’s theory is not made out.

19. [514]

    For the avoidance of doubt, I am also satisfied, beyond reasonable doubt, that the Crown has proved that the DNA profiles of the Accused identified in the FASS laboratory in 2013 and 2017 were not added to the sampled areas of the carpet and cardboard at any time after 14 July 1985 and before 2013. Put differently, I am satisfied beyond reasonable doubt that the Crown has disproved the secondary transfer hypothesis. These are my reasons for this conclusion as a matter of fact.

20. [515]

    The evidence satisfies me that at no relevant time were the Police in possession of any object or item containing the DNA of the Accused, nor any sample of any biological material containing DNA of the Accused, which could have been applied to the cardboard and carpet, so as to be the source of the DNA profiles detected by Dr Bruce in 2013 (“the other source”). Dr McDonald agreed in evidence that if this was so, then his theory would fall away. [293] Shortly put, the Police had no other source which could have been used to effect the secondary transfer.

21. [516]

    This conclusion depends upon a number of matters. The first is that it is established by the evidence that the science of DNA was first the subject of a scientific publication in 1985, and that DNA testing was first used in the DFM in 1989. [294] Consequently, it is unlikely that any of the Police officers connected with the investigation of the Kingdom Hall explosion during 1985 would have taken any step to collect any object or item on the understanding that it might contain the DNA of the Accused with the intention that, at some time in the future, the DNA on the item could be subjected to DNA analysis, a process which had only recently become the subject of a scientific publication and was not yet being used in NSW.

22. [517]

    The second matter concerns three handkerchiefs of the Accused, which formed a central part of the Accused’s submissions concerning the secondary transfer hypothesis. During a search of the house of the Accused on 30 July 1985, Detective Sheather removed three soiled handkerchiefs from the Accused’s house. This was about a week after Detective Sheather had sent the cardboard and carpet to the laboratory at the DFM to obtain a blood grouping. The handkerchiefs were collected with the intention of providing them to Mr Goetz at the DFM to see whether they would be capable of producing a blood group, [295] and then comparing with such a result with the blood group on the carpet and cardboard. Mr Sheather assumed that the three handkerchiefs were used by the Accused.

23. [518]

    Mr Sheather kept the handkerchiefs in a sealed plastic bag in the offices of the Ballistics Unit. [296] Detective Sheather spoke to Mr Goetz about the possibility of a useful analysis of the secretions on the handkerchiefs. Mr Goetz informed Detective Sheather that he was “whistling in the wind”, and that the handkerchiefs were of no value for the purpose of any analysis. [297] Mr Sheather then disposed of the handkerchiefs.

24. [519]

    All of these facts came from the evidence of Mr Sheather in the trial. I accept his evidence on these matters, which was not the subject of any adverse cross-examination. This is unsurprising in circumstances where the lawyers for the Accused tendered, as part of the case for the Accused, a running sheet dated 7 August 1985 which recorded all of these facts, [298] including that the handkerchiefs were disposed of. In cross-examination it was put to Detective Sheather that the running sheet correctly recorded the facts of what had occurred. He agreed that this was so. [299]

25. [520]

    The running sheet is a contemporaneously written document. There is no reason to doubt the accuracy of it. In particular what it demonstrates is that the handkerchiefs were in police possession for no more than seven days. During that period the cardboard and carpet were being held at the DFM at Glebe. There is no evidence that the handkerchiefs came into contact with the cardboard and carpet in 1985. And because they were disposed of by 7 August 1985, they were not at any time thereafter available as a source for the DNA of the Accused to have been transferred onto the carpet and cardboard. [300] This conclusion is consistent with and supported by the opinion of Dr McDonald, [301] and that the secondary transfer happened in his opinion at a time after 1985 and closer to 2013.

26. [521]

    Thirdly, Dr McDonald excluded as a possible source of DNA for the transfer any DNA derived from a piece of paper which the Police had seized from the home of the Accused on 30 July 1985. Dr McDonald said that it would be unlikely that there would be sufficient DNA on such a piece of paper as would produce, 28 years later, the DNA profile which was detected at sample 6(i). The same conclusion would apply to the DNA profiles of the other samples.

27. [522]

    Fourthly, Detective Russell produced in a tabular form, a list of all items seized from the Accused’s home, vehicle and workplace, including whether the items were retained by the Police. [302] There is no evidence that any of these items were possible, let alone likely, sources of DNA of the Accused which could be successfully transferred to the carpet and cardboard, [303] to prove the secondary transfer hypothesis.

28. [523]

    Finally, Detective Russell gave evidence that there was no record which he had seen in the course of the Police investigation that, at any time prior to the buccal swab being taken from the Accused after his arrest in 2015, suggested that any biological samples had been taken from the Accused by or on behalf of the Police. He also said that in 2013 the Police did not have any sample taken from the Accused which could have been used for comparison purposes with the DNA profiles reported on by Dr Bruce, a statement which appears to be entirely corroborated by the events which occurred. [304]

29. [524]

    Of course, had the Police had such a comparison sample then it would not have been necessary to obtain the buccal swab in 2013 from the Accused’s daughter, Trudi, to be used as a comparison profile.

30. [525]

    The evidence as to all of the steps necessary to enable a secondary transfer of DNA to take place effectively, when viewed within the context of the risk such a transfer poses for the integrity of the evidence itself, make it so unlikely to be able to be successfully achieved as to make the secondary transfer hypothesis in the circumstances of the evidence entirely fanciful. The following facts and circumstances lead me to that conclusion.

31. [526]

    First, the contact between the other source and each of the cardboard and carpet respectively had to be the result of an intentional act to facilitate the secondary transfer, rather than an inadvertent, short term or passing contact.

32. [527]

    Secondly, the other source for the DNA to be available for the secondary transfer had to be obtained either from the Accused under some pretext, or else surreptitiously from an object or item in the possession of the Accused, or else an item which had been in the possession of the Accused and which had been discarded. This other source needed to have an adequate supply of DNA, such as a bodily fluid, semen or saliva. However, this adequate supply could not have come from blood, as no fresh blood stains were seen on or sampled from the carpet or cardboard. The supply of DNA could not have come from a poor source of DNA, such a skin cells.

33. [528]

    Thirdly, access had to be gained to the cardboard and carpet for a period, and in circumstances to enable the secondary transfer to take place. The items then would have had to be replaced into their original storage within a reasonable period of time, or else the other source left in contact with each of the two items for a period to enable the transfer and then later removed (because no such item was found with either the cardboard or carpet).

34. [529]

    Fourthly, to enable the intentional secondary transfer to occur, those responsible for the transfer would have needed intimate knowledge of the Kingdom Hall investigation. They would need to know:

    1. (1)

       that the carpet and cardboard were exhibits that existed – they formed no part of the evidentiary material before the Coroner;

    2. (2)

       that they were each stained with blood (or other bodily fluids) which was a source of DNA;

    3. (3)

       where each exhibit was stored; and

    4. (4)

       would need a plausible reason to be provided to the officers in charge of the Ballistics Unit exhibit storage areas to access the exhibits whilst they were in storage, or else to access them and remove them from the storage for a sufficient period of time.

35. [530]

    Furthermore, the person accessing the carpet and cardboard would not want any record of this access or any trail of what he or she did. That is because any record or trail would leave available evidence of interference, or potential interference, with the carpet and cardboard, which would be likely to make their efforts unsuccessful.

36. [531]

    To gain access to the exhibits without any record or trail would have required the collusion of the officer in charge of the Ballistics Unit exhibit area. Depending on the point in time, this was either Detective Hoffman or Detective Schey. Neither of them was asked to accept that this factual possibility occurred or may have occurred. They were not asked to accept a possibility that access could have been obtained to the exhibits without their approval. As earlier indicated, I have accepted the evidence of Detective Hoffman as to the way in which the exhibits were stored, and the control which he exercised over them. This evidence makes it highly unlikely that any access occurred.

37. [532]

    Fifthly, in effecting the secondary transfer of the DNA, the person would have to be confident that there was not already on the items one or more detectable profiles of the Accused. If there were, then there would be no point in undertaking the secondary transfer. But this could not have been known with any certainty because the carpet and cardboard were not submitted for DNA analysis at any time before 2013.

38. [533]

    Given the origin of the carpet and cardboard (i.e. coming from the scene of the explosion at the Kingdom Hall with human bloodstains of blood Group O on them), the ordinary expectation would be that the blood would contain a detectable DNA profile. The effect of the transfer would be to remove the DNA profile from the bloodstains on the items of cardboard and carpet, and replace it with the Accused’s DNA profile which was to be transferred onto them. In my view no purpose would be served by such an exercise if there was a possibility that the Accused’s DNA was already on the items.

39. [534]

    The secondary transfer exercise is also not necessarily certain of success, or certain that a DNA profile sufficient for DNA analysis could be obtained after the transfer. In other words, there was a real risk that the original DNA profile expected to be on the items of carpet and cardboard would be removed by the secondary transfer, without the new detectable DNA profile of the Accused successfully taking its place.

40. [535]

    Sixthly, the DNA had to be transferred at least onto those areas which were randomly selected by each of the two forensic biologists when the items were submitted in 2013 and again in 2017, to FASS. Those biologists selected the areas to be sampled. They did so by their own choice and did not consult each other in so doing. The sampled areas could not have been known in advance on either of the two separate occasions in 2013 and 2017. There were four such areas on the cardboard (samples 6(i), 6(ii), 6(iv) and 6(v)) and two on the carpet (samples 7(i) and 7(iii)).

41. [536]

    There were other areas which were sampled on the cardboard (samples 6(iii) and 6(vii)) and on the carpet (sample 7(ii)) which did not reveal any DNA profile of the Accused. These three areas were also chosen randomly by Mr Nguyen, the forensic biologist at FASS. Thus, if secondary transfer was the source of the DNA profile revealed by the testing at FASS, this must mean that some areas were the subject of transfer of DNA and others were not (seemingly at random).

42. [537]

    It is correct to note, as Dr McDonald did, [305] that because of the nature of the testing which was carried out on identified areas, the true distribution of the DNA on the whole of the carpet and cardboard was unknown. However, that does not stand in the way of a conclusion that the secondary transfer of the DNA had to happen in a way would not be inconsistent with the results of future testing of unknown and randomly selected areas on each of the two items.

43. [538]

    The likelihood of an intentional secondary transfer of the kind being considered achieving the distribution of DNA reflected in the FASS results, is so low as to be described as nothing more than a fantasy. This is particularly so where it is not suggested in the evidence and positively disavowed by Dr McDonald, that the secondary transfer occurred whilst the items were at FASS. [306]

44. [539]

    The evidence in the trial does not reveal any individual or group of individuals who would be motivated to, and who are likely to have, carried out all of the steps involved to effect the secondary transfer of DNA from another source onto the carpet and cardboard. No submission was advanced by the Accused which identified who may have carried out, or caused to be carried out, the secondary transfer of DNA.

45. [540]

    It should not be overlooked that, in the broader context, there was extensive legal and personal risk for any person or people involved in effecting a secondary transfer, in exchange for presumable no personal gain. There is, quite simply, no evidence that any person would have had any motivation to engage in a highly risky and illegal exercise whereby they deliberately transferred the DNA of the Accused onto items which would become exhibits.

46. [541]

    The evidence in the Crown case reveals that the Police investigations in the 1980s culminated in the evidence being put before a number of Coronial Inquests. [307] During that period further enquiries were made at the direction or request of the Coroner. No charges resulted from either those further inquiries or the entire investigation. After the conclusion of the Coronial Inquests in May 1987, the JBTF undertaking the investigations was disbanded and the investigations, although remaining open, were not actively pursued. [308]

47. [542]

    The evidence reveals that a number of paper-based reviews occurred but no further investigations were commenced until about July 2013, when Task Force Reddan was formed to reinvestigate the seven Events which are the subject of this Indictment.

48. [543]

    The piece of carpet and the piece of cardboard were not found until October 2013 as my earlier findings confirm. Those items were taken straight away to FASS for analysis (via one night’s secure custody at the MEPC). This sequence of investigation as revealed by the evidence does not allow for the identification of any person or group, in the period when the Events were not under active investigation, as being likely (or even possible) actors with a motive to effect the secondary transfer of the DNA of the Accused.

49. [544]

    The submissions made by the Accused in support of the secondary transfer hypothesis are unconvincing. The submissions did not address any of the factual matters which needed to exist in order for the secondary transfer hypothesis to be regarded as a rational or reasonable one. The submissions did not identify any evidence which provided a basis, or from which an inference could properly be drawn which provided a basis, for a finding of fact that the Accused had never been physically present in the Kingdom Hall before 14 July 1985. The submissions also did not identify any evidence which could prove what the other source of the Accused’s DNA was which could have supplied the DNA found on the carpet and cardboard.

50. [545]

    Rather, once the submissions had identified the secondary transfer hypothesis, it was submitted that the hypothesis could not be dismissed and was reasonable because of a single answer given by Dr Bruce in the course of his cross‑examination. [309]

51. [546]

    This submission is facile and must be rejected. The evidence given by Dr Bruce did not accept explicitly that the hypothesis was a reasonable one, nor that it was applicable to the piece of carpet seized from the Kingdom Hall. The question and answer did not refer at all to the piece of cardboard. Rather, the answer given by Dr Bruce was a cautious one, plainly expressing a real doubt as to the availability of the suggested secondary transfer hypothesis. The answer was given to a question which was devoid of surrounding factual context and content. The question drew attention only to the samples 7(i), 7(ii) and 7(iii) and the results derived from them.

52. [547]

    I understand Dr Bruce’s careful answer to mean that he did not reject the “text book hypothesis” that the DNA in the bloodstains could degrade and a transfer of DNA could replace the original DNA. However, in the particular circumstances here involving sample 7(i), his answer was a rejection of the possibility of secondary transfer as proposed.

53. [548]

    In any event, even if the answer is taken to be an acceptance by Dr Bruce of the secondary transfer hypothesis which was put to him, that does not (without more) lead to the conclusion contained in the submissions by the Accused: that such answer must result in a finding that the Accused is not guilty of the offences relating to Event 7. That is because, as earlier set out, the factual findings necessary to enable the secondary transfer hypothesis to be a rational one in this trial are not open to be made on the evidence.

54. [549]

    For all of the above reasons, I reject the secondary transfer hypothesis described by Dr McDonald as being one which is available on the evidence. Additionally, to the extent necessary, I should state that I am also satisfied beyond reasonable doubt that the Crown has disproved, by the evidence which it has called in the proceedings, any possibility of the secondary transfer hypothesis as having occurred so as to provide a rational explanation of the discovery of the DNA profile of the Accused on the piece of carpet and the piece of cardboard.

55. [550]

    The issues which fall for consideration now are whether there are any other facts and circumstances which, when taken into consideration and given weight, would prevent my being satisfied beyond reasonable doubt that the DNA profiles of the Accused analysed by Dr Bruce came from the blood stains found on the carpet and cardboard seized from the Kingdom Hall.

Discrepancies

1. [551]

   The Accused submitted that such were the discrepancies in the results obtained by the sampling undertaken at FASS in 2013 and 2017 they directly affected the reliability and soundness of the conclusions which could be drawn from the test results. In particular, they raised such serious questions that the Court could not safely conclude that the DNA profile of the Accused came from the bloodstains on the carpet and cardboard, thereby undermining the Crown case of the guilt of the Accused.

2. [552]

   There were differences in the descriptions of the DNA profiles which were identified. The profiles obtained from the various samples in the 2017 testing included a degradation index figure which was not available for the samples listed in 2013. That was because of a change in methodology. The profile for sample 7(i) (which was from the carpet) was described as a complete profile and “pristine”. [310] For samples 7(ii) and 7(iii) the degradation index was 2.165 and 1.653 respectively. [311] . A degradation index of less than 10 indicates that there is a relatively small amount of degradation. [312] The results from the cardboard sampled in 2017 are of a different order: sample 6(iv) had a degradation index number of 434.4 and sample 6(v) had an index number of 379.4. This indicated a much greater extent of degradation on the cardboard than on the carpet.

3. [553]

   However, as it seems to me, the extent of degradation of the samples on the carpet was broadly similar and suggested little degradation. The two samples on the cardboard are broadly similar and suggest a significant extent of degradation. The evidence is clear that the rate of degradation of DNA is not a constant rate, but rather is a variable one which will depend upon a variety of factors. Factors identified on the evidence that can effect varying degrees of degradation include:

   1. (1)

      exposure to extreme heat above 100ºC; [313]

   2. (2)

      direct exposure to ultraviolet light, such as by way of sunlight, and exposure to bacteria or mould; [314]

   3. (3)

      direct contact with some chemicals such as peroxides or other oxidising agents would cause some degradation; [315]

   4. (4)

      direct contact with a substance such as vinegar, which is an acidic agent, also has the potential to degrade DNA; [316] and

   5. (5)

      Dr Bruce identified variability arising from the different amounts of DNA or cellular material in each sample recovered, and the effect of the substrate (i.e. the material upon which the DNA is deposited) on any DNA recovered from it.

4. [554]

   As Dr Bruce said, the nature of degradation of DNA is quite variable. In part that is because the particular DNA may be more robust or there may be more of it in one sample than in another sample of DNA. [317] The difference in the degradation as between the carpet samples and the cardboard samples can be affected by any number of variables including successful recovery previously from different substrates and the survival of the samples on different substrates. [318]

5. [555]

   Dr McDonald agreed that the rate of DNA degradation was “absolutely variable”, [319] and is dependent on the mechanism responsible for causing the degradation. [320]

6. [556]

   The evidence just referred to, all of which I accept, has the effect of explaining that the variation of the extent of degradation between samples taken from two difference substrates and even amongst samples from one substrate, is not a matter which affects the validity of the conclusions to be drawn from the DNA sample results. In fact, it seems to me that variation would not be scientifically unexpected, nor would it be unusual, on samples which are 28 years old. I am not satisfied that the variations in the degradation of the DNA profiles analysed by Dr Bruce affect my conclusions about them, particularly whether the DNA profiles which were recovered came from the bloodstains on the carpet or cardboard. The varying degradation is a matter to be considered as part of the overall scientific picture presented by the evidence. In that light, noting that the discrepancies are regarded as having some relevance and weight, they nevertheless do not cause me to reach a different conclusion.

Further Testing

1. [557]

   The Accused made extensive submissions highly critical of the Crown, the Police and the scientists at FASS for failing to undertake additional testing. The Accused identified in submissions five tests which he contended should have been conducted when the items were retested (in 2013 or later).

2. [558]

   The first test which the Accused submitted ought to have been done (or, more accurately, redone) was the blood tests originally carried out by Mr Goetz in 1985. It is to be recalled that Mr Goetz tested the bloodstains on the carpet and cardboard and identified the presence of human blood containing blood group “O” and a range of blood proteins.

3. [559]

   Dr McDonald, in his report, suggested that it would be important “for continuity reasons” to perform the same tests on the blood of the Accused to see if the protein results were reproduced. But there was no obvious reason for this test to be performed again by the Crown in proof of its case. I can well understand the scientific curiosity of Dr McDonald. However, before drawing any conclusion adverse to the Crown’s case dealing with the testing of the Accused’s blood, the Court would need to be satisfied by evidence that the Accused had offered to provide a sample of his blood for such testing or at least consented to his blood being drawn for further testing. There was no such evidence.

4. [560]

   The other submission made with respect to Mr Goetz’s tests was that the bloodstains on the carpet and cardboard should be resubmitted for such tests. As a preliminary point, it should be noted that there was no challenge to the correctness of the results of Mr Goetz during the trial. It is also important to highlight that blood grouping and protein marker tests are not nearly as discriminating as modern DNA technology.

5. [561]

   Perhaps more significantly, the evidence of Dr Bruce (which I accept) is that he was unaware of a laboratory nationally or internationally which still carried out the blood grouping and protein tests of the kind which Mr Goetz undertook in 1985. He said that his laboratory at FASS certainly did not do those tests. There was no evidence at all that any laboratory existed anywhere in Australia or internationally that was willing and able to undertake the tests which Mr Goetz performed on the carpet or cardboard. At the least, before any criticism can be made of the Crown, it has to be demonstrated in evidence that there is a capacity for it to have those tests undertaken. Here, the evidence does not support such a conclusion.

6. [562]

   Thus, the Accused’s submission that the Crown’s case is to be detrimentally affected by its failure to carry out the same tests as Mr Goetz did (either on the exhibits themselves or on the blood of the Accused) is simply not supported by the evidence and cannot be upheld.

7. [563]

   A second test which the Accused submitted should have been done was to establish a degradation index for the areas tested in 2013. This would require FASS to repeat the DNA tests from the areas sampled in 2013, being sample 6(i), 6(ii) and 7(i), with the technology used in 2017. The Accused submitted this should have been done to “…allow clear comparisons between all DNA samples tested…”. Again, no obvious reason is pointed to for the undertaking of these results except curiosity by the lawyers for the Accused.

8. [564]

   There also remains a more fundamental problem. Any such testing, unless carried out in 2017 at the same time as the samples done at that time, would be showing a degradation which could not be compared because of the elapse of further time.

9. [565]

   It was not clear from the Accused’s submissions when it is said that such testing ought to have been done. To the extent that it is said that such testing ought to have been done in 2017, there was no obvious reason so to do. At that point in time, so far as the scientists at FASS, the Police and the Crown were concerned, the further testing which was undertaken in 2017 also revealed the presence of the DNA of the Accused in the samples taken. This was the primary reason the samples were sent for testing - an ancillary question about degradation would not have clearly presented itself at that time.

10. [566]

    I can see no reason why the Crown is obliged to undertake that testing, either then or now. The Crown is entitled to present such scientific tests as it wishes in support of its case. If those tests leave questions unanswered, then that is a matter which I can take into account in reaching my decision. I reject the submissions of the Accused that these tests ought to have been undertaken and the failure of the Crown to take those tests is a matter which stands contrary to the case it seeks to prove.

11. [567]

    The third test that the Accused submitted should have been undertaken, again on the basis of what seems to be the curiosity of his legal advisers, was that the actual areas tested in 1985 of both the carpet and the cardboard by Mr Goetz should be submitted for Hematrace and DNA testing. In the submission of the Accused, this testing was needed to determine if those areas found by Mr Goetz to have blood group “O” in the identified blood stains also contain the DNA of the Accused. Again, no compelling reason is advanced by the submissions of the Accused as to why these tests ought to have been done. It can be accepted that it may be interesting to know what the results of these tests are. However, that is not a sufficiently compelling reason for holding that the Crown ought to have undertaken these tests and that its failure so to do stands against the case which it seeks to prove.

12. [568]

    Even if a compelling reason were found to exist, it is unclear whether such testing was possible in the circumstances. For example, a relevant question which underpins whether these tests ought to have been done is whether the samples tested by Mr Goetz in 1985 would be available for testing again in 2013 or 2017 (that is to say, did the testing undertaken by Mr Goetz in 1985 effectively remove the samples of blood which he tested from the carpet and cardboard such that the same tests could not be performed again). Or, alternatively, if it were possible to test some but not all of those original samples, whether the remaining blood stains were sufficient to enable Hematrace and DNA testing. These facts are unaddressed in the evidence.

13. [569]

    I am unpersuaded that the failure of the Crown to submit the areas tested by Mr Goetz for Hematrace and DNA testing is a matter which carries any weight in the consideration of whether the Crown has proved beyond reasonable doubt that the Accused’s DNA came from the bloodstains found on the carpet and cardboard of Kingdom Hall.

14. [570]

    The fourth test the Accused submitted was necessary for the Crown to have undertaken to be able to prove the guilt of the Accused beyond reasonable doubt was an examination of white blood cells using a technique described as “laser microdissection”. The Accused submitted that, on the question of whether or not the DNA profiles recovered, came from the bloodstains on the carpet and cardboard or from some other source, the Crown ought to have carried out this further test on either the samples actually taken at FASS in 2013 and 2017 (if that were possible) or, alternatively, on samples of blood stains which presently remain on the carpet and cardboard.

15. [571]

    The evidence suggests that this technique or test had been used in sexual assault causes dealing with semen and its contents. [321] Dr Bruce’s evidence was that such technique was not known to him as able to be used for the purpose of the identification of DNA in white blood cells. He said that technique was not validated for such use for the laboratory at FASS. This alone meant that he was unable to do the suggested tests.

16. [572]

    No laboratory was identified in the evidence as being capable of undertaking the technique proposed. The mere assertion by the Accused that such a test could and should have been done is unsustainable without supporting evidence that it was a test that was scientifically accepted as an appropriate test for identification of DNA, and that it was validated at a laboratory which could be accessed by the Crown.

17. [573]

    Dr McDonald gave no evidence about the availability of the technique for use in the circumstances present in this trial. The fact that the Crown, or the scientists at FASS, did not arrange for or undertake laser microdissection is not a matter for which they can be criticised. The evidence does not allow for a conclusion that they could have done this test for the purpose suggested.

18. [574]

    The submission of the Accused also mentioned “… analysing tissue-specific nucleic acid – called small nuclear RNA”. This submission was made in combination with the submission about laser microdissection. To the extent that this is a different test from that involving the laser microdissection technique, it is enough to say that there is no evidence in this trial about the existence of such a test or its availability.

19. [575]

    Submissions of the Crown or an accused cannot advance facts which are not proved in the evidence, or make arguments for which there is no proper factual basis. If this is the way this submission is to be understood, it must be disregarded. Alternatively, if it is a mere expansion of the submission about the laser microdissection technique, there is no reason to reach a different conclusion.

20. [576]

    The fifth test that the Accused submitted should have been performed was that the blood stains on the carpet should have been tested in the same way Mr Gothard tested the cardboard in 1985. The Accused submitted this was necessary to eliminate the possibility of blood from the NSW Blood Bank being responsible for the blood stains on the carpet. Such tests would be seeking to identify any anticoagulant or preservative of the kind used by the NSW Blood Transfusion Service. No compelling reason was advanced in the submissions for the undertaking of this test. For example, the Accused was not identified in the evidence as a blood donor.

21. [577]

    The blood on the carpet was identified as being present on 14 July 1985, and so from a time before the explosion on 21 July 1985. If the blood prepared by the NSW Blood Transfusion Service had been brought to the scene of the explosion, it could only have happened consequent upon the explosion for the purpose of treating any injured people. The carpet was recovered, according to the evidence of Detective Sheather, only after debris from the explosion had been moved so as to enable access to be gained to the carpet. There is no evidence that prior to the moving of that debris, there was any injured person in the vicinity of the carpet. There was similarly no evidence that there was any NSW Blood Transfusion Service blood ever in the vicinity of the cardboard and, even more generally, at the scene of the explosion.

22. [578]

    The lack of evidence of that kind is unsurprising given that one of the tenets of the Jehovah’s Witness faith is that they will not accept blood transfusions. Such is their firm adherence to that view that one of the members of the congregation, Mrs Tiler, gave evidence that immediately after the explosion she was asked by her husband (who was attempting to assist another member of the congregation who had been injured) to “… get the blood cards out so there was no trouble”. The nature of the blood card at that time was that it was carried by each member of the Jehovah’s Witness faith to give to any doctor, ambulance or other health staff so as to indicate the instruction that a blood transfusion was not to be undertaken. [322]

23. [579]

    In those factual circumstances, there was simply no reason for the Crown to undertake such a test. The evidence does not give rise to any suggestion of a possibility that the blood stains on the carpet or cardboard would include any anticoagulant or preservative.

24. [580]

    I have noted previously in respect of some of these tests that no compelling reason was advanced by the Accused’s submissions for the undertaking of the tests in question. The overall submission for the Accused was that such testing would have clarified “all unanswered questions regarding the DNA”. It was submitted that it was critical in the investigation of historical cases to use the full range of specialised tests possible, even those that were not routine in most forensic laboratories “… but which are certainly available”.

25. [581]

    As I have earlier identified, if argument is advanced that particular tests were available, there is a need for evidence to be adduced to found this contention. These remarks need not be repeated, but I reiterate that they equally apply to all questions raised regarding further testing.

26. [582]

    The apparent overarching submission of the Accused arising out of the failure of the Crown to conduct these identified tests was as follows: that in the absence of such tests, it was either not open to the Court to conclude that the DNA of the Accused was present in the blood stains on the carpet and cardboard, or else that the Court ought not reach such a conclusion beyond reasonable doubt.

27. [583]

    I reject these submissions. In addition to the reasons previously articulated, none of the submissions from the Accused even speculated on what the results of any of these proposed tests might actually have been. Nor did the expert evidence suggest any likelihood of a particular result which might have favoured the case for the Crown or else the case for the Accused. The expert evidence did not even discuss what the likelihood was that any of the tests covered in the Accused’s submissions would be successful in actually providing a result of any kind.

28. [584]

    In such circumstances, no inference can be drawn about what the results of any additional tests might have been. In the absence of such an inference, there is simply no weight which can be given to the absence of such tests (or the failure of the Crown to undertake such tests) in the consideration of whether the Crown has proved beyond reasonable doubt that the Accused’s DNA came from the blood shed onto the carpet and cardboard.

29. [585]

    The submissions of the Accused do not identify any statutory or other legal obligation falling upon the Crown to carry out the testing asserted. Nor did the submissions suggest that the scientists at FASS had such an obligation. The submissions for the Accused advanced no basis in law for the assertion that the Crown was required to carry out additional tests.

30. [586]

    If the evidence established that such testing could have been done but that it was not carried out, it is proper that I take into account that fact when considering my verdict in an overall way. That is because I must consider the evidence as a whole, including any matter in respect of which there is no evidence. However, whilst doing so, it is clear from my conclusions above that I am of the view that the absence of the suggested additional tests does not prevent me reaching the conclusion contended for by the Crown that the Accused is guilty of each of the Counts on the Indictment. I am satisfied that it is a matter to which little weight can be given in the overall consideration of the facts and circumstances proved in the trial.

Alternative Reasonable Hypothesis: BAJ

1. [587]

   A witness given the pseudonym BAJ was about 13½ years old in July 1985. He lived in a house on Verbena Avenue, Casula, in the vicinity of the Kingdom Hall.

2. [588]

   The Accused submitted that the Crown had not disproved as a reasonable hypothesis consistent with the innocence of the Accused, the proposition that BAJ broke the south-eastern window on 13/14 July 1985 and entered the Hall for mischievous purposes and that, accordingly, the entry into the Kingdom Hall on that day had no connection whatsoever with the explosion which took place on the following weekend. This conclusion would also have the effect that the blood found in the Kingdom Hall on 14 July 1985 could not be that of the Accused.

3. [589]

   BAJ, together with other youngsters who lived in the local area, was accustomed to playing in the street (which was a dead-end), on the vacant block of land adjoining the Kingdom Hall to its south, and in the adjoining bushland. He said that he occasionally rode his bike on the concrete driveway of the Kingdom Hall, which ended in an area that seems to have been the car park behind the Hall. He also said that together with other children of his age, he may well have played in and around the Kingdom Hall.

4. [590]

   To make BAJ of potential relevance, the Accused relied on the evidence of Detective Peter Butcher. Detective Butcher was, in 1985, an expert forensic fingerprint examiner who identified the single fingerprint of a right index finger on a piece of broken glass found in the driveway of 26 Verbena Avenue Casula after the explosion. Upon later comparison, this fingerprint matched with the fingerprint of BAJ. It is this evidence which is the principal basis upon which the Accused makes this submission regarding BAJ.

5. [591]

   For the submissions of the Accused to be of any weight, it is necessary to find as a fact, through an inference, that the glass recovered by Detective Butcher from the driveway of 26 Verbena Avenue was a piece which had originally been part of the south-eastern window of the Kingdom Hall as at 14 July 1985. As well as the submission accepting the identification of the right index finger print of BAJ on that piece of broken glass, the submission incorporates reference to other circumstances. The first is the criminal record of BAJ which, the Accused submitted, showed the propensity of BAJ at a young age to break and enter premises.

6. [592]

   Ultimately, the Accused submitted that the Crown had not disproved the hypothesis that the two break-ins at the Kingdom Hall were unconnected.

7. [593]

   I reject the submissions of the Accused as unfounded in the evidence. I reject the proposition advanced by the submission that BAJ broke into the Kingdom Hall on 14 July 1985, by smashing the south-eastern window, as part of creating some mischief.

8. [594]

   My six reasons for this conclusion are as follows.

9. [595]

   First, it is a mistake to conclude that the piece of glass upon which BAJ's fingerprint was found has been, or is capable of being, identified as part of the windowpane from the south-eastern window which was broken on 14 July 1985. It is simply not possible to make a finding of fact as to where the piece of glass containing BAJ's fingerprint came from. It was first found on 21 July 1985 after the explosion in the driveway of a nearby house. The evidence is that, as corroborated by many photographs, most (if not all) of the windows in the Kingdom Hall were either destroyed or damaged in the explosion. More than just the south-eastern window of the Kingdom Hall was blown out. The windows all had glass in them. The piece of glass in question could have come from any of the destroyed windows.

10. [596]

    Secondly, the evidence accounts for what happened to the broken glass from the break-in on 14 July 1985 in a way which is inconsistent with and contradicts the submission of the Accused about BAJ. Mr Sapienza had on 15 July 1985, replaced the broken glass pane in the south-eastern window which had been damaged on 14 July 1985. According to his statement, he did two things with the broken glass: [323]

    1. (1)

       he took one small piece of the broken glass away from the Kingdom Hall as a sample for the purpose of purchasing the replacement glass. There is no evidence that that small piece ever returned to the Kingdom Hall. It would be surprising if it did. It was much more likely to have been disposed of by Mr Sapienza when he purchased the replacement glass; and

    2. (2)

       he put the balance of the glass from the broken south-eastern window into “… a crack in the Besser block fence which runs alongside of the path”. [324] .

11. [597]

    The Accused submitted that this second part of Mr Sapienza’s evidence must be an error, because there was no Besser block fence alongside the path. There is no doubt that there was a Besser block fence at the eastern end, or rear, of the Kingdom Hall. A path ran along the space between the Kingdom Hall and that wall. I see no reason to interpret Mr Sapienza’s statement as only referring to the path outside the south-eastern window. In any event nothing turns on where the Besser block wall was located.

12. [598]

    The glass which was put into the besser block wall by Mr Sapienza was retrieved from its place of disposal and not from the driveway of 26 Verbena Street after the bomb exploded. On 2 August 1985, Mr Sapienza identified those pieces of glass to Detective Butcher at the Liverpool Police Station. [325] Those pieces of glass were subjected to examination by Mr Butcher and a number of palm and fingerprints were photographed by him. After eliminating the fingerprints of Mr Sapienza, there were further fingerprints on the glass which were not able to be identified.

13. [599]

    Thirdly, the fingerprints of BAJ were not present on the broken glass collected from 14 July 1985 by Mr Sapienza. A running sheet dated 4 October 1985, [326] and prepared by Detective Myers of the Homicide Squad, noted a report to him from Sergeant Ashley Eyles of the Fingerprint Section, that there were further fingerprints found on the glass which had been searched through the database held by the Fingerprint Section without being able to be identified.

14. [600]

    The evidence of Mr Michael Whyte, contained in an Expert Certificate dated 15 February 2018 and which I accept, is that he was provided with glass which had separate case reference numbers on it. One was glass retrieved from the driveway at 26 Verbena Avenue Casula and the other being glass located and examined by Detective Butcher on 2 August 1985 at Liverpool Police Station (which was the glass which Mr Sapienza had removed from the broken window on 14 July 1985). Mr White identified the fingerprint of BAJ as coming from the broken glass found in the driveway at 26 Verbena Avenue and not on the broken glass which was examined at the Liverpool Police Station by Detective Butcher on 2 August 1985. Of importance was that Mr White said that he identified BAJ's fingerprint through a manual comparison from a set of fingerprints which he had been given. Although there were three unidentified fingerprints on the glass examined the Liverpool Police Station, Mr White did not identify any of those fingerprints as being from BAJ.

15. [601]

    Fourthly, the two pieces of glass were identified separately, with no evidence directly linking the glass with BAJ’s fingerprint to the window broken on 13/14 July 1985. The glass from the broken window on 13/14 July 1985 did not contain BAJ's fingerprint. The piece of glass with BAJ’s fingerprint was found after the explosion in the driveway of a neighbouring house. This was one week after the break-in which forms the basis of the Accused’s submission concerning BAJ (i.e. the break-in on 13/14 July 1985). No one knows which window or part of the Kingdom Hall this piece of glass came from. This is a fact that is impossible to determine. Furthermore, there is no evidence which aged the fingerprint found on that glass. It could have been placed on the glass before or after 13/14 July 1985;

16. [602]

    Fifthly, according to the criminal history of BAJ, [327] as at July 1985 he had not committed any offence at all. He was first charged with a criminal offence in December 1987. At the time of the explosion of the Kingdom Hall, as I've noted earlier, BAJ was 13½ years old. At the time he was charged in 1987, he had just turned 16. I do not accept the submission that because a person committed a crime at 16 years of age, they must have had a tendency to commit a similar offence (break, enter and steal) when they were 2½ years younger. At that age in life things change very quickly, particularly when one takes into account the influences which play upon the behaviour of young boys of that age. I am simply not prepared to reason back in the way the Accused submitted ought be done, particularly when it concerns such a young person.

17. [603]

    Sixthly, BAJ has consistently denied ever being inside the Kingdom Hall or having anything to do with the break-in on 13/14 July 1985, and I accept his evidence in this regard. BAJ gave a record of interview to the Police in 2014, [328] in which he denied at any time going inside the Kingdom Hall, and denied breaking a windowpane in the Kingdom Hall. He gave evidence in this trial to a similar effect. His evidence was taken by audiovisual link. He was a witness with a challenging manner, who manifested a dislike of authority or any form of compulsion. He plainly resented any suggestion that he had been involved in any way with any incident of breaking into the Kingdom Hall or of being associated in any way with the bomb explosion.

18. [604]

    His evidence was that he was brought up in a relatively strict Catholic family, and that he would have been in a lot of trouble with his father if he had broken a window at the Kingdom Hall. Particularly was this so as the neighbour on the southern side of the Kingdom Hall, an elderly woman with whom his family got along very well and who referred to her as an aunt, was a member of one of the congregations which used the Kingdom Hall. BAJ's father gave evidence to much the same effect about his upbringing, which corroborated the evidence of BAJ. They had clearly not discussed this evidence with each other at any time at all, let alone proximate to when they each gave evidence. For these reasons, I entirely accept BAJ’s evidence that he had nothing to do with any broken window at the Kingdom Hall, and that the most likely explanation for his fingerprint being on a piece of glass was that he had been riding his bike or playing in and around the Kingdom Hall and in so doing it put his finger on a pane of glass quite innocently;

19. [605]

    As well, there is no evidence at all that BAJ was seen breaking into the Kingdom Hall. There is no evidence that would permit a conclusion that he was allowed out late at night, and in so doing broke the window the south‑eastern window into the Kingdom Hall. There is no evidence that when he played with his friends in the street and in the areas around the Kingdom Hall, that he did so at night or in the early hours of the morning. Considering he was only 13½ years old, and having regard to the nature of his family relationship and his upbringing, it would be surprising if BAJ was permitted to roam the streets in the early hours of the morning solely for the purpose of getting into mischief.

20. [606]

    I simply do not accept it can be considered to be a reasonable possibility that BAJ broke into the Kingdom Hall on 14 July 1985, or else even on the morning of 21 July 1985. This hypothesis, as submitted by the Accused, is demonstrated to be unavailable by the evidence. It is not a reasonable one. I am satisfied by the evidence in the Crown case that there is no association whatsoever between BAJ and the broken glass pane of the south-eastern window of the Kingdom Hall which was found on 14 July 1985. This submission by the Accused has no substance whatsoever and should be entirely disregarded.

Quantity of Blood in the Kingdom Hall and Absence of Injury to the Accused

1. [607]

   One important circumstance which needs to be considered in determining whether the Crown has proved the guilt of the Accused beyond reasonable doubt is whether the amount or quantity of blood observed in the Kingdom Hall on 14 July 1985 is consistent with the lack of visible injury seen on the Accused 16 days later.

2. [608]

   The Accused submitted that, on the evidence, there was a large quantity of blood found in the Kingdom Hall and therefore the wound on the intruder which led to this blood spillage must have been substantial. The Accused was subjected to a strip search by two detectives on 30 July 1985 and no visible injury was seen. The Accused argued that this was sufficient to raise a reasonable doubt as to his identity as the intruder and the Crown case which requires proof of that fact beyond reasonable doubt must therefore fail.

3. [609]

   The Crown submitted that, when regard is had to all of the evidence bearing upon this issue, the evidence is not of such a quality or weight as would mean that the Court would have a reasonable doubt about that fact – namely, whether the Accused was the intruder who broke into the Kingdom Hall leaving a trail of blood on 14 July 1985, and on 21 July 1985 placing the bomb there that exploded, destroying the Hall and causing the death of Mr Wykes and injuries to others.

4. [610]

   An additional, but related, submission by the Accused was that the Crown has not disproved a reasonable hypothesis consistent with his innocence. This submission concerned evidence that on the evening of 15 July 1985, an unidentified individual presented to a general practitioner at Bankstown (about 16km from the Kingdom Hall) with a laceration to his hand. The Accused submitted this person was in fact the person who broke into the Kingdom Hall on 13/14 July 1985. It is of course sufficient if the Crown cannot exclude the reasonable possibility that this unidentified individual was the intruder.

5. [611]

   In determining whether the Crown’s case that it was the Accused who was the intruder who broke into the Kingdom Hall on 13/14 July 1985, it is necessary to consider the evidence about the quantity of blood found in the Kingdom Hall and the nature of any injuries that could reasonably have been sustained.

6. [612]

   It is convenient to start with a consideration of similar evidence given by expert witnesses with respect to the difficulties inherent in the estimation and description of quantities or volume of blood, and the difficulties inherent in determining whether a wound could have healed in the period between 14 July and 30 July 1985.

7. [613]

   Detective Sergeant Hawkins, a qualified and experienced crime scene examiner with a particular expertise in the analysis of bloodstain patterns, gave evidence of the difficulties inherent in estimating the volume of blood shed on the hard surfaces in both his report and orally. [329] He is a lecturer in the area of bloodstain pattern analysis. He has been accredited by the Australasian Field Forensic Science Accreditation Board as an expert in the methodology of crime scene investigation. [330]

8. [614]

   For many years, whilst teaching, he has conducted demonstrations of mock crime scenes in which he has placed varying (but known) quantities of blood as part of the demonstration. At these lectures and demonstrations (which have numbered about 50 since 2007), the attendees included people who had a range of backgrounds and education. They have included people with no background in forensic science as well as experienced police investigators and lawyers, and a range of people between these two ends of the experience spectrum. Mr Hawkins’ evidence, which I accept, is that his experience is that attendees at these demonstrations usually overestimate the volume of blood present. His experience is that the overestimate ranges from about five to fifteen times the actual volume used. This range occurs in relation to the use by him of between 100 to 120ml of blood which Detective Hawkins described as a very small volume. [331]

9. [615]

   I conclude from this evidence that it is very difficult to accurately estimate the volume of blood deposited at the visual appearance of blood found at a crime scene. I also conclude that estimates given are usually well in excess of the actual volume shed or deposited.

10. [616]

    Further expert evidence on this topic was given by two forensic pathologists – Dr Isabel Brouwer and Dr Johann Duflou. Dr Brouwer, who has been the State Wide Clinical Director of Forensic Medicine in the NSW Department of Health since 2015, is a Fellow of the Royal College of Pathologists of Australasia. She expressed her opinion about the difficulties of estimating the volume of blood loss. In her Expert Certificate, [332] she said that the volume of blood located at the scene of the Kingdom Hall (as described in statements by various individuals who had been present on 14 July 1985) could not be determined from those statements. She also said that it was her experience that medical colleagues, including forensic pathologists, found it difficult to estimate the volume of blood loss when simply looking at blood in situ. [333]

11. [617]

    Dr Brouwer, although pressed in cross‑examination, [334] declined to express a view about the volume of blood at the Kingdom Hall on 14 July 1985, and therefore the seriousness of any injury to the intruder which led to the bloodstains. She said firmly that no expert, from the available evidence, could give an accurate estimation of the volume of blood that was at the scene of the Kingdom Hall. [335] She expressed the opinion that the same applied at any crime scene. [336] Dr Brouwer’s opinion coincides with the evidence from Detective Hawkins. I accept this evidence.

12. [618]

    Dr Duflou, an expert and experienced forensic pathologist, was called in the case for the Accused. In his report [337] he expressed the opinion that an assessment of the amount of blood lost at a crime scene is difficult and inherently unreliable. He looked at photo of the cardboard and carpet which had been removed from the Kingdom Hall. He said that it was exceptionally difficult to estimate the amount of blood on the carpet because of the pattern on it and how that blood might have been absorbed. In considering the cardboard, he described the amount of blood as “negligible”. Noting the consistency between this element of Dr Duflou’s evidence and the evidence of other two expert witnesses just considered, I accept these opinions about the unreliability of any estimate of the volume of blood at a crime scene.

13. [619]

    However, notwithstanding this opinion, in his report and his oral evidence, Dr Duflou also advanced opinions about the quantity of blood at the Kingdom Hall and the correctness of estimates given by others about it. In light of the opinion in [618] above, I am simply unable to accept such opinions as being consistent with the opinion of Mr Hawkins, and Dr Brouwer, or with the opinion which Dr Duflou himself advanced above concerning the unreliability of estimating blood quantity. As well, even if the opinions which he did advance about the quantity of blood at the scene were not inconsistent with his earlier opinion, they are based on statements of people who are not medical practitioners or people who possess of any particular expertise in blood pattern analysis. Their estimates are for that reason inherently unreliable, and are not a sound basis upon which to form and express an expert opinion.

14. [620]

    Any opinion, whether of a lay person or an expert as to the amount and quantity of blood at the Kingdom Hall is, in my view, not worthy of being given any weight because they are inherently unreliable. I am unable to rely on any of those lay or expert opinions, including those of Dr Duflou, in forming my own conclusions.

15. [621]

    In his oral evidence, Dr Duflou reaffirmed the difficulty and inherent unreliability in accurately estimating the amount of blood at a crime scene and said that his opinion was based on his own experience and research of the topic. [338] Dr Duflou however proceeded in his oral evidence to give what can be described as a “negative number”, namely that the volume of blood on the carpet was significantly less than 100ml – “… much much less than that”. [339]

16. [622]

    He agreed with Dr Brouwer’s opinion that one could not give a “positive number” by way of an estimation of blood loss at a scene. He said that it was “not possible” to give an exact amount. [340] Dr Duflou ultimately agreed in cross‑examination that it was virtually impossible for him to say that estimates of the amount of blood given by one lay witness, Mr Riley, was accurate and that it might be substantially inaccurate. [341] Yet he had used Mr Riley’s account as the basis of his opinion.

17. [623]

    Relevantly, in cross-examination, Dr Duflou did say that one could not from the shedding of blood he was presented with, describe accurately or in detail the type of injury sustained by a person leading to that blood loss. [342] He also agreed that if there was no arterial injury sufficient to cause spurting (i.e. the emission of blood under arterial pressure) such a wound would not necessarily have been obvious to an examiner after 16 or 17 days. [343]

18. [624]

    In considering all of the expert evidence, I have concluded that:

19. [625]

    I am also of the view, considering the opinions expressed by the experts, that even when a lay witness gives a relative description of the amount or volume of blood e.g. “it was a lot of blood” or “it was a large amount”, such descriptions are apt to reflect the individual’s own personal experience and knowledge (if any) of blood loss. Such opinions are therefore an unsound basis for any objective estimation of the volume or amount of the blood. Putting it differently, relative descriptions of the kind pointed to by the Accused are so vague as to be an unreliable basis upon which any expert opinion can be expressed.

20. [626]

    It follows from these conclusions that the accounts about the volume of blood which they saw given by a number of lay witnesses who came to the Kingdom Hall on the morning of 14 July 1985 must be treated with care and circumspection. This is so even with full acceptance that these accounts were honestly given and that the individuals were doing their best to describe what they saw.

21. [627]

    The Accused in particular drew attention to the evidence of Mr Kenneth Riley, [344] who had died by the time of the trial. He had given a statement to Police on 29 November 1985. Dr Duflou had based his opinions, in significant part, on this statement.

22. [628]

    Mr Riley was a member of the Liverpool Congregation which met at the Kingdom Hall at 2.30pm on Sundays. He first arrived at the Kingdom Hall on Sunday 14 July 1985 at about 2pm, which was after the members of the Lurnea Congregation (specifically Mr Clapp) had cleaned up the blood which they found at 9am that morning. Not all of the blood had been removed because some remained on the carpet and on cardboard boxes. Mr Riley saw the bloodstains on the carpet and on a cardboard box which was on the top of a stack of cartons. He also saw what he identified as blood on a curtain being carried by two members of his congregation. That was clearly not the curtain which Mr Clapp described as being in the vicinity of the broken south‑eastern window, which he took down and gave to a member of the Lurnea Congregation to wash.

23. [629]

    Mr Riley, who had no training or experience in bloodstain pattern analysis, nor any experience in the examination of crime scenes, expressed the view that what he saw was a spray of arterial blood and that there would have been “…about two pints of blood, at least, spread inside and outside the Hall”. [345] His qualifications with respect to estimating the amount of blood was said to be three certificates from the St Johns Ambulance Service in relation to first aid. As a young man, he did a medical course, although the specifics of that course were not elaborated upon. [346] During the course, in hospital, he saw some bleeding apparently during operative procedures.

24. [630]

    Mr Riley was not a qualified medical practitioner. His observation of an arterial spray and an amount of blood at the Kingdom Hall are, whilst no doubt honestly given, in my view quite unsound. He had no experience in bloodstain patterns to enable him to say, in any way warranting serious consideration, that there was an arterial spray. That was in my view, simply a lay person’s speculation. And his estimate of the amount of blood suffered from the inherent unreliability of the kind to which the experts testified. It was likely to be a significant over-estimate. As well, it should be observed that Mr Riley did not see the full extent of the blood which was found on the morning of 14 July 1985, as he did not arrive until after some of it had been cleaned up.

25. [631]

    In my view, Mr Riley’s observations are an entirely unsound basis upon which Dr Duflou could express any opinion concerning accuracy of predictions about the amount of blood or which would be worth any weight.

26. [632]

    Two members of the congregation, Mr Biddle and Mr Clapp, were present at the Kingdom Hall on the morning of 14 July 1985. Mr Biddle and Mr Clapp gave evidence of relative amounts of blood which they saw. Mr Biddle used the description “… a lot of blood.” [347] Mr Clapp used various descriptions including “… quite a fair amount”, [348] “… large amount of blood …” [349] and “… a lot of blood …”. [350]

27. [633]

    Whilst I accept their honesty in trying to give a correct recollection of what they saw, neither of these two witnesses had any training or expertise in quantifying, either in relative terms or in any other way, the extent, volume or amount of the blood which formed the blood stains.

28. [634]

    For the reasons described earlier, these observations are not a sound basis upon which to proceed in expressing any opinion about, or making any finding about, the volume or amount of blood in the Kingdom Hall on 14 July 1985.

29. [635]

    I should note here that in his working notes at 24 July 1985, [351] Mr Goetz noted that the blood on the cardboard consisted of a large number of spots, the majority of which were about 6mm to 1cm in diameter. In particular, he noted that the blood had been placed onto the cardboard “in vertical deposition”. In cross-examination, Mr Goetz explained that the note meant that the blood had not been sprayed onto the cardboard. In his opinion, the most likely way for it to have reached the cardboard was that someone had been bleeding and the blood had dripped vertically onto the cardboard. [352] This tells against any suggestion that there was any arterial injury or arterial blood spray.

30. [636]

    Ultimately, I do not accept that there is any evidence upon which I can make any, let alone an accurate, factual finding concerning the amount of blood that was deposited by the intruder on 14 July 1985.

31. [637]

    It follows, and it is clear, that there is no sound basis upon which I can proceed, in the absence of any photographs or expert blood pattern analysis of the bloodstains in the Kingdom Hall on 14 July 1985, to find as a matter of fact, the nature, seriousness or extent of the injury suffered by the intruder on 14 July 1985.

32. [638]

    Much less is there any evidence at all as to the location on the intruder’s body of any injury which may have been suffered. It is just not open to me on the evidence to make any finding as to whether there was an injury on any specific part of the intruder’s body. For example, I could not say with sufficient certainty whether the injury was to the intruder’s scalp under their hairline, where the injury would not be obvious on a visual inspection. Nor does the evidence permit a finding that the injury was either a deep or else a shallow laceration.

33. [639]

    As the evidence of Dr Brouwer and Dr Duflou showed, there are a significant number of variables which will affect the speed and success of wound healing. [353]

34. [640]

    The first of these is obviously the nature, extent and location of the injury which caused the bleeding. This is not, and cannot be, the subject of any findings of fact – there is simply no basis for any such finding.

35. [641]

    All that can be said, as it seems to me, is that such injury may be a large wound but could also be a small wound because a small wound can give rise, depending on its nature and location, to profuse bleeding. [354]

36. [642]

    As Dr Brouwer’s expert opinion showed, and as Dr Duflou’s cross‑examination revealed, it is not impossible for an injury which caused the bloodstains of the kind seen at the Kingdom Hall to have either completely healed, or else not to have been obvious to a non-medically qualified examiner conducting a visual examination because of the extent of the healing in a period of 16 days or so. Put differently, it is a realistic factual possibility that the bloodstains seen at the Kingdom Hall could have been caused an injury which could heal (at least visually to an untrained eye) within 16 days.

37. [643]

    The Crown called evidence from Detective Woods that on 30 July 1985, 16 days after the break-in to the Kingdom Hall, the Accused was taken from his home to the Liverpool Police Station. In the presence of Detective Sergeant Gersbach and Detective Woods, he was told to remove his clothes, which he did, and a “cursory visual examination” was made of his body by those two detectives. They did not observe any injury or laceration on the Accused on the course of their visual examination. The Accused in submissions sought to place significant weight on this evidence.

38. [644]

    Although the evidence of Detective Woods was the subject of a generally critical cross-examination and adverse submissions by the Accused, it was not submitted by either the Crown or the Accused that I should not accept this part of his evidence about what occurred with the examination at Liverpool Police Station on 30 July 1985. I accept that evidence. I note that there was no suggestion in the evidence that the detectives performed anything more than a visual examination. For example, it does not seem that they asked the Accused to raise his arms and hands away from his body or above his head so that they could see all aspects of his arms, forearms and hands. Nor does it seem that they examined his head to see if there was any injury concealed by his hair. Their examination was, on any view, a cursory one being carried out by non-medically qualified people.

39. [645]

    It was the type of examination, in my opinion, which could easily have missed observing an injury sufficient to have caused the observed blood loss and bloodstaining in the Kingdom Hall. This is particularly true given the injury was likely well advanced on its path to healing, or else had substantially healed.

40. [646]

    In light of all of the evidence to which I have referred, I am not satisfied that the observations made during this cursory examination of the Accused by Detectives Gersbach and Woods, namely that there was no apparent injury on the body of the Accused, prevent a conclusion being reached beyond reasonable doubt that the Accused was the intruder into the Kingdom Hall on 14 July 1985.

41. [647]

    Put differently, the Crown has satisfied me that the observations of the detectives about the body of the Accused, made cursorily, do not mean that the Accused did not sustain any injury on 14 July 1985 and shed blood whilst an intruder into the Kingdom Hall.

42. [648]

    It follows that I reject the submissions of the Accused that the evidence concerning the amount of blood loss in the Kingdom Hall and the absence of any observed injury on 30 July 1985 means that the Accused cannot be found to be the intruder into the Kingdom Hall on 13/14 July 1985.

43. [649]

    Mr Mark Gore, a fireman who worked with the Accused at the Liverpool Fire Station, described in evidence an occasion when the Accused came to work on the first shift back after a period of four days rostered off duty. On that occasion, Mr Gore said that he observed “four or five” puncture wounds on the face of the Accused. [355]

44. [650]

    Mr Gore, by reference to the record of an interview he gave to the Police on 11 August 1985, expanded on his evidence in this way:

45. [651]

    Mr Garry Picken, who was also a fireman who worked at Liverpool Fire Station with the Accused, described an occasion which the Accused came to work and Mr Picken saw a number of red raw skin blotches on the face and cheeks of the Accused. [356] He said that this was about a week before the bomb exploded at the Kingdom Hall. [357] A diagram of what he saw was tendered. [358]

46. [652]

    I am satisfied that the Accused did have these facial injuries when he arrived at work on 15 July 1985. The accounts given by Mr Gore and Mr Picken were not challenged by the Accused. Mr Gore’s account was originally a reasonably contemporaneous one – about one month later. I accept the evidence of Mr Gore and Mr Picken about the state of the face of the Accused on 15 July 1985.

47. [653]

    It is possible that there were wounds sustained by the Accused during the first break-in on 13/14 July 1985. It is equally possible that they were sustained in the way he told Mr Gore and Mr Picken, namely, that he incurred this whilst riding his motorcycle in the bush without a helmet. I am not prepared to make a finding of fact one way or the other.

48. [654]

    Regardless of how these facial wounds were caused to the Accused, what is clear is that by 30 July 1985, when he was examined by Detective Gersbach and Woods, they did not observe the existence of these facial wounds, or their state of incomplete healing. I conclude from this that either the wounds had healed and left no obvious sign of the wound such as recent scarring, or else the wounds were there to be observed as partially healed but during the cursory examination by the two detectives, they did not observe them.

49. [655]

    Either of these available conclusions do not tell against but support the conclusion which I have earlier reached, namely, that the fact that the Accused underwent a cursory examination by Detectives Gersbach and Woods which did not detect any observable injuries, does not prevent me from reaching a conclusion that the Accused was the intruder into the Kingdom Hall in the first break-in on 13/14 July 1985.

Alternative Perpetrators

1. [656]

   The Crown’s case cannot succeed in proving the Accused guilty of the counts on the Indictment relating to Event 7 unless the Crown disproves any reasonable hypothesis consistent with the innocence of the Accused. That is because the Crown’s case against the Accused is a circumstantial one.

2. [657]

   The Accused submitted that the Crown has failed to discharge its burden of proof because there are other individuals who may reasonably be concluded to have been the perpetrator of the bombing at the Kingdom Hall.

3. [658]

   The Accused raised both specifically named individuals and an unidentified man as reasonable hypotheses consistent with innocence. It is convenient first to consider the Accused submissions concerning the unidentified man.

4. [659]

   The Accused submitted that the Crown has not disproved as a reasonable possibility that an unidentified man broke into the Kingdom Hall on 13/14 July 1985, who then attended at the practice of Dr Watson, a general practitioner, at Bankstown on 15 July 1985.

5. [660]

   The Accused’s submission is that it is a reasonable possibility that this person was the intruder into the Kingdom Hall because:

6. [661]

   As earlier observed, the GP’s surgery was not in the vicinity of the Kingdom Hall, but was about 16km away. This was not a circumstance where a person had early on Sunday 14 July 1985 attended a doctor near to the Kingdom Hall, seeking treatment for an injury which had occurred within the last few hours. There was no feature of real contemporaneity with the break-in at the Kingdom Hall, nor was there any proximity to the Kingdom Hall such as to give rise to an inference that the person was associated with the break‑in.

7. [662]

   Rather, the Accused submitted that the inference arises from the nature of the injury and the false explanation as to when it was received.

8. [663]

   In my view, it cannot be said that lacerating injuries were not at all uncommon in 1985 (and, for that matter, are not uncommon in the present day). There was nothing said by the individual to indicate any connection in time or place, or cause (broken glass) for the laceration injury which indicated any connection with the break-in at the Kingdom Hall.

9. [664]

   Rather, when objectively examined, the only possible feature that could give rise to any suggestion that this person was the intruder into the Kingdom Hall, was the existence of a deep laceration injury on his hand which had become infected.

10. [665]

    I do not accept that a person giving an incorrect history to a medical receptionist is without more sufficient to lead to a belief that the person has committed a criminal offence. This is particularly so because, allowing for the maximum time estimate made by the receptionist of three days, the injury must have been sustained at a time before the break-in occurred. Thus, there is very little that actually links this particular medical interaction with the break‑in on 14 July 1985.

11. [666]

    The evidence does not enable a conclusion that this person had any connection whatsoever with the break-in at the Kingdom Hall. The evidence surrounding this unnamed individual is not a reasonable hypothesis consistent with the innocence of the Accused. There is simply no proven connection, nor any available inference, which can be drawn to prove a connection with the break-in at the Kingdom Hall.

12. [667]

    Particularly when considered with all of the other facts, matters and circumstances, this evidence does not mean that that the Crown has failed to prove that the Accused was the intruder into the Kingdom Hall on 13/14 July 1985.

13. [668]

    It is now appropriate to consider the other hypotheses raised by the Accused, consisting of seven individuals named by the Accused as potential perpetrators of the explosion at Kingdom Hall.

14. [669]

    Principal amongst those is Mr Shoukhat Abroo, either alone or in combination with Mr Khaled Hamzy. The submissions of the Accused suggest that Mr Abroo and Mr Hamzy may also have been involved in one or more of the other Events. Submissions concerning Mr Abroo and any of his associates are dealt with elsewhere in these reasons.

15. [670]

    There were other individuals to whom the Accused has pointed as being possible perpetrators of the Kingdom Hall bombing. The submissions of the Accused are drawn entirely from details contained in police records, principally running sheets, of individuals identified either by police officers or other individuals providing information in the immediate aftermath of the explosion at the Kingdom Hall.

16. [671]

    The information as recorded in these police records is often a mixture of hearsay, supposition and the reporting individual’s belief expressed on an unclear basis. Strong views about the Jehovah’s Witness faith are expressed by people who are, or else no longer, adherents to it. Some material contains feelings expressed by individuals of satisfaction about the bombing of the Kingdom Hall. Often the material has supposed factual links to the Jehovah’s Witness faith which are tenuous at best.

17. [672]

    The submissions of the Accused point to a number of individuals, one of whom is the unidentified individual with a hand laceration and another being Mr Abroo. None of the remaining people, only some of whom are identified on the evidence, can be regarded on the face of the evidence as amounting to a reasonable possibility of being the perpetrator. The Accused’s submissions, which in part criticise the failure of police investigators to pursue more thoroughly the suggested suspects, are unpersuasive, and largely beside the point. The issue is whether, on the evidence in the trial, these individuals can be regarded as alternative perpetrators of the Kingdom Hall explosion. If so, the question is whether the Crown, in accordance with its onus, has disproved their involvement.

18. [673]

    One individual, a man of Croatian background, was interviewed. [359] He had a relatively short marriage – seemingly of a little over three months. He had only known his wife for a short period of a little over one month when they first got married. After the marriage broke down, his wife moved to South Australia to stay with relatives who may have had some connection with the Jehovah’s Witness faith. The named individual believed that the breakdown of his marriage was the fault of his wife. He told police investigators that he had no animosity towards the Jehovah’s Witness faith. He gave Police an account of his movements on the evening before the bomb exploded. This evidence, even if further enquiries were not made, does not permit of any rational suspicion or reasonable possibility that this individual had anything whatsoever to do with the explosion at the Kingdom Hall.

19. [674]

    I reject the submission of the Accused that the Crown had an obligation to adduce, by evidence or otherwise, any further material to disprove this man’s involvement with the Kingdom Hall explosion. The evidence in the trial does not amount to any basis on which to suspect the involvement of this person.

20. [675]

    It will be observed that I have not named the individual concerned in the immediately preceding paragraph. I do not propose to name individuals raised as alternative hypotheses by the Accused for any count on the Indictment where I am not persuaded that it is a potentially reasonable hypothesis that they were connected with the Kingdom Hall bombing.

21. [676]

    Another running sheet simply records that a member of the Jehovah’s Witness faith, [360] whose congregation is unidentified, reported that her former husband from whom she had been divorced for some years, had, in an affidavit filed in the Family Court during proceedings, attributed to the breakdown of their marriage to “interference with the Jehovah’s Witnesses”. There was no information to explain why after a much earlier divorce, her former husband had any ongoing dislike of Jehovah’s Witnesses.

22. [677]

    These facts, without more, are not capable of giving rise to any reasonable supposition that the former husband of the informant had anything whatsoever to do with the Kingdom Hall bombing. This is particularly so given that there is no evidence linking the informant to any of the congregations connected with the Kingdom Hall at Casula. The submission of the Accused that the Crown needed to exclude the ex-husband of the informant is rejected. It simply has no merit.

23. [678]

    The submission of the Accused draws attention to a running sheet which records the receipt by two named individuals of an anonymous telephone call which, it may be inferred, constituted a threat of some sort. [361] The contents of the telephone call are not in evidence and there is no basis to infer what was or may have been said and whether any threat may have been offered, or whether it was in any way connected to the Kingdom Hall explosion, except that the call was received at about 1.35pm on the day of the explosion of the bomb at the Kingdom Hall. This evidence does not permit of any connection between the anonymous telephone caller and involvement in the bombing of the Kingdom Hall at Casula.

24. [679]

    The submission of the Accused that the Crown needed to exclude this anonymous individual who made the phone call is rejected. It is without any merit whatsoever.

25. [680]

    On 24 July 1985, the Police received information from Mr Riley, to whom reference has been earlier made as a member of the Liverpool Congregation. [362] He is now deceased. He provided hearsay information which consisted of supposition and speculation about the breakdown of the commercial relationship of his son and a business partner. Mr Riley did not contend that the former business partner had ever made, in his hearing, any threats at all towards his son, or anyone else. He thought the individual was “… full of words and no action”.

26. [681]

    When investigated by Police, it was apparent that there was no factual basis at all for any rational conclusion that the former business partner had anything to do with the bombing of the Kingdom Hall. Much of the hearsay information which Mr Riley had provided was denied as to its accuracy, and was rejected by the former business partner.

27. [682]

    The submission of the Accused that the Crown needed to exclude the former business partner as a possible perpetrator is rejected. There is no basis to conclude that the person had any involvement at all. Mr Riley thought that the breakdown of the business relationship may have been because his son was a member of the Jehovah’s Witness faith. It seems, from the balance of the material in this exhibit, that it had nothing whatsoever to do with that.

28. [683]

    There was no reason for the Crown to be obliged to exclude this former business partner, because there was simply no basis to conclude that that person had any involvement at all. The submission of the Accused was not developed in any depth, had no regard to the content of the information contained in the exhibit provided – in particular its hearsay and speculative nature, and is wholly without merit.

29. [684]

    On 26 July 1985, a relationship counsellor living in Brisbane provided information about a person who had been consulting her. [363] She said that he was a former member of the Jehovah’s Witness faith whose wife and children continued their adherence to the faith. This was said to cause disharmony within the family. The family lived in Queensland.

30. [685]

    There is no suggestion of any connection whatsoever to any of the congregations which used the Kingdom Hall at Casula. There was no suggestion that the family lived at any time in NSW. The counsellor did not think that the man was capable of any action involving placing a bomb and having it explode as the Kingdom Hall bomb did.

31. [686]

    The Queensland man had apparently mentioned to her at some time in the past, seemingly a few years before, that a person should blow up one of the Halls belonging to the Jehovah’s Witnesses. The man had been interviewed on a Sydney morning television program on 26 July 1985 and had said, amongst other things, that he had never resorted to taking any action against the Jehovah’s Witnesses.

32. [687]

    The submission of the Accused suggested some inadequacy in the Police investigation about this person. I am not persuaded of any inadequacy. It was never suggested that the individual had any connection with the Kingdom Hall at Casula or any of the congregations there. Nor was there any information that he was ever in Sydney. The mere fact that an individual from a different state, who was not thought capable of any action, said some years before that a person should blow up a Kingdom Hall does not amount to a reason to suppose that it was rationally possible that this individual had anything to do with the explosion at the Kingdom Hall at Casula on 21 July 1985.

33. [688]

    This submission of the Accused is rejected. It is not soundly based.

34. [689]

    Finally, the submissions of the Accused referred to a running sheet which recorded comments made after the Kingdom Hall explosion by an individual spoken to in relation to a traffic offence and a commitment warrant. [364] This individual, for no apparent reason, expressed his distrust of the Jehovah’s Witness faith, and rubbished it and its members to the arresting police officer. There had been a family connection to the Jehovah’s Witness faith however there is no evidence that this individual had any connection with the Kingdom Hall at Casula. Comments of the kind contained in the running sheet, to which reference has been made, do not (even if, as it appeared, the individual had a familiarity with explosives) constitute a rational basis for inferring as a possibility let alone a reasonable possibility that the individual was, or could be, the perpetrator of the bombing at that Hall.

35. [690]

    The submission of the Accused that the Crown was obliged to address and negative the involvement of this individual as a possible perpetrator is rejected. It could not be reasonably thought that he was a possible perpetrator. The submission is unsound.

36. [691]

    In summary, I have rejected the submissions of the Accused that the Crown was obliged to disprove the individuals to whom reference has been made above, as being reasonable alternative perpetrators to the Accused of the bombing of the Kingdom Hall. The evidence about the individuals did not demonstrate any reason to regard any of them as possible perpetrators. The submissions for the Accused are rejected.

Knowledge of and Familiarity with Explosives

1. [692]

   It is convenient here to deal with a part of the Crown case which will be generally applicable to each of Events 3 to 7 which involve the use of explosives and bombs.

2. [693]

   The evidence in the trial does not suggest that the Accused had any qualification or experience in dealing with explosives prior to the Events in question. He did serve for two years in the Australian Army, having been called up for National Service in the period 1967 to 1969. After his initial recruit and trade training, he served the balance of his time as a cook. He first spent six months as a cook at the Military Correctional Establishment at Holdsworthy and then a further 12 months at an administrative headquarters. [365] No formal training in explosives is noted in his army records.

3. [694]

   In his interview with Terry Willesee, the Accused denied having any knowledge of explosives or how to make bombs. [366]

4. [695]

   The Crown submitted that there were adequate sources of knowledge available in the community for the Accused to learn about and come to know how to construct any of the bombs used in Events 3 to 7. The Crown also submitted that this knowledge could be inferred from the existence of a close relationship between the Accused and his father, Leonard Warwick Snr, together with the possession by the Accused of a book called “Practical Coal Mining” by George Kerr. [367] This inference, in the submission of the Crown, is based upon Mr Warwick Snr’s occupation as a Shot Firer’s Assistant at a coal mine. Consequently, the Crown argued that Mr Warwick Snr was an available source to the Accused from whom he could have obtained information about the use of explosives.

5. [696]

   The Accused’s submission on this matter is concise – it has not been shown in the evidence that he had any knowledge, training or experience of a kind which would have enabled him to plan, construct and detonate the bombs which were used in each of Events 3 to 7.

6. [697]

   Mr Lawton was called as an expert witness by the Accused. Mr Lawton is a forensic consultant with training and experience as an ammunition technical officer in the British Army for over 14 years, and as a manager for ammunition in the Australian Army. In his report, [368] he said that knowledge of how to use explosives would have been publicly available at the time of each of the Events 3 to 7 in publications from explosives manufacturers and sellers, as well as in mining text books and guides. He gave three examples, including one called “Blasters Handbook”, which had first been published in 1918 and which had been regularly updated. He also said that knowledge of bombs and booby traps would have been available in several manuals produced by the US Army, which were available in second‑hand and technical bookshops, and as well in publications which were banned from sale in Australia.

7. [698]

   Another expert called by the Accused, who was given the pseudonym Anthony O’Reilly, said in his report [369] that information about explosives and the making of bombs was available to the general public during the 1970s and 1980s. He noted that the information was available in the form of university chemistry course text books, declassified military handbooks and in commercial publications. With respect to this last type of publication, Mr O’Reilly drew attention to a publication described as an Explosives Users Guide which was published by ICI in Australia and New Zealand and was readily available.

8. [699]

   The book by George Kerr, “Practical Coal Mining” [370] , includes information about what size detonators are appropriate to be used for particular weights of explosives, and also material about the use of detonators which are activated by electrical circuits rather than by the burning of a safety fuse. This was the book found in the Accused’s home when it was searched on 31 July 1984.

9. [700]

   Excerpts from one of the publications nominated by Mr O’Reilly as being publicly available, namely a US Department of the Army Field Manual – FM5-25, were tendered in evidence. [371] That manual was published in 1967. It contains significant technical detail about the handling and use of explosives, including the configuration of many different booby-trap style explosive devices.

10. [701]

    As well, the Crown tendered evidence of a publisher called “Paladin Press”, which was based in the USA but advertised and distributed its materials in Australia. [372] Paladin Press began in 1970 with the publishing or reprinting of Government military manuals. A catalogue of their publications together with a copy of a publication entitled “Principles of Improvised Explosive Devices” was tendered. [373] This indicated the range of available knowledge to anyone who had an interest in these matters. The Accused was not registered with Paladin Press as a subscriber at the relevant time, but the material was available in Australia.

11. [702]

    One of the Paladin Press publications tendered in evidence provides instructional material on the making of each of the different kinds of bombs which were used in each of Events 3 to 5, and Event 7 inclusive. As a matter of common sense, I infer that other similar publications were also available. Of course, this does not mean, and I am not making a finding, that the Accused actually read any one or more of these publications. However, the fact that they were available is a circumstance which may be taken into account in considering whether the Accused was capable of committing the offences involving the use of bombs.

12. [703]

    As well, as obvious, a person in the position of the Accused could become informed about explosives by being taught by, or else learning from, an individual with knowledge and experience. This is a pathway acknowledged to exist by both Mr O’Reilly [374] and Mr Lawton [375] as being one way in which a person may acquire knowledge and skills necessary to construct and detonate the bombs which were used.

13. [704]

    Mr David Kennedy, a research scientist who had worked for over 30 years for ICI, having started in 1980, said that the creation of explosive devices initiated by electricity required a minor degree of knowledge of explosives and electrical circuitry which was “fairly readily available from a variety of textbooks”. [376] I accept his evidence.

14. [705]

    The Accused’s father, Mr Leonard Warwick Snr, worked for many years in a coal mine near where he lived in Helensburgh. This is unchallenged evidence which I accept. For many years, he worked on the afternoon shift in the capacity of a Shot Firer’s Assistant. In that role, he participated with the Shot Firer in the placing of high explosives and detonators into bore holes drilled into the coal face which, after setting off the explosion, was to be mined. After those explosives were placed, including the use of a primer (a stick of explosive armed with a detonator) the various charges were wired together in an electrical circuit which, after testing, was detonated by the Shot‑Firer. [377]

15. [706]

    Any failures in the intended explosions were investigated after an appropriate safety period by the Shot-Firer and his Assistant to ascertain the cause of the failures and what further steps were appropriate to be taken.

16. [707]

    Although the precise period of his employment is not in evidence, it was clear that Mr Warwick Snr worked for many years in the Metropolitan Colliery at Helensburgh.

17. [708]

    The Accused submitted that his father’s role would not have given his father any substantive knowledge of bomb-making or explosives, as the primary explosive role at the mine site was a “powderman” (or Shot-Firer), not a Shot Firer’s Assistant. There is no evidence that Mr Warwick Snr was a powderman. Nevertheless, I accept that the Shot Firer Assistant role inevitably would have brought with it extensive exposure to explosives. I am well satisfied that Mr Warwick Snr, during his employment, became familiar with the use of explosives, detonators, electrical wiring circuits and the firing or detonating of explosives which had been placed in the coalface. He would also have become familiar with the effect of those detonated explosives on the coalface.

18. [709]

    On the evidence of Ms Blanchard, which I accept, whilst married to the Accused she observed that he had a very good relationship with his father. They would frequently visit Mr Warwick Snr when the Accused was not rostered on duty (usually every week).

19. [710]

    It is a matter of common sense that the Accused is likely over the many years that his father worked in the coalmine to have discussed with his father the activities which his father engaged in at work. It is therefore likely that the Accused learned from his father at least about the use of explosives in a coalmine. Even if is not open to arrive at such a conclusion, it cannot be doubted that the Accused’s father was a potential source of knowledge about explosives, including the practical application as to how they were set, connected to electrical firing circuits and exploded.

20. [711]

    Put differently, having regard to the fact that they shared a good relationship, it would be surprising if the Accused and his father did not ever have a conversation about what the Accused’s father did at work.

21. [712]

    It is not clear from the evidence when Mr Warwick Snr ceased working at the Metropolitan Colliery. It had to be no later than when he turned 60 because that was the compulsory retirement age. [378] Mr Warwick Snr died on 12 January 1994. [379] His property at Helensburgh was searched as a part of Operation Banner Wave on 31 July 1984. [380]

22. [713]

    The Crown also relied on the evidence of Mr David Muhn as a source to suggest that the Accused had some knowledge about explosives. Mr Muhn was not, in my assessment, a credit-worthy witness whose evidence could be accepted. I have not relied upon anything which he said in his evidence unless it has been independently corroborated.

23. [714]

    In summary, it is a circumstance to be weighed up as one of many circumstances that the Crown has not proved that the Accused has any explicit knowledge and experience in the use of explosives or in the construction, placing and detonation of bombs.

24. [715]

    It is another circumstance, also to be weighed up, that the Crown has proved to my satisfaction on the balance of probabilities that there was available to the Accused (because it was available in the community) publications, books, manuals and the like which provided instructional material which covered the construction of each of the bombs used in these Events.

25. [716]

    I also take into account and will give weight to the circumstances proved in the evidence about the relationship between the Accused and his father, and the knowledge of the Accused’s father of the use of explosives in the coal mining environment where he was employed.

Summary

1. [717]

   I have now reviewed the evidence about Event 7 which establishes a series of facts and circumstances. I have attended carefully to the submissions for the Crown and the Accused. I have also carefully attended to the giving of the evidence, re-read it and considered all of it which is directly related to Event 7. However, I have not commented upon every piece of evidence. It is simply not possible to do so, having regard to the volume of that evidence in this trial. Nor have I commented on every submission which has been made. Again, the submissions were extensive and it is not possible to do so. To the extent that any evidence is in conflict, or at least is not consistent with any of my findings, I note that I have considered that evidence and I have ultimately preferred the evidence which supports my findings. To the extent that any submission is in conflict, or at least is not consistent, with any of my findings, I have considered and rejected that submission.

2. [718]

   I note that, having regard to the directions of law it is necessary to give myself about the application of tendency and coincidence evidence, in coming to a conclusion about whether the Crown has proved beyond reasonable doubt the guilt of the Accused of the offences in the Indictment relating to Event 7, I have not had regard to, or relied upon, evidence tendered solely in proof of any of Events 1 to 6. Nor have I taken into account the fact of the occurrence of these Events other than as setting the context, or as a background narrative, in which the evidence relating to Event 7 is to be considered. I have not relied upon any tendency or coincidence reasoning to reach my conclusion, with respect to Event 7.

3. [719]

   It is to be recalled that the Crown’s case on Event 7, and the other Events, is a circumstantial one. Before articulating my conclusion, it is appropriate that I remind myself of the principles (or directions) of law which I must apply in reaching any conclusion. I have set them out at length elsewhere, but it is appropriate here to refer to them in a brief form so as to have them in the forefront of my mind. My reference to them in a brief form is simply a convenient short-form way of recording that I have considered the entirety of each direction and will apply it.

4. [720]

   First, the burden of proof of the guilt of the Accused rests wholly on the Crown. It is obliged to prove each element of each offence beyond reasonable doubt. The Crown does not have to prove every single fact upon which it relies beyond reasonable doubt.

5. [721]

   Secondly, there is no onus of proof on the Accused, who is presumed to be innocent unless and until he is proved guilty beyond reasonable doubt.

6. [722]

   Thirdly, the Accused has declined to answer questions put to him by Police investigators. He was entitled so to do. The Accused has not given evidence in this trial. That was also his right, as he has no obligation to do so. The silence of the Accused either to the Police or in this trial cannot be used in any way against him. It cannot be used in any way in assessing whether the Crown has proved its case on Event 7 beyond reasonable doubt.

7. [723]

   Fourthly, because the Crown’s case is a circumstantial one, I cannot return a verdict of guilty upon any of the charges relating to Event 7 unless the circumstances are such as to be inconsistent with any reasonable hypotheses other than the guilt of the Accused. It is necessary for the Crown to persuade me beyond reasonable doubt that the guilt of the Accused is a rational inference, and that it is the only rational inference that the circumstances enable me to draw. This means that the Crown must exclude all reasonable hypotheses consistent with the innocence of the Accused.

8. [724]

   Fifthly, the Crown must prove the existence of the intermediate fact beyond reasonable doubt. The intermediate fact is that the Accused was the intruder who broke into the Kingdom Hall on 13/14 July 1985. The proof of that fact depends upon the Court being satisfied beyond reasonable doubt that the Accused’s DNA profile has been derived from blood shed on the carpet and cardboard in the Kingdom Hall during the break-in on 13/14 July 1985. This fact is to be also proved beyond reasonable doubt.

9. [725]

   I have applied these and all other relevant directions of law to my considerations.

10. [726]

    I am satisfied that the Crown has proved beyond reasonable doubt that the Accused was the person responsible for placing a bomb under the platform at the Kingdom Hall at Casula, and for its detonation, on the morning of 20/21 July 1985.

11. [727]

    The totality of the facts and circumstances proved by the evidence demonstrate that this is the only rational conclusion which can be reached. The entirety of the circumstances also demonstrate beyond reasonable doubt that no other person can be regarded as being responsible for the bombing.

12. [728]

    Whilst all of the circumstances lead me to this conclusion, about which I have no doubt at all, the circumstances include these particularly significant findings:

Count 11 – Murder of Graham Wykes

1. [729]

   The evidence proves beyond reasonable doubt that the late Graham Wykes was killed by the explosion of the bomb at the Kingdom Hall on 21 July 1985. I am satisfied beyond reasonable doubt that the Accused was responsible for that death, by placing and causing the detonation of the bomb. It was a deliberate, and therefore a voluntary act of the Accused to place the bomb under the platform of the Kingdom Hall. Having regard to the components of the bomb, and the high explosive used, I am satisfied it was obvious to the Accused that when the bomb exploded it was probable that one or more people would be killed by the explosion.

2. [730]

   Accordingly, the Crown has satisfied me beyond reasonable doubt of the guilt of the Accused of the offence in Count 11, the murder of Graham Wykes.

Counts 12 to 24 - Maliciously Causing Grievous Bodily Injury by Explosion

1. [731]

   Counts 12 to 24 on the indictment allege that the Accused caused bodily injury, contrary to s 46 of the Crimes Act 1900. Here, the Crown must prove beyond a reasonable doubt that on 21 July 1985:

   1. (1)

      the Accused exploded an explosive substance in Casula, NSW;

   2. (2)

      the explosion was done maliciously; and

   3. (3)

      that the explosion caused grievous bodily harm to the persons named in Counts 12-24 respectively.

2. [732]

   Before considering whether I am satisfied beyond reasonable doubt that the injuries sustained amounted to grievous bodily harm, it is convenient to state that I am satisfied beyond reasonable doubt of each of the other elements of Counts 12 to 24 inclusive. Namely, I am satisfied that there was an explosion of an explosive substance, and that the Accused was the person who caused that explosion. In placing and causing the bomb to detonate at a time when the Kingdom Hall would have members of the Lurnea congregation present, there was an overwhelming likelihood of death or serious injury being caused. Therefore, the Crown has satisfied me beyond reasonable doubt that the Accused acted maliciously in causing the explosion.

3. [733]

   It is now necessary to consider whether the Crown has satisfied me beyond reasonable doubt that the injuries suffered by each of the individuals named in the Counts on the Indictment amounted to grievous bodily harm. Whether grievous bodily harm was caused is not conceded by the Accused (though no submissions were made by the Accused disputing that the Crown had proved this element of these offences). Such consideration must occur by reference to each Count individually.

4. [734]

   Grievous Bodily Harm is for a description used for really serious bodily injury which includes any permanent or serious disfigurement. It is a question of fact and degree as to whether an injury amounts to grievous bodily harm.

5. [735]

   I direct myself that a consideration of grievous bodily harm should not concern a consideration of personal, economic or social harm that go beyond the injury suffered (even if such harm flows from the physical injury suffered).

6. [736]

   It should be noted that some of the individuals named in Counts 12 to 24 also present with psychological issues to varying degrees as a result of the Kingdom Hall bombing in addition to their physical injuries.

7. [737]

   I direct myself that I am entitled to accept that psychological harm of a clinical nature could constitute a bodily harm. However, only significant, “really serious” psychological harm that goes beyond actual bodily harm could constitute grievous bodily harm.

8. [738]

   In light of the above, I direct myself that only physical or psychological injury I consider to be “really serious” can be found to constitute grievous bodily harm.

9. [739]

   Ms Joy Wykes, the wife of the late Graham Wykes, was present in the Kingdom Hall at the time of the bombing. She was 35 years old at the time. Ms Wykes is now known as Mrs Joy Leland, having remarried. Because all of the hospital records refer to her, as does the Indictment, by the use of the surname Wykes, I will do so as well. No disrespect is intended by this. Ms Wykes was taken to the Emergency Department at Liverpool Hospital directly after the explosion. She was admitted on 21 July 1985, and discharged on 1 August 1985.

10. [740]

    Dr Moont set out the injuries sustained by Ms Wykes as a result of the bombing at Kingdom Hall. [381] These injuries can be summarised as follows:

    1. (1)

       a fracture to her left parietal lobe;

    2. (2)

       a large scalp wound impregnated with splinters which exposed the periosteum on the skull;

    3. (3)

       5cm nail lodged in the palmer aspect of her right hand;

    4. (4)

       multiple abrasions to both arms;

    5. (5)

       blood presenting from her right nostril and ear; and

    6. (6)

       a severely perforated left eardrum.

11. [741]

    As a result of these injuries, Ms Wykes needed to undergo an operation to debride and close her head wound and remove the nail from her right hand.

12. [742]

    The skin damage to her scalp took further time to heal as a small area of necrosis which was initially observed post operation, later developed into a 5cm x 3cm area on the scalp where skin did not survive. This later required a further operation at Liverpool Hospital to debride the wound and perform a skin graft. [382]

13. [743]

    Dr Moont also noted in paragraph [36] of his report that long term psychological issues were a possibility. [383]

14. [744]

    Given Ms Wykes required and underwent a number of surgical procedures as a result of injuries sustained, and the nature and extent of her injuries, I am satisfied beyond reasonable doubt that the physical injuries sustained by her were “really serious”, such as to amount to grievous bodily harm.

15. [745]

    Ms Miranda Wykes, the daughter of the late Graham and Mrs Joy Wykes, was present in the Kingdom Hall at the time of the bombing. She was 10 years old at the time. Ms Wykes was taken to the Emergency Department at Liverpool Hospital directly after the explosion. She was admitted on 21 July 1985, and discharged on 1 August 1985.

16. [746]

    Dr Moont set out the injuries sustained by Ms Wykes as a result of the bombing at Kingdom Hall as follows [384] :

    1. (1)

       a puncture and laceration wound just below her left eye;

    2. (2)

       leak of cerebro spinal fluid from her left nostril;

    3. (3)

       multiple lacerations to her face and right chest;

    4. (4)

       fracture at base of skull;

    5. (5)

       respiratory distress syndrome;

    6. (6)

       fracture of the bilateral nasal bones;

    7. (7)

       fracture involving the ethmoidal sinuses on the left side; and

    8. (8)

       possible fracture of the petrous temporal bone.

17. [747]

    Ms Wykes did not undergo surgery, however the laceration was explored and dressed in theatre and she received intravenous antibiotics. She was further assessed in Intensive Care Unit for 24 hours due to her head injury and respiratory distress syndrome.

18. [748]

    The injuries sustained by Ms Wykes, who was only 10 years old at the time, required stitches, contained multiple fractures (including clinically detected skull fracture), and required her to spend time in the Intensive Care Unit.

19. [749]

    I am satisfied beyond reasonable doubt that the physical injuries sustained by Ms Wykes were really serious, such as to amount to grievous bodily harm.

20. [750]

    Ms Alaine Wykes, the daughter of the late Graham and Mrs Joy Wykes, was present in the Kingdom Hall at the time of the bombing. She was 13 years old at the time. Ms Wykes was taken to the Emergency Department at Liverpool Hospital directly after the explosion. She was admitted on 21 July 1985, and discharged on 1 August 1985.

21. [751]

    Dr Moont set out the injuries sustained by Ms Wykes as a result of the bombing at Kingdom Hall as follows [385] :

    1. (1)

       a fractured right clavicle;

    2. (2)

       a fractured fifth metacarpal of the left hand;

    3. (3)

       a large wound above the fracture on the left hand;

    4. (4)

       fractures to the right first to seventh ribs posteriorly;

    5. (5)

       penetrating injury to the right lung with small pneumothorax and contusion;

    6. (6)

       a closed head injury;

    7. (7)

       scalp and forehead lacerations with embedded splinters; and

    8. (8)

       small perforation to left eardrum.

22. [752]

    As a result of these injuries, Ms Wykes underwent an operation to insert a right chest drain in order to treat her lung injury, as well as to suture her scalp wound and hand wound. The chest drain remained in situ for about four days until it was removed. She also received dressings for her left hand, chest physiotherapy and prophylactic antibiotics as part of her treatment in the Intensive Care Unit. Dr Moont also noted in paragraph [24] of his report that long term psychological issues were a distinct possibility. [386]

23. [753]

    Given the need for surgery to insert a chest drain, her right clavicle and multiple rib fractures and the sutures to her face, I am satisfied beyond reasonable doubt that the injuries sustained by Ms Wykes, who was only 13 years old at the time, were really serious such as to amount to grievous bodily harm.

24. [754]

    Ms Sue Schultz was present in the Kingdom Hall at the time of the bombing. She was 31 years old at the time. Ms Schultz was taken to the Emergency Department at Liverpool Hospital directly after the explosion. She was then transferred and admitted to Westmead Hospital on the same day. She was discharged on 8 August 1985.

25. [755]

    The injuries sustained by Ms Schultz as a result of the bombing at Kingdom Hall are recorded in her hospital records [387] as follows:

    1. (1)

       multiple fractures of the bones in the mid face, including the medial, lateral and anterior walls of both maxillary sinuses, and the ethmoid and nasal bones;

    2. (2)

       fracture to the left eye socket and possible fractures to the right eye socket and medial orbital walls (both posteriorly and inferiorly);

    3. (3)

       central scotoma in the right eye and enlarged blindspot and scotoma in the left eye (alongside blurred vision);

    4. (4)

       vitreous haemorrhage and white vitreous floater in right eye and choroidal haemorrhage in left eye; and

    5. (5)

       irregularity of posterior nasopharynx suggestive of blood or soft tissue injury.

26. [756]

    As a result of these injuries, Ms Schultz needed to undergo an operation to insert facial wires, and a later operation to remove such wires. She spent 19 days in hospital because of her injuries.

27. [757]

    I am satisfied beyond reasonable doubt that the injuries sustained by Ms Schultz were really serious, such as to amount to grievous bodily harm.

28. [758]

    Mr Peter Schultz was present in the Kingdom Hall at the time of the bombing. He was 35 years old at the time. Mr Schultz was taken to the Emergency Department at Liverpool Hospital directly after the explosion. He was admitted on 21 July 1985 and discharged the following day on 22 July 1985.

29. [759]

    Dr Moont recorded that Mr Schultz sustained a penetrating laceration to his left bicep muscle. [388]

30. [760]

    This injury resulted in Mr Schultz undergoing surgery to explore the wound, removing large wooden splinters, irrigation of the wound and suturing the wound. Dr Moont noted that the injury sustained involved damage to the muscle.

31. [761]

    The requirement of surgery, alongside the damage to the muscle, satisfy me beyond reasonable doubt that the injuries sustained by Mr Schultz were really serious, such as to amount to grievous bodily harm.

32. [762]

    Ms Jodie Edwards was present in the Kingdom Hall at the time of the bombing. She was 8 years old at the time. Ms Edwards was taken to the Emergency Department at Liverpool Hospital directly after the explosion. She was admitted on 21 July 1985, and discharged on 23 July 1985.

33. [763]

    Ms Edwards sustained a 6” gaping laceration to the left frontal parietal region of her head and a fractured skull in the same region of her head as a result of the blast. These injuries were sustained when Ms Edwards was hit by flying debris during the blast. [389]

34. [764]

    As a result of these injuries, Miss Edwards underwent surgery to have her scalp laceration debrided and sutured. The long term consequence of this injury was fortunately limited to scarring of her face.

35. [765]

    Given the requirement for surgery and the fracture of the skull, and having regard to her age, I am satisfied beyond reasonable doubt that the injuries sustained by Ms Edwards were really serious, such as to amount to grievous bodily harm.

36. [766]

    Master Jesse Mazzotta was present in the Kingdom Hall at the time of the explosion. He was three months old at the time.

37. [767]

    Master Mazzotta was taken to the Emergency Department at Liverpool Hospital directly after the bombing. He was then transferred to Westmead Hospital on the same day (21 July 1985), where he was discharged on 24 July 1985.

38. [768]

    Master Mazzotta’s hospital records show that his mother told medical staff that a 2 foot x 1 foot block of cement landed on Master Mazzotta in his pram when the bomb went off. [390]

39. [769]

    Master Mazzotta sustained swelling to the right side of his scalp, which x-rays indicated was a large skull fracture to the right parietal bone, as well as abrasions to the occipital region of his head and abrasions to his back.

40. [770]

    I am satisfied beyond reasonable doubt that a large skull fracture on a three month old baby sustained by a falling block of cement is really serious injury such as to amount to grievous bodily harm.

41. [771]

    Ms Susan Rushan was present in the Kingdom Hall at the time of the bombing. She was 34 years old at the time. Ms Rushan was taken to the Emergency Department at Liverpool Hospital after the explosion. She was admitted on 21 July 1985 and discharged on the same day.

42. [772]

    Ms Rushan’s hospital records, [391] show that Ms Rushan sustained an undisplaced fracture of the right sided transverse process of L4 (a fracture of a bone in her spine), lacerations to both her right leg and nose and perforated ear drums.

43. [773]

    In her statement to police of 9 May 2014, [392] Ms Rushan noted that her back injury caused her considerable discomfort for a number of months and restricted her ability to go about her life as usual. Her hearing remained affected as at that time. She further noted that she also remained psychologically affected by the bombing of the Kingdom Hall.

44. [774]

    Though no surgery was required, Ms Rushan’s evidence is that at least part of the injury she suffered was permanent, with hearing issues still present many decades after the bombing of the Kingdom Hall. Though the injuries may be less serious that those sustained by many others who were injured by the explosion, the bilateral perforation of her eardrums resulting in permanent hearing problems and her back pain and discomfort over many months leaves me satisfied beyond reasonable doubt that the injuries sustained by Ms Rushan were really serious, such as to amount to grievous bodily harm.

45. [775]

    Mr Paul Hahn was present in the Kingdom Hall at the time of the bombing. He was 18 years old at the time. Mr Hahn was taken to the Emergency Department at Liverpool Hospital after the explosion. He was admitted on 21 July 1985 and discharged on 7 August 1985.

46. [776]

    Dr Moont set out the injuries sustained by Mr Hahn as a result of the bombing at Kingdom Hall [393] as follows:

    1. (1)

       large soft tissue wound to the upper right thigh;

    2. (2)

       lacerations to the face, including full thickness lacerations to lips and right cheek; and

    3. (3)

       lost upper right teeth.

47. [777]

    These injuries resulted in Mr Hahn undergoing surgery. The lacerations to his lip required stitching of all layers of the lip and underlying muscle. He also required an operation to extract non-viable teeth and suture his gum, and was fitted with a plate of five replacement teeth. The wound to the right thigh was too dirty and difficult to close in the first surgery, and therefore had to be closed in a second operation on 31 July 1985.

48. [778]

    Particularly having regard to the fact that a number of operations were necessary to treat these injuries and the period of time spent in hospital, I am satisfied beyond reasonable doubt that the injuries sustained by Mr Hahn were really serious such as to amount to grievous bodily harm.

49. [779]

    Ms Rita Ridikas was present in the Kingdom Hall at the time of the bombing. She was 34 years old at the time.

50. [780]

    Ms Ridikas was taken to the Emergency Department at Liverpool Hospital after the explosion. She was then transferred to Sydney Eye Hospital that same day for specialist treatment. According to her police statement, she was an in-patient at the Eye Hospital for about 10 days.

51. [781]

    Ms Ridikas’ hospital records [394] show that she sustained a splinter in her left eye, which caused a haemorrhage at the back of that eye.

52. [782]

    Ms Ridikas required an operation to remove the splinter, clean out the eye and sew the lid of her left eye so as to repair the damage which had occurred. In her statement to Police of 27 August 2014, Ms Ridikas noted that at the time of making the statement she still got headaches and pain due to the scarring behind her left eye. [395]

53. [783]

    The injury sustained by Ms Ridikas, though restricted to her eye, required specialist surgery and, through Ms Ridikas’ statement, it can be seen that the injury appears to have a degree of permanence. Though perhaps towards the lower end of injuries which may amount to grievous bodily harm, I am nevertheless satisfied beyond reasonable doubt that the injuries sustained by Ms Ridikas were really serious such as to amount to grievous bodily harm.

54. [784]

    Mr Ioan Toplicescu was present in the Kingdom Hall at the time of the bombing.

55. [785]

    Mr Toplicescu, in his statement to Police of 8 April 2014, [396] describes how he was taken to Liverpool Hospital after the explosion, where he stayed for about three days. No records could be found at Liverpool Hospital (or Fairfield or Westmead hospitals) recording his treatment.

56. [786]

    Mr Toplicescu, in his statement, notes that he sustained a perforated right eardrum and damaged left eardrum accompanied by bleeding from both ears, as well as a laceration to his face. Mr Toplicescu had surgery to suture the laceration to his face.

57. [787]

    Mr Toplicescu’s statement indicates long term consequences from the injuries he sustained. He says that he could not eat for 16 days in hospital due to his injuries. He also noted that he still suffers from hearing loss and vertigo due to the ear injury, as well as an epilepsy type condition following the bomb. [397]

58. [788]

    Mr Toplicescu required surgery and, because of the perforation to his eardrums, still has hearing problems. Although perhaps towards the lower end of injuries which may amount to grievous bodily harm, I am satisfied beyond reasonable doubt that the injuries sustained by Mr Toplicescu were really serious such as to amount to grievous bodily harm.

59. [789]

    Ms Lillian Hinds was present in the Kingdom Hall at the time of the explosion.

60. [790]

    Ms Hinds was taken to Fairfield Hospital after the bombing. No records could be found at Fairfield, Westmead or Liverpool Hospital regarding her treatment.

61. [791]

    Nevertheless, there are contemporaneous police running sheets concerning Ms Hinds which record her condition. [398] These note that Ms Hinds sustained a fracture of the ribs on her left side, perforated eardrums, abrasions to her face and bruised legs.

62. [792]

    The running sheets further note that Ms Hinds was already partially deaf before the bombing, however the effect of the blast and the subsequent perforated eardrums left her completely deaf.

63. [793]

    The injury sustained by Ms Hinds left her permanently deaf. I am satisfied beyond reasonable doubt that this constitutes really serious bodily injury, such as to amount to grievous bodily harm.

64. [794]

    Mr David Winder was present in the Kingdom Hall at the time of the explosion. He was 39 years old at the time. He was standing on the platform in close proximity to the bomb when it exploded. Mr Winder was admitted to Westmead Hospital on 21 July 1985 and discharged about two months later on 20 September 1985.

65. [795]

    Mr Winder’s hospital records [399] set out the injuries sustained by him a result of the bombing at Kingdom Hall as follows:

    1. (1)

       wood splinters in his back and the back of his legs;

    2. (2)

       compound fracture of his left elbow with a small puncture wound through his skin;

    3. (3)

       wounds to his left leg;

    4. (4)

       fracture of the left tibia and fibula;

    5. (5)

       fracture to left and right ankles;

    6. (6)

       perforation of right eardrum;

    7. (7)

       fractures to left nasal bones, left infraorbital margin and anterior wall of left maxillary sinus, lateral wall of left maxillary sinus, lateral wall of left orbit (eye socket) and left orbital floor; and

    8. (8)

       left zygoma (cheekbone) significantly depressed by 1.17cm and rotated.

66. [796]

    As a result of these injuries, Mr Winder underwent the following surgical procedures:

    1. (1)

       operation to debride the wound on his left leg;

    2. (2)

       operation for open reduction of fractures to his tibia and fibula; and

    3. (3)

       orbital reconstruction, including a silastic graft. This graft later became infected, with Mr Winder experiencing paraesthesia (pins and needles) to his left infra-orbital nerve.

67. [797]

    Mr Winder sustained long term decreased hearing and some tinnitus as a result of these injuries.

68. [798]

    Mr Winder required surgery for his many different injuries and sustained long term hearing issues. I am satisfied beyond reasonable doubt that the injuries sustained by Mr Winder were really serious, such as to amount to grievous bodily harm.

Summary

1. [799]

   I have concluded in respect of each of the Counts 12 to 24 that the injuries separately suffered amount to grievous bodily harm. In doing so, although I would be legally permitted so to do, I have not had regard to any consequential psychological injury.

2. [800]

   I also note that the Accused did not make any submissions to the Court that it was not open to the Court to be satisfied beyond reasonable doubt that the injuries of any of the victims did not constitute grievous bodily harm.

3. [801]

   Although I have not relied on the absence of submissions from the Accused to reach my conclusions on each count, I am more confident, in the absence of those submissions, that my conclusions are open to me to reach and that ultimately they are correct.

4. [802]

   In light of the conclusions I have reached on the element of the offences in Counts 12 to 24 (inclusive) dealing with whether the injuries amounted to grievous bodily harm, I have now been satisfied by the Crown beyond reasonable doubt of each of the elements necessary to be proved by it in respect of each of the offences in Counts 12 to 24 inclusive.

5. [803]

   Accordingly, the Crown has satisfied me beyond reasonable doubt of the guilt of the Accused of each of the offences in Counts 12 to 24 respectively, namely causing grievous bodily harm maliciously by an explosion.

6. [804]

   Having regard to the conclusions which I have reached with regard to Event 7 and Counts 11 to 24 on the Indictment, I will now consider that part of the Crown case which depends upon coincidence and tendency reasoning in respect of Events 1 to 6. It is appropriate to consider the applicability of tendency and coincidence reasoning to each of the Events 1 to 6 before moving on to a consideration of whether the Crown has proved the guilt of the Accused beyond reasonable doubt of the offences on the Indictment relating to each of Events 1 to 6.

7. [805]

   This is because the fact that a number of Events either happened or did not happen entirely coincidentally (i.e. without apparent causal connection) is a circumstance which can be considered amongst other circumstances as being relevant to whether the Crown has proved the guilt of the Accused beyond reasonable doubt for each Event.

8. [806]

   It will be important to know before considering the Crown case on each of Events 1 to 6 in this trial, whether the Crown has established that the Events did not happen by coincidence, and if so, how such a circumstance may be applicable in considering the Crown’s case.

9. [807]

   As well, the Crown relies upon tendency evidence as another circumstance pointing towards the guilt of the Accused on each of Events 1 to 6. Whether or not the Accused had a proved tendency at the time an Event occurred is also a circumstance which can be considered amongst other circumstances as being relevant to whether the Crown has proved the guilt of the Accused beyond reasonable doubt for each Event.

Outline of Crown Case on Coincidence and Tendency Reasoning

1. [808]

   The Crown submitted that the circumstances in which the seven Events occurred are substantially and relevantly similar, such that it is highly improbable that they occurred by coincidence. And so, it submitted that the same person was responsible for all seven Events.

2. [809]

   The similarities specifically identified by the Crown were:

3. [810]

   The Crown submitted that, if the Court finds that the Accused was responsible for the explosion in Event 7, the probability that each of Events 1 to 6 occurred by coincidence is dramatically reduced. In the submission of the Crown, if the Court is satisfied of the guilt of the Accused in relation to Event 7, it is an unavoidable conclusion that the Events were carried out by the same person, and that that person was the Accused.

4. [811]

   The Crown also relied on other similarities between the Events themselves including, but not limited to:

5. [812]

   Separately from, and in addition to its submissions about coincidence reasoning, the Crown submitted that, if I am satisfied of the guilt of the Accused in relation to Event 7, I can further be satisfied that the Accused has the following tendencies:

6. [813]

   The Crown submitted that the motive for Event 7 (the Kingdom Hall bombing), for which the Accused was responsible, was a belief held by the Accused that members of the Lurnea congregation of the Jehovah’s Witnesses had acted in a way that adversely affected access to his daughter. Therefore, the Crown submitted, I should be satisfied that the Accused had the two tendencies to which reference has been made immediately above.

7. [814]

   The Crown also submitted that if these tendencies are established, it makes it more likely that the Accused was the person responsible for the murder of Mr Stephen Blanchard. This is because, in the Crown’s submission, the evidence establishes that Mr Stephen Blanchard acted in a way that was adverse to the Accused’s interests in relation to access to Trudi.

The Submissions for the Accused

1. [815]

   The following summary of the Accused’s submissions on this issue of coincidence and tendency reasoning is distilled from the broad spread of his submissions, because this was not addressed by him as a discrete topic.

2. [816]

   The Accused submitted that the Events were too disparate and dissimilar to allow for the application of either tendency or coincidence reasoning. The Accused, by reference to the long history of similar fact evidence that pre‑dates the Evidence Act, made the submission that facts of striking similarity remain essential to the determination of this issue.

3. [817]

   The Accused submitted that the Crown had painted a very specific picture in its tendency case, but had tendered no evidence that gave a broader picture of the Accused as a, so it was submitted, “polite, loving man”. The Accused took particular issue with the fact that the Crown did not tender various police files and records, asserting that the Crown had “cherry picked” the evidence. In the Accused’s submission, this meant that there was no basis for the Court to find a behavioural or attitudinal tendency of the Accused to have been properly established.

4. [818]

   The Accused argued that the same Crown case as was applied to him concerning tendency and coincidence could easily have applied to other suspects, in particular Dr Mariti. In the Accused submission, the evidence concerning a propensity towards anger and violence, particularly concerning Judges of the Family Court, would far more readily apply to Dr Mariti than it did to the Accused.

5. [819]

   With respect to the Family Court, the Accused submitted that the Family Court file revealed that he had no real issues with any of the Judges who had presided over his matters. The Accused submitted that, properly understood, each Judge that was targeted had made orders both for and against the Accused at different points in time. The Accused submitted that he had been fairly treated by the Family Court.

6. [820]

   Ultimately, the Accused submitted that the evidence was insufficient and could not amount to a motive to commit violence as no one Judge had done anything particularly egregious against his interests.

7. [821]

   Some of these submissions do not seem to me to address the issues relevant here, namely has the Crown proved that the events were not coincidental but occurred with a causal connection. As well, the issue of tendency is a stand‑alone issue – because he has committed the offences in Counts 11 and 24, does the Accused have the tendencies alleged by the Crown?

Directions of Law

1. [822]

   In addressing the submissions of the Crown and the Accused, I direct myself that in considering coincidence reasoning, I must be satisfied that:

2. [823]

   It is only if I am satisfied that these three matters are proved that I can consider coincidence reasoning a relevant circumstance in determining whether the Crown has proved the guilt of the Accused with respect to each of Events 1 to 6.

3. [824]

   In addressing the submissions about tendency evidence, I direct myself that evidence that the Accused has the suggested tendencies cannot be used as a circumstance relevant to the guilt of the Accused unless I make the following findings:

4. [825]

   It is only if I am satisfied that these two matters are proved, that I can take the proved tendency (or tendencies) into account as a relevant circumstance in determining whether the Crown has proved the guilt of the Accused, with respect to each of Events 1 to 6.

Coincidence – Facts, Matters and Circumstances

1. [826]

   The first circumstance relied upon by the Crown concerning coincidence is that each of Events 1 to 7 occurred whilst there were proceedings on foot in the Parramatta Registry of the Family Court of Australia between the Accused and Ms Blanchard.

2. [827]

   The Accused and Ms Blanchard were married on 19 October 1974. [400] Their daughter, Trudi, was born on 22 June 1978. [401] Ms Blanchard finally left the matrimonial home on 17 March 1979, which was when separation for the purposes of the Family Law Act 1974 (Cth) occurred. [402] Trudi was about nine months old.

3. [828]

   Ms Blanchard first made an application to the Local Court at Liverpool on 19 March 1979 under the provisions of the Family Law Act. [403] On 27 March 1979, the matter was transferred to the Family Court of Australia at the Parramatta Registry. The first occasion the matter was in the Family Court at Parramatta was before Justice Opas on 30 April 1979.

4. [829]

   Two issues were primarily the subject of dispute between Ms Blanchard and the Accused in the proceedings. The first was the extent to which the Accused had access to the child of the marriage, Trudi. The second was what was to be done about the matrimonial home. The Accused sought unrestricted access to Trudi and to remain in the matrimonial home, whilst Ms Blanchard sought to restrict the Accused’s access to Trudi and to sell the matrimonial home.

5. [830]

   The proceedings concluded when final orders were made on 21 April 1986. [404]

6. [831]

   Clearly, each of the seven Events occurred in the period between April 1979 and April 1986, which is the period during which the Family Law proceedings between the Accused and Ms Blanchard were before the Family Court at Parramatta.

7. [832]

   The second circumstance to be considered is the Crown’s contention that each of the targets, or intended targets, of the violence in Events 1 to 7 was connected with the family law dispute between Ms Blanchard and the Accused in the Family Court.

8. [833]

   That each target had some connection to the Accused and Ms Blanchard’s family law matter is self-evident for the targets of each of the Events, except Event 6. Those targets were:

9. [834]

   As I have previously described when dealing with Event 7, members of the Lurnea congregation had helped Ms Blanchard leave Sydney with Trudi and go to Foster at an address which was not revealed to the Accused. In this way, those members were connected to the proceedings in the Family Court between the Accused and Ms Blanchard because they interfered with the exercise by the Accused of his access rights.

10. [835]

    For reasons and circumstances which I later describe when considering Event 6, I am satisfied that the intended target of Event 6 was the principal lawyer for Ms Blanchard, Mr Gary Watts. Mr Watts was the lawyer on the record who initiated a number of proceedings against the Accused on behalf of Ms Blanchard. He appeared for her from time to time. He was the person who made a significant attempt through the Family Court to organise the sale of the former matrimonial home, which meant the Accused would have to leave it and move elsewhere. He also made an application to reduce significantly the Accused’s access to his daughter.

11. [836]

    The intended targets of Events 2, 3 and 4 were each Judges who sat at Parramatta to hear proceedings which were listed in the Parramatta Registry of the Family Court of Australia. Each of them had made orders against the interests of the Accused at a time prior to the Events of which they were the targets taking place. In Event 4, the target was the building where the proceedings were taking place and where hearings were held at which orders were made involving both the Accused and Ms Blanchard.

12. [837]

    Mr Stephen Blanchard, who was the victim of Event 1, was the brother of Ms Blanchard. He shared the house at Revesby with her in February 1980. On 19 December 1979, the Accused was exercising access to Trudi. He wanted overnight access for that evening, which depended upon Ms Blanchard’s agreement. On that occasion she did not give her consent. [405] The Accused did not return Trudi at 5pm as the Court orders required. Mr Stephen Blanchard drove his sister to collect Trudi from the Accused, who was then living at the former matrimonial home in Casula.

13. [838]

    By driving Ms Blanchard to the Accused’s house, it was clear that Mr Stephen Blanchard was attempting to assist his sister to retrieve Trudi. There is some evidence of a verbal altercation which occurred at the house, with which I deal in more detail in my consideration of Event 1. For the purposes of a consideration of the Crown’s coincidence case, it is sufficient to note that Mr Stephen Blanchard drove his sister to the house and was there to assist his sister, but the Accused was not willing to return the child on that occasion.

14. [839]

    There was also a later telephone conversation during which, I am satisfied, Mr Stephen Blanchard told the Accused that he was being stupid. In my reasons for Event 1, I consider the nature and effect of this call. However, I am satisfied that the Accused would, at this relatively early stage in the proceedings, have seen that Stephen was aligning himself with his sister, in assisting her against the Accused.

15. [840]

    I am satisfied that the Crown has proved that each of the actual targets, or intended targets, were connected in the ways and to the varying extent described above to the Family Court at Parramatta and to the proceedings regarding access to Trudi which were on foot at the time of each of the Events.

16. [841]

    The third circumstance concerns Events 2, 3, 5 and 6 and is one of direct connection to the family law proceedings in the Parramatta Registry of the Family Court of Australia. The Crown submitted that the individual Judges and Mr Watts were, in their capacity as judges or as a legal practitioner, directly concerned with the proceedings involving Ms Blanchard and the Accused. This is obviously so.

17. [842]

    Justice Opas presided over the proceedings on eight separate occasions between 30 April 1979 and 22 May 1980. [406]

18. [843]

    Justice Gee presided over the proceedings on five separate occasions prior to the bomb exploding at his house. [407] The first occasion was on 3 October 1980. The proceedings were listed before Justice Gee on 6 March 1984, which was the morning upon which the bomb exploded at his home.

19. [844]

    Justice Watson presided over the proceedings on six separate occasions before his house was bombed. [408] The first such occasion was 11 July 1980. The last occasion was on the morning of 6 March 1984. [409]

20. [845]

    There were other Judges who sat to hear cases filed in the Parramatta Registry who did not have a direct connection of substance with the proceedings between Ms Blanchard and the Accused in the period between 1980 and 1985. They included: Justice Baker, Justice Gibson, Justice Renaud and Justice Purdy. [410] There were no acts of violence identified in the evidence in this trial against any of these Judges. Some of these Judges heard and made orders in the proceedings of a relatively routine or straight forward nature. [411]

21. [846]

    Mr Watts was the lawyer for Ms Blanchard. He commenced acting for her on 9 November 1982 and continued until 15 February 1985, when he ceased to act for her.

22. [847]

    I am satisfied that this third circumstance of direct connection relied upon by the Crown has been established.

23. [848]

    The fourth circumstance, leaving aside the Family Court building which is the place where all of the proceedings were heard, is that each of the targets in each of Events 2, 3, 5 and 6 either made, or else sought, orders which were adverse to the interests of the Accused.

24. [849]

    It is appropriate to note here that the lawyer for the Accused during the trial made submissions, the effect of which was that the Family Law proceedings as a whole followed a relatively routine course and that although some orders were made which were against the interests of the Accused, others favoured him. On this basis he submitted that the Accused had no reason to feel any antipathy to any Judges of the Family Court, the Family Court as a whole and also to Mr Watts as the legal practitioner for Ms Blanchard.

25. [850]

    This submission invites this Court to infer the Accused’s view of the proceedings and reaction to events within the proceedings from an objective standpoint. However, I am not persuaded an objective view is an accurate approach to ascertain the subjective view of the Accused in this context. The subjective view of a party in a disputed family law proceeding concerning child custody or access would not be equivalent to the view a reasonably objective lawyer, or a reasonably objective bystander. It is inconsistent with the general nature of highly emotional matters, such as matters concerning child custody or access, to expect a party to be measured and impartial in their approach to decisions, particularly those against their interests.

26. [851]

    Rather, I prefer to approach the evidence about the various hearings in the Accused’s Family Court matter from an understanding of what the Accused wanted to achieve in the proceedings either as a whole, or else in a particular day. When approached from the standpoint of the Accused’s intended or desired outcome, it is possible to infer more accurately how the Accused did in fact, or would have, reacted to the situation. Where he has said things about his view of what has occurred, or what he proposed to do, I have taken these into account and given them more weight than I have given to the submission made by his lawyer about what ought to be inferred as to what the Accused actually thought. Generally, I regarded these submissions from the Accused’s lawyer as being largely unconnected with what the evidence shows was said. The submissions tended instead towards an idealisation of what his lawyer imagined the attitude of the Accused to the proceedings may have been.

27. [852]

    I have also given weight to individual episodes which occurred, and their likely effects on the Accused (where I have been persuaded of such effects), rather than placing weight on the outcome of the entirety of the proceedings across time.

28. [853]

    I am satisfied that this approach best reflects the way in which the proceedings, including the various orders, would have appeared to the Accused at the time. I have kept in mind that it is an ordinary human reaction, if one is met with orders or conduct which is against one’s interests, to keep those orders or conduct prominently in one’s mind, even though other orders or conduct may have been favourable. Put differently, feelings of antipathy, once engendered, can easily outweigh a more balanced analysis and response. It is convenient to commence with Justice Opas. On most, but not all, of the occasions that the proceedings were before him, Justice Opas dealt with issues concerning access to Trudi and, in particular, the extent of the Accused’s access. Initially, on 30 April 1979, Justice Opas made an order that the Accused have access to Trudi on two days per week between 9am and 5pm. [412] This order was consented to by the Accused. However, notwithstanding the evidence of the Accused denying Ms Blanchard’s allegations of assault upon her, Justice Opas made an order restraining the Accused from “assaulting, molesting or otherwise interfering with” Ms Blanchard. [413] He also ordered that the arrangements for access be supervised by a Court counsellor for a period of six months.

29. [854]

    By way of context in understanding the way in which the Accused might have perceived the orders made by Justice Opas, I note that in the counsellor’s report of 16 November 1979, [414] Ms Edwards recorded the attitude of the Accused in this way:

30. [855]

    Justice Opas, on 6 December 1979, [415] ordered that the Accused’s access to Trudi was to be the subject of continuing supervision for a further period of 6 months. His Honour also stood over for future determination an application by Ms Blanchard for defined access, which was an application that the Accused had, in effect, sought to have dismissed.

31. [856]

    In the course of the hearing on 6 December 1979, during which the Accused was present without a lawyer, Justice Opas remarked that the two full days of access (which was the then existing agreed arrangement) would not normally be in the interests of a child at that stage. [416] No doubt, this remark would have caused the Accused concern that the Judge might well, in the future, remove or curtail the extent of his access.

32. [857]

    On 15 April 1980, the lawyer for the Accused made an application to the Court that Ms Blanchard be dealt with for contempt for failing to provide the Accused with access to Trudi. [417]

33. [858]

    On 22 April 1980, Justice Opas, in the course of the return date of the contempt application, made a number of remarks which were highly critical of the Accused, the details of which are discussed later in this judgment. I note, for present consideration, that Justice Opas described the application for contempt filed by the lawyer for the Accused as not being worth the paper it was written on. [418]

34. [859]

    On that day, contrary to the submissions of the Accused’s lawyer and without being specifically asked to do so by Ms Blanchard’s lawyer, Justice Opas ordered that the Accused’s access to Trudi be suspended until further order of the Court. [419] This order was clearly adverse to the Accused and could only have been perceived in that way by him.

35. [860]

    An appeal filed on 1 May 1980 by the Accused [420] complained that there was no application for the order suspending access, and that there was no evidence available which could justify the making of such an order.

36. [861]

    On 2 May 1980, the Accused, by his counsel, made an application for a stay of the order suspending access. [421] That application was dismissed on the same day by Justice Opas. The order of Justice Opas dismissing that application was one which was clearly adverse to the interests of the Accused, and he could only have seen it as such.

37. [862]

    The proceedings were last before Justice Opas on 20 May 1980. After meeting with a Court counsellor, the Accused and Ms Blanchard agreed that access should continue (and not be suspended as Justice Opas had previously ordered). [422] However, the Accused was obliged under this arrangement to give Ms Blanchard a calendar of his work roster with the proposed access days marked on it, rather than having some flexibility about access days. Justice Opas, [423] without being asked to by the parties, continued the Court counsellor’s supervision of access for a further period of six months. The Judge ordered that the hearing of Ms Blanchard’s application for property settlement, maintenance and custody, filed a week earlier on 13 May 1980 but which was not listed specifically before him, be expedited. He ordered the parties to attend a statutory conference before the Registrar on 30 June 1980, after they had given discovery of their documents in relation to their financial position.

38. [863]

    A consent order restoring access to the Accused was not of itself adverse to his interests. However, the circumstances and broader elements of the order were capable of and, in my assessment, likely to be regarded by the Accused as adverse to his interests, namely, the consequences of his lost flexibility in choosing his access days, the fact that there would be continuing supervision of access by a Court counsellor (a service of which he had been highly critical) and the prospect of an expedited hearing about property settlement in circumstances where the Accused objected to Ms Blanchard’s attempt to throw him out of the house, [424] were capable of and, in my assessment, likely to be regarded by the Accused as orders which were adverse to him.

39. [864]

    It is now necessary to consider the orders made by Justice Gee to see if the Crown’s submissions concerning targets making orders contrary to the interest of the Accused are borne out.

40. [865]

    On 15 April 1981, Justice Gee presided over an application made by Ms Blanchard which dealt with a division of the matrimonial property of her and the Accused. The Accused proposed that he retain ownership of the matrimonial home, pay Ms Blanchard $15,000 and hold a further sum of $7,000 on trust for his daughter, charged against the real property. Justice Gee described this as being not a realistic proposition. [425] He ordered that the former matrimonial home be sold and the proceeds divided equally between the parties, even though he had determined that the Accused and Ms Blanchard had contributed 60% and 40% respectively to the matrimonial property. [426]

41. [866]

    These orders were contrary to the interests of the Accused and the result that he sought. As well, none of the orders that the Accused had foreshadowed in his affidavit of 5 March 1981 were made by Justice Gee. [427] As there is no transcript of this hearing, it is not clear whether the foreshadowed orders were pressed or not. Regardless of whether or not that is so, the orders were not made.

42. [867]

    On 19 July 1983, at another hearing before Justice Gee, [428] Ms Blanchard sought orders in the absence of the Accused. The orders made gave effect to the 1981 orders for the sale of the former matrimonial home, including that the Registrar of the Family Court could execute documents if a party refused or neglected to sign any relevant document. [429] This meant that the matrimonial home could be sold over the objections of the Accused and without his participation in the formal processes of sale. These orders were clearly adverse to the Accused.

43. [868]

    In addition to the orders sought in the application dated 22 March 1983, [430] Justice Gee made orders which had the effect of significantly reducing the Accused’s access to Trudi. He discharged the order for access first made by Justice Opas on 30 April 1979, which had provided for access on any two days per week agreed between Ms Blanchard and the Accused. He substituted this with an order which defined minimum days of access as being on each alternate Saturday. [431] Reasonable access could otherwise occur, but in the absence of any definition by the Court, it would depend upon agreement being reached between the Accused and Ms Blanchard.

44. [869]

    On any view, this reduced the certainty of the Accused’s access to Trudi by about half. As well, the orders about the sale of the former matrimonial property were contrary to the interests of the Accused.

45. [870]

    Although originally listed before Justice Gee on 6 March 1984, the proceedings were heard by Justice Watson on that day. That change was necessitated because Justice Gee had been hospitalised after a bomb exploded at his house in the early hours of that morning. Justice Watson discharged the order for access that Justice Gee had made on 19 July 1983. [432] Instead he removed the reference to reasonable access and specified access as being limited to every alternate Saturday. He restrained the Accused from keeping Trudi outside the specified access times and, further, directed and authorised members of both the AFP and the NSW Police Force to enforce these access orders.

46. [871]

    Justice Watson’s provided for the Accused to apply within 14 days after service of the orders, to seek any variation of them. The Accused attended the Family Court Registry on 12 March 1984 and obtained a copy of the orders which were made. [433] No application was made to set the orders aside.

47. [872]

    I am well satisfied that the orders of Justice Watson were adverse to the interests of the Accused. They significantly curtailed his access to Trudi and provided for an enforcement mechanism if he failed to comply with the order, as he had frequently done in the past.

48. [873]

    It is also necessary to consider the role of Mr Watts in obtaining orders adverse to the interests of the Accused.

49. [874]

    Mr Watts and his firm, Ledlin Watts & Associates, commenced acting for Ms Blanchard on 9 November 1982. He was the lawyer who filed, or else was responsible for filing, a number of applications. The first one was filed on 10 February 1983, [434] and amended on 22 March 1983. [435] This was the application upon which Justice Gee made orders on 19 July 1983. He also brought the application dated 20 February 1984, [436] which was the basis for the orders made by Justice Watson on 6 March 1984.

50. [875]

    On 25 September 1984, Mr Watts brought an application on behalf of Ms Blanchard seeking an order that the Accused vacate the former matrimonial home and that Ms Blanchard have exclusive occupancy of the house to enable the sale to occur. [437] That application was fixed for hearing on 15 February 1985, being a few days after the bomb was found in the motor vehicle at Northmead (Event 6).

51. [876]

    Each of these applications sought orders which could significantly disadvantage the Accused and were contrary to his interests. Each of the applications was prosecuted to a hearing.

52. [877]

    I am satisfied that the Crown has established the existence of this circumstance, namely that each of the targets or intended targets of Events 2, 3, 5 and 6 had made, or else sought to be made, orders which were significantly adverse to the interests of the Accused.

Nature of the Conduct in Each Event

1. [878]

   A further circumstance relied upon by the Crown is that each of Events 1 to 7 involved a violent attack carried out with an intention to kill or else with the reasonable possibility that a person would be killed or seriously injured.

2. [879]

   There can be no doubt that this is correct with respect to Events 1 and 2, in 1980. Both involved a single shot to the head (Event 1) or to the upper body (Event 2) with a .22 calibre bullet. The element of the offender having an intention to kill the victim in each case is not in dispute between the Accused and the Crown.

3. [880]

   Event 3, the destruction of the home of Justice Gee on 6 March 1984, involved the detonation of a high explosive bomb in the early hours of the morning at a location very near to Justice Gee’s bedroom, where he was sleeping. Having regard to the extensive damage which occurred to the house and therefore the quantity of high explosive which was used, I am satisfied that whoever placed the bomb and detonated it had an intention to kill the occupants of the house.

4. [881]

   Events 5 and 7 are in a similar position. The location of each bomb, its method of detonation and the likely quantity of high explosive make it plain that the bombs were placed and detonated with an intention to kill anyone leaving Justice Watson’s apartment, or present in the vicinity of the platform in the Kingdom Hall. No other rational conclusion is available.

5. [882]

   Event 6 involved the placing of a significant quantity of high explosive which was to be detonated when the ignition in the motor vehicle was turned on. Necessarily, this meant that that person would have to be in the driver’s seat of the vehicle, or perhaps standing immediately adjacent to it. A video in evidence, [438] which was a demonstration of a bomb exploding in a motor vehicle with a similar quantity of high explosive, demonstrates an explosion that I am satisfied was similar in effect to what would have happened if the bomb found in the vehicle on 10 February 1985 had exploded. Having regard to this video, it is clear beyond any doubt at all that whoever placed that bomb in the motor vehicle had an intention to kill the person who turned the ignition switch on.

6. [883]

   Event 4 was the bombing of the Family Court building. Given the location at which the bomb was found (i.e. in the raised garden bed at the front of the building), and the fact that which it was detonated late on a Sunday evening, it seems unlikely that it was targeted at any one individual. I am not persuaded that the bomb was placed with a specific intention to kill a person. However, having regard to the damage to the building and what must have been the quantity of high explosive used, and the possibility that at any time there might be a person in the near vicinity of the bomb (given that it was adjacent to a public street), I am satisfied that the person who planted it and detonated it must have, at the least, reasonably foreseen the possibility that a passer-by would be killed or seriously injured.

7. [884]

   In that way, there is a significant similarity in each of these Events insofar as the nature of the act of violence and the intention of the offender is concerned.

8. [885]

   The effect of the analysis just concluded means that I am satisfied that the Crown has proved for Events 1 to 7 that they were violent attacks carried out with an intention to kill, or else with the reasonable possibility that a person would be killed or seriously injured. This includes Events 3 to 7 (namely the bombing Events which occurred over about a 16 month period), as I am satisfied that each bomb was made with sufficient explosive to cause the death of anyone who happened to be in the near vicinity. These were bombs were each constructed, placed and detonated (or intended to be detonated) with the capacity not just to frighten, but with the capacity to kill or seriously injure people.

No Other Violent Attacks

1. [886]

   The Crown relies upon the circumstances that bombings of this kind were generally rare in Australia, and attacks involving such violence had never occurred where the target was the judiciary or a Judge of a particular Registry of a Court.

2. [887]

   It is a notorious fact that a bomb exploded outside the Hilton Hotel in Sydney in February 1978, which killed three people. The Hilton Hotel was the venue for the Commonwealth Heads of Government Meeting. The bombing was believed to be related to the meeting.

3. [888]

   Detective Woods gave evidence, [439] which I accept, that prior to the bombings involved in this trial, there were only six major bombing events (including the Hilton Hotel bombing) in NSW. One was in 1957 in Bega which involved the murder of a local police officer. An individual to whom the officer had issued a traffic infringement notice some short time prior to the bombing, was convicted of placing a bomb in a milk can, which then exploded, killing the police officer. The second was in North Bondi in 1968, when a well-known criminal was murdered by a bomb exploding in his car. In 1972, a bomb exploded at the Sydney Yugoslav Trade and Tourist Agency, injuring a number of people. In December 1982, there were two, almost simultaneous, bombing events – one at the Hakoah Club in Bondi and the second at the premises of the Israel Consulate in the Westfield Tower in Sydney. The evidence of Detective Woods was that the last three of these bombings were believed by Police to be politically motivated. There is no evidence that the perpetrators of any of these other bombs, except for the first in 1957, have ever been identified.

4. [889]

   Detective Woods’ evidence was that none of these previous bombings were regarded by investigating police as being related to, or in any way relevant to, the bombings the subject of this trial. [440]

5. [890]

   Having regard to the evidence about those bombings, their locations and the time at which they occurred, I entirely accept that evidence as being in accord with a reasonable view, which is one which I have independently formed.

6. [891]

   Justice Maxwell, a retired Judge of the Family Court of Australia, had a long career in the law prior to being appointed as a judge of that Court in 1976. Her evidence, which I accept, was that she had not heard at any time during her involvement in the legal profession of any shooting, or bombing, of a Judge or their home anywhere in Australia. [441]

7. [892]

   Justice Garry Watts, formerly the lawyer for Ms Blanchard and now a judge of the Family Court of Australia, gave evidence to the same effect. [442]

8. [893]

   The Accused tendered three newspaper articles as seemingly being relevant to this question. The first [443] was a report in the Sydney Morning Herald on 27 May 1954 of an explosion at the Redfern Police Station which was believed to have been caused by a bomb. The second was an article in the Sydney Morning Herald of 20 April 1976 [444] , which reported that a petrol bomb had been thrown through a glass window above the main doors of the Bathurst Court House at about 6.30am on a day when the Court of Petty Sessions was to sit. The third article [445] appeared in the Canberra Times on 17 September 1981. It reported that a Molotov cocktail was thrown against a wall of the Queanbeyan Court House earlier that morning.

9. [894]

   Although no specific submissions were addressed by the Accused to these exhibits, they were presumably tendered to show that there had been previous incidents of bombings connected to courts in NSW. I note that at the relevant time, the Redfern Police Station was located immediately adjacent to the Redfern Court House.

10. [895]

    Even assuming that the contents of each of these articles was entirely true and accurate, which itself may be a dubious proposition, the events that they reported are completely irrelevant to the issue of whether or not there had been any attacks of a violent kind against Judges of courts in Australia either personally or against their home, or against court buildings. The throwing of a Molotov cocktail, or petrol bomb, into a court house or against a court house wall is not an act of the nature, kind or degree of the Events being considered in this trial. Nor is a possible bomb outside a police station, the composition of which was undetermined, relevant as a similar offence to those in this trial. These were minor incidents of mischief, vandalism or petty criminality. They are of no weight at all, in my opinion, in the consideration of the circumstances relied upon by the Crown as part of its coincidence reasoning. This may be why the Accused made no submissions about them.

11. [896]

    I am satisfied on the evidence of this circumstance, namely, that prior to the Events 2 to 5 there had not previously been any attack of a violent kind as seen in these Events being directed to a Judge of a court in Australia or a court building. This has been well-established by the Crown.

Factual Similarity – .22 Calibre Firearm

1. [897]

   It is now necessary to consider the evidence for the submissions made by the Crown that there are some other features which link two of the Events, but not all of them, together and thereby provide a degree of factual similarity.

2. [898]

   The first particular similarity relied upon by the Crown in the circumstance was that both Mr Stephen Blanchard and Justice Opas were killed by a bullet fired from a .22 calibre firearm.

3. [899]

   Detective Gibson, in a certificate dated 1 July 1982, [446] reported on his examination of the bullet fragments retrieved from the body of Mr Stephen Blanchard that they were consistent with being portions of a .22 calibre projectile. The larger fragment was engraved with rifling which suggested that it had been discharged from a firearm.

4. [900]

   During the post-mortem examination of Justice Opas, a .22 calibre bullet was retrieved from his body and handed to Detective Musgrave. He examined the .22 bullet and concluded that it was more likely to have been fired from a rifle than a revolver, although the possibility of it being a revolver ought not to be overlooked. He was satisfied that it was a .22 calibre bullet. [447]

5. [901]

   I am satisfied that the bullets which killed each of Mr Stephen Blanchard and Justice Opas were fired from a .22 calibre firearm. In the case of Justice Opas, in my view and on the probabilities the firearm used was a rifle. It cannot be determined on the evidence what type of firearm was used to kill Mr Stephen Blanchard, except to say that it was a .22 calibre firearm.

6. [902]

   A comparison of the bullets and fragments retrieved from the bodies of Justice Opas and Mr Stephen Blanchard was attempted. Neither Detective Potgieter [448] nor Professor Young, [449] both experts in the ballistics field, were able to say if the projectiles or parts thereof came from the same firearm. Detective Potgieter could not eliminate the possibility that they did come from the same firearm. This was because the sample from Mr Stephen Blanchard’s body was insufficient to enable such an opinion to be formed.

7. [903]

   As noted above, I am satisfied that a .22 calibre firearm was used in each of the murders of Mr Stephen Blanchard and Justice Opas. To that extent there is a similarity. However, given that a .22 calibre firearm was not a rare commodity in the community in the 1980s, but was a popular calibre of firearm used for recreational purposes, the weight to be attributed to this similarity may be attenuated.

Factual Similarity - Detonator

1. [904]

   The second particular similarity which the Crown relied upon was that a similar detonation was used in the bombs placed in Mr Tall’s car (Event 6) and under the platform in the Kingdom Hall (Event 7). The third similarity relied upon by the Crown is that the same high explosive (“Molanite”) was used in both Event 6 and Event 7. The existence of these two similarities will be considered now.

2. [905]

   The Crown submitted that it has established that a similar detonator from the same manufacturer, Imperial Chemical Industries Ltd (“ICI”), which was manufactured before a particular date in May 1981, was used in each of the bombs in Events 6 and 7.

3. [906]

   It is convenient to consider the details about the detonators now because the significance of the identification of the detonators used in these two Events is that it is a circumstance of similarity in the composition of those two bombs. This would carry weight in considering the Crown’s submissions about coincidence reasoning.

4. [907]

   As will become clear in greater detail later, the bomb that was placed in Mr Tall’s motor vehicle at Northmead was discovered before it was detonated and then rendered safe on 10 February 1985.

5. [908]

   Accordingly, each of the components of the bomb were discovered intact, and were readily capable of being identified. When the bomb was discovered, and after the Police were notified, Detective Sheather and Detective Ransome from the Ballistics Unit attended the scene. As a matter of ordinary procedure, and before attempting to render the bomb safe, they needed to identify the bomb’s components. Detective Sheather, whose evidence on this topic I entirely accept, identified a No.6 Instantaneous Copper Cup Electric Detonator inserted between the cartridges of the Molanite high explosive. [450]

6. [909]

   After the bomb was removed from the vehicle, the detonator was photographed. [451] Mr Sheather, a few days later, took the detonator (and other components) to ICI House in Sydney where he spoke to Mr Paul Kohout, a technical analyst, with the Commercial Explosives Division of ICI.

7. [910]

   Mr Kohout identified the detonator as a No.6 Instantaneous Copper Cup Electric Detonator manufactured by ICI at its Deer Park facility in Victoria. [452] He confirmed that it was in working order.

8. [911]

   Detective Sheather, to further the investigations and establish the chemical composition of the detonator, caused it to be exploded in a containment vessel in the Ballistics Unit basement range. The pieces of the detonator were collected and transported by Detective Graham North to the Material Research Laboratory (“MRL”), which was part of the Defence, Science and Technology Organisation (“DSTO”), which was in turn part of the Department of Defence in Melbourne. Detective North transported the material to the MRL on 12 August 1985. The material was then handed to Mr Robert Barnes for further analysis. [453]

9. [912]

   At the MRL, the fragments were provided to Mr Ian McDonald for testing. Mr McDonald was employed in the area of analysis of metals and chemicals. He personally operated the machine which undertook x-ray fluorescence analysis (“XRF”).

10. [913]

    On 13 August 1985, Mr McDonald produced a written memorandum on the elements which he identified in the copper base (or copper cup) of the detonator as being an alloy of copper and zinc in the proportion of 90/10. [454] Copper and zinc were also identified as being present in the other fragments which he tested. Mr McDonald was unable to give evidence in the trial.

11. [914]

    As will become apparent, the alloy of copper and zinc in a 90/10 proportion is relevant to the identification of the detonator and when it was manufactured. I will refer to this alloy as the “90/10 alloy”.

12. [915]

    The Accused called Professor Robert Capon, an expert in organic chemistry, who holds the position of Professorial Research Fellow in the Institute of Molecular Bio-Science at the University of Queensland. [455] Professor Capon was awarded a PhD in Organic Chemistry in 1984. [456] That is, he completed his doctoral studies in the year when the MRL was engaged in undertaking the various analyses of the material retrieved from the scenes of, or else associated with, the Events the subject of this trial.

13. [916]

    Professor Capon was aware of the existence of the DSTO and the MRL but was unaware of generally what they did. [457] He had a limited understanding of what the MRL was asked to do in these matters. [458] He thought that it would be reasonable for a police force to regard the MRL as the place within Australia to seek assistance from appropriately qualified individuals in materials analysis. [459]

14. [917]

    Professor Capon, in his report number 3, [460] seemed to be critical of Mr McDonald’s handwritten memoranda [461] because they did not include descriptions of the XRF equipment used, the qualifications of the analyst, or the protocols used to acquire, handle and analyse samples. He also noted that he encountered “…no actual XRF experimental data”. He concluded that the handwritten memoranda took the form of a summary of conclusions. In his report, he was also critical of the failure of Mr McDonald for using a “coding system” without defining the meaning and method of assignment. [462]

15. [918]

    However, Professor Capon made no specific criticism of the conclusion expressed in Mr McDonald’s memorandum about the detonation, [463] namely that the copper base of the detonator was the 90/10 alloy of copper and zinc. Nor did he suggest that the conclusion was not capable of being established by XRF or that it was erroneous. He did, however, make his position clear in oral evidence that he could not agree with any conclusion expressed about any chemical analysis on the materials because, in the absence of the underlying or analytical information, he was unable to validate the results that had been obtained in 1984 and 1985.

16. [919]

    In his approach, Professor Capon did not take into account any external facts, matters or circumstances outside of the chemical analysis which might assist in the determination of the result.

17. [920]

    My conclusion about the evidence of Professor Capon is that he took a very limited and rather technical approach which meant that his opinions are of limited depth or helpfulness. For example, he was asked to comment upon the contents of the four sticks of Molanite, and whether they were correctly identified as such. He declined to conclude on the facts available to him that the material was Molanite, notwithstanding that it was contained in manufactured commercial packaging which identified the material as Molanite.

18. [921]

    I find Professor Capon’s opinions to be of very little weight in my consideration of the proof of the Crown case, which is necessarily multifactorial.

19. [922]

    Professor Capon’s statement that Mr McDonald’s handwritten memoranda are expressing conclusions is undoubtedly correct. As it appears, the handwritten memoranda were internal documents at the MRL which recorded the results obtained by Mr McDonald and which were provided to Mr Barnes for any further analysis. Mr McDonald did not have to set out in that memorandum any description of the XRF equipment used, because the equipment that was in the laboratory was internally a well-known fact. He did not have to set out his qualifications, because those facts were well-known to all who worked at MRL. Nor did he have to set out the protocols used to acquire, handle and analyse samples, because those protocols were known to (and used by) those working at the MRL.

20. [923]

    These criticisms by Professor Capon seem to suggest that Mr McDonald was engaged upon writing a full and completely balanced scientific paper intended to be made available for peer review, and which needed to explain and justify his conclusions. That was not Mr McDonald’s task at all. The MRL was providing assistance to the NSW Police. Part of that assistance was the analysis by XRF of the chemical composition of the pieces of the exploded detonator from Event 6. I do not regard Professor Capon’s criticisms as detracting from the work of Mr McDonald. On the contrary, it seems to me that Mr McDonald was a properly qualified and experienced analyst who undertook, on the equipment which was then available to him at MRL, an XRF examination and established the composition of the alloy of copper and zinc contained in the base of the detonator. There is no expert opinion suggesting that Mr McDonald’s conclusion was erroneous. I do not think it was, and I accept it.

21. [924]

    There is a further, and rather fundamental, difficulty with obtaining a good understanding of Professor Capon’s opinion. This arises from the fact that it appears that Professor Capon was first retained and instructed in May 2018 and on a number of occasions thereafter. [464] At that time, and subsequently, he was provided with over 1,600 pages of documents apparently drawn from a variety of sources, including subpoenaed materials and material which was not served with the Crown Brief. His reports often, but not always, referred to documents by the designation and page numbers that had been provided to him. However, these references were not readily able to be correlated with documents and materials which had been tendered in evidence by the time he was called to give his evidence orally.

22. [925]

    No explanation was provided to the Court to enable any reconciliation of the description of the documents in the reports of Professor Capon with the documents which were in evidence. The Court was not assisted to know what documents were the subject of Professor Capon’s reports. In particular, it was not at all clear that the documents upon which Professor Capon was expressing an opinion had been tendered in evidence at all, either by the Crown or by the Accused. An exception can be made with respect to Mr McDonald’s memoranda, [465] which are capable of being identified in Professor Capon’s reports.

23. [926]

    Nevertheless, in the description of documents recorded in report number 4, [466] it is simply not possible to know what Professor Capon had read, and therefore whether the information upon which he relied was in evidence before the Court. It is therefore not possible, in assessing the value and weight of Professor Capon’s opinion, to have any firm footing to undertake that analysis. This has provided a real challenge in assessing the worth of any of Professor Capon’s opinions.

24. [927]

    The Crown called Mr David Vince, a long term employee of ICI, who commenced there as an explosive research chemist in 1975. Mr Vince holds a PhD in Inorganic Chemistry. He was a founding member of an expert panel responsible for standards relating to the safe manufacture of explosives. During the 1980s Mr Vince worked in various roles at ICI’s Deer Park facility in Victoria. [467]

25. [928]

    Mr Vince said, and I accept, that ICI No.6 Detonators covered a range of detonators and strength. Some were made in aluminium shells and some in copper. [468] The No.6 Copper Cup Instantaneous Electric Detonator was made mainly for the coal industry. Mr Vince said that with effect from 27 May 1981, there was a change made to the alloy used in No.6 Copper Cup Instantaneous Electric Detonators. Prior to that date, the detonators used the 90/10 alloy. After 27 May 1981, all of these ICI‑manufactured Detonators were made from an alloy consisting of 96% copper and 4% zinc. [469] An authority issued by ICI, dated 25 May 1981, contained permission for that change and corroborated Mr Vince’s evidence. [470]

26. [929]

    Mr Vince also said that the No.6 Detonator was the only numbered detonator manufactured by ICI which used copper. [471] He confirmed that although the alloy changed, there was no other change to the internal composition of the detonator. [472] After the change in the metal alloy, ICI did not recall any unsold detonators. [473]

27. [930]

    Mr Vince, speaking of the 1980s, said that detonators could be purchased from ICI through its order department. Those detonators would be sent to explosive magazines located near to the customer where they would be available for collection. [474]

28. [931]

    Mr Paul Harrison from ICI was a Production Supervisor. His evidence, which was not challenged, and which I accept, was that No.6 Copper Cup Instantaneous Electric Detonators had an almost unlimited shelf-life. [475]

29. [932]

    From all of this evidence, I am satisfied that the detonator found in the bomb which was found in the motor vehicle (Event 6) was a No.6 Copper Cup Instantaneous Electric Detonator which was manufactured by ICI before 27 May 1981. This means that the detonator was at least 3½ years old at the time it was used.

30. [933]

    As will be apparent from what has earlier been written, the bomb placed in the Kingdom Hall at Casula, detonated and caused extensive damage to the building, the death of the late Mr Wykes, and injuries to many members of the Lurnea congregation.

31. [934]

    A search was initiated by, and carried out under the supervision of, Detective Sheather. Items which appeared to be associated with the bomb and which required further investigation were put into bags and marked with a note of the location where they had been found. That location reflected a grid pattern which had been drawn up at the start of the post-blast analysis investigation. This approach, I am satisfied, accorded with a proper post-blast analysis. [476]

32. [935]

    In a report dated 22 November 1985, [477] Mr Barnes expressed the view that a number of fragments found at Kingdom Hall in areas, which were within the two metre grid squares adjacent to the seat of the explosion, were fragments from the detonator used to initiate the explosion at the Kingdom Hall. Mr Barnes undertook an examination and comparison of these fragments. He also undertook an infrared spectrographic analysis (“IRS”) and he also submitted one of the fragments to XRF analysis.

33. [936]

    The XRF analysis was undertaken by Mr McDonald. His handwritten memorandum [478] established that the alloy of the copper cup fragment was the 90/10 alloy.

34. [937]

    Mr Barnes recorded that one of the fragments recovered, which he identified as a portion of a fuse head and lead wire, was of the same size and appearance as those used in an ICI No.6 Copper Cup Instantaneous Electric Detonator. This comparison was undertaken with a sample obtained from such a detonator.

35. [938]

    He identified another recovered fragment as the neoprene end plug of a detonator, by undertaking a comparison with other examples of an ICI No.6 Copper Cup Instantaneous Electric Detonator. He concluded from that macro and microscopic examination, together with IRS analysis, that it was identical with an ICI No.6 Copper Cup Instantaneous Electric Detonator.

36. [939]

    Mr Barnes finally identified a fragment as a part of the copper cup or casing of the detonator. This was the fragment upon which the XRF analysis was carried out by Mr McDonald, to which I have earlier referred.

37. [940]

    Based upon all of these facts, including where the fragments were found, Mr Barnes expressed the opinion that the bomb at the Kingdom Hall was initiated by the use of an ICI No.6 Copper Cup Instantaneous Electric Detonator which was manufacturing prior to 27 May 1981.

38. [941]

    Mr Barnes obtained the date of manufacture from an enquiry he made of Mr David Vince of ICI. Mr Vince told Mr Barnes in 1985, as he did in his evidence in this Court, that ICI ceased manufacturing ICI No.6 Copper Cup Instantaneous Electric Detonators with a 90/10 alloy on 27 May 1981. That evidence was reviewed earlier and I have accepted it. [479]

39. [942]

    Mr Barnes’ opinion on this issue of the identification of the detonator was not the subject of any direct challenge in cross-examination. Mr Barnes’ expertise and evidence generally was the subject of extensive cross-examination, particularly concerning his credit. It will be necessary to return to that challenge in due course.

40. [943]

    However, Mr Lawton, to whom earlier reference has been made, said in his report [480] that it “… may not be safe to assume” that the fragment was from a detonator by reference to the composition of the 90/10 alloy, because such alloy composition had common uses other than in detonators. He nominated other likely items which would use a 90/10 alloy, including pens, pencils, lipsticks, badges and jewellery.

41. [944]

    In expressing this view, it does not seem that Mr Lawton was asked about, nor had regard to, the photographs of the fragments tendered in evidence, [481] although there were some of these photographs in Mr Barnes’ report of 22 November 1985. [482]

42. [945]

    In cross-examination, [483] Mr Lawton said that it was possible that the fragments were from a detonator, but that he was “…quite a way from being certain”. [484] He also agreed that a person who had seen the copper fragment at the bomb scene, and who had clearly examined the item in a laboratory, was in a far better position to make a determination than a person (such as himself) who had not seen the fragment. [485] This evidence was a proper and reasonable comparison between the position of Mr Barnes in 1985 and of Mr Lawton in 2019. When asked, Mr Lawton could not tell the Court if he had even seen the fragment about which he was giving his opinion. [486]

43. [946]

    In further cross-examination, Mr Lawton clarified his opinion with respect to the other items which may contain the 90/10 copper alloy, referred to at [943] above. This clarification was that, for any of those items to be the likely source of the fragment recovered from the explosion site, the item would have needed to be on the platform in the Kingdom Hall, and therefore in close proximity to the bomb at the time of the explosion. [487]

44. [947]

    There is no evidence that any such items were on or in the near vicinity of the platform. The only person on the platform was Mr Winder. There is no evidence that he had on or about his person any of the items mentioned. I am satisfied that there was no other source of the 90/10 alloy in the area of the debris near the seat of the explosion, where the fragments identified by Mr Barnes as being from a detonator were found.

45. [948]

    The cross-examination also established that the source of Mr Lawton’s knowledge about the items and his opinion regarding them were two websites of metal brokers accessed by him in 2019 for the purpose of preparing his report. [488] The information which he had accessed did not tell him, and I infer therefore that he could not say, whether those nominated usages related to the 1980s or to more recent times.

46. [949]

    The basis for his reserved opinion about the possibility that a fragment of an item of the 90/10 alloy, which was not a detonator, might be the fragment being examined is a most uncertain one. After all, there may well be a significant difference over a period of 30 years in the usage of a specific copper alloy. As well, the source of the information, namely the websites of metal brokers, was not established to have been of any particular quality or reputation. Whether what those websites stated was scientifically accurate or not was simply not established. The basis for his opinion suggesting a possible alternative for the existence of a 90/10 alloy is, in my assessment, an unsound one.

47. [950]

    To the extent that Professor Capon has criticised Mr McDonald’s work generally, or his work as referred to in his memorandum about the fragment from the Kingdom Hall, [489] I am of the same view as expressed earlier. That being that Professor Capon’s opinion is of very little weight at all, and does not stand in the way of accepting Mr McDonald’s analysis and Mr Barnes’ opinion about the fragment being from a detonator.

48. [951]

    Another explosives expert called by the Accused gave his evidence under a pseudonym, Anthony O’Reilly. Just like Mr Lawton, he consulted one of the two metal brokers’ websites for information upon which he relied about alternative items which might use the 90/10 alloy, other than a detonator. As with Professor Capon, Mr O’Reilly referred to documents with which he had been briefed and gave expert opinions about what Mr Barnes did or said as set out in those documents. But the references Mr O’Reilly used were not those given in the trial as either exhibit markings or even documents that had been marked for identification. No reconciliation of document descriptions was prepared or tendered with his reports.

49. [952]

    It has therefore often been difficult to decipher whether the opinions given by Mr O’Reilly in evidence about Mr Barnes, and his work, were relevant to the oral and written evidence containing Mr Barnes’ opinions, and describing his work, which formed part of the evidence in this trial.

50. [953]

    Mr O’Reilly’s opinion, in his report, [490] criticises Mr Barnes’ opinion that the fragment which was made from the 90/10 alloy came from a detonator. This is because Mr O’Reilly concluded that there was no basis for Mr Barnes’ opinion about the fragment coming from a detonation, and there were other items which could have been present in the Kingdom Hall after the explosion with a similar alloy.

51. [954]

    I reject this criticism as a shallow one which did not address the entirety of the basis for Mr Barnes’ opinion which was in fact set out in his report. [491] My conclusion is also supported by the evidence given by Mr O’Reilly in cross‑examination on this issue.

52. [955]

    First, in cross-examination, Mr O'Reilly said that the fragments found might have been from a detonator. [492] Secondly, he agreed that the person best placed to give an opinion about what the fragments were was a person who had observed the area of the explosion, catalogued where the items were found and what other items had been found nearby. Thirdly, Mr O’Reilly agreed that according to Mr Barnes’ report, [493] Mr Barnes had done all appropriate testing to identify whether or not the fragments came from a detonator. [494] Fourthly, the steps taken by Mr Barnes were appropriate for a post‑blast examiner to take. [495] Fifthly, for the purpose of expressing an opinion about the fragments being from a detonator, Mr Barnes was best placed because he (other than the police officers) was the only post‑blast examiner at the scene. [496]

53. [956]

    Ultimately, Mr O’Reilly’s acceptance that the fragments might be from a detonator, but that he was not satisfied that they were, seems to me to depend upon two matters:

54. [957]

    As to the first possibility, I am of the same view as expressed in [949] above with respect to Mr Lawton’s opinion to a similar effect.

55. [958]

    Mr Winder, the speaker, was the only person on the platform at the time of the explosion. The nearest member of the congregation was in a seat in the first row of chairs on the floor of the Hall. It appears from the photographs of the typical set-up of the Hall, and the diagrams [497] drawn by witnesses who were present, that the nearest member of the congregation was at least two metres, and probably around three metres, from the seat of the explosion. It is to be recalled the seat of the explosion was closer to the back wall of the Kingdom Hall than where the platform extended into the Hall.

56. [959]

    I am well satisfied that there was no-one in the grid squares where the fragments were found, either before or after the explosion, who could have been a source of any of the items nominated. Nor is there any evidence that there were any other items on the platform or on the lectern which was being used by Mr Winder.

57. [960]

    I am satisfied that the items nominated by Mr O’Reilly as possible alternative sources of fragments made from a 90/10 alloy were not on the platform or anywhere near the explosion seat. They do not explain the fragments which Mr Barnes identified and submitted for XRF analysis.

58. [961]

    The second possibility raised by Mr O’Reilly is of a different kind. He raised the possibility that there had been no detonator at all used to initiate the explosion, rather he postulated that initiation could have been achieved by the insertion of a “hot wire”. No other expert advanced this as a possibility – even on a theoretical basis. Mr O’Reilly noted that such an initiation method would be effective for use, not with a commercially manufactured high explosive, but with precursor chemicals which might be used home-made explosive substances. Mr O’Reilly noted that such an initiation arrangement was risky for anyone unless skilled in that technique. Mr O’Reilly did not say in his oral or written evidence whether the hot wire initiation technique was known to have been used within Australia in 1984 and 1985. Mr O’Reilly was at that stage serving in the Australian Army Reserve. Nor indeed did he suggest that it was known to be used anywhere in the world during the years 1984 and 1985.

59. [962]

    It is highly doubtful that that method was used in Australia during those years. I say that because it appears from Mr O’Reilly’s report, [498] that he first came to know and understand its usage with precursor chemicals during experimental trials in 1987 and 1988. These trials were being conducted under controlled conditions in the United States of America (“US”) by a US security agency, together with military scientists and chemists.

60. [963]

    Had this method of initiation been a realistic possibility to be used in Australia in 1984 and 1985, I would have expected that such a possibility would have been identified and discussed by Mr Lawton, at least, and by others familiar with explosives at the time, including Detective Sheather and Detective Ransome. None of these people described the use of a hot wire in any written reports or memoranda, or in their oral evidence. Nor were any of them even asked about their knowledge of the possibility of the existence of this initiation method being known in Australia on even an experimental basis. No one identified that it had ever been used in a bombing in Australia up to the time of the Kingdom Hall bombing.

61. [964]

    As the “hot wire” initiation technique was only ever experimental, and under development in the US in 1987 and 1988, it seems highly unlikely that it was going to be used in Australia some years earlier in circumstances outside of the circle of military scientists and members of a security agency.

62. [965]

    I am not satisfied that the possibility of the use of a hot wire initiation for the Kingdom Hall, as suggested by Mr O’Reilly, is a realistic one. It is certainly insufficient to cause me not to be satisfied on the balance of probabilities that a No.6 Copper Cup Instantaneous Electric Detonator was used in the Kingdom Hall bombing as the means by which the bomb was detonated.

63. [966]

    I regard the suggestion by Mr O’Reilly of the possibility of hot wire initiation as nothing more than anxious display of knowledge by him, in an attempt to establish his own credentials as an expert. To have included this in his report, in my opinion, does him no credit as an expert.

64. [967]

    Accordingly, I am satisfied that the Crown has proved that the detonator which was a component of the bomb placed in the motor vehicle in Event 6, was an identical detonator to that used to initiate the explosion at the Kingdom Hall (Event 7). Both the detonators were manufactured by ICI before 27 May 1981. That is to say, they were at least 3½ and 4 years old respectively.

Similarity – High Explosive

1. [968]

   The next circumstance to which the Crown pointed was that it was more likely than not that Molanite was the high explosive used in the bomb in both of Events 6 and 7.

2. [969]

   Four sticks of high explosive bearing the ICI commercial packaging for Molanite were found in the motor vehicle at Kira Avenue, Northmead. Detective Sheather identified them by looking at them. [499] The Molanite was photographed. The undisturbed packaging with the trade name “Molanite” is clearly visible. Mr Kohout, from ICI, identified the high explosive that he was shown as Molanite. [500] The four sticks were taken to Division of Analytical Laboratories (“DAL”) for analysis by Mr Gothard.

3. [970]

   On 12 March 1985, Mr Gothard issued a certificate recording that upon analysis, each stick was found to contain aluminium particles, ammonium, sodium and nitrate. [501] A table from ICI setting out the typical composition for ICI-manufactured Molanite 110 was tendered by the Crown. [502] It showed that typical Molanite 110 comprised at least the following:

4. [971]

   In other formulations of Molanite, potassium antimony tartrate was included instead of potassium pyroantimonate. Both compounds contained antimony. [503]

5. [972]

   Mr O’Reilly accepted in his report that the high explosive in the motor vehicle was Molanite, a substance with which he expressed familiarity. [504] To the extent that Professor Capon’s opinion did not support a firm conclusion that the substance was Molanite, I reject it. As earlier indicated, his approach was narrow and overly technical. It has no weight.

6. [973]

   Mr Lawton in his written report [505] appeared equivocal about whether he accepted that the material was Molanite. But, in the course of cross‑examination [506] he accepted that this approach was formulated before he had seen Mr Gothard’s analysis (referred to earlier) or the statement by Mr Kohout from ICI which identified the sticks as Molanite.

7. [974]

   Mr Lawton’s equivocal position on this question was formed at a time when he was inadequately informed about the totality of the available material about the investigations into whether the sticks of Molanite were what they appeared to be. In light of that, I do not regard his opinion as bearing any weight on this issue.

8. [975]

   The Crown has well satisfied me that the sticks of high explosive used in the bomb in the motor vehicle were comprised of Molanite.

9. [976]

   The Crown submitted that Molanite was, on the probabilities, the high explosive used in the bombing of the Kingdom Hall (Event 7). The Accused submitted that such a conclusion cannot, and ought not, be reached.

10. [977]

    The context for this analysis was that there had been an explosion, obviously with a high explosive, which caused significant damage to the Kingdom Hall. Mr Barnes was engaged in the identification of the high explosive which was used.

11. [978]

    In his report about the Kingdom Hall bombing, [507] Mr Barnes expressed the opinion that the explosive which was used was Molanite. Mr Barnes’ oral evidence was that the report, although prepared by him, accorded with the MRL protocols, which meant that it was internally peer‑reviewed and also reviewed by his superior before release outside the MRL. The first two pages of an earlier report dealing with the Watson bombing clearly demonstrate what Mr Barnes described. [508] There is no evidence which contradicts these statements, and I accept them.

12. [979]

    The weight of Mr Barnes’ opinion is to be assessed by reference to all of the underlying analyses and circumstances. Mr Barnes’ gave evidence that his conclusion that Molanite was the explosive used was derived from five features. [509] First, the analysis of Mr Gothard at the scene of the bombing of the Kingdom Hall, which did not identify any residue of a nitroglycerine-based explosive (which would have included gelignite AN60). Secondly, this same analysis also excluded TNT, or MMAN, which enabled other types of high explosives to be excluded. Thirdly, high levels of sodium and a level of aluminium residues were identified on fragments of a clock face which was made of brass, which residues came from the high explosive. Those materials are found as components of Molanite. Fourthly, an indicated presence of antimony on a sheet from the clock mechanism [510] found at the scene of the explosion, which is a component of Molanite. Fifthly, the presence of sodium and antimony as residues on the sample test firing of Molanite. [511]

13. [980]

    Mr Barnes’ opinion was, as indicated, in large part based on the analyses undertaken by others. Mr Barnes’ opinion in his written report, [512] given in 1985, did not relate to any testing done or opinion expressed by Mr Peter Ballard, a senior forensic chemist at FASS. [513]

14. [981]

    Various witnesses called by the Accused challenged Mr Barnes’ conclusion that Molanite was the high explosive used in the Kingdom Hall bombing.

15. [982]

    Mr Lawton doubted that Molanite had been used in the Kingdom Hall explosion, [514] because of the contents of two reports by analysts, Mr Ballard [515] and Mr Davidson. [516] Mr Lawton concluded that Mr Davidson’s findings seemed to agree with Mr Ballard’s findings, and that together they were contrary to Mr Barnes’ conclusion that Molanite was the high explosive used.

16. [983]

    In cross-examination, Mr Lawton expanded on his view by saying that Mr Ballard’s report, and Mr Davidson’s report:

17. [984]

    It ought be noted that Mr Ballard’s report was an analysis, relevantly, of the clothes worn by the late Mr Wykes, and was carried out in 2015. His conclusion was stated as this:

18. [985]

    The evidence was that the late Mr Wykes was sitting in the centre block of chairs, two rows from the front. [519] That is to say, he was not immediately adjacent to the seat of the explosion, and was some distance, perhaps between four to five metres away, as I interpret the photographs and drawings provided. In these circumstances, it is unsurprising that no explosive residue was found on his clothes at all.

19. [986]

    Mr Lawton said that he was unaware that Mr Ballard was not testing an explosive fragment but rather was testing a sports coat from a person in the second row. He stated that had he known that it was the jacket of a person sitting in the second row of seats that had been tested, it would have made a difference to his opinion. This is because it was more likely that there would have been evidence of nitrate residue closer to the site of the explosion rather than some distance away, such as in the second row. [520]

20. [987]

    Initially, it appeared that Mr Lawton was also relying upon Mr Davidson’s report to conclude that an explosion of Molanite would have resulted in a huge quantity or amount of nitrates (which were not found) in the fragments from the Kingdom Hall explosion. In the absence of such a huge quantity of nitrate, Mr Lawton concluded that Mr Davidson’s tests were inconsistent with Molanite being the high explosive.

21. [988]

    I regard Mr Lawton’s opinion as to whether or not Molanite was the explosive used at Kingdom Hall as an unsoundly based, and an unreliable one. First, in my view, he incorrectly interpreted Mr Ballard’s report as excluding Molanite, whereas it did no such thing. Having regard to the location of the items which Mr Ballard tested, it was most unlikely that there would be any residue at all on the specimens. Mr Ballard’s report was entirely neutral on the issue of the existence of Molanite as the high explosive. It did not point one way or the other. It allowed for the possibility that Molanite was the explosive used. It did not exclude it.

22. [989]

    Secondly, properly understood, the report of Mr Davidson did not exclude Molanite either. Rather his finding of a trace of nitrates on a paint fragment from the explosion site was consistent with Molanite being the explosive used. As well, there was an absence of any nitroglycerine detected by Mr Davidson on any of the explosive fragments, which points away from the use of gelignite or other nitroglycerine-based explosive.

23. [990]

    Thirdly, Mr Lawton’s opinion did not take into account the identification by Mr McDonald of residues of aluminium, and probably antimony, on one of the clock parts found after the explosion. [521] Aluminium and an alloy of antimony are found in Molanite, but not in gelignite or nitroglycerine-based explosive. Mr Lawton excluded the finding of these chemicals because he thought they were common and might have come from the debris of the Hall, or else from the feet of rescuers. [522]

24. [991]

    However, in my view, given that the aluminium and antimony were identified on a fragment of a clock which was the timing device located immediately adjacent (if not on) the cartridges of high explosive, the residues were highly likely to have come from the high explosive used in the bomb rather than from anywhere else.

25. [992]

    Mr Lawton’s opinion that Molanite could be discounted as the high explosive used in the Kingdom Hall bomb is not one which I accept. His opinion is, in my, view entirely insufficient to tell against a finding made on the balance of probabilities that the high explosive used in the Kingdom Hall bombing was Molanite.

26. [993]

    It is fair to note Mr O’Reilly also criticised, in trenchant terms, Mr Barnes’ conclusion that the high explosive at the Kingdom Hall was Molanite. Mr O’Reilly did not express an opinion as to what the explosive in the bomb at the Kingdom Hall actually was. As best as can be understood, he suggested as a possibility that some form of home-made explosive (“HME”), as opposed to a commercially produced explosive, may have been used.

27. [994]

    Mr O’Reilly did not point to any identifiable blast fragment, or particular chemical residue, or anything else from the scene of the Kingdom Hall bombing to support the use of an HME as a possibility. He accepted in cross‑examination that a commercially made explosive was generally safer to transport, handle and place than an HME consisting of precursor elements being used for that purpose. [523]

28. [995]

    Before coming to deal with the criticism by Mr O’Reilly of Mr Barnes’ opinion that the explosive at the Kingdom Hall was Molanite, it is necessary to say something about Mr O’Reilly’s experience, generally, and his approach to giving his written expert report and his giving of evidence.

29. [996]

    Mr O’Reilly holds no formal qualifications in explosives, physics or chemistry. He says that he is “not a theorist” and that his expertise is wholly practical. [524] After having served in the Australian Army both full-time and part-time, Mr O’Reilly described himself as a self-employed munitions risk consultant who specialises in explosive munitions and, amongst other things, the methods of identification, isolation and neutralisation of terrorist bomb‑makers and bombers. He emphasised that he did not work in Australia. [525] He said he worked for “friendly foreign governments” through their respective military or security agencies “or proxies”. He said that his employment and work was security classified for operational and personal protection reasons.

30. [997]

    As a consequence, I need to keep in mind that the detail of his practical experience and his work history, including any comparison with the nature and type of the bombs used in Events 3 to 7, could not be tested in cross‑examination, nor objectively assessed by me.

31. [998]

    In cross-examination, Mr O’Reilly agreed that his experience did not include ever being involved in the investigation of any criminal offence in Australia, including being engaged by a police service in Australia. [526] He said that any post-blast analysis work that he had done had taken place in a foreign country. He said that he was “not into” police investigations and that any criminal issues were for other authorities, and not for him, because they were matters in which he had not had any practical experience. [527]

32. [999]

    When giving evidence about the initiation of the bomb at Justice Watson’s home, Mr O’Reilly confirmed that his evidence about “… the preferred way to do that type of job …”, was based on investigations of terrorist events overseas, or as an agent engaged against an enemy in combat. [528]

33. [1000]

    It is difficult for me to perceive a direct experiential connection between the experiences of Mr O’Reilly in overseas combat or counter-terrorism contexts and his opinion on what the preferred method of doing “that type of job” would be in a criminal context in Australia.

34. [1001]

    I accept, and the Crown did not challenge, that Mr O’Reilly is qualified as an expert for the purpose of giving his evidence, particularly on what might be described as the essential elements of the composition of a bomb, and what is necessary to configure a bomb to make it work effectively. However, I do not regard (on the state of the evidence before the Court) Mr O’Reilly’s experience, which he obtained overseas in the context of terrorist operations, as being of much value in considering the conduct of a criminal in Australia using a bomb.

35. [1002]

    That is because the experience Mr O’Reilly had obtained overseas cannot be seen as comparable to a domestic criminal context. The countries Mr O’Reilly worked in are nominated in the unredacted version of his report. However, the report does not disclose locations, [529] nor whether these are locations involving central business districts of cities, towns, rural or regional areas. His work concerned unidentified groups of people with undisclosed purposes, carrying out undisclosed types of bombings against unknown targets with undisclosed methods of investigation being followed by Mr O’Reilly, or the agencies with which he was concerned. All of his work has taken place in countries with very different economies, and educational standards and, as well, very disparate cultures. I do not see this as providing him with any relevant expertise of value to comment on police investigations into criminal conduct in Australia, and any conduct by a criminal (or criminals) responsible for the bombs being placed and activated in Events 3, 4, 5 and 7, or being installed in Event 6.

36. [1003]

    I will keep the limitation of his experience in mind in considering the acceptability and weight of the various opinions which he has given.

37. [1004]

    Mr O’Reilly’s opinion [530] was that:

38. [1005]

    In cross-examination, [531] it became clear that the basis for this opinion were the tests carried out by Mr Ballard, which were reported on in his expert’s certificate. [532]

39. [1006]

    Curiously, when it was suggested that Mr Ballard’s report did not exclude Molanite as being the high explosive used in the Kingdom Hall, Mr O’Reilly agreed that this was so. I say curiously, because this answer was in complete contrast to what Mr O’Reilly had written in his report and had said earlier in his evidence. [533] His answer seemed to explain and justify the apparent contradiction by saying that Mr Ballard “… had qualified it to the extent that it was unlikely to be Molanite, I think”. [534]

40. [1007]

    My view of this answer is that it was plainly disingenuous. Mr Ballard’s report and his opinion only dealt with what his analysis found on the coat worn by the late Mr Wykes. His clearly expressed view was that the relative ratios in which the ions of nitrate, ammonium and sodium were found meant that they were not from any explosive residue of Molanite or other ammonium nitrate‑based explosive. [535] He also expressed the view that the ammonium ions which were detected are present in biological fluids such as sweat or degraded blood.

41. [1008]

    In my view, it is simply impossible to read Mr Ballard’s report in the way Mr O’Reilly did. Mr Ballard found that there was no detectable explosives residue on the sports coat or the other samples supplied which he tested. He specifically noted that the results do not preclude the possibility of an explosive being present at the scene “… such as Molanite”.

42. [1009]

    As became clear in further questioning, Mr O’Reilly’s interpretation of this conclusion was simply untenable. Mr O’Reilly agreed that unless one read Mr Ballard’s opinions where he used the words “such as Molanite” to mean “such as a type of other inorganic explosive compound excluding Molanite”, his opinion was in conflict with Mr Ballard’s opinion. [536] It is simply impossible to understand Mr Ballard’s opinion in the way propounded by Mr O’Reilly. Mr Ballard’s opinion cannot be rationally understood as excluding Molanite. Mr O’Reilly’s opinion on this issue is, because it depended on his asserted and irrational understanding of Mr Ballard’s opinion, a nonsense and I disregard it.

43. [1010]

    It is correct, as Mr O’Reilly said, that Mr Ballard noted that neither urea nor aluminium was detected [537] on the samples submitted for analysis. This confirmed that there were no explosive residues detected, as Mr Ballard’s final sentence reads. However, this was not a basis available to Mr Ballard to exclude Molanite as the explosive used, rather simply no residue was present upon which he could confirm that Molanite was or was not used. This is particularly so because, as I have earlier discussed, the bomb exploded some distance from where the late Mr Wykes was sitting. It is not unexpected that residue was not present.

44. [1011]

    Mr O’Reilly’s trenchant criticism of Mr Barnes’ opinion about Molanite being the explosive used in the Kingdom Hall – namely, that Mr Barnes developed “… an unsupported fixation on the Kingdom Hall bomb being Molanite” was unsound in my opinion because it was unsupported (as I have just concluded) by Mr Ballard’s expert report. Furthermore, and equally importantly, Mr O’Reilly did not engage with, and simply ignored, the chemical analysis undertaken by Mr McDonald on items which were found close to the seat of the explosion and upon which explosive residues were detected. As well, Mr O’Reilly did not address a relevant circumstance which is undisputed in this trial, namely that nitroglycerine residue was not found on any of the fragments recovered from near the seat of the explosion thereby making far less likely the possibility of gelignite or AN60 being the high explosive used in the Kingdom Hall.

45. [1012]

    It is perhaps arguable that Mr O’Reilly considered that Molanite was not used in the Kingdom Hall bombing because, as he expressed with some enthusiasm, there was a possibility that some type of HME was used in each of Events 3, 4, 5 and 7. However this view, as it was expressed, did not draw a firm conclusion or suggest that an HME was used, but rather questioned why police investigators failed to consider the use of an HME made from precursor chemicals as the explosive used in the Kingdom Hall bombing.

46. [1013]

    As to the possible use of HMEs, I note that no other expert in the fields of explosives, munitions or chemistry called in the trial raised this as a possibility. I also note that Mr O’Reilly recorded in his report, [538] that ICI witnesses had given evidence that Molanite was readily available and would be sold by ICI to anyone who wanted to purchase it. He also correctly noted in a footnote that a purchase could be made from an intermediary – namely someone who purchased it from ICI, or be obtained by theft. However, he disregarded this evidence of the ICI witnesses by suggesting that his own experience was that Molanite was not generally available. However, there is no factual basis for any opinion set out in his statement that Molanite was not generally available. It is possible that he meant in his report that not being generally available referred to outlets other than ICI.

47. [1014]

    Mr O’Reilly’s curriculum vitae and work history make it plain that his experience as a self-employed munitions risk consultant occurred only outside Australia. Accordingly, it is difficult to know what, if any, experience he had of purchasing or otherwise obtaining Molanite in Australia in 1984 and 1985. If he did have such experience, he has not stated so.

48. [1015]

    For my part, I prefer the evidence of the witnesses from ICI who described how Molanite was sold in Australian in the 1980s. In my view they were in the best position to give evidence of this fact of their own knowledge, based on their day-to-day working at ICI.

49. [1016]

    The second consideration with respect to the use of HMEs is that, as Mr O’Reilly agreed in cross-examination, it is generally much safer to transport and handle a commercially-made explosive rather than an HME using chemical precursors. [539]

50. [1017]

    As well, having regard to the table in Mr O’Reilly’s report and the evidence to which reference has been made, I would infer that making up the HME, either at the site of the explosion or somewhere else, would itself carry a heightened risk of premature explosion. This is particularly in comparison with a commercially available explosive, including AN60 or Molanite which would come in a wrapped package only requiring the insertion of a detonator.

51. [1018]

    It defies common sense that a person undertaking any of the criminal conduct in Events 3, 4, 5 and 7 would intentionally choose the more risky, more cumbersome and (in an overall sense) far more dangerous method of using an HME rather than using the relatively safer and more readily available commercial alternatives. Particularly is this so when Mr O’Reilly agrees that there is no forensic evidence at all supporting the use of an HME, [540] and in light of the fact that I am satisfied that in at least one case (Event 6) a commercially available explosive was used.

52. [1019]

    I do not in my analysis overlook the fact that Mr O’Reilly stated in evidence he would not have expected evidence of an HME to be found in any of the explosion sites. This means that it must follow that the use of an HME can never be proved, or excluded from proof, unless there is found a presence of identified chemical residues in which are components of commercially available explosives.

53. [1020]

    I do not accept that there was any use of an HME in the series of bombings that are the subject of this trial. It follows that I do not accept that the use of an HME ought to have been investigated by Police as a rational possibility.

54. [1021]

    Mr O’Reilly’s evidence that Molanite could be excluded as the high explosive used in the Kingdom Hall, on the basis of his expertise, is rejected. This somewhat lengthy analysis compels, subject to one matter to which I now wish to turn, the conclusion that the high explosive used as part of the bomb at the Kingdom Hall was more probably than not, Molanite.

55. [1022]

    To the extent that this conclusion depends upon an acceptance of Mr Barnes’ opinion contained in his report [541] about the Kingdom Hall bombing, I have to consider the Accused’s submission that Mr Barnes was not a witness of any credibility. The Accused submitted, due to lack of credibility, Mr Barnes’ evidence could not be relied upon safely to ground any conclusion of fact adverse to the Accused.

56. [1023]

    The Accused went on to submit that Mr Barnes had a demonstrated history of constructing unsupported, if not fanciful, theories clearly designed to buttress a prosecution case.

57. [1024]

    The attack by the Accused on Mr Barnes’ credibility is largely founded on the Report of the Board of Inquiry into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester (“the Eastman Report”), which was published in May 2014. [542]

58. [1025]

    The Accused also pointed to a number of decisions of the Victorian Court of Appeal which involved the setting aside of convictions on the basis of the inadequacy of the prosecution evidence, in circumstances where Mr Barnes was the principal witness for the prosecution.

59. [1026]

    In considering Mr Barnes’ credibility, the Eastman Report is considerably more detailed, and more critical of Mr Barnes, than the decisions of the Victorian Court of Appeal. It is appropriate to concentrate on it to assess the credibility of Mr Barnes and his evidence.

60. [1027]

    After a trial, Mr Eastman was convicted on 3 November 1995, of murdering Mr Winchester on 10 January 1989. Mr Barnes, having left the MRL, was at that time working for the Victorian Forensic Science Laboratory (“VFS Laboratory”), which was a part of the Victorian Police Force, was asked to provide assistance in a specialised field, namely the collection and interpretation of gunshot residue. The Eastman Report concluded that in respect of this part of the Police investigation into the murder, Mr Barnes behaved in a manner that was totally inconsistent with the independence of a forensic expert. [543] It found that Mr Barnes identified himself with the prosecution and plainly demonstrated his bias in favour of the prosecution. In particular, it seems that Mr Barnes was found to be resistant to having his work examined by other experts outside of the Victorian Police Force. One of the significant criticisms of Mr Barnes’ work during the Police investigation, as described by experts during the Inquiry, was that Mr Barnes had undertaken all of the forensic work without the input of any other expert. [544]

61. [1028]

    A further issue discussed by the Eastman Report was that at the time of the Eastman trial, Mr Barnes had been accused of, and was being investigated for, impropriety in his role at the VFS Laboratory. This was known to investigating police at the time but was not disclosed to the defence. [545] The internal charges were withdrawn after, and as a result of, Mr Barnes’ tendering his resignation to the VFS Laboratory in October 1993. The Eastman Report did not express a concluded view as to whether the charges were substantiated. However, it did conclude that Mr Barnes had regularly failed to comply with accepted forensic practice with respect to his case files and frequently failed to have his work peer reviewed.

62. [1029]

    The above is merely a short summary of its findings in the Eastman Report. I have carefully read and considered the entirety of the report. [546] In considering whether I accept Mr Barnes’ evidence in this trial, I need to keep in mind the adverse findings made against Mr Barnes, particularly that he had not remained independent in his role as an expert witness but had aligned himself closely with the Police prosecution and the findings dealing with the quality of his work. I also need to keep in mind that Mr Barnes’ work on the Eastman investigation occurred at a time subsequent to his being engaged, whilst at the MRL, on the investigation of Events 3 to 7.

63. [1030]

    The procedures at the MRL in the mid-1980s seem to have been different from the procedures at the VFS Laboratory. The work of Mr Barnes at the MRL was peer reviewed and reviewed by his superior before being released. Mr Barnes did not have the authority to issue any report to anyone outside the MRL. [547] It was his superior who determined what would be, and what would not be, released. [548] Mr Barnes was able to name in evidence those who reviewed his work. The task of the reviewers included determining whether Mr Barnes’ findings were consistent with the results and whether the conclusions were appropriate. [549]

64. [1031]

    This MRL procedure seems to differ from that which was later followed by Mr Barnes during the Eastman investigation. As well, it is clear that the analysis upon which Mr Barnes in part relied was undertaken by specialist analysts who worked at the MRL. This differed from the circumstances of the Eastman investigation where it appears that Mr Barnes did the entirety of the forensic work. The reports of the analysts were separately available in this trial to the reports of Mr Barnes. Putting it differently, the analysis upon which Mr Barnes relied, in part, has been corroborated by the tendering of the conclusions of the analysts and the giving of evidence by Mr Davidson.

65. [1032]

    I have carefully reflected on the contents of Mr Barnes’ report about the Kingdom Hall explosion, [550] its structure, the methodology exposed and the use of the conclusions reached by the expert analysts. I have also had regard to the post-blast analysis process described in the evidence of Detective Sheather and Mr Barnes, including the criticised methods of transfer of the bags of fragments collected at the explosion site. I have also had careful regard to the evidence of Mr Lawton and Mr O’Reilly about the appropriateness of the steps taken by Mr Barnes during that post-blast analysis.

66. [1033]

    It is necessary to keep in mind, and to consider, the evidence of those experts called by the Accused who chose to direct their criticisms to only parts of Mr Barnes’ report about the Kingdom Hall.

67. [1034]

    I recognise that there are significant findings adverse to Mr Barnes in the Eastman Report. [551] I give full weight to these criticisms and the decisions of the Victorian Court of Appeal in cases in which Mr Barnes gave evidence.

68. [1035]

    I have also had the opportunity of watching and listening to Mr Barnes giving his evidence over a period of about two weeks, including noting his responses and reactions to the challenges to his opinions when they were raised in cross-examination, or where his evidence more generally was challenged. I did not think that he was a particularly impressive witness. He often gave unnecessarily lengthy and overly defensive answers to questions which could have been answered much more simply. He clearly was not enthusiastic about giving evidence at all and was, I thought, overly sensitive to criticism. In considering his evidence, I have chosen not to rely on his oral evidence unless it was not in contest, or unless it was corroborated.

69. [1036]

    However, his written reports, which were prepared whilst he was at the MRL, are in my assessment in a very different category. These reports are detailed and record the results of a variety of examinations, testing and analysis carried out at the MRL. Having regard to the importance and public notoriety of these Events at the time, I am well satisfied, having read and considered the reports carefully, that there is no reason to discount them because of the attacks on Mr Barnes’ credibility. The reports were reviewed before being released by scientific colleagues of Mr Barnes at the MRL and by his superior. There is no basis to conclude that they were not doing their jobs properly and independently of Mr Barnes. I have accepted some parts of those reports in circumstances which I have described from time to time. These reports came from an early time in his career and well before, whilst acting without supervision, his professional conduct had been rightly severely criticised.

70. [1037]

    Whilst all of these matters required and received my earnest consideration, I have formed the view that, with respect to Mr Barnes’ report [552] on the Kingdom Hall bombing, I should accept his opinions on the identification of the detonator, the nature of the high explosive used in the bombing and the identification of various fragments as being from an alarm clock.

71. [1038]

    In other words, in circumstances where my findings of fact on these issues are made on the balance of probabilities, the criticism of Mr Barnes’ opinions combined with the attack on his credit, do not cause me to reject his opinions about the Kingdom Hall explosion in their entirety, but rather to consider how they were formed and whether they are reliable. In my view, when they are considered together with all of the circumstances to which I have referred, his opinions, as contained in his written report are reliable.

72. [1039]

    As a consequence, my conclusion is that I accept Mr Barnes’ expert opinion that the detonators used in both Events 6 and 7 were the same, and that the same high explosive, namely Molanite, was also used in those two Events.

73. [1040]

    These are important circumstances to be considered in assessing the issue of coincidence reasoning.

Other Circumstances

1. [1041]

   The evidence reveals some other features about the Events which can be taken into account as relevant to the coincidence reasoning issue.

2. [1042]

   The first of these is that in none of the Events was any public claim made afterwards by anyone asserting that they were responsible for the Event. This might have been unlikely in respect of Event 1 having regard to the target. However, had Events 2, 3, 4 and 5 occurred to further an identified or specified cause (particularly in respect of the Family Court and its implementation of the Family Law Act which was a matter of public controversy), then a public claim of responsibility accompanied by a threat of further action might well have been expected.

3. [1043]

   However, the evidence did not reveal that anyone or any group had made any public claim of responsibility for these Events. Nor was there any forewarning of the bomb explosions.

4. [1044]

   The weight to be attributed to this may be slight, but it is nonetheless a matter of commonality.

5. [1045]

   Events 1, 2, 3, 5 and 6 were clearly targeted at identified individuals: Mr Blanchard, Justices Opas, Gee and Watson and, finally, Mr Watts. In each case, the attacks occurred whilst the intended targets were in their own homes, or what was thought to be their own home. Each of the targets was entitled, as are any members of the public, to feel safe and secure in their own homes. The fact that each of these attacks was planned to, and in fact did, take place in the homes of these individuals suggests that this was a planned feature of each of these crimes. It is another circumstance of similarity.

6. [1046]

   Event 7 was, in my view, directed at the members of the Lurnea congregation of the Jehovah’s Witness faith. Whilst Event 7 did not take place in a home, it took place at a time and in a location which provided a similar place of safe refuge for each individual member, principally as a place where the members of the congregation were entitled to feel safe and secure as they met to participate in the expression of their faith. This is a circumstance of sufficient similarity to that just discussed, as to provide some additional weight in favour of a conclusion that these Events did not occur coincidentally.

7. [1047]

   In this way each of the Events (except Event 4) has features of similarity.

Submissions of the Accused

1. [1048]

   Before coming to a concluded view on the Crown’s coincidence case, it is necessary to examine and consider some matters identified in the evidence and upon which the Accused relied.

2. [1049]

   The Accused elicited evidence of what he seemingly contended were differences between each of the Events which were said to be highly significant and which showed that they were not committed by the same person. Another way of understanding this submission is that the Accused was arguing that the differences between these Events were such that the Crown had not proved that the Events were causally linked, and so the Court should regard these Events as being merely coincidences.

3. [1050]

   The first matter to be considered is the opinion of Mr O’Reilly. In his report at Pt 3.2, [553] he says that in his view each of the five bombs “… individually or taken together, display no common bomber signature in the design, characteristics, components or parts”.

4. [1051]

   He went on to say that the design characteristics were sufficiently different in the explosive, the initiation method and placement to allow him to “… draw a reasonable inference that at least two bombers were involved”. Mr O’Reilly said that the drawing of this inference was open “… on the available physical and forensic evidence … for each bomb event”. He also concluded that it was unlikely that the bombers were related or causally connected.

5. [1052]

   There seem to be two bases for Mr O’Reilly’s opinion about the number of bombers. The first was that he could detect no “signature” for any of the bombs that would indicate that the bombers were the same person. The second basis seems to be that he has concluded that the level of expertise of the persons who placed the bombs varied between a basic knowledge of explosives and a medium knowledge of explosives.

6. [1053]

   In understanding Mr O’Reilly’s opinion, it was clear in his report that he had access to “all reports, opinions and evidence” and “files” held by A R Conolly & Co, the lawyers for the Accused. [554] No list was provided to the Court to show which documents he had access to. However, it seems that where an opinion or statement of fact in the report had been made, and which was based on a particular document, it has usually been identified in a footnote. However, as with the report of Mr Lawton, the reference to some documents and the description of them was obscure, and often could not be identified against the exhibits in the Trial. I have earlier drawn attention to this, and its practical consequences.

7. [1054]

   At the commencement of his report, [555] Mr O’Reilly said that the signature left by a bomber “… may be an environmental, physical or a chemical characteristic, or a combination of all three, or something different”. He explained this in footnotes. He described an environmental signature as “… in the sense of sex, timing, location, target type and target selection”. [556] He described a physical signature as including, by way of example, the method of packaging, transporting, placing and initiating a bomb, [557] and a chemical signature as self-explanatory as it included the type of detonator and high explosive used. [558] The inclusion of the phrase “something different” can be put to one side as it does not arise in the context of the Events with which this trial is concerned.

8. [1055]

   In cross-examination, [559] Mr O’Reilly confirmed his written opinion that he could find no common signature between the Events. He then agreed that Events 3, 4 and 5 (each of which occurred in 1984) showed a consistency of target selection with each Event capable of being carried out by one person, and with each bomb being placed in or near a building. [560] He also agreed with respect to Events 6 and 7 (which both occurred in 1985) that it would be important to establish if there was a link to the Family Court, because that might assist in establishing consistency by way of a signature. [561]

9. [1056]

   It was then put that such a connection for both the 1984 bombings (Events 3, 4 and 5) and the 1985 bombings (Events 6 and 7) would go towards demonstrating a signature for all of the bombings. This question was clearly derived from, and referred to, the definition of “environmental signature” which Mr O’Reilly had used in his own report, particularly the “target type” and “target selection”.

10. [1057]

    For some reason, Mr O’Reilly declined to agree with the question which was put. As the cross-examiner pursued this issue, there followed a series of dissembling and simply unbelievable answers, which did Mr O’Reilly no credit at all. [562] First, Mr O’Reilly, notwithstanding what he had plainly written, sought to justify his answer by saying that his definitions could not be taken at “face value”. He did not elaborate on what their concealed meaning might be. Secondly, he said that the consistency of target type or target selection was only one element of a signature, although his written report carried the clear meaning that each of the signatures described could be understood individually (as well as in combination). Finally, he said that one could not finally determine if any signature existed unless a connection was established “through a consideration of all of the evidence”. [563]

11. [1058]

    This last answer was particularly curious, given that Mr O’Reilly himself had advanced his opinion of a lack of connection in his written report. He formed this opinion in his report without drawing attention to any evidence of the kind that this trial has heard. Indeed, he disclaimed reliance in forming his opinion on evidence of a possible link. [564]

12. [1059]

    These answers seemed to me to demonstrate that Mr O’Reilly was attempting to defend an indefensible position. Mr O’Reilly expressed the view in his report that a bomber may leave an environmental signature. He further expressed the firm view in his report (seemingly on the basis of the componentry of each bomb including its method of initiation) that no signature of a single bomber existed. Nevertheless, Mr O’Reilly attempted to remove, as a matter of any significance, the element of environmental signature and to ignore or downplay it when giving evidence at trial, so that his opinion could stand. That was because, as the cross-examiner pointed out, all of the elements of an environmental signature were capable of being established in the evidence.

13. [1060]

    The following day, when Mr O’Reilly’s evidence resumed, he sought to make a correction to his evidence on this subject of the signature of a bomber. He directed the Court’s attention to Annexure 1 of his report [565] entitled “Bombers – Generally”. He said that the definition of “signature” in this annexure “takes precedence” over the footnotes in his report earlier referred to, which were “… basically categories rather than a strict definition …”. The questions and answers that followed led ultimately to, what seem to me to be a concession that the categories defined in his report were as they were identified and explained. Certainly, that was the implication I drew both from what Mr O’Reilly said at that time, and from my observations of him. He took a long time to answer the question, which suggested that his report listed categories and not examples. Before answer, he apparently read those parts of his report again. He turned between those areas of his report to which he had referred. After doing so, he answered “Okay” in a manner which indicated clearly that he was accepting, on checking and reflection, the proposition put to him. His concession was obvious. There was no qualification to what he had written of the type he was trying to advance with his “correction” to his evidence. [566]

14. [1061]

    I am unable to accept Mr O’Reilly’s evidence in respect of the absence of any signature of the person responsible for the explosions in each of Events 3 to 7. First, the evidence in fact disclosed the existence of an environmental signature of the kind that Mr O’Reilly said was one type of signature (i.e. to put it shortly, a clear connection in the target type and target selection relevant to the identification of a bomber as those terms were used by Mr O’Reilly). Secondly, his attempts to contradict this were simply unbelievable and amounted to an attempt to defend a statement which he knew was not capable of being justified. Thirdly, as earlier discussed, I remain doubtful about whether Mr O’Reilly’s experience in dealing with bombers in circumstances of civil war, war-like or terrorist operations, while operating in very culturally different countries, is directly transferrable to Australian domestic criminal offences of the 1980s. Fourthly, to the extent that in exposing his opinion Mr O’Reilly did not take into account the findings which I have earlier made (about the identification and similarity of the detonator and high explosive used in Events 6 and 7), his opinion is based on an incomplete foundation of fact.

15. [1062]

    For these reasons, I do not accept the first basis of Mr O’Reilly’s opinion that there were two (or perhaps three) different bombers responsible for Events 3 to 7, and that they were unconnected.

16. [1063]

    The second basis for Mr O’Reilly’s opinion that the bombers were different people was that there was to be discerned a different degree of expertise required to be used as between the design, construction and placement of the bombs used in Events 3 and 4, on the one hand, and those used in Events 5, 6 and 7 on the other. His opinion was that the first two Events required only a basic level of knowledge and the other three required a medium level of knowledge. [567]

17. [1064]

    However, earlier in his report, Mr O’Reilly noted that it was wrong in the factual analysis upon which he was engaged to equate the simplicity of the construction of a bomb with the training and experience of the bomber. In Pt 4.6, [568] entitled “Assumption of Bomb Simplicity Independent of Bomber Expertise”, Mr O’Reilly said that it was wrong in his view to assume that, because the bomb used in Event 3 at Justice Gee’s home was a relatively simple one, the bomber was untrained or inexperienced in the use of explosives. He explained that an experienced bomber “will nearly always use the simplest method available to achieve a desired outcome”.

18. [1065]

    It follows from this that the mere fact that the bombs used in Events 3 and 4 required less experience to design, construct and place them than did the bombs in Events 5, 6 and 7 (accepting Mr O’Reilly’s opinion), has nothing to do with assisting in the identification of whether there was one or more bombers. That is because, as Mr O’Reilly explained, in these assessments the simplicity of a bomb and the experience of the bomber are not necessarily interlinked.

19. [1066]

    I reject this second basis as an adequate ground for any assertion that there were at least two, or perhaps three, separate bombers involved in Events 3 to 7, or that there was no connection between them.

20. [1067]

    I should add for completeness that it was, perhaps faintly, suggested by Mr O’Reilly that a change in the type of explosive used between Event 5 (which was said to be a nitroglycerine-based explosive) and the high explosive (Molanite) used in Event 6 indicated the work of a different bomber. However, the obvious explanation for such a change was one with which Mr O’Reilly unequivocally agreed in cross-examination, namely that it would not be unusual for a single bomber to change their explosive type in the circumstance of a change in the available explosives. [569] In other words, such a change simply reflected the availability of a different high explosive.

21. [1068]

    I conclude this part of my judgment by saying that I entirely reject the opinion of Mr O’Reilly that the absence of any signature or any other connection between Events 3 to 7 meant that they were perpetrated by two, or perhaps three, separate individuals who were not in any way connected to each other.

22. [1069]

    It follows that this opinion is not a reason preventing the Crown from succeeding in persuading me that the Events did not occur coincidentally. Put differently, Mr O’Reilly’s opinion, to which reference has been made, does not cause me to doubt the Crown case that the Events in which bombs were used, did not happen merely by coincidence.

23. [1070]

    Although the Accused’s submissions did not address separately, as a discrete topic, the issue of whether there were differences between each of the Events of a kind or to a degree as would cause the Court to conclude that coincidence reasoning was not available, it is a matter which requires careful consideration.

24. [1071]

    The lawyer for the Accused certainly asked questions, in the course of cross examination, apparently directed to these issues. Such questions were, at least, directed at Detective Russell, who was the Officer in Charge of the police investigation which began in 2013. [570] The differences suggested would seem to include:

25. [1072]

    Detective Russell did not accept that these differences were significant. But, this evidence does not carry any weight. The evaluation of any differences is a matter for me.

26. [1073]

    No further differences were separately identified by the Accused in his submissions. Nevertheless, his contention was clear that, as the detail of what occurred in Event 1 was so different from any other Event, it was not possible to conclude that the same person had carried out the murder of Mr Stephen Blanchard as the person or persons who had perpetrated the other Events. That is to say that the murder of Mr Stephen Blanchard is likely to have been entirely coincidental to the other Events. To be clear, the Accused’s submission was that the Court ought to conclude that Mr Stephen Blanchard was a commercial dealer in drugs and that his murder and the circumstances of the disposal of his body, were all such as to be associated with his drug dealing activities.

27. [1074]

    It will be necessary, in due course, to consider in detail the circumstances surrounding the murder of Mr Blanchard, but here what needs to be considered is whether the identified differences were such as to preclude the application of coincidence reasoning by the Crown in aid of its proof of the guilt of the Accused on that or the other Events, up to and including Event 6.

28. [1075]

    I return first to consider the three specifically identified differences to which I have referred at [1071] above. The first of these is that the offender used a different modus operandi with respect to each Event. In many respects, this is correct. For example, the method of initiation, where that is known or can reasonably be inferred, is different: Events 1 and 2 involved shooting – which is quite a different circumstance, requiring different methodologies to other Events; in Event 3, the explosion was initiated by a safety fuse; whereas in Event 5 the explosion was victim-activated by the opening of the front door of Justice Watson’s unit; Event 6 required the use of the ignition in the motor vehicle; and Event 7 was clearly activated by a clock-timer device. The explosives cannot be shown to have been the same in each Event.

29. [1076]

    It cannot be doubted that there were differences in the modus operandi employed in each Event. I am not satisfied that this is sufficient to preclude the use of coincidence reasoning. The targets (or intended targets) were all different and the Events all took place at different locations that were completely different in terms of layout, construction and access to an appropriate location to leave a bomb or to carry out the shooting. With the exception of Event 4 (the Family Court bombing), the Events were aimed at individuals and the different modus operandi employed, I am satisfied, more likely than not simply reflected the different tasks at hand and the very different locations. This feature does not tell against the use by the Crown of coincidence reasoning.

30. [1077]

    The second particular draws attention to the use of a contained (pipe) bomb in Event 4 as against an uncontained bomb in Event 3 and, it may be added, the other Events 5 to 7. Again, my assessment of this is no different from the issue just dealt with. It is a difference but not one, I am satisfied, which cannot be explained as more likely not to be associated with the particular location and what the bomber was seemingly trying to achieve. This feature does not stand in the way of the Crown using coincidence reasoning.

31. [1078]

    The third particular circumstance identified the changing levels of sophistication in each of the bombing Events. In the earlier context when discussing the expert evidence of Mr O’Reilly, I concluded at [1065] that there was no correlation between the level of sophistication in the construction and initiation of a bomb and the experience of the bomber. Put simply, a person with explosives experience might choose to construct and operate a simple bomb as opposed to a complex one. For the reasons which I have earlier given, this is not a reasonable basis to conclude that the Events happened by coincidence and were not causally related. It will be appropriate now to consider whether Event 1 can be said to be causally linked to the other Events. However, it is first of assistance to summarise the circumstances of which I am satisfied in relation to Events 1 to 7.

Established Circumstances

1. [1079]

   It may be convenient at this point to note that I am satisfied on the balance of probabilities of the following circumstances. These circumstances, in combination, are said by the Crown to demonstrate that Events 1 to 7 did not happen coincidentally, but rather were causally linked. These facts are expressed in summary form:

2. [1080]

   As mentioned above, the Accused made submissions to the effect that Event 1 was of a completely different nature to the other Events on the Indictment. These established circumstances are the factual context against which the submissions of the Accused about Event 1 are to be considered. Therefore, what must be considered is whether the facts, context and circumstances concerning Event 1 are of such a nature that they cannot be said to be causally linked to the other Events.

Event 1 – Murder of Stephen Blanchard

1. [1081]

   I turn now to consider the facts, mattes and submissions about Event 1 in the context at this stage of whether the Crown can rely upon coincidence reasoning in support of its proof of the guilt of the Accused for Event 1.

2. [1082]

   There are similarities that have earlier been identified. However, it is necessary to consider the question of whether there were differences of such a kind as would mean that the Crown could not rely upon coincidence reasoning.

3. [1083]

   Although the complete details of Event 1 will be described in due course, there are many features of the murder in Event 1 which are not the subject of any real challenge and can be readily considered now.

4. [1084]

   Mr Stephen Blanchard lived at his father’s house at 30 Eastern Avenue, Revesby. [574] It was a three bedroom house, [575] and he shared the house with his father and his sister who, together with Trudi, occupied the main bedroom. [576] Mr Stephen Blanchard occupied a small bedroom at the back of the house and Mr Leslie Blanchard (his father) occupied the middle bedroom. [577]

5. [1085]

   Mr Stephen Blanchard was last seen alive by his sister, Ms Andrea Blanchard, at their house at about 7.30pm on Thursday 21 February 1980. [578] He was last seen alive by his girlfriend, Julie Ayling, at about midnight on that evening. [579] When Ms Blanchard awoke the following morning Stephen was not in his bedroom, nor in the house.

6. [1086]

   On Sunday 24 February 1980, Ms Blanchard checked her brother’s bedroom. [580] She noticed that the bed-board on which he slept, his bedding, pillow, blanket and doona were all missing. However, his work shoes, wallet, watch and passport were all still in his bedroom and his car was parked outside the house in the driveway, and had been since the morning of 22 February 1980. [581]

7. [1087]

   At about 7.45am on Wednesday 27 February 1980, Mr Stephen Blanchard’s body (although at that stage not identified as such) was found floating in Cowan Creek, a waterway that flows into the Hawkesbury River north of Sydney. The Water Police were called and the body was retrieved and taken to the Brooklyn Wharf. [582] The body had been in the water for some time and had suffered attacks from marine predators. Nevertheless, both at that time and on post-mortem examination conducted the afternoon the body was found, it was possible to establish the cause of death. The following observations were made of the body: [583] it was decomposed; there was a bullet hole above the right eye; there was a cord around the neck which had apparently secured a plastic bag that had been placed over the head; there was another rope wrapped twice around the waist, to which were attached 11 house bricks and which had been recovered with the body; and the cause of death was a .22 calibre bullet to the head.

8. [1088]

   An investigation carried out by expert engineers from the Coastal Branch of the NSW Public Works Department established to a very high degree of likelihood (over 99.4%) that Mr Blanchard’s body must have been dropped into the water from a boat in order for it to end up where it was found. [584] It had not been placed into the water from any point along the shore, or from either of the road or rail bridges that crossed the Hawkesbury River near Brooklyn.

9. [1089]

   When the Police examined Mr Stephen Blanchard’s room in the house at Revesby, there were no signs of any fight, struggle or violence. [585]

10. [1090]

    The Crown’s case is that Mr Blanchard was shot in his bedroom and his body removed from the house. [586] It accepted as an alternate possibility, that Mr Blanchard was first disabled in the bedroom and then shot at some place away from the house.

11. [1091]

    The Crown’s coincidence reasoning case links each Event to the Accused’s family law matter. A broad connection between Mr Stephen Blanchard and the family law proceedings has been established, but the extent and significance of that connection bears further examination. The evidence of what actually happened in the proceedings and Mr Blanchard’s involvement comes most directly from Ms Blanchard.

12. [1092]

    On 6 December 1979, the proceedings in the Family Court came before Justice Opas. He ordered that the access orders previously made by the Court continue to be supervised by a Court counsellor for a further six months. [587]

13. [1093]

    According to Ms Blanchard’s evidence, [588] on a particular date (which I am satisfied was 19 December 1979), [589] the Accused had not returned Trudi after a period of access. This occasion was said by Ms Blanchard to be the only time during which Mr Stephen Blanchard had any involvement in the proceedings. However, she did give evidence of a telephone call sometime after this event.

14. [1094]

    On 19 December 1979, Ms Blanchard and Mr Stephen Blanchard went to the Accused’s house at Casula to collect Trudi who had not been returned in accordance with the access orders. Ms Blanchard recounted the incident in these terms: [590]

15. [1095]

    According to Ms Blanchard, the Accused said nothing and slammed the door. After this Ms Blanchard and her brother attended the Liverpool Police Station and sought police assistance to retrieve Trudi. This was provided, but they were unsuccessful in retrieving Trudi that evening.

16. [1096]

    On the following day, Ms Blanchard telephoned the Court counsellor, who then telephoned the Accused. The Court counsellor, Ms Edwards, had made notes of the telephone conversation. In a report put together some time later, Ms Edwards recorded her interaction with the Accused and with Ms Blanchard. She only briefly noted the circumstances of the events on the evening of 19 December 1979. She made no mention of Mr Stephen Blanchard being present or being involved in any way. [591]

17. [1097]

    Ms Blanchard gave an account of what had occurred on 19 December 1979 in an affidavit filed in the family law proceedings on 7 May 1980. [592] In that account, she recorded that her brother had driven her to see the Accused that evening to retrieve Trudi, and had then driven her to Liverpool Police Station, back to the Accused’s home and then to Revesby. However, she did not record that Stephen Blanchard had said anything to the Accused or that he was present during any conversation between herself and the Accused. Rather, she noted that she was the person who told the Accused that she did not want to cause any trouble.

18. [1098]

    In a record of interview made on 11 July 1980, [593] Ms Blanchard was asked if she had any knowledge as to who might have murdered her brother, Stephen. Whilst her response nominated the Accused, all she said at the time was that Stephen had “interfered between Len and I”.

19. [1099]

    This answer was not consistent with the contents of a statement signed by Ms Blanchard on 28 February 1980, at the time, or shortly after, learning of her brother’s death. That statement was taken by Detective Sergeant M.A. Hagan. Ms Blanchard [594] told Detective Hagan that as far as she was aware, there was no ill-feeling between the Accused and her brother. She also said that she could not think of any person who would want to harm her brother. [595]

20. [1100]

    On 5 July 1982, Ms Blanchard gave evidence at the Coronial Inquest into her brother’s death. [596] She accepted in this trial, before me, that she was asked during the Inquest if she wanted to add or change anything that she had said in her statement of 28 February 1980. She accepted that when asked that question, she had told the Coroner that she did not want to do so. [597]

21. [1101]

    If Ms Blanchard’s evidence in this trial is put to one side for the moment, there is nothing in any of the accounts that she gave in December 1979 to Ms Edmonds, the Family Court counsellor, nor on the two occasions to the Police, nor in her own affidavit in the Family Court proceedings nor by her reaffirmation before the Coroner of the correctness of her police statement, which suggested that Stephen Blanchard played any material role at all in the incident on the evening of 19 December 1979, and thus none of this material would support the version of the events given in this trial.

22. [1102]

    Ms Blanchard certainly did not give any detailed account of Mr Stephen Blanchard actually becoming involved in the exchange with the Accused about Trudi’s return on 19 December 1979. No details were provided as the basis for her statement in July 1980 that Stephen “interfered” between her and the Accused.

23. [1103]

    On these versions, the highest that Stephen’s role went was to be the driver on one evening to help Ms Blanchard collect Trudi from the Accused.

24. [1104]

    In her evidence in this trial, Ms Blanchard described overhearing a telephone conversation between the Accused and Mr Stephen Blanchard at a time after the incident on 19 December 1979. She only heard what Mr Blanchard said. According to her evidence, she heard Mr Blanchard say to the Accused “You’re only being stupid”. [598] There was no context to that comment given, nor does it appear that she asked Mr Stephen Blanchard why that statement had been made.

25. [1105]

    There was no reference at all to this conversation in any of the more contemporaneous accounts to which I have referred earlier.

26. [1106]

    From this review of Ms Blanchard’s evidence in this trial and her various earlier and more contemporaneous accounts, I would conclude that it would have been obvious to her that it was of critical importance to give any investigating police, the Family Court, and the Coroner, as much detail as she could about the Accused’s behaviour, and his interactions with Mr Stephen Blanchard. This leads me to the conclusion that her earlier accounts are more likely to reflect accurately the true extent of the interaction (if any) between the Accused and her brother.

27. [1107]

    I am satisfied only that Mr Stephen Blanchard drove Ms Blanchard, on the evening of 19 December 1979, to the house at Casula, to the Liverpool Police Station, back to the house at Casula and then to their own home at Revesby. I am satisfied that there was no verbal interaction between the Accused and Mr Stephen Blanchard on that evening. I do not accept Ms Blanchard’s evidence in this trial that there was such an interaction. That is because had the interaction had occurred as she now says, she would have told Ms Edmonds in her phone call on the next day, thereby providing corroboration through an eyewitness of what had occurred. She would certainly not have told Detective Hagan that there was no ill will between the Accused and Mr Stephen Blanchard. That directly conflicts with her account of the incident given in this trial. Her evidence in this Court on that matter was simply erroneous.

28. [1108]

    So far as the Accused is concerned, as I am only satisfied that Mr Stephen Blanchard acted as the driver for his sister on the evening of 19 December 1979, his role was very minor. It is to be observed that in the counsellor’s report of her telephone conversation with the Accused on 20 December 1979, [599] Ms Edmonds recorded that the Accused agreed that he had kept Trudi overnight, but asserted that he had Ms Blanchard’s agreement so to do.

29. [1109]

    Accordingly, had the incident on 19 December 1979 ever been relied upon in any future hearing, the Accused’s position was clear and there was no factual difference about what occurred that evening with Ms Blanchard. There was no need for any independent verification by Mr Stephen Blanchard as to what had occurred. The issue was only whether Ms Blanchard had agreed to overnight access. Mr Stephen Blanchard, on the evidence before me in this trial, knew nothing about whether there was such an agreement.

30. [1110]

    It follows, based on the evidence I have accepted, that I am not satisfied Mr Stephen Blanchard played a significant role in the family law proceedings, nor one which I could conclude would have involved him acting in a way which was directly contrary to the interests of the Accused.

31. [1111]

    At no time was there any application made by Ms Blanchard to the Family Court at or around December 1979 that would have depended upon, or which would have included as a central feature, what had occurred in the incident on the evening of 19 December 1979. Nor, having regard to what was said by the Accused in his affidavit filed on 15 April 1980, [600] was there likely to have been any such feature from his perspective.

32. [1112]

    I am not satisfied that there was any connection of any relevance or significance between Mr Stephen Blanchard and the family law proceedings between Ms Blanchard and the Accused. The mere fact that as a family member he would support his sister is, for me, insufficient to amount to a connection of a relevant or significant kind, for the purpose of considering the likelihood of a causal connection between this Event and the others in this trial.

33. [1113]

    As well, there are a number of features surrounding the actual murder itself which can be regarded as telling against a causal connection between Event 1 and each of the other Events.

34. [1114]

    The evidence with respect to each of the Events involving the detonation, or intended detonation, of a bomb is that each Event could readily have been perpetrated by one offender. The same is true of Event 2 (the shooting of Justice Opas).

35. [1115]

    However, there are features of the murder of Mr Stephen Blanchard which suggest that it is highly likely that at a minimum two people were involved. Regardless of whether Mr Blanchard was shot in his bedroom, or else simply disabled there, his body (either dead or disabled) had to be removed from the bedroom without any noise so that Mr Blanchard Snr, Ms Blanchard and Trudi were not disturbed or awoken. To manoeuvre Mr Stephen Blanchard’s body out of the relatively small bedroom which he occupied and then take it outside the house would have required a considerable effort if one person were to carry that out. In my view, whilst that may have been possible, it is more likely that doing so with one person would have led to significant noise. Having two people doing that would have made it more likely that the body could have been removed from the house without disturbing the other occupants.

36. [1116]

    The disposition of Mr Stephen Blanchard’s body into Cowan Creek would have required the use of a boat of some kind into which his body (which by then must have been dead) had to be loaded, together with the 11 house bricks. The house bricks then needed to be attached by a rope wound twice around Mr Stephen Blanchard’s waist. That manoeuvre is likely to have been very difficult for a single person to carry out, particularly if they were doing it was being done whilst the boat was in the water. With the boat in Cowan Creek, the body and the bricks would then have to have been manoeuvred overboard and into the water.

37. [1117]

    In the application of my common sense and general experience, this strikes me as a particularly difficult task for one person and, on the probabilities, would be much more likely to have been carried out by at least two people.

38. [1118]

    As well, the whole nature of the murder is much more complex, particularly with respect to dealing with and disposing of the body of the victim, than in the other Events. In each of the other Events, no attempt was made to do anything with the bodies of the victims (or intended victim) other than to leave them at the scene of the crime. This was particularly so in comparison with Event 2 (the shooting of Justice Opas) where no attempt was made to entice him away from his front gate. What obviously happened in Event 2 was that as soon as his front gate was opened, he was shot and left where he fell. Mr Stephen Blanchard was taken over 50km away from his home for the disposal of his body.

39. [1119]

    Each of Events 3 to 7 involved a degree of separation or distance between the offender and the victim and, as just indicated, for Events 2 to 7 the offender made no attempt to deal with the victim. And yet, there was a plastic bag placed over Mr Stephen Blanchard’s head and then tied around his neck with rope. It was not immediately clear why the plastic bag was needed and whether it preceded or succeeded his death. But for whatever reason as it was used, it required very close contact between the murderer and his victim – as did the moving of the victim from Revesby to Cowan Creek.

40. [1120]

    These differences seem to me to be significant in considering whether the Crown has satisfied me that the features which link Event 1 to the other Events are of sufficient weight to justify a conclusion that the Crown is able to rely upon coincidence reasoning as a circumstance relevant to the murder of Mr Stephen Blanchard.

41. [1121]

    I am not satisfied, having considered all of the circumstances discussed, that the murder of Mr Stephen Blanchard involved striking similarities of a kind which make it probable that his murder was not a coincidence with the other six Events, but rather was causally linked.

42. [1122]

    Put differently, whilst it was an event of significant violence the strength of the connection to the Family Court proceedings is elusive, and the differences surrounding how the victim and his body were dealt with means that there are not sufficiently strong similarities between Event 1 and the other Events to disregard coincidence as a reasonable explanation for what occurred.

43. [1123]

    However, this finding does not mean that the Crown case fails on Event 1. It simply means that in the proof of that case, the Crown will not be entitled to rely on coincidence reasoning to implicate the Accused.

Coincidence Conclusion

1. [1124]

   None of the matters that I have dealt with above in relation to Event 1 cast any doubt upon my consideration of whether each of Events 2 to 7 did not occur coincidentally.

2. [1125]

   I am satisfied, based upon the facts, matters and circumstances set out in [1079] above, and the absence of any dissimilarities which are of any significance, to a high degree of probability that each of those Events were not separate events perpetrated by an unconnected individual and which happened coincidentally.

3. [1126]

   In other words, I have been satisfied by the Crown that there are such strong similarities between each of Events 2 to 7 and the circumstances surrounding them as to make it improbable that they can be explained as simply coincidence and therefore are not causally linked. The Crown, I am satisfied, has proved that it is entitled to rely on coincidence reasoning as a circumstance with respect to each of Events 2 to 7 which tends in favour of the prosecution case that one person perpetrated each Event, and that on the basis of my finding in Event 7 this offender was the Accused.

Tendency Evidence

1. [1127]

   My conclusion that the Accused was the person who placed the bomb in the Kingdom Hall at Casula raises the issue of whether the Crown, as a circumstance in respect of each other Event (including Event 1), can rely on tendency evidence.

2. [1128]

   The Crown submitted that this finding is a basis for a conclusion that the Accused had two tendencies:

3. [1129]

   Having found that the Accused was the person who placed the bomb in the Kingdom Hall, I direct myself that I must be satisfied that the acts undertaken by the Accused to commit the offences relating to Event 7 prove that the Accused has each of the tendencies alleged by the Crown.

4. [1130]

   I direct myself that unless I am satisfied of the previous matters, I am not entitled to take the alleged tendencies into account in determining whether the Crown has proved the guilt of the Accused for each of Events 1 to 6.

5. [1131]

   My conclusions about Event 7 are, in summary, that some members of Lurnea congregation, which used the Kingdom Hall at Casula to meet in pursuit of their faith, lent assistance to Ms Blanchard, and her sister Ms Judy Morier, to leave Sydney and go with Trudi to an undisclosed location. This had the effect, as it was intended to, of completely preventing the Accused from exercising access to his daughter, Trudi. When asked by the Accused, some of the members of the congregation did not tell him, as he expected they would be able to, where Ms Blanchard and Trudi were.

6. [1132]

   I am also satisfied that the Accused broke into the Kingdom Hall on two occasions, in the early hours of successive weekends. On the second of these occasions, he placed a bomb which was timed to explode later that morning in the middle of a meeting of the Lurnea congregation.

7. [1133]

   The bomb consisted of a high explosive Molanite which was intended to, and which did, kill one person, seriously injure many others, and substantially demolish the Kingdom Hall.

8. [1134]

   I have concluded that the motive of the Accused to place and cause the detonation of the bomb in the Kingdom Hall was to cause harm to the members of the Lurnea congregation for interfering with, and preventing access to, his daughter Trudi by assisting Ms Blanchard and Trudi in moving to an undisclosed location, and then actively concealing their whereabouts.

9. [1135]

   These conclusions compellingly demonstrate that the Accused in fact held, and so had a tendency a hold, animosity, including an intention to kill, toward those who acted adversely to the exercise of his access to his daughter.

10. [1136]

    The fact that the Accused placed and caused the detonation of the bomb which was intended to, and did, explode, causing death and serious injury, also compellingly proves that the Accused had (at least as at July 1985) a tendency to commit violence against those who acted to adversely affect the exercise of access to his daughter.

11. [1137]

    In considering these offences in relation to Event 7, consisting of many intentional acts over a period of time of at least a week, I am satisfied that the Accused was a person who had each of the tendencies alleged by the Crown. These intentional acts included undertaking a reconnaissance, obtaining the components for a time-delayed clock activated bomb and breaking in to place the bomb in a way which meant that it was out of sight. This was done in circumstances where the nature and quantity of explosives meant that when detonated, the effect of the bomb would be indiscriminate and capable of harming anyone in attendance at the Kingdom Hall at that time.

12. [1138]

    I am satisfied, on the balance of probabilities, and in fact to a much greater degree of comfort, that the Crown has established the tendencies alleged as at July 1985. In so far as the circumstance is deemed relevant, the Crown is entitled to rely on the tendencies as a circumstance in each of Events 1 to 6 in support of proof beyond reasonable doubt that the Accused was the offender responsible for each Event.

13. [1139]

    At about 7.15pm on the evening of 23 June 1980, Justice Opas, a Judge of the Family Court of Australia, went to answer the doorbell at the front gate of his home at 130 Edgecliff Road, Woollahra. As he did so, he was shot with a .22 calibre firearm. He died that evening without regaining consciousness.

14. [1140]

    It is not in issue in this trial that Justice Opas was murdered. That is to say, the evidence called and tendered by the Crown has established beyond reasonable doubt that each element necessary for the proof of the offence of murder has been established. The sole issue is whether the Crown has proved beyond reasonable doubt that it was the Accused who murdered Justice Opas, and therefore that there ought be a verdict of guilty on Count 2 on the Indictment.

15. [1141]

    There were no eyewitnesses to the shooting, although there were witnesses of some contemporaneous events in, or within the areas near the Judge’s home at Woollahra. Accordingly, the Crown’s case is a circumstantial one. As such, I remind myself that in my consideration of Event 2, I must apply all of the “circumstantial evidence direction”.

Crown Case

1. [1142]

   The case for the Crown can be summarised reasonably concisely. There were current at the time of the murder, contested Family Court proceedings between Ms Blanchard and the Accused. Justice Opas, who sat in the Parramatta Registry of the Family Court, had been the Judge hearing (with one exception) all of the applications in the proceedings between Ms Blanchard and the Accused during 1979 and 1980. The only application which Justice Opas did not hear was one on 6 June 1979, when Ms Blanchard sought an order for maintenance. That application was withdrawn by her after an initial day of hearing.

2. [1143]

   The Crown alleged that in the period between December 1979 and May 1980, there were a number of occasions where comments were made by Justice Opas in the Accused’s proceedings which were very critical of the Accused and which were in terms that the Accused would have regarded as harsh and unfair. Furthermore, the Crown’s case is that there were a number of decisions made by the Judge which significantly and adversely affected the ability of the Accused to have access to his daughter, Trudi.

3. [1144]

   As at 23 June 1980, there was an outstanding application which was next listed for a conference before a Registrar on 30 June 1980. This application, which was brought by Ms Blanchard, dealt with the division of matrimonial property and included an order seeking the complete suspension of the Accused’s access to Trudi. Justice Opas expedited that matter on 20 May 1980. The Crown submits that it could be reasonably anticipated by the Accused that Justice Opas would deal with that matter (given he had dealt with all previous finalised applications).

4. [1145]

   The Crown argued that what occurred in the Family Court between the Accused and Justice Opas caused the Accused to feel that he had been unfairly treated by Justice Opas. The Crown submitted that the Accused would have felt that any future time Justice Opas heard proceedings in his matter, he would have expected similar unfair treatment. This, on the Crown case, provided a motive for the Accused.

5. [1146]

   The Crown alleged that during the month of May, probably on 20 May 1980, the Accused made a statement in a conversation with Ms Blanchard which, properly understood, was evidence of his intention to murder Justice Opas (or at least his intention to take steps to ensure that Justice Opas did not hear the Family Court proceedings any more). Put differently, the Accused made a statement which revealed that he had knowledge that Justice Opas would not be available to hear any further proceedings between Ms Blanchard and the Accused.

6. [1147]

   At the time that Justice Opas was shot, the Accused was not rostered on duty at the Fairfield Fire Station. On that day his shift was programmed to finish at 6pm. The distance between Fairfield Fire Station and the Woollahra home of Justice Opas was, by car, about 50 minutes. The Crown’s case is that it is likely that the Accused left work before the end of his shift at 6pm in accordance with a well-established practice referred to as “cross-over time”. But even if the Accused left at 6pm, the Crown’s case is that there was more than sufficient time, and therefore an opportunity, for the Accused to be at the scene of the shooting.

7. [1148]

   The Crown pointed to the fact that the Accused was, in 1980, very knowledgeable about, and experienced in, the use of firearms, particularly .22 calibre rifles. The Accused owned a number of them. He used them for relaxation and on holidays. The Crown argued that the Accused was therefore capable of shooting Justice Opas.

8. [1149]

   The Crown’s case is that there is no other person who could reasonably be thought to have shot Justice Opas. That is because the sum of the evidence indicates strongly that the murderer was someone who had been before Justice Opas in his capacity as a Family Court Judge. The Crown argued that there was no other litigant who had the requisite motive, skill and opportunity to commit the offence. Therefore, the person responsible for the murder of Justice Opas, in the submission of the Crown, is the Accused.

9. [1150]

   Finally, the Crown relied on tendency and coincidence reasoning as a circumstance to be considered as part of the proof of its case on this Count. In essence, the Crown argued that it was highly improbable that the murder of Justice Opas (Event 2) when considered with the facts, matters and circumstances arising from Events 3 to 7 happened coincidentally. It submitted that, in all of the cases (except Events 1 and 7) the target was either the Parramatta Family Court, its Judges or a legal practitioner which gives rise to a powerful inference that the same person was responsible for each of the Events.

The Case for the Accused

1. [1151]

   The Accused submitted that the Crown’s case was illogical and improbable, having been founded upon a wholly inadequate Police investigation. The Accused submitted that this inadequate investigation meant that a number of individuals who might reasonably be suspected of murdering Justice Opas had never been properly investigated and therefore could not be excluded as reasonably hypotheses consistent with the innocence of the Accused.

2. [1152]

   As well, the Accused submitted that an examination of the Family Court proceedings demonstrated that the Accused had in fact been treated fairly by Justice Opas and that he would not have had any motive to kill him at all.

3. [1153]

   The Accused drew attention to the absence of any eyewitnesses placing him or his car at or near the scene of the murder. The Accused also drew attention to the fact that two “Identikit” sketches of one (or perhaps two) men who were seen in the Bondi Junction area not far from the Judge’s home looked nothing like him.

4. [1154]

   Submissions were made on behalf of the Accused about time discrepancies in the accounts given regarding the events surrounding the shooting, which ended up as a submission that the results of these discrepancies suggested that there could be up to 10 minutes unaccounted for in the evidence. The Accused submitted this should lead to a reasonable doubt about the Crown case.

Events of Monday 23 June 1980

1. [1155]

   On Monday 23 June 1980, Justice Opas went to work at the Family Court at Parramatta in accordance with his ordinary routine. At work, he discharged his judicial duties in the usual fashion.

2. [1156]

   Justice Opas left the Parramatta Family Court for his home at 5.48pm on 23 June 1980. His home was at 130 Edgecliff Road, Woollahra. It was a two‑storey terrace house where he lived with his wife, Kristin, and their two children – a son aged about 8 and a daughter aged about 6. [601]

3. [1157]

   Justice Opas was being driven home by Mr John Turner in a Commonwealth car, which was readily capable of being identified as such. Mr Turner arrived with Justice Opas at Woollahra at 6.36pm and dropped the Judge off in Dyson Lane, about 10 or 15 metres from the Judge’s house. It intersected with Edgecliff Road. [602]

4. [1158]

   The Opas family sat down to eat their evening meal together at about 7.10pm. Just as they began their meal, the front doorbell sounded indicating that there was a person at either the front door or else at the front gate of the house. Justice Opas left the table to answer the door bell. At the front of the house there was a solid brick wall, about two metres in height, which was adjacent to the footpath and contained a solid timber gate of the same height. This meant that a person in the front yard could not see who the caller was until the gate was opened. [603]

5. [1159]

   Edgecliff Road was a generally busy road. It is a reasonably dark area. A burglar alarm was sounding from a building across the road at the time the Judge walked outside.

6. [1160]

   After her husband had been gone from the dinner table for a short period of time (estimated by Mrs Opas to be about five minutes), Mrs Opas became concerned at his absence and went outside to investigate. She found him lying on his back on the paved area between the front gate and the steps up into the house. [604] He was lying generally parallel to the front wall with his feet closest to the gate. He was not conscious. Mrs Opas attempted briefly to help her husband with resuscitation and then sought help from her children, her next door neighbour and a passer-by in the street. [605] Police and ambulance were phoned. The Police were dispatched at 7.20pm. [606] As Mrs Opas continued to try and help her husband, she observed a wound in his abdominal or stomach area.

7. [1161]

   A paramedic, Mr Colin Benstead, together with two colleagues, arrived at the scene at 7.34pm. Police officers who had already arrived and were present escorted them into the front yard of the house. Mr Benstead, whose evidence was not challenged and which I entirely accept, completed a contemporaneous report. [607] He noted the existence of a gunshot entry wound in the mid-line, slightly below the sternum. In order to observe that he had to open up the Judge’s white shirt. Upon arrival, Mr Benstead could not detect any vital signs. There was no pulse, no blood pressure or respiration. Justice Opas’ pupils were fixed and dilated. CPR consisting of external cardiac massage was commenced immediately. Some cardiac output was achieved through that technique but Justice Opas was at all times deeply unconscious and had no pain reaction. The Judge was taken to St Vincent’s Hospital, [608] where he underwent surgery to repair his internal bleeding. He did not survive the surgery and was pronounced dead later that evening at about 10.10pm. [609]

8. [1162]

   A post-mortem report dated the following day, 24 June 1980, [610] recorded that Justice Opas died as a result of a gunshot wound. The gunshot wound measured 1cm in diameter. The bullet had perforated the aorta, damaged other organs and was found lodged in the posterior abdominal wall. The bullet was removed and provided to Detective Constable Musgrave of the Ballistics Unit. He determined, from an examination of it, that it was a .22 calibre bullet which had been fired from a .22 calibre rifle.

9. [1163]

   Based upon the fact that the front gate of Justice Opas’ home swung inwards and towards the adjacent side wall to the left as one looked out to the footpath, and the position of Justice Opas’ body lying in the courtyard parallel to the front wall with his feet nearest the gate, I am satisfied that he was shot as he opened the front gate. I am satisfied he then fell backwards to the ground as a result of the force of the bullet striking his body and the injuries he sustained from it.

10. [1164]

    I am satisfied that Justice Opas was shot from reasonably close proximity by a person standing on the footpath outside his home. This conclusion is based on the fact that it was after sunset, that the area was relatively dark and that Edgecliff Road was a reasonably busy road with shops nearby, including across the street from Justice Opas’ home.

11. [1165]

    The nearest side street to Justice Opas’ front gate was Dyson Lane, which was one house away from Justice Opas’ home. Junction Road was about 50m or so in the opposite direction. The murderer would have been easily able to make a quick departure from the scene in either direction along Edgecliff Road, or else along the nearby intersecting lane or street.

12. [1166]

    No-one in the neighbourhood observed the shooting. One neighbour, Ms Anne Matthews, told police that she heard noises outside her house at about 7.15pm, including a loud noise which was “like a gunshot or a car backfiring”. [611]

Observations

1. [1167]

   As earlier noted, there were no eyewitnesses to the shooting. There was a newspaper report in the Daily Mirror on 24 June 1980 asserting that an unidentified woman had told police that she saw a man standing near the front gate of Justice Opas’ home. [612] However, the accuracy of the content of the article was never proved. As a matter of common sense, the article’s accuracy cannot necessarily be assumed or inferred. Even if it was assumed, there was insufficient detail in the article to identify the man standing near the front gate. I have concluded that the article carries no weight in this trial as a basis for either including or excluding the Accused as being the person who shot Justice Opas.

2. [1168]

   Two witnesses told police that they had observed a man running in a generally easterly direction along Grafton Street, Bondi Junction. This was a street about two or three blocks from Justice Opas’ home. Each of these witnesses gave descriptions to a police illustrator for the preparation of an “Identikit” drawing of the person they saw running. Neither of the Identikit peak pictures resembled the Accused. Both witnesses gave these instructions whilst undergoing hypnosis. [613]

3. [1169]

   One of the witnesses, Mr Windsor, rated the picture produced as a “6 out of 10 for likeness of the person”. [614] The other witness, Ms Deborah Ross, described a man wearing sunglasses. Although Ms Ross was uncertain about the precise time of the sighting, it was certainly after dark. The Identikit picture of the man she described was also prepared under hypnosis. [615] I don't regard either sketch as meriting any weight. I would not be prepared to accept that, in the absence of expert evidence, anything said or done under an ill-described process of hypnosis is likely to be sufficiently reliable or accurate to be taken into account as evidence which merits any weight.

4. [1170]

   As well, other than a general geographic proximity to the home of Justice Opas and the time of sighting by Mr Windsor, there is simply nothing which connects this unidentified running man to the murder of Justice Opas. This is particularly so because the direction in which the man was seen to be running would not be a logical way to escape from a murder at Justice Opas’ home. Rather it would seem that the person was taking themselves towards the property by running in an easterly direction down Grafton Street. I am satisfied that the evidence about this running man can be put to one side in my deliberations as being most unlikely to be associated with the shooting of Justice Opas. I note for completion that the Crown did not rely on the Identikit pictures as being of the Accused. I would not be prepared in any event, to make a finding that they were.

5. [1171]

   It is also possible that the evidence of Mr Windsor and Ms Ross referred to two different people. Even if that was so, I have no reason to reach any different conclusion. The same features apply. The pictures were obtained under hypnosis. The men were running in an easterly direction which is inconsistent with fleeing from the murder scene. There is simply nothing to connect up either of the men, if there were two, with the murder of Justice Opas.

Crown Case Circumstances

1. [1172]

   It is necessary to turn now of the circumstances which the Crown relied upon to prove that the Accused murdered Justice Opas.

2. [1173]

   The Crown case relied on the number of circumstances which can be grouped under the following headings which, in combination, the Crown argued prove its case:

3. [1174]

   It is convenient to consider each of these in turn.

Opportunity

1. [1175]

   I have already given consideration to and made findings based on the evidence about whether the Accused was rostered to work as a fireman at the time of this and other events.

2. [1176]

   In June 1980 the Accused was working at the Fairfield Fire Station. [616] He was rostered to work on Monday, 23 June 1980 for a 10 hour shift commencing at 8am. His shift was rostered to finish at 6pm. [617] He was rostered to perform Watch Room duty at the start of the shift. He finished as the Watch Room Duty Officer at 1pm. C Platoon, of which the Accused was a member, was not required to attend any fire during the shift. A drill, which is described as “No.26” was conducted in the Station. It commenced at 2:15pm and concluded at 5pm. According to the Occurrence Book [618] , no one on C Platoon, including the Accused, had any designated duty after the drill finished at 5pm. The next shift for the Accused commenced at 8am on Tuesday, 24 June 1980. He attended work on that shift and completed it.

3. [1177]

   Because the murder of Justice Opas occurred between two successive shifts, the general practice of “Recall” described above at [205]-[224] would not have been applicable on the evening of 23 June 1980, as the Accused was in the middle of a working roster. Fireman could only be recalled to duty during the period of their rostered days off.

4. [1178]

   I have earlier described at [227] the practice of firemen leaving their Station at a time before their shift finished. This practice is called ‘cross-over time’. It is possible, therefore, that the Accused could have finished his shift at Fairfield Fire Station on Monday, 23 June 1980, earlier than 6pm. However, whilst it is a possibility, the evidence does not allow for a finding that this occurred.

5. [1179]

   On 30 June 1980, which was the Monday following the murder of Justice Opas, Detective Senior Constable Duff and Detective Owen Halliday drove in an unmarked police vehicle from the Fairfield Police Station to the home of Justice Opas at 130 Edgecliff Road Woollahra. The Fairfield Police Station was between 100 and 200m from the Fairfield Fire Station. The trip, which commenced at 6:10pm, was timed as taking 50 minutes. [619]

6. [1180]

   Detective Duff's evidence, which I accept, was that the purpose of the trip was to establish the time for a car to drive between the two identified points. When challenged in cross-examination, Detective Duff agreed that changed traffic conditions, such as if an accident occurred, might affect the time it took to drive that journey. [620] But he also said that he would not have expected the time taken to vary greatly. I accept, on the basis of common sense, that leaving aside a significant traffic incident, traffic conditions would be unlikely to vary to a significant degree from one Monday to another. As such, the timing of the test drive undertaken by Detectives Duff and Halliday is a matter to which I can afford some weight.

7. [1181]

   I accept that the evidence does not establish where any car used by the Accused could have been parked in Woollahra. I further accept that the potential location of the Accused’s parked car in relation to Justice Opas’ residence necessarily has an impact on any consideration of timing and opportunity. No doubt, the parking of the car and walking to Justice Opas’ residence would have taken a few minutes, which would need to be added to the journey time. I acknowledge that such allowances must be made when estimating the adequacy of the available time in order to make an accurate and fair assessment of whether the Accused had the opportunity to shoot Justice Opas.

8. [1182]

   Nevertheless, even when making all appropriate allowances, I am satisfied from the above evidence that there would have been sufficient time for the Accused to complete his shift the Fairfield Fire Station at 6pm, drive to Woollahra, secure a car park and then carry out the murder of Justice Opas.

9. [1183]

   Accordingly I am satisfied that the Accused had the opportunity to commit the offence.

Familiarity

1. [1184]

   The Accused lived at 85 Fletcher Street, Bondi for a number of years, between approximately 1970 and 1974. [621] Fletcher Street is within a few kilometres of Bondi Junction. In those years, Bondi Junction was an area where there were a large number of shops. The house at 130 Edgecliff Road is a short distance from Bondi Junction to the north.

2. [1185]

   In the years between 1970 and 1974, Edgecliff Road was one of the principal access roads to Sydney CBD from Bondi Junction and the Bondi area generally.

3. [1186]

   I am prepared to infer that if the Accused lived in Fletcher Street, Bondi for a number of years, he was generally familiar with the Bondi Junction area, and would have been generally familiar with Edgecliff Road, particularly as it neared Bondi Junction.

Motive

1. [1187]

   The Crown's case is that the interactions between Justice Opas and the Accused, and the orders made by Justice Opas in the course of his presiding in the Family Law proceedings between the Accused and Ms Blanchard, gave rise to a motive in the Accused to murder Justice Opas.

2. [1188]

   The Accused submitted that this was not the case. He submitted that a sensible and balanced reading of the occasions when Justice Opas presided in 1979 and 1980, and the orders which he made on such occasions, demonstrated that the Accused benefited from his appearances before the Judge.

3. [1189]

   It is now necessary to examine the Family Court proceedings in some detail to see if the Crown has proved the motive which it attributes to the Accused.

4. [1190]

   The entirety of the file held by the Family Court was an exhibit in the trial. [622] The lawyer’s file of Ms Blanchard was not tendered as an exhibit and, I am satisfied, was most likely destroyed by her last set of lawyers, Marsdens ‑ The Attorneys (as they then were) (“Marsdens”). When Mr Caristo, the lawyer then employed by Marsdens who acted for Ms Blanchard, gave his evidence he said that he had not had access to the file for the purpose of giving his evidence. [623] I accept this evidence.

5. [1191]

   Justice Gary Watts acted for Ms Blanchard for a number of years leading up to February 1985. Justice Watts said, and I accept, that his file had been provided to Marsdens when he ceased to act for Ms Blanchard. [624] The lawyer for Justice Watts, Mr David Giddy, made enquiries to find the file and was told that Marsdens could not locate it. [625] I am satisfied that it is most likely to have been destroyed in the ordinary course of Marsdens’ practice with respect to archived files.

6. [1192]

   At no time was any file produced by any lawyer who acted for the Accused, including Mr T F Byrne.

7. [1193]

   Whilst the absence of these files may be unfortunate, the Crown and investigating police are not to be criticised for that. I am well satisfied that the detail contained in the documents which comprise the Family Court file [626] enable a comprehensive picture to emerge of the interactions between Justice Opas and the Accused and, as well, of all of the orders made by Justice Opas.

8. [1194]

   With the exception of an application for maintenance made by Ms Blanchard, which was withdrawn after proceedings were initially heard by Justice Baker, Justice Opas presided over all hearings in the Accused’s matter from after the proceedings were transferred to the Family Court at the Parramatta Registry until his death.

9. [1195]

   At all relevant times, there were two principal issues between the Accused and Ms Blanchard before the Family Court. The first of these concerned access by the Accused to his daughter Trudi. The second concerned the Accused’s continued occupation of the former matrimonial home at Tallowood Avenue, Casula.

10. [1196]

    When the matter first came before Justice Opas on 30 April 1979, His Honour referred the proceedings to a Court counsellor for a report. [627] Upon receiving that report, His Honour made three separate orders. The first order was made by consent for joint custody of Trudi, and providing for the Accused to have reasonable access which was defined as “two days per week from 9am to 5pm”. [628] Trudi was about 10 months old at that stage.

11. [1197]

    The second order (which was not made by consent but was nevertheless made on that day) was that the Accused be restrained from assaulting, molesting or otherwise interfering with Ms Blanchard. Third, His Honour in Chambers later that day ordered that the access orders were to be supervised by a Court counsellor for a period of six months. [629]

12. [1198]

    The balance of Ms Blanchard's application included a claim for an order that the Accused vacate the matrimonial home at Tallowood Avenue. [630] This was dealt with separately by Justice Opas. Initially the basis for the Accused to vacate the matrimonial home was that it was appropriate that Ms Blanchard and Trudi live there. In due course, the application for the Accused to vacate the former matrimonial home was on the basis that a final division of property assets ought be made which included the sale of the home.

13. [1199]

    The balance of the application concerning the matrimonial home was heard a few days later by Justice Opas on 4 May 1979. [631] Judgment was delivered by him on 8 May 1979. [632]

14. [1200]

    During the evidence of the Accused on 4 May 1979, it was clear that His Honour took quite an interventionist role.

15. [1201]

    In one exchange, [633] the Judge asked the Accused if he was serious about a statement that he had made in his sworn affidavit to the effect that he wanted Ms Blanchard to return home and resume their marital relationship. Justice Opas then put to the Accused that as a matter of common sense, he should move out of the matrimonial home. His Honour put to the Accused “man‑to‑man” that if he was serious about a reconciliation, he would be better leaving the matrimonial home. The exchange ended in this way: [634]

16. [1202]

    His Honour pressed the Accused again and the Accused responded:

17. [1203]

    He was cut off by His Honour, who repeated his view in firm terms, that there was no possibility of Ms Blanchard returning to the marriage.

18. [1204]

    At the conclusion of his judgment regarding Ms Blanchard's application His Honour said: [635]

19. [1205]

    The Accused had said in evidence that he needed the cot for the days he had access to Trudi. [636] As will become apparent, this cot (despite being a relatively small item) became a matter of some significance in later exchanges between Justice Opas and the Accused.

20. [1206]

    I accept that the exchange referred to above was relatively short, and acknowledge that Ms Blanchard's application for the Accused to vacate the matrimonial home was ultimately dismissed by Justice Opas. Nevertheless, it is clear to me from reading the transcript of 4 May 1979 that the Accused did not agree with Justice Opas’ views about his relationship with his wife. Further, the Accused clearly resisted the notion professed by His Honour that leaving the matrimonial home was a matter of common sense. I have not the slightest doubt that the Accused would have resented the Judge speaking to him in this way, which in my view was quite belittling of him and his attitude to his former wife.

21. [1207]

    The other matter demonstrated by the above exchange is that the Accused, even at this early stage, was opposed to having to move out of the house at Tallowood Avenue. He regarded Ms Blanchard's application as entirely objectionable because she was attempting “to throw me out of the house”. This attitude, and opposition to leaving the house, was to become an ongoing issue between the Accused and Ms Blanchard in the Family Court.

22. [1208]

    After Ms Blanchard's application for maintenance was withdrawn on 25 June 1979, [637] the Accused and Ms Blanchard went to meetings with the Court counsellor in August and October 1979. The counsellor, Mrs Edmonds, prepared a report on 16 November 1979. She recorded the attitude of the Accused to Trudi in the following terms: [638]

23. [1209]

    The counsellor summarised her views, which were not favourable to the Accused. Although she did not suggest any change to the existing access orders, a summary suggested that there might be reason to change those orders in the future because the access may have been far too long a time for Trudi. Mrs Edmonds said: [639]

24. [1210]

    The proceedings came before Justice Opas again on 6 December 1979. The report of Mrs Edmonds was handed down to Ms Blanchard's lawyer, Mr Alan Fitton, and to the Accused who appeared that day without a lawyer to represent him. The proceedings were relatively quick, commencing at 12:10pm and concluding at 12:28pm. [640] It is clear from the transcript that the Accused was only told on the day before that the matter was listed, and it is also clear that Justice Opas did the majority of the talking. It will be necessary to refer at some length to the transcript, and the direct interaction between Justice Opas and the Accused.

25. [1211]

    In summary, it is fair to say that the hearing reflected a significant degree of antipathy between Justice Opas and the Accused. Justice Opas, on the one hand, reacted negatively to the behaviour of the Accused and the Accused, on the other hand, reacted negatively to what Justice Opas was saying.

26. [1212]

    His Honour told the Accused at the start of the hearing that nothing very much was going to happen on that day. However, the Judge then immediately delivered a stern lecture to the Accused without any apparent context (except for the receipt by him of the counsellor’s report). I have no doubt that the Accused would have felt quite threatened by what the Judge said, and would certainly have readily concluded that the Judge had taken Ms Blanchard's side against him.

27. [1213]

    What Justice Opas said to the Accused that day included the following: [641]

28. [1214]

    There was a discussion about the continuation of the supervision by the Court counsellor. Then the following exchange occurred:

29. [1215]

    I am satisfied that the Accused would have left the courtroom with the lasting impression that Justice Opas had threatened the Accused with a term of imprisonment, threatened to adversely change the access arrangements and, in a demeaning way, suggested to the Accused that he held an inappropriate attitude that might adversely affect him in the future. Moreover, these threats were made in the absence of any evidence other than the counsellor’s report (the contents of which the Accused disputed). As well, his Honour reminded the Accused that his occupation of the matrimonial home had not been decided on a final basis.

30. [1216]

    On 15 April 1980, the Accused’s lawyers filed an application for contempt against Ms Blanchard for denying the Accused access to Trudi in accordance with the Court’s order. [642]

31. [1217]

    On 17 April 1980, Mrs Edmonds prepared a further report for Justice Opas which included a description about the phone calls which she had received and made in December 1979. She recorded this description of her telephone interaction with the Accused: [643]

32. [1218]

    Mrs Edmonds then included a reference to the contempt application which the Accused had filed. She largely recounted Ms Blanchard's version of the incident which, if accurate, cast a poor light upon the Accused. She informed Justice Opas that she had not obtained the Accused's account of the incident because of “…the absence of his willingness to relate to the counselling service…". [644]

33. [1219]

    The Accused’s application that Ms Blanchard be dealt with for contempt came before Justice Opas on 22 April 1980. His Honour had by then received the report of the counsellor, Mrs Edmonds, although neither of the parties were aware of that fact until the proceedings commenced. The Accused was personally present in Court at the hearing. He was represented by a lawyer, Mr McDonnell, who appeared as an agent for Mr Stephen Doran, the lawyer on the record for the Accused. [645] Mr McDonnell had not previously appeared for the Accused in these proceedings. It seems clear, and I would infer, that Mr McDonnell was present and prepared only for the contempt application which was listed that day for its first return date before the Court. It is not clear the extent to which Mr McDonnell was fully instructed on all aspects of the Accused’s matter, in particular other access issues. It is also not clear the extent to which Mr McDonnell had had the opportunity to hold a conference with the Accused about these broader matters in his family law dispute.

34. [1220]

    Both the Accused, and no doubt Mr McDonnell and others in the Court (such as Ms Blanchard's lawyer Mr Nelson), would have been somewhat surprised, and in my view probably startled, by how Justice Opas opened the hearing. Immediately after appearances for the Accused and Ms Blanchard had been announced to the Court, Justice Opas commenced the proceedings by asking Mr McDonnell directly: [646] “Has your client returned the baby cot to the mother?”

35. [1221]

    When Mr McDonnell responded that he did not know, Justice Opas directed him to find out in abrupt terms saying “ask him”. Mr McDonnell did so and responded in the negative. His Honour then said: [647]

36. [1222]

    When he gave evidence in this trial, the only thing that Mr Nelson remembered about the proceedings on that day “… was a reference to a cot”. [648]

37. [1223]

    Having told Mr McDonnell that he wanted to hear from him later as to whether there should be a suspension of overnight access, his Honour then, in what seems to me to have been a somewhat gratuitous remark, told Mr McDonnell that the application for contempt “…was not worth the paper it was written on”. [649]

38. [1224]

    The matter was then stood down in the list to enable the counsellor’s report to be read by the lawyers and no doubt discussed with their clients.

39. [1225]

    The proceedings were recorded as having started on that day at 12:02pm, [650] and that they concluded at 3:35pm. [651] It is clear that the proceedings were not continuously heard for 3½ hours. They took significantly less time than that. It was also apparent that after the counsellor’s report had been handed down, the proceedings were adjourned and resumed at some later point in time (most probably after the luncheon adjournment). This seems to be confirmed by the reference by Mr McDonnell to an exchange with the Bench to the counsellor’s report being handed out “this morning”. [652] When the matter resumed, issues about the exercise of access by the Accused were prominent. It seems clear that his Honour was dubious about the various statements of fact that Mr McDonnell was putting to the Court on behalf of the Accused. [653]

40. [1226]

    His Honour’s remarks remained critical of the Accused. They included:

41. [1227]

    After further discussion about the provision of money by the Accused to Ms Blanchard for the purpose of her buying a cot to use at the house where she lived, his Honour again expressed some doubt about the Accused’s explanation. He said: [654]

42. [1228]

    At this point the Accused directly spoke to the Court. The following exchange occurred:

43. [1229]

    Ms Blanchard’s lawyer, Mr Nelson, then raised the question of what orders might be sought when the matter next came before the Court. The following exchange occurred: [655]

44. [1230]

    There was then further discussion in which Mr McDonnell asked his Honour not to make orders suspending access. His Honour responded: [656]

45. [1231]

    Mr Nelson indicated that that would be suitable. His Honour was then asked for specific date (which, once offered, he said was not suitable). He then asked about the following week and the matter was fixed on a specified day, that being 20 May.

46. [1232]

    Then, somewhat unexpectedly, and contrary to what his Honour had said a few moments before, his Honour then said this: [657]

47. [1233]

    He then asked Mr McDonnell if there was anything he wished to say about that. Mr McDonnell made submissions to the effect that it would be unreasonable for the Court to suspend access, and it would deprive the child of the benefit of the access.

48. [1234]

    His Honour then said this: [658]

49. [1235]

    Mr McDonnell put further submissions, addressing the relevant issues which included: [659]

50. [1236]

    Mr McDonnell put further submissions, at the conclusion of which His Honour said that pending further order of the Court, the prior access order was suspended. His Honour gave no specific reasons for the making of that order at that time, or at all.

51. [1237]

    The Accused could only have left the Court in a somewhat bewildered and extremely angry state. He had attended Court on the first return date of his application that Ms Blanchard to be held in contempt for her failure to comply with Court-ordered access. He was no doubt looking forward to Ms Blanchard being required, at the least, to resume providing him with the access that had existed previously. He was there not with the lawyer that he had chosen but rather with the lawyer's agent. The proceedings had commenced with a direct question from Justice Opas about the return of the cot and an assertion from the Judge (wrongly it seems) that the Accused had given more than one undertaking, including on oath, to return the cot.

52. [1238]

    Furthermore, the Accused was spoken to directly throughout the application in admonishing terms by Justice Opas, even though his lawyer was present. Justice Opas then relied seemingly solely upon the counsellor's report (which the Accused regarded as having some errors in it) to suspend the orders giving the Accused access to Trudi, notwithstanding proper submissions by Mr McDonnell drawing attention to the possibility of harm to the Accused’s daughter.

53. [1239]

    The Accused, I'm satisfied, would have felt entirely disgruntled with the Family Court and Justice Opas for his treatment that day. He could only have thought that he was entirely in the right about the cot, precisely because the Family Court file shows he in fact had not given any undertaking at all. This was therefore the second successive occasion in Court before Justice Opas (the earlier one being December 1979) when he would have concluded that Justice Opas had clearly formed an adverse opinion of him and that nothing he did or said seemed to have any effect on the orders which Justice Opas made. He also knew that the matter was to come back before Justice Opas again on 20 May 1980. He would not have been enamoured of Justice Opas.

54. [1240]

    On 1 May 1980, an appeal was filed by the Accused. [660] On 2 May 1980, the proceedings came back before Justice Opas, late in the afternoon, upon an application by the Accused to stay the order made by the Judge on 22 April 1980. The Accused was represented by Mr Coleman of counsel. [661] Mr Coleman's principal submission in support of the order being sought was that the order made on 22 April 1980 by Justice Opas suspending access was made to punish the Accused. [662] It seems clear that this submission reflected one entirely rational view of what had occurred on 22 April 1980. It would have appeared that way, I'm satisfied, to the Accused himself, and not just to his barrister.

55. [1241]

    It does not appear that either the Accused or Ms Blanchard were present in Court on that occasion, however the evidence in this trial does not enable me to make a finding as to whether they were present or not.

56. [1242]

    Justice Opas dismissed the application by the Accused to stay the orders that he had made suspending access. [663] I am satisfied that outcome would have been conveyed to the Accused. [664]

57. [1243]

    On 13 May 1980, the lawyer for Ms Blanchard filed an application, which was given a return date of 18 July 1980, [665] seeking final orders relating to the sale of the matrimonial home at Tallowood Avenue. The application sought an order that the net proceeds of the sale be divided 80% to Ms Blanchard and 20% of the Accused. The application sought orders for the division of other property equally, the payment of increased maintenance and the return of identified property. As well, Ms Blanchard's application sought sole custody of Trudi and an order suspending the Accused’s access to her. There were two affidavits of substance sworn by Ms Blanchard and filed in support of the application. [666] As well, Ms Blanchard also filed an Application for Dissolution of Marriage. [667] It too was returnable on 18 July 1980.

58. [1244]

    The existing proceedings dealing with access to Trudi were listed before, Justice Opas on 20 May 1980. As there does not appear to be a transcript of those proceedings, it is necessary to infer the course of the day. The parties appear to have attended before the Court counsellor on that day who dealt with the access matters. After attending upon Ms McNamara, a Court counsellor, the Accused and Ms Blanchard agreed to access orders regarding Trudi - being two days per week between 9am and 5pm. There was no agreement recorded regarding overnight access. It appears that Ms Blanchard and the Accused agreed to some other orders about the property and access application which orders required the parties to attend a conference with the Registrar of the Court on 30 June 1980. [668]

59. [1245]

    It is convenient to note here that the consequence of the agreement between the parties restoring ongoing access was that the appeal filed by the Accused on 1 May 1980 became moot. The original order made by Justice Opas on 22 April 1980 was an interlocutory one. It was made “pending further order”. [669] Once the further order was made, as it was on 20 May 1980, there was no order extant from 22 April 1980 upon which the appeal could operate. There was then no basis for the appeal to proceed and there is no record in the Family Court file that it did. After the agreement was reached on 20 May 1980, the appeal was entirely irrelevant.

60. [1246]

    The only other evidence as to what occurred in Court on that day, which will be discussed at a later point, is what can be inferred from the form of the orders made by Justice Opas. [670]

61. [1247]

    There was no further interaction between either the Accused or Ms Blanchard before Justice Opas, or in the Family Court generally, over the subsequent five weeks leading up to 23 June 1980, when Justice Opas was murdered.

62. [1248]

    The Crown submitted that the nature of the words spoken by Justice Opas to the Accused and the contents of what the Accused said to Justice Opas allow for the inference to be drawn that the Accused was angered by his treatment in the Family Court by Justice Opas. This inference is strengthened by the orders made by Justice Opas on 22 April 1980, which completely removed the Accused’s access to Trudi. The Crown argued that the Accused harboured ill‑will towards Justice Opas, which was the motive for him to carry out the murder.

63. [1249]

    The Accused submitted that there was no reason to conclude that he harboured any ill-will towards Justice Opas at all. He submitted in substance that the agreed resolution between Ms Blanchard and him, as indicated by the orders made on 20 May 1980, meant that there was then "no great argument between the parties” and that they agreed that Justice Opas “had got it wrong”. However, whilst the making of the agreed orders restored access, the result achieved says nothing about any ongoing feelings of resentment and antipathy on the part of the Accused towards Justice Opas.

64. [1250]

    It is clear that the agreed orders made on 20 May 1980 restored access to Trudi by the Accused for two days per week. However, Ms Blanchard's application filed on 13 May 1980 for sole custody, with a complete suspension of access by the Accused, remained on foot. Moreover, Justice Opas still imposed a continuing Supervision Order on the Accused’s access to Trudi, although the parties did not agree on that order in their “terms of settlement”. [671]

65. [1251]

    The Supervision Order made by Justice Opas had the effect that a report (or perhaps more than one) was to be made to the Court about any issues arising in the course of the Accused exercising access. These reports had been provided to Justice Opas in the past. I am satisfied the Accused would have contemplated the possibility that the past practice of providing counselling reports to Justice Opas was probably going to continue.

66. [1252]

    Whilst the evidence suggested that short matters would often come before a duty Judge as a matter of ordinary course, this did not seem to be universal as the Family Court file showed that this did not happen in the proceedings between the Accused and Ms Blanchard.

67. [1253]

    I do not accept that the agreement to the consent orders on 20 May 1980 would have been seen by the Accused as overcoming what had occurred between Justice Opas and himself on during the previous six months. Nor do I accept the Accused’s submission that he would have known that any future issues about access would not be likely to come before Justice Opas.

68. [1254]

    On the contrary, I am satisfied that the past history of the matter would have led the Accused to the view that there was a real likelihood that the proceedings would come back before Justice Opas in the future. If that occurred, I am satisfied the Accused would likely have thought that the Judge’s attitude towards him would be the same, and therefore would not be favourable towards him.

69. [1255]

    It follows from my earlier account of the exchanges between Justice Opas and the Accused, and my various conclusions about how the Accused would have felt, that I entirely reject the oral submissions of the Accused to the effect that Justice Opas was “[The Accused’s] friend” [672] or that Justice Opas was a name the Accused would remember “with some pleasure”. [673]

70. [1256]

    These submissions are inconsistent with my conclusions about what occurred involving the Accused and Justice Opas. Justice Opas was not, and could not be found to be “… the favoured judge” of the Accused. [674] These submissions were not just hyperbole, they were devoid of any evidentiary basis. They are rejected.

71. [1257]

    I am satisfied that the behaviour of Justice Opas, in particular what he said to the Accused, the orders which he made and the peremptory and unfair way (as it must have appeared to the Accused) in which they were made, meant that the Accused would have harboured significant ill-will towards Justice Opas for adversely interfering with his access to his daughter.

72. [1258]

    The Crown has persuaded me that this was a sufficient motive for the murder.

A Prophetic Prediction

1. [1259]

   In a record of interview given by Ms Blanchard to Detective Sergeant Wesley on 11 July 1980, [675] Ms Blanchard recounted an occasion when she and the Accused had been at the Family Court in Parramatta in May 1980. She and the Accused had a conversation during a lunch break as they walked to a McDonald's restaurant in Parramatta. The following account was given by Ms Blanchard: [676] :

2. [1260]

   Although no date in May was nominated, the date referred to can be gleaned from a number of questions in the record of interview which made it plain that the conversation occurred on 20 May 1980, which was the day the Accused “regained access to” Trudi. [677]

3. [1261]

   In her evidence in the trial, Ms Blanchard recounted the same conversation with the Accused in similar, although not entirely identical, terms. Her evidence was: [678]

4. [1262]

   In cross examination, it was put to Ms Blanchard that the conversation did not occur at all. [679] She rejected that proposition and reaffirmed that it did. She accepted that there could well have been a discrepancy between the words used in her record of interview of 11 July 1980 and those used in her evidence, because the record of interview did not contain the words “… at all”. Whilst agreeing that there may be a discrepancy, she nevertheless repeated that those were the words which were said.

5. [1263]

   A different conversation was also suggested to Ms Blanchard, [680] namely that the conversation she had with the Accused was about whether Justice Opas would continue to deal with the matter after the appeal. Ms Blanchard rejected this version of the conversation saying that there was no discussion at all about the appeal.

6. [1264]

   Whilst Ms Blanchard was from time-to-time confused in her evidence during the trial, and I do not accept everything that she has said, I nevertheless accept her evidence that the Accused had a conversation with her to that effect.

7. [1265]

   There are a number of reasons for this. First, there is no evidence in this trial which contradicts the fact that Ms Blanchard and the Accused were at the hearing on 20 May 1980, or that they went to lunch. For example, there was no evidence that during the lunch break, either Ms Blanchard or the Accused were in a conference with their lawyers and so the lunch conversation could not have happened. As well, their meeting with the Court counsellor is likely to have been concluded by lunchtime. They had agreed to access orders during that meeting.

8. [1266]

   Secondly, the account of the conversation given to police by Ms Blanchard on 11 July 1980 was reasonably contemporaneous, as it was only about eight weeks after the conversation occurred on 20 May 1980.

9. [1267]

   Thirdly, the suggested discrepancy between the account in Ms Blanchard’s police interview and her evidence in Court is to my mind of no real significance. That is because the words “at all", and the slight changes in wording of earlier aspects of the interaction, do not change the meaning of what the Accused was saying. The effect what the Accused was saying was that Justice Opas would not be at the Family Court for much longer, and his absence was not going to be temporary (i.e. what would occur if he went on annual leave). The message conveyed by what was said by the Accused was that Justice Opas' absence was going to be a long term or permanent one.

10. [1268]

    Fourthly, at the time when Ms Blanchard and the Accused were walking to McDonald's, any appeal by the Accused had become, or else would shortly become (when formal orders were made that day), moot. This is because, as already noted, the appeal was contingent on the April orders remaining in place. On 20 May 1980, when the alleged conversation occurred, new orders replacing the April orders were about to be finalised. The denial by Ms Blanchard of the Accused’s version of the conversation is logical because the underlying basis for such a version is factually unsupported.

11. [1269]

    I am satisfied that what occurred over the course of the day on 20 May 1980 leading up to lunchtime would have made it clear to all involved that the appeal was no longer relevant. The formal orders made by Justice Opas on that day elucidate what happened over the course of the day. [681] The orders show that when the matter first came before the Court on 20 May 1980, Justice Opas referred Ms Blanchard and the Accused to the Court counsellor to obtain a report regarding access to Trudi. This would have been a brief hearing in Court (as Ms Blanchard described). [682]

12. [1270]

    The counsellor then reported back to the Court that she had seen the Accused and Ms Blanchard as directed. She recorded their agreement about access. [683] I am satisfied that the document which is handwritten by Mr McDonnell and entitled “Terms of Settlement” then came into existence after the meeting with the Court counsellor. [684] It records in a little more detail the arrangement for access, as well as other consent orders dealing with the balance of Ms Blanchard's application for property adjustment. [685] After that, the matter came back before Justice Opas for the making of formal orders, as the orders themselves note. [686]

13. [1271]

    The lunch break, according to Ms Blanchard, came between the two court appearances. As it seems to me, the lunch break was likely to have occurred after the counselling meeting. By that time there would have been no question of any appeal.

14. [1272]

    Fifthly, my observation of Ms Blanchard when she gave this evidence, particularly during cross-examination, did not give me any reason to doubt the accuracy of her evidence or the account she gave to police.

15. [1273]

    Sixthly, there is a further contemporaneous account of the conversation which appears in the statement of Detective Wesley dated 29 June 1982. [687] It records that Ms Blanchard was first interviewed on 25 June 1980, about two weeks before the record of interview referred to in [1259] above took place. In this interview, Ms Blanchard gave an account of the conversation with the Accused in terms almost identical with her evidence in this Court. Detective Wesley had died by the time of this trial, so this account did not become the subject of cross-examination. There was no cross‑examination of Ms Blanchard on the issue what she had told Detective Worsley on 25 June 1980 either. Even though Detective Wesley could not be cross-examined, I accept the evidence as recorded by him in the ordinary course of his investigations of the murder of Justice Opas, and I will give it appropriate weight. It supports the contemporaneity of Ms Blanchard's account, which in turn assists in the acceptance of her evidence in this Court.

16. [1274]

    Finally, having recorded the extent of cross-examination above, I note that there was no oral submission made that I should reject the evidence of Ms Blanchard regarding this conversation with the Accused. Rather it seems to me that a more nuanced approach was taken by the lawyers for the Accused. What was put by them in in oral submission was this: [688]

17. [1275]

    From what I can deduce, this is a submission that, on the balance of probabilities the conversation did not occur but, if it did, then it does not carry any sinister inference of the kind that the Crown contended for.

18. [1276]

    I reject this submission. The Crown has satisfied me that the conversation between the Accused and Ms Blanchard occurred on 20 May 1980 (as set out above at [1259]). The words said by the Accused were plain in their meaning. The Accused was telling his former wife that Justice Opas would not be around much longer, and it was not because of any temporary absence such as annual leave. This was said in the context of Justice Opas being the judge who had dealt with all of their Family Court proceedings up until that point in time (with one exception of an abandoned application in June 1979).

19. [1277]

    Just on four weeks after this was said, and before any further hearings of the family law proceedings before any Judge, Justice Opas was murdered. The prophetic prediction of the Accused to Ms Blanchard, that there would be no need to worry about Justice Opas, came true.

20. [1278]

    This is a relevant circumstance upon which the Crown is entitled to rely in proving the guilt of the Accused of the murder of Justice Opas.

Experience

1. [1279]

   The Crown submitted that the Accused had considerable experience in the handling of firearms, including a .22 calibre gun of the kind used to shoot Justice Opas.

2. [1280]

   This is a fact which has not been put in issue by the Accused.

3. [1281]

   The Accused told police when interviewed on the evening of 29 February 1980, [689] that he owned five firearms, being two shot guns, two .22 calibre rifles, a .222 calibre rifle and an air gun. Those firearms were inspected by Detective Sergeant Gibson at that time.

4. [1282]

   The Accused told police on that day that he used to go away often on shooting trips, and that he was “… a firearm buff”. He said that he reloaded most of his own ammunition. Ms Blanchard gave evidence that during the marriage they went on “shooting holidays” to the country, where she and the Accused would rent cottages (apparently on farming land). [690]

5. [1283]

   The Accused was interviewed on 9 August 1980 by Detective Worsley. Mr Doran, the lawyer for the Accused at the time, was present. [691] The Accused was informed that his house had been searched that morning and that the Police taken possession of the firearms described at [1281] above.

6. [1284]

   During a search of the Accused's house at Tallowood Avenue on 31 July 1984, the Police found five firearms in the main bedroom and took possession of two .22 calibre rifles. [692] I note that evidence in the Crown case excluded these weapons as being involved in the shooting of Justice Opas. [693]

7. [1285]

   The evidence that the .22 calibre firearms seized by the Police from the Accused were excluded from being used in Justice Opas’ murder, needs to be considered within the context of the evidence of Ms Judith Charrett who met the Accused in 1980. She said that on one occasion, during a visit to her home, the Accused said of the search by the Police “… they hadn’t got them all because some of them were at his father’s place”. This evidence was not controversial or subject to challenge and I accept it. [694]

8. [1286]

   However, for the purpose of the present issue, there is abundant evidence to satisfy me that as at June 1980 the Accused was a man who had considerable knowledge about, and practical experience in, the use of .22 calibre firearms.

Coincidence

1. [1287]

   As earlier concluded at [1126] above, the murder of Justice Opas (Event 2) was not merely a coincidence with Events 3 to 7 on the Indictment. That is to say, I have earlier held that there are such similarities between the murder of Justice Opas and each of Events 3 to 7 that they likely did not occur by coincidence.

2. [1288]

   Put differently, I am satisfied there is a causal nexus or link between Events 2 to 7. It is highly likely that this causal nexus or link is that the same offender was the perpetrator of Events 2 to 7. As I have already found at [803], I am satisfied beyond reasonable doubt that the Accused is guilty of the Counts on the Indictment relevant to Event 7.

3. [1289]

   This is a circumstance which the Crown is entitled to point to in support of the proof of its case against the Accused.

Tendency

1. [1290]

   I have earlier found at [1138] that, by reason of the fact that the Accused is responsible for the bombing of the Kingdom Hall at Casula (Event 7) in the circumstances and for the reasons which I have found, the Crown has satisfied me that the Accused is a person with two tendencies, namely:

2. [1291]

   This is a circumstance which the Crown seeks to rely upon in proof of the guilt of the Accused with respect to the murder of Justice Opas.

3. [1292]

   However, I note that there arises a degree of discomfort with concluding that, just because the Accused had a proved tendency as at July 1985, this tendency existed in 1980 and can be applied in a consideration of whether the Accused committed an offence at that time.

4. [1293]

   This is not to say that tendency reasoning cannot be applied retrospectively. Rather, given there are five years between 1980 and 1985, I am unconvinced that tendency reasoning is appropriate in this context. Five years is a sufficient number of years for human character traits to potentially evolve or alter. It cannot be readily assumed human nature is always constant over a five year period.

5. [1294]

   This is also not to say that, in all instances, a gap of five years will make tendency reasoning inapplicable. Rather, where the tendency is established by just one event in 1985 and the Crown wishes me to apply tendency reasoning to a different event which occurred in 1980, I am not fully satisfied tendency reasoning is appropriate

6. [1295]

   Consequently, in order to ensure I do not inadvertently prejudice the Accused, I will not apply tendency reasoning in my consideration of Event 2.

No Other Reasonable Hypothesis Exists

1. [1296]

   The Crown submitted that the evidence shows that there are no other reasonable hypotheses for the murder of Justice Opas other than that the Accused was the offender.

2. [1297]

   The Accused identified a number of people who he said may have been responsible for the shooting of Justice Opas and who the Crown had not adequately proved ought to be disregarded as “rational hypotheses consistent with the innocence of the Accused”. For each of these potential suspects, either the Crown or the Accused had tendered police records and, in some cases, oral evidence had been adduced.

3. [1298]

   In submissions, the Accused nominated 14 individuals who, he submitted, the Police had reason to suspect of being responsible for the murder of Justice Opas. He submitted that the Crown was obliged to exclude any of these individuals as perpetrators of the murder of Justice Opas. The Accused submitted the Crown had failed to exclude each of these named suspects.

4. [1299]

   One of the individuals named was Dr Silvano Mariti. He is dealt with elsewhere in this judgment, and need not be considered separately here.

5. [1300]

   Of the others, Nicholas Bower (a pseudonym) was the subject of evidence given by his former wife, Elizabeth Bower (also a pseudonym). The remaining 12 named individuals and their details were contained in Police documents which were tendered and became exhibits in the trial. The submissions of the Accused about these named individuals, speaking generally, argued that such police investigations as were carried out in 1980 (and, in one case, in 1984) were inadequate. It was submitted that, as a consequence, the Crown failed to disprove that each of these people ought not be regarded as a reasonable possibility that they had murdered Justice Opas.

6. [1301]

   I remind myself as a matter of law that for a hypothesis to be regarded as a reasonable one, it must rest upon something more than mere conjecture or supposition.

7. [1302]

   With respect to a number of those named individuals, the Accused submitted that various additional enquiries could have (and should have) been made, or else further checks done, before Police could adequately and properly have eliminated the named individual. However, my view of the adequacy of the Police investigation is not the primary issue for determination. Rather, the issue which I now have to address is whether, on the evidence put before the Court in this trial, the Crown has satisfied me that there are no reasonable hypotheses which are consistent with the innocence of the Accused. That is, whether the Crown has satisfied me on the evidence that it is not reasonably possible for any other person to have murdered Justice Opas.

8. [1303]

   Of course, if there is evidence before me that the Police missed a specific circumstance or fact that points to another individual being the perpetrator, this may be relevant to my conclusion as to the proof of the guilt of the Accused. However, the existence of a mere chance that the Police may or may not have missed discovering an unknown circumstance cannot reasonably form the basis of a hypothesis consistent with innocence. A hypothesis worthy of consideration must have some form of evidentiary basis. These considerations inform the following consideration of alternate suspects.

9. [1304]

   Mrs Bower gave evidence that she was involved in proceedings in the Parramatta Registry of the Family Court with her former husband, Nicholas Bower. She separated from Mr Bower in January 1979. The subsequent family law proceedings dealt with custody and child maintenance. [695] Mrs Bower gave evidence in this trial that the proceedings came before Justice Opas on Friday 20 June 1980, after the parties had been to a meeting with the Court counsellor. The evidence does not disclose the nature of the issue before the Court on that day. Mrs Bower said that the matter was adjourned until the morning of Tuesday 24 June 1980, to be listed before Justice Opas. Both Mrs Bower and her former husband were represented by lawyers before his Honour. Mrs Bower’s evidence is that after Justice Opas left the Bench on Friday 20 June 1980 her husband said to her that if “he [i.e. Justice Opas] gives you the house, I will burn it down”.

10. [1305]

    On Monday 23 June 1980, which was the evening of the shooting of Justice Opas, Mrs Bower was watching her son’s soccer training at Toongabbie at about 5pm. Her former husband was also there watching the training. [696] The soccer training finished about 6pm. Mrs Bower drove to a friend’s house with her children. Her husband followed her in his car. Her husband’s driving was aggressive and Mrs Bower was frightened that he would harm her by colliding with her car. He parked outside the friend’s house and remained there, under observation by his wife, until he drove off at about 7.05pm. Mrs Bower was waiting at her friend’s house for her husband to leave before going home.

11. [1306]

    There is no evidence as to what happened in the proceedings before the Family Court when the matter returned on the morning of Tuesday 24 June 1980, or at any time thereafter.

12. [1307]

    Mrs Bower gave evidence that her former husband had been physically violent towards her during the marriage, [697] and had physically injured her on a number of occasions. His behaviour towards her had also included stalking her and he had told their children that he would kill her.

13. [1308]

    In cross-examination, Mrs Bower agreed:

14. [1309]

    I am satisfied that Mrs Bower did not tell Police about the matters in (b) and (c) above because her former husband had not, in fact, made any threat to harm Justice Opas, and had not expressed any upset at any orders which had been made.

15. [1310]

    Mr Bower, on the evidence, could not have shot Justice Opas. There is no physical possibility that Mr Bower could have left Mrs Bower’s friend’s house at 7:05pm and driven to Woollahra by 7:15pm. There is simply no evidence or other material, except the subjective belief of Mrs Bower that her former husband was capable of “either killing or arranging for someone to be killed”. [701] The basis for that subjective belief is not addressed in the evidence.

16. [1311]

    Even if I were to accept the evidence of Mrs Bower, it is entirely insufficient as the basis on which to form a reasonable hypothesis that her former husband murdered Justice Opas.

17. [1312]

    The Crown tendered contemporaneous police records dated June and July 1980 which referred to Mrs Bower. [702] On 2 July 1980, the lawyer for Mrs Bower informed the Police that the proceedings had come before Justice Opas in early January 1980, [703] and did not come before the Judge again prior to his being murdered. As at 2 July 1980, the matter seems to have been in fact part‑heard before Justice Gibson and was due to resume before him on 29 July 1980. In that interview, Mrs Bower’s lawyer did not mention that the matter had been before Justice Opas on 20 June 1980. The absence of any mention of this, having regard to the context and subject matter of the interview, leads me to conclude that there had not been any hearing in June 1980 before Justice Opas. Mrs Bower’s evidence, including that the threat to burn down the house related to any possible order of Justice Opas, was mistaken.

18. [1313]

    Mr Bower was also interviewed. [704] Nothing he said could support the Accused’s submission that he was a reasonable suspect for the murder of Justice Opas. In fact, the alibi he gave was corroborated by his mother.

19. [1314]

    I observe that it was Mrs Bower who had attended upon the Police and presented them with information regarding her ex-husband on the day after the shooting of Justice Opas. Though this may have been done with the best of intentions, the subjective view of Mrs Bower regarding the character of her ex-husband during an acrimonious divorce is not evidence that, without corroboration, holds a great deal of merit.

20. [1315]

    I am satisfied on the totality of the evidence before me that Mr Bower had nothing whatsoever to do with the murder of Justice Opas. Shortly put, his last (and seemingly only) appearance before Justice Opas was just on six months before the Judge’s murder. Nothing was said in Court at that time to give rise to any antipathy at all between Justice Opas and Mr Bower. Mr Bower had never made a threat against Justice Opas, and he had a complete alibi at the time of the murder. There is no evidence that he arranged for, or was capable of arranging and paying for, another person to shoot Justice Opas for him. Any suggestion of this kind is mere speculation. These matters support the conclusion that I have reached.

21. [1316]

    It is now appropriate to consider the other named individuals raised by the Accused as suspects representing reasonable hypotheses consistent with innocence. These named suspects were drawn from documents recording aspects of the Police investigation, which were tendered in evidence. This tendered material shows that in the weeks and months after the murder of Justice Opas, the Police received information about possible offenders from various sources. Sometimes the sources had direct knowledge of the matters, sometimes they were reporting on the basis of hearsay, supposition and rumour. I do not criticise these various informants for providing information to the Police. No doubt a vast majority thought they were doing their civil duty (though it cannot be discounted that some may have been deliberately mischievous).

22. [1317]

    I bear in mind that the mere fact that an individual was nominated to the Police, and information was provided to the Police about that individual, does not of itself and without more reflect any proper basis for considering that the nominated individual was, or could reasonably be regarded as, the person who shot Justice Opas. Any decision on that issue depends on all of the evidence put before this Court.

23. [1318]

    One nominated individual was Mr Kevin Hughes. [705] Mr Hughes had complained to all of the Senators of the Commonwealth of Australia, by way of a letter dated 20 July 1979, [706] about Judges of the Family Court of Australia and the difficulties which existed concerning their removal from judicial office. This letter did not name any particular Judge. In proceedings with his former wife at the Parramatta Registry of the Family Court, he had appeared before Justice Opas on a number of occasions. The last occasion was in March 1980. [707]

24. [1319]

    On that occasion, Justice Opas had declined to deal with the matter because there was an appeal on foot before Justice Gibson. There is no evidence that this interaction was at all inappropriate. A hearsay description suggested that Justice Opas was “rough with Hughes in Court”. [708]

25. [1320]

    The evidence also reveals that Justice Baker was dealing with the issue of access in Mr Hughes’ proceedings in June 1980. The matter had been stood over before him to 8 September 1980.

26. [1321]

    Mr Hughes was interviewed by the Police in September 1980. [709] He admitted, seemingly freely, to holding a “grudge” against Justice Opas and Justice Watson, but denied any involvement in the shooting of Justice Opas. I note that the grudge he held against Justice Watson arose because that Judge had put him in jail for a period of six months for contempt of Court in December 1978. Mr Hughes said, and his wife corroborated this, that he had never owned a rifle nor had he ever been issued with a shooter’s licence.

27. [1322]

    I am satisfied that Mr Hughes was a man who freely admitted to holding a grudge against Justice Opas and Justice Watson, and that he proposed writing to complain about Justice Baker. [710] However, the only action he ever took was to write letters and make complaints generally about Judges of the Family Court, and the way they dealt with matters.

28. [1323]

    I am satisfied that by June 1980, any frustration Mr Hughes had with Judges of the Family Court was acted upon by writing letters and going to Canberra to lobby public servants and Parliamentarians. The aim of such actions was to advocate for change to the laws (or rules) about dealing with Judges and their decisions in Court.

29. [1324]

    I am therefore satisfied that Mr Hughes had nothing whatsoever to do with the murder of Justice Opas.

30. [1325]

    The next individual nominated by the Accused was Mr Kevin Irvine. [711] Mr Irvine’s name was supplied to the Police by Family Court staff. They recorded that proceedings had been before Justice Opas on Friday 20 June 1980, and had been adjourned until 25 July 1980. The evidence does not reveal what occurred in Court on that day or what orders were made. The only prior dealing between Mr Irvine and Justice Opas was that Justice Opas had issued a warrant for the arrest of Mr Irvine for contempt of Court in June 1979. When Mr Irvine was brought before him a week later, Justice Opas remanded him in custody. Mr Irvine was later sentenced to 12 months imprisonment by Justice Watson.

31. [1326]

    Police records in evidence noted information received from the Family Court that it was believed, on an undescribed basis, that Mr Irvine was a “kangaroo shooter”. This piece of information, which was obviously speculation or hearsay from an unnamed source, was unsupported by any other material in the Police records. Nevertheless, it gave rise to oral submissions by the Accused’s lawyer asking the Court in the absence of any evidence to take judicial notice of the skills of a kangaroo shooter. What such skills were said to be was described orally by the Accused’s lawyer in closing submissions. [712]

32. [1327]

    I reject this submission. The skills of a kangaroo shooter are not a matter for judicial notice. They are a matter for proof by evidence. There was no such evidence tendered upon which I could draw any conclusion of fact, or even a relevant inference.

33. [1328]

    The Police records indicated that Mr Irvine did not have any ill-will towards Justice Opas, [713] and that he had given an alibi for the evening of 23 June 1980. This alibi was corroborated by his girlfriend when she was spoken to by the Police. [714]

34. [1329]

    There is nothing in the material before me which would point to any association at all between Mr Irvine and the murder of Justice Opas. Whilst the Irvine matter had been listed before the Justice Opas on the Friday before his murder, there was no evidence of what occurred, nor was there any evidence that Mr Irvine had any reason to want to kill Justice Opas. In fact, he told Police that the death of Justice Opas was a disadvantage to him because it would delay the finalisation of his matters.

35. [1330]

    The Crown has satisfied me that Mr Irvine is not as a person who either had anything to do the murder of Justice Opas, or who could reasonably be suspected of killing him.

36. [1331]

    On 6 July 1984, a police constable from Frenchs Forest Police Station reported that an individual, Mr Bob Doyle, might be a person of interest in the investigation into Justice Opas’ murder. Mr Doyle was an employed spray‑painter who worked and lived on the Northern Beaches. Six months earlier, whilst drunk at a social function, Mr Doyle told the police constable that he was a “hit man” and that he had been offered a contract to kill Justice Opas. Mr Doyle said that he knew Justice Opas because whilst the Judge had been a barrister, he (the Judge) had acted for him on a single occasion in his divorce proceedings. Whilst at this social function Mr Doyle had also claimed to know who had killed Justice Opas.

37. [1332]

    On 10 July 1984, Mr Doyle attended Manly Police Station to speak with the Police at their request. [715] Mr Doyle said that Justice Opas had eight to ten years previously (i.e. 1974 to 1976) appeared in Court for him when he had sought and obtained access to his children. He said he was satisfied with what Justice Opas did for him and that he had no further contact with him. [716]

38. [1333]

    Mr Doyle agreed that he had met the reporting police constable at a Christmas social function, and confirmed that he was drunk at the time. He gave a different account of the conversation with the constable which had occurred on that occasion.

39. [1334]

    I note that the explosion at the home of Justice Watson occurred two days before the report from the police constable about a six month old conversation with an intoxicated Mr Doyle. This, no doubt, is what prompted the report.

40. [1335]

    Assuming that the police constable’s version of what was said in the conversation at the Christmas social function was true, there is still no reason for this Court to think that the content of what was said was at all reliable. After all, Mr Doyle was intoxicated and the police constable did not think that it was necessary or appropriate to report the conversation for at least six months. This is so even though the house of Justice Gee at Belrose (which was within a few kilometres of the Frenchs Forest Police Station) had been blown up in March of 1984.

41. [1336]

    It is unclear from the Accused’s submission whether it was actually being submitted that Mr Doyle was reasonably to be regarded as the person responsible for the murder of Justice Opas, or whether he was being used as an example of the inadequacy of the police investigation in 1984 for failing to consider the possibility that Justice Opas had been killed in 1980 by a person paid to do so at the behest of another. [717]

42. [1337]

    The account given by the police constable, which has the features described above at [1331], does not constitute any rational basis for considering that Mr Doyle carried out the murder of Justice Opas. It similarly does not confirm that Mr Doyle knew who did, nor that, to his knowledge, it was not the Accused. Such a line of reasoning is speculative and unavailable.

43. [1338]

    The Crown has satisfied me that Mr Doyle cannot be regarded in any way as being responsible for the murder of Justice Opas.

44. [1339]

    Three more of the named individuals can be dealt together, as they each provided an alibi for their whereabouts on the evening of the murder of Justice Opas. These named individuals are:

45. [1340]

    These alibis mean that each of these suspects were not, and could not have been, in the vicinity of the Woollahra home of Justice Opas when he was shot. As well, it is notable that each alibi provided was verified by the Police with other individuals.

46. [1341]

    Whilst some of these nominated individuals had complained about orders made by Justice Opas, or had expressed a dislike of him, the evidence of their alibis in respect of each of them are straightforward and corroborated often by people with whom they were in conflict, such as former wives. I am satisfied that in the case of each of these individuals, the Crown has proved that they were not involved in the murder of Justice Opas.

47. [1342]

    I regard any submission by the Accused’s lawyers that any evidence of an alibi was not convincing, as those individuals may have arranged for someone else to carry out the murder for them, to be nothing more than unsupported speculation. The evidence before the Court does not enable any such conclusion to be reached nor the drawing of any reasonable inferences to this effect. Speculative or fanciful inferences are not matters which I regard as having any weight in my deliberations.

48. [1343]

    Another named individual referred to in the Accused’s submissions was Mr John Turnbull. [724] Mr Turnbull was arrested by the Police pursuant to a Family Court warrant on 4 July 1980. Whilst being driven to the Parramatta Police Station, Mr Turnbull expressed his dislike of Justice Opas because when he appeared before him on 5 June 1980, the Judge had remanded him in custody for one week. [725] On 12 June 1980, Mr Turnbull had been released by Justice Opas on condition that he did not go to his former matrimonial home at Oyster Bay.

49. [1344]

    On 8 July 1980, after he had been returned to custody, Mr Turnbull was interviewed by the Police. He held a significant degree of antipathy towards his former wife. [726] Although he had appeared on a number of occasions before Justice Opas, he had never had any serious disagreements with him. He told the Police that he had never threatened or made threats against Justice Opas and he had no reason to kill him, although he did not like him very much. He was unable to give a specific alibi for the evening of 23 June 1980, but he informed the Police of what his usual practice was. [727] If he followed that practice, he could not have killed Justice Opas. Mr Turnbull did not own a motor vehicle on 23 June 1980 and lived in the Oyster Bay area at the time.

50. [1345]

    I am satisfied that was no interaction between Mr Turnbull and Justice Opas which could have provided a reason for him to want to kill the Judge. Mr Turnbull did not have a firearm, nor did he have the means of transport to get from Oyster Bay to Bondi Junction and then Woollahra.

51. [1346]

    I accept that Mr Turnbull told the Police that he did not like Justice Opas. However, if in fact Mr Turnbull was responsible for the murder of Justice Opas in the previous few weeks, it was a statement he would be most unlikely to make, as it might be used against him.

52. [1347]

    I am satisfied that on all of the evidence, Mr Turnbull did not murder Justice Opas, and I am satisfied that the Crown has excluded him as a person who could reasonably be regarded as the perpetrator of the crime.

53. [1348]

    Mr Bela Karolyi was another individual named by the Accused’s lawyer as a reasonable hypothesis consistent with his client’s innocence and which the Crown was required to disprove.

54. [1349]

    The Police had some difficulty establishing where Mr Karolyi lived. His wife had moved to Melbourne with their children. Any access to the children by Mr Karolyi was to occur in Melbourne. No doubt, this contributed to the difficulty which the Police had in finding him. It seems that he was in Melbourne for a period in and after July 1980. [728]

55. [1350]

    The evidence records that Mr Karolyi and his wife had appeared before Justice Opas at Parramatta on 11 June 1980, at which time the Judge ordered that the wife was to have custody of their children and that Mr Karolyi was to have access to them in Melbourne. Mrs Karolyi’s account was that when these orders were made, her husband was of his normal demeanour. He was not heard to make any threats against Justice Opas or herself or their children. [729]

56. [1351]

    Mr Karolyi was interviewed by the Police on 4 November 1980, at the Parramatta Family Court. [730] He told the Police that he was pleased when Justice Opas made the orders for access because it meant that he could see his children in Melbourne. [731] He said that he had never made any threats against Justice Opas. A .22 calibre rifle which he owned was seized for examination. There was no evidence that it was the murder weapon.

57. [1352]

    There was no reason for Mr Karolyi to harm Justice Opas in any way, let alone murder him. There was nothing identified in the evidence capable of giving rise to any rational suspicion that he had anything to do with the murder. I am satisfied that the Crown has proved that Mr Karolyi was not responsible for the murder of Justice Opas.

58. [1353]

    The next named individual about whom submissions were made was a Mr William Lewis. Information about Mr Lewis was provided by the Tasmanian Police to the NSW Police.

59. [1354]

    The source of the information provided to the Tasmanian Police seems to have been double-hearsay - a male informant who was friends with the father of Mr Lewis’ former wife. [732] I therefore do not regard any of this information about the nature and activities of Mr Lewis as being at all reliable or credible unless separately corroborated.

60. [1355]

    Having received this information on 3 July 1980, the Police interviewed Mr William Lewis about his possible involvement in the murder of Justice Opas. [733] Proceedings involving his matrimonial affairs had concluded in March 1978. He did not hold any ill-feeling towards anyone arising out of his divorce and the proceedings. The proceedings had been conducted in Tasmania and had nothing to do with the Parramatta Registry of the Family Court of Australia. Mr Lewis provided the Police with his whereabouts on the evening of 23 June 1980, namely that he was at home after having finished work.

61. [1356]

    There was simply nothing about the material given to the Police about Mr Lewis, and tendered in this trial, which could give rise to any reasonable suspicion or possibility that he had anything whatsoever to do with the murder of Justice Opas. I have been satisfied by the Crown that he did not.

62. [1357]

    The Accused’s submissions then drew attention to an individual, Mr Cusodio Paulino, who had been arrested by the AFP in 1978 by reason of a warrant issued by Justice Pawley of the Family Court. [734] Justice Pawley was not assigned to the Parramatta Registry but sat in the Sydney CBD. Mr Paulino was interviewed. [735] He had never been to the Parramatta Registry of the Family Court of Australia and had never appeared before Justice Opas.

63. [1358]

    On the evidence before the Court, Mr Paulino could not have had any reason to target and murder Justice Opas, of whom he had never heard. He might have held ill-will towards Justice Pawley, but even that remote possibility appears unlikely. There is no evidence that he had anything to do with the murder of Justice Opas.

64. [1359]

    I am satisfied that Mr Paulino could not reasonably be regarded as being a person who had anything to do with the murder of Justice Opas. The Crown has satisfied me that he had nothing to do with the offence.

65. [1360]

    The Accused pointed to Mr Roger Allan Lanyon as a potential suspect who was unreasonably excluded by Police. On 18 July 1980, the Police received information from two informants about Mr Lanyon as a potential suspect in the murder of Justice Opas. [736] Whilst the sources of the information about Mr Lanyon were each identified, the basis of the information that was provided was not identified. It seems to me to be a mixture of rumour and, perhaps, extrapolation from scraps of information. I am satisfied that the information cannot be seen as reliable.

66. [1361]

    Mr Lanyon’s former mother-in-law was spoken to by the Police. She said that she had never heard Mr Lanyon make any threats against any Judge and that to her knowledge, he did not own a firearm. [737]

67. [1362]

    When Mr Lanyon was spoken to, he did not recall Justice Opas or appearing before him. His former wife died in September 1979. Issues about the custody of their son and the two other children of his deceased former wife were being dealt with in 1980 by Justice Baker. The issues of custody related to which members of the extended family would care for all three of the children. [738] Mr Lanyon was not claiming custody. It became clear that his son, who was the subject of the custody dispute, was battling leukaemia in 1980 (which was the condition that caused his wife’s premature death). Mr Lanyon was spending a good deal of time with his son at the Children’s Hospital at that time.

68. [1363]

    It seems that Mr Lanyon’s last appearance before Justice Opas was in June 1979. [739] Since that time, his former wife had died, the only Family Court proceedings were being heard by Justice Baker (which incidentally did not directly impact upon him) and, besides working, he was occupied with caring for his very ill young son in 1980.

69. [1364]

    Though they drew attention to some of these matters, the oral submissions for the Accused merely said that Mr Lanyon had not been eliminated by the Police. Inferentially, it seemed to be submitted that the Crown had not eliminated him as a reasonable suspect for the murder of Justice Opas.

70. [1365]

    Whether or not the Police had eliminated him is not the issue before me. The question before me is whether, on the evidence in this trial, the Crown has disproved any reasonable hypothesis consistent with the innocence of the Accused. There is simply nothing in the evidence upon which to draw any rational suspicion or inference that Mr Lanyon had anything whatsoever to do with the murder of Justice Opas. I am satisfied that Mr Lanyon did not murder Justice Opas. I am also satisfied that the Crown has proved that he was not reasonably to be regarded as even a suspect for the crime. He had no motive to target Justice Opas, and his life was consumed with issues of far greater importance than ancillary family law proceedings that did not even impact upon him. I am completely satisfied that he had nothing to do with this murder.

71. [1366]

    The final person nominated was Mr Alfred Kadunc. Oral submissions were made about Mr Kadunc by the Accused’s lawyer. [740] He referred to matters which were not in evidence. When this was drawn to his attention, he indicated that he would consider the position and return to submissions in due course. He did not do so.

72. [1367]

    The only evidence about Mr Kadunc revealed nothing at all except that he had appeared before Justice Opas on 29 May 1980, [741] at which time it was suggested that Justice Opas told the new boyfriend of Mr Kadunc’s former wife to “shut up”.

73. [1368]

    None of the evidence before the Court is capable of implicating anyone named in these Police records as having any connection with the murder of Justice Opas. On the evidence admitted in the trial, there was no basis for any submission that the Crown needed to eliminate Mr Kadunc, or any other person named in this exhibit. The evidence did not reach a stage of requiring any consideration of their involvement of the murder.

74. [1369]

    For each of the these previously named individuals, the Crown has satisfied me they each had nothing to do with the murder of Justice Opas.

75. [1370]

    It must also be noted that, in addition to each of these suspects, the Accused made submissions about matters concerned with Justice Opas’ widow, Mrs Kristin Opas.

76. [1371]

    Mrs Opas was interviewed by the Police on a number of occasions in the days, weeks and months after her husband was murdered. As one would have expected, a number of questions were asked about the relationship between her and Justice Opas and about their personal life.

77. [1372]

    Mrs Opas was called to give evidence by the Crown and was cross-examined. At the request of the Accused she was recalled for further cross-examination.

78. [1373]

    Before dealing with that evidence, I note that the Accused’s submissions did not suggest explicitly, or implicitly, that Mrs Opas was responsible for the murder of her husband nor that she was in any way involved in his murder. Neither of these propositions was put to her in the course of cross‑examination in any way at all on either of the occasions when she was called to give evidence. Nevertheless, she is described in the submissions of the Accused as one of the primary people who would have been considered as a suspect.

79. [1374]

    The Accused’s submissions were that the Police investigations of various matters relating to Mrs Opas’ relationship with her husband and her private life were entirely inadequate. It was submitted that the Crown could not be said to have excluded all reasonable hypotheses where it or the Police had failed to properly investigate certain matters raised by the Accused pertaining to Mrs Opas’ private life. This submission included a suggestion that the Police should have put each matter of fact of which they were aware to Mrs Opas for her response, and then checked her responses by re‑interviewing other possible witnesses. The Accused’s submissions pointed to the fact that these matters had not been explored at the Coronial Inquest into the death of Justice Opas.

80. [1375]

    In considering these submissions and the evidence given by Mrs Opas, it is necessary to keep in mind that the Police records (which became Exhibits 716 and 717) were each subject to a ruling that there be a limitation on their use in the proceedings. The imposition of this limitation was not objected by the Accused’s lawyer. [742]

81. [1376]

    These exhibits contained information and facts obtained in the course of police investigations from representations made to the Police by a third party (i.e. someone other than Mrs Opas). I remind myself of the limitation placed on the exhibits, namely that these two exhibits were not admitted as evidence of the truth of the contents of the third party representations contained within them.

82. [1377]

    Put differently, just because the Police were informed of the things recorded in Exhibits 716 and 717, those things cannot be relied upon by me in my deliberations as being the truth. They merely represent what the Police were told.

83. [1378]

    Mrs Opas was cross-examined about a number of aspects of her relationship with Justice Opas and their private life. It appeared to me that the source of most of that cross-examination was the hearsay material contained in Exhibits 716 and 717. Mrs Opas was, in my view, particularly convincing in her answers by way of denials to the questions which suggested any impropriety on her part, or any marital discord or disharmony with Justice Opas. I accept her evidence entirely and without reservation.

84. [1379]

    Based upon my acceptance of her evidence, I am satisfied that Justice Opas and Mrs Opas had a happy and fulfilling marriage. [743] I am also satisfied that they were faithful to each and that neither had any other intimate companion during their marriage. [744] In particular, I am satisfied that neither Justice Opas nor Mrs Opas were leading either separate lives or that either had a private life separate from their marital relationship. [745]

85. [1380]

    Mrs Opas rejected a number of allegations about other matters of fact which do not need elaboration. I accept her evidence on these matters.

86. [1381]

    It was finally put to Mrs Opas that, in her evidence in this trial, she had been untruthful. She rejected such a proposition. I accept her evidence to that effect. There is nothing that would enable me, either from facts which are in evidence and to which reference can be made, or anything about her demeanour, the manner of her answering of questions and her composure, which would enable me to find that her evidence in this trial was untruthful. In fact, I find the contrary. She was, in my assessment, an entirely credible witness.

87. [1382]

    The Accused’s submissions often contrasted the hearsay contents of Exhibits 716 and 717 with the answers given by Mrs Opas during her evidence in the trial. Upon the basis of that comparison, the Accused submitted that Mrs Opas’ denials were disingenuous. I reject these submissions for three reasons.

88. [1383]

    First, the comparative analysis inherently relies on the hearsay statements in Exhibits 716 and 717 being an accepted truth. This is contrary to the limitation on their use imposed when they were admitted as exhibits.

89. [1384]

    Secondly, I wholly accept the truth and accuracy of Mrs Opas’ evidence. I rejected these submissions made by the Accused.

90. [1385]

    Finally, as already noted, I reject the proposition that any alleged inadequacies in the Police investigations would, without any further Crown investigations, have the effect that the Crown cannot disprove the existence of a rational hypothesis consistent with the innocence of the Accused.

91. [1386]

    Any such argument fails to address the actual issue with which the Court is concerned. The issue is whether, on the evidence in the trial, a rational hypothesis consistent with the innocence of the Accused can be identified, and whether on all of the evidence the Crown has disproved that hypothesis.

92. [1387]

    In the case of Mrs Opas, the Accused’s submissions (which are quite unclear on this point) seemed only to identify a reasonable hypothesis that Mrs Opas should properly have been regarded as a suspect by those who were conducting the investigation into her husband’s murder. The submissions did not suggest that she may have actually been involved in the murder of Justice Opas. Rather, this submission appears to be simply that Mrs Opas should have been more thoroughly investigated.

93. [1388]

    I do not regard a broad hypothesis that someone may be a suspect and ought to have been investigated further to be relevant. This is so even if it were an established and reasonable hypothesis (which, in this case, I am satisfied that it was not). The issue is whether, on the evidence in the trial, there is material which would constitute Mrs Opas as a person who could reasonably be regarded as a possible alternative perpetrator of the crime. Any hypothesis less than one identifying an alternative perpetrator in this context is not in my view, inconsistent with the innocence of the Accused.

94. [1389]

    Having read all of the written evidence, having heard Mrs Opas’ evidence and having regard to all of the facts and circumstances, I am lead to the firm conclusion that the Crown has satisfied me that Mrs Opas had nothing whatsoever to do with the murder of her husband. Her only involvement was, unfortunately, to be a witness to the circumstances immediately before and after his shooting.

Summary

1. [1390]

   It is now necessary to assess, in light of the previous findings and conclusions, whether the Crown has proved beyond reasonable doubt that the Accused was the person who murdered Justice Opas on Monday 23 June 1980 at Woollahra by shooting him.

2. [1391]

   Ultimately, I have been persuaded by the Crown beyond reasonable doubt that the Accused did murder Justice Opas. My reasons for that conclusion follow.

3. [1392]

   In setting out these reasons, I will not refer to all of the facts, matters and circumstances which I have earlier discussed, and of which I have been persuaded. It is sufficient here to mention some of them in a brief way, and to summarise the effect of all of them.

4. [1393]

   I have weighed up all of the factors in favour of the Crown’s case and all of those circumstances and features to which the Court’s attention was drawn by the Accused.

5. [1394]

   In reaching the conclusions that I have, I am conscious (and have kept in mind) that the Crown’s case is a circumstantial one. No one saw the Accused shoot Justice Opas. No one saw him in the vicinity. No one identified his car as being nearby.

6. [1395]

   Because the Crown’s case is a circumstantial one, I remind myself that I cannot return a verdict of guilty upon this charge of murder unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the Accused. To enable me to be satisfied beyond reasonable doubt of the guilt of the Accused on this offence, it was necessary for the Crown persuade me beyond reasonable doubt that the guilt of the Accused is a rational inference, and that it is the only rational inference that the circumstances would enable me to draw.

7. [1396]

   As I have previously pointed out, and as I now remind myself, because this is a circumstantial case, the Crown must exclude all reasonable hypotheses consistent with the innocence of the Accused. Further, I remind myself that in considering the Crown case, I must consider and weigh up all of the circumstances established by the evidence in deciding whether the Crown has proved its case. I must not look at the evidence in a piecemeal fashion, but I must consider it as a whole.

8. [1397]

   I further remind myself that it is the understanding of the combined significance of all of the facts established and the circumstances which inform me on the issue of whether the Crown has proved the guilt of the Accused beyond reasonable doubt.

9. [1398]

   It is beyond question that Justice Opas was murdered by being shot when he answered the front gate bell at his home in Woollahra. It was obviously a targeted attack. The killer intended to murder the Judge, and did so in a very short space of time.

10. [1399]

    The killer did not need to, and did not, enter the property. Nothing was stolen. The Judge was not seized, whilst alive, to be used as a hostage for ransom. The motivation for the murder was not theft or financial gain or some other malevolent intent. In short, the intent was clearly to murder Justice Opas.

11. [1400]

    The Crown has satisfied me that there was nothing about the personal life of the Judge or his wife which could have given rise to the murder. I am satisfied Justice Opas and Mrs Opas were a happily married couple with two young children who lived life in a usual manner, one which would not cause others to feel ill will towards them.

12. [1401]

    I am well satisfied that Justice Opas, a member of the Family Court of Australia and who sat at the Parramatta Registry, was targeted because of his role and conduct as a Judge of that Court. I am satisfied this would have been by a litigant who felt antipathy towards him because of what he had said or done or both in the course of carrying out his role as a Judge.

13. [1402]

    I have been persuaded that the Accused was capable of carrying out the murder by shooting the Judge. He was an experienced shooter, owned a number of firearms, loaded his own ammunition and was obviously familiar with all aspects of the handling of firearms, including those of a .22 calibre.

14. [1403]

    Having lived within a few kilometres of Justice Opas’ house for a number of years, the Accused was generally familiar with the local area where the murder took place.

15. [1404]

    The Accused was not at work at the Fairfield Fire Station at the time of the shooting. There was more than sufficient time for him to drive his car from Fairfield to Woollahra at the end of his shift on 23 June 1980, park his car and to confront Justice Opas at the front gate of his house at around 7.15pm.

16. [1405]

    The Accused’s motive has been well established by the Crown. It was very clear that soon after separation from Ms Blanchard, the Accused was determined to have access to his daughter when it suited him and to obtain full custody, as he told Ms Charrett in 1980. [746]

17. [1406]

    Justice Opas made a number of orders which significantly impacted upon the Accused’s freedom of access to his daughter, Trudi. These orders included insisting upon the supervision of the Accused’s access to Trudi by the Family Court Counselling Service, with regular (at least six monthly) reports back to Justice Opas. As a consequence the Accused knew that any breaches of the custody order could, and would be, recorded and reported.

18. [1407]

    In December 1979, the Accused demonstrated an attitude of contempt for the Court Counselling Service and declined to engage with them. At that time he clearly exhibited an attitude which confirms in my mind that he did not want anyone in the Family Court to do anything which might impact upon his gaining access to Trudi whenever it was convenient for him to do so.

19. [1408]

    In the six months or so leading up to the murder of Justice Opas, I am satisfied, on the balance of probabilities, that the Accused would have perceived that he was being treated very unfairly by the Judge and that he was angry about that.

20. [1409]

    Finally, the hearings in April and May 1980 had resulted, initially, in an order completely suspending the Accused’s access to his daughter for a four week period without any reasons being expressed. This particularly significant order was made in a hearing at the start of May. Justice Opas then refused to ameliorate the effect of the suspension of the access order when he had the opportunity on 2 May 1980. The suspension order was left in place. Even the resolution between the parties with agreed orders, which was reached on 20 May 1980, ended up adversely affecting the Accused’s access to his daughter in two ways. First, it did not provide for any overnight access. Secondly, although the parties did not suggest this, Justice Opas himself imposed a continuation of the order for supervision of access by the Court counsellor for a further six month period, including a requirement for ongoing reports.

21. [1410]

    Having regard to the listing of the proceedings from the time they were transferred to the Family Court up until 20 May 1980, I am satisfied that the Accused would have anticipated that the custody and access issues would continue to be presided over by Justice Opas (as well as, on the probabilities, likely the application dealing with the matrimonial property). This is primarily because Justice Opas had dealt with the matter on every occasion (with the exception of an application on one day in mid-1979, which was not ultimately pressed). The Accused had no reason to think that his treatment by the Judge would be any different in the future with respect to these matters than it had been since December 1979.

22. [1411]

    The Crown has satisfied me that the Accused had a strong anger towards, and antipathy towards, Justice Opas arising out of the proceedings being heard at the Parramatta Registry of the Family Court, which would provide a motive for his murder.

23. [1412]

    It was most significant that at lunchtime on the last day that the proceedings came before Justice Opas (20 May 1980), and before the proceedings had finally concluded, the Accused told Ms Blanchard that Justice Opas was not going to be around much longer. Upon questioning this statement further, Ms Blanchard was told by the Accused that Justice Opas was not going be there at all. To me this was the Accused knowingly and prophetically predicting the death of Justice Opas – which in fact occurred just over four weeks later.

24. [1413]

    I regard these statements made by the Accused to Ms Blanchard as indicating that by that time (halfway through the appearance on 20 May 1980) he had come to the conclusion that Justice Opas was going to be murdered. There was no other basis available upon which it could be said that Justice Opas would no longer be around at all, and that he would not be presiding over the matter between Ms Blanchard and the Accused.

25. [1414]

    The Crown has also persuaded me that there was no-one else identified on the evidence before the Court who murdered Justice Opas. Put differently, I am satisfied that the Crown has proved that there is no reasonable hypothesis consistent with the innocence of the Accused in respect of the murder of Justice Opas.

26. [1415]

    The combination of all of these circumstances, together with the context of all of the evidence the Crown has proved and relied upon (including the absence of any other reasonable hypothesis consistent with the innocence of the Accused), have persuaded me beyond reasonable doubt that the Accused murdered Justice Opas.

27. [1416]

    As is apparent, I have reached this conclusion without reference to the evidence and proved facts about any of the other Events 3 to 7, or Event 1. As I have earlier explained, I am satisfied that the murder of Justice Opas did not occur by coincidence with Events 3 to 7, but was causally linked.

28. [1417]

    I have found the Accused guilty of the offences contained in Counts 11 to 24 on the Indictment which relate to Event 7. I am satisfied that the bombing of the Kingdom Hall was directly related to the issue of the Accused’s access to his daughter Trudi, as is the murder of Justice Opas.

29. [1418]

    I am entitled to, on the basis of coincidence reasoning, take into account the circumstance that the Accused is guilty of the offences relating to Event 7 and that there is a causal link between Events 7 and 2. If I were to do so, then such proved circumstance significantly adds to, and strengthens, the Crown’s proof beyond reasonable doubt that the Accused is guilty of the murder of Justice Opas.

30. [1419]

    In reaching my conclusion about the guilt of the Accused for this offence, I note that I have not taken into account at all the tendency reasoning relied upon by the Crown. I have found that the Crown has established, as a consequence of the guilt of the Accused for the offences arising in respect of Event 7, that he has the tendencies described above at [1290], as at July 1985.

31. [1420]

    It would not be appropriate, in my opinion, to reason that such tendencies had necessarily existed five years earlier, in June 1980, when Justice Opas was murdered and to take such tendencies into account as circumstances relevant to the proof of the guilt of the Accused of an offence in June 1980.

32. [1421]

    To me, in the circumstances of this case, tendency reasoning can be more readily applied prospectively once established, rather than retrospectively. An exception to this may be if the tendency is caused by, relates to or arises from a known physical or psychiatric condition which existed from an earlier point in time. But the evidence here does not establish the existence of any such condition. Nor was it said by the Crown that the tendencies arose from any such condition. Rather, the Crown has proved that the tendencies existed by reason of the finding of the guilt of the Accused in respect of the offences relating to Event 7.

33. [1422]

    Accordingly, in reaching my conclusion that the Crown has proved the guilt of the Accused, I did not rely on tendency reasoning in any respect.

34. [1423]

    I find that the Crown has satisfied me beyond reasonable doubt of the guilt of the Accused for the offence of the murder of Justice Opas at Woollahra on 23 June 1980, as set out in Count 2 of the Indictment.

35. [1424]

    On the morning of Sunday 10 February 1985, Mr Peter Tall, who lived at 12 Kira Avenue, Northmead, found an unexploded bomb in his car. Moments earlier, he had inserted the key into the ignition but had changed his mind about starting the car. His spur of the moment decision to not start his car saved his life and, most probably, the lives of others, because the bomb inside his car was designed to explode when the car was started.

36. [1425]

    As with each of the other Events, there were no eyewitnesses to the placing of the bomb into Mr Tall’s Holden Torana motor vehicle. The Accused was not seen by anyone in the Northmead area late on the evening of 9 February 1985, or in the early hours of the morning of 10 February 1985.

37. [1426]

    As with each of the other Events, the Crown’s case is a circumstantial one. I remind myself that because this is a circumstantial case, I must keep in mind and apply the circumstantial evidence direction, as found earlier in this judgment at [88]-[92].

Counts on the Indictment

1. [1427]

   The Accused is charged with the offence in Count 9 on the Indictment, namely that he placed an explosive substance into a vehicle parked at 12 Kira Avenue, Northmead with intent to commit murder.

2. [1428]

   It is not in issue in these proceedings that the bomb comprised high explosives and that it was placed in a motor vehicle parked in the driveway at 12 Kira Avenue. Nor is it in issue that whoever placed the bomb did so with an intention to murder.

3. [1429]

   The evidence called and tendered by the Crown has established beyond reasonable doubt each of the elements which are necessary for the proof of the offence in Count 9.

4. [1430]

   The only issue is whether the Crown has proved beyond reasonable doubt that it was the Accused who placed in the bomb in the motor vehicle and connected it so that it would explode when the engine was started. The Crown must satisfy me of this element beyond reasonable doubt in order for a verdict of guilty to be entered on Count 9 on the Indictment.

5. [1431]

   Count 10 on the Indictment charges a different offence in the alternative to Count 9. The difference relates, as with Counts 3 and 4 (which dealt with the bombing of Justice Gee’s home) as well as Counts 7 and 8 (which dealt with the bombing of Justice Watson’s home), to the nature of the intention of the perpetrator. As the intention to commit murder is not in issue and has been proved by the Crown beyond reasonable doubt, the alternative Count 10 does not arise. A finding on Count 9 that the Crown has not proved the guilt of the Accused would mean that the Crown must also fail on Count 10. There is therefore no need to consider Count 10 separately.

Crown Case

1. [1432]

   The Crown’s case is that, although the bomb was found in the motor vehicle owned by Mr Peter Tall and that it was designed to detonate when the car was started, the actual target of the bomb was in fact Mr Garry Watts (now a Judge of the Family Court of Australia). Mr Watts (as he then was) was the lawyer acting for Ms Blanchard at the time in the unresolved family law proceedings between the Accused and Ms Blanchard, which were then on foot in the Parramatta Registry of the Family Court. The Crown argued that Mr Watts was the target because he and his firm Ledlin Watts & Associates had since being instructed in late 1982, taken a much more assertive stance in Ms Blanchard’s family law proceedings in at least two respects. First, in seeking orders which confined the Accused’s access to his daughter to, eventually, one Saturday per fortnight. Secondly, in insisting on the sale of the former matrimonial home, including seeking orders which would force the Accused to vacate the home.

2. [1433]

   The Crown relied upon the fact that the house at 12 Kira Avenue, Northmead was owned by Mr Garry Watts until 29 June 1984, when it was transferred to Mr Jeffrey Evans and his wife, Mrs Maureen Evans. [747] After a short period of time living in the house, Mr and Mrs Evans then leased the house to Mr Tall and his two fellow-tenants through a real estate agent.

3. [1434]

   In February 1985, Mr Watts was still recorded as living at the Northmead property according to both the 1984 and 1985 White Pages Telephone Directory.

4. [1435]

   Finally, the Crown pointed to the fact that there was absolutely no reason for any of the tenants (or the owners) as at February 1985 to be the subject of a targeted bombing attack.

5. [1436]

   The Crown relied on the fact that this Event did not happen as a coincidence, when the other events on the Indictment are taken into account, as a circumstance that points to the guilt of the Accused. The Crown argued this Event was one of six Events linked to the Accused’s matter at the Family Court at Parramatta and that were causally linked, commencing with the murder of Stephen Blanchard in 1980 and ending with the bombing of the Kingdom Hall of the Jehovah’s Witnesses in July 1985. That is to say that each of the Events did not happen coincidentally but, rather, were committed by the same person or persons.

6. [1437]

   Having regard to the fact that the Accused has been found guilty of Events 2, 3 and 7, the use of coincidence reasoning is a circumstance strongly favouring a finding of guilt for this offence.

7. [1438]

   The Crown also relied upon the fact that the Accused was a person who as at February 1985, was a person with two established tendencies, namely:

8. [1439]

   The Crown submits that this is a circumstance which points to the guilt of the Accused for the offences set out in Counts 9 and 10 on the Indictment.

Submissions of the Accused

1. [1440]

   The Accused denied constructing and placing the bomb in Mr Tall’s car on the evening of 9 or 10 February 1985. He submitted that the Crown’s argument that the target was Mr Watts, and not Mr Tall, was flawed. The Accused pointed to the fact that there were a number of residential addresses listed in the White Pages under names which could have belonged to Mr Garry Watts (Ms Blanchard’s lawyer) and that, accordingly, the perpetrator would have had no way of determining which address was correct.

2. [1441]

   Further, the Accused submitted that he had never seen Mr Watts in Court nor had he spoken to him. He submitted that the evidence did not show that he knew that Mr Watts had the carriage of Ms Blanchard’s matter.

3. [1442]

   The Accused submitted that there were three hypotheses consistent with his innocence open on the evidence. First, that one of the two owners of the house, Mr Jeffrey Evans, was the intended target. The Accused submitted that Mr Evans may have been targeted because he worked, up until a short time before the bomb was discovered, for Thiess Watkins, a company which the Accused submitted was well known to be corrupt. The Accused also pointed to the fact that Mr Evans dealt regularly with trade unions and this might have given rise to a reason for someone to attack his house. Finally, the Accused submitted that the fact that there had been some interference with Mr Evans’ mail in the time frame around the bombing indicated that someone was targeting him, and therefore he was the intended target.

4. [1443]

   The second hypothesis relied upon by the Accused was that Mr Tall, the owner of the car and a tenant living in the property, was the target. He submitted that the activities of those living in the house were such as to give rise to a realistic possibility that Mr Tall was the intended target. He further submitted that a previous motor vehicle accident involving Mr Tall would also have made him a target.

5. [1444]

   Finally, the Accused submitted that it was an entirely reasonable hypothesis that if Mr Watts were the intended target, it would have been for reasons unrelated to his representation of Ms Blanchard.

6. [1445]

   The Accused pointed to the fact that a fire had occurred at the Bankstown office of Ledlin Watts & Associates which Mr Watts thought might have been deliberately lit. The Accused said that this meant that there was obviously a person (unidentified by the Accused) who had an issue with Ledlin Watts & Associates and had carried it over to place the bomb in the motor vehicle.

Events of 9 and 10 February 1985

1. [1446]

   As at 10 February 1985, Mr Tall was one of three tenants living at 12 Kira Avenue, Northmead. Sometime between 9am and 10am on the morning of 10 February 1985, Mr Tall went outside with the intention of undertaking some mechanical work to his Holden Torana motor vehicle (the “Holden Torana”), registered number GWQ 934. He had in mind replacing the engine exhaust pipe, which had a leak, in order to have the vehicle pass a registration inspection which was due. [748]

2. [1447]

   The Holden Torana was parked outside the house on a slightly sloped concrete driveway. Mr Tall planned to start the car, allow it to warm up, and then drive it into the garage (which had a level floor) so that he could safely jack the car up and undertake the work. [749]

3. [1448]

   He initially opened the driver’s side car door, sat in the driver’s seat and put the key in the ignition. At that point, he changed his mind and decided that he would not move the car into the garage. [750] This decision was, as it turned out, extremely fortuitous and certainly saved Mr Tall’s life.

4. [1449]

   In preparation for the work to be undertaken, Mr Tall walked to the boot of the car and removed the necessary tools to fix the exhaust leak. He then pulled the release latch on the car’s bonnet and walked to the front of the car to raise the bonnet and examine the engine. Upon raising the bonnet, he observed loose wires running across the top of the radiator cowling. The loose wires were connected, he thought, to the battery. He followed the wires and found that they were connected to a package upon which he read the words “ICI, Molanite, 1 kilo”. He had never seen such a thing before. He had not put the package or its components there.

5. [1450]

   Mr Tall went back inside and spoke to his friend, Mr William Adams, about what he had found. They went outside together and had another look at what was under the bonnet, and then called 000. The 000 call was received at about 10.15am on that day. [751]

6. [1451]

   As a result of that call, Detective Sheather attended the scene at 12 Kira Avenue, Northmead with Detective Ransome. Detective Sheather was the Officer in Charge of the Ballistics Unit of the NSW Police, which had the responsibility of dealing with bombs.

7. [1452]

   Detective Sheather was at that time familiar with bombs. He had undertaken courses run by the Royal Australian Army Ordnance Corps, the Federal Bureau of Investigations in the US and the United States Army in Alabama in the US. He had also examined techniques adopted in explosive ordnance disposal and post-blast analysis in a number of international Police Departments, including multiple US police departments, Scotland Yard in the United Kingdom and with the Belfast police in Northern Ireland. He was a member of the International Association of Bomb Technicians and Investigators. He held a Shot Firer’s Certificate of Competency issued by the Department of Industrial Relations. [752]

8. [1453]

   In all respects, he was appropriately qualified to recognise a bomb when he saw one. He was also qualified to understand how a particular bomb might be configured, how it could work and what the consequences of an explosion of that bomb might be.

9. [1454]

   Together with Detective Ransome, it was Detective Sheather’s role to render safe the bomb that Mr Tall had discovered in his car. When he first approached the Holden Torana, Detective Sheather observed four cartridges of high explosives which were tied together with heavy white twine. He saw that there was a further piece of twine that appeared to be forming a carry handle at the top of the bundle of explosives. The high explosives were situated partly on the engine and partly on the brake-booster immediately in front of the driver’s seat of the car. He observed that the detonator inserted into the cartridges of explosives was a No.6 ICI Copper Cup Instantaneous Electric Detonator (“the detonator”). One lead wire from the detonator was attached to the positive terminal of the car battery by means of an alligator clip, and the other lead wire was attached to the engine coil. [753]

10. [1455]

    Detective Sheather formed the view that the construction of the bomb was such that when the ignition was turned on, a power current would flow to the detonator which would then explode and in turn set off the high explosive cartridges. I accept this assessment of the configuration of the bomb.

11. [1456]

    All of Detective Sheather’s observations are reflected in the many photographs taken of the bomb whilst it was in situ under the bonnet of the Holden Torana, and also after it had been removed. I accept Detective Sheather’s evidence about this bomb, which was corroborated by Detective Ransome, also an experienced member of the Ballistics Unit.

12. [1457]

    Detectives Sheather and Ransome then rendered the bomb safe from a place of protection (a safe distance from the car). The principal step in rendering the bomb safe was to withdraw the detonator from the bundle of high explosive cartridges, following which the wires were disconnected from the coil and battery of Mr Tall’s car.

13. [1458]

    Detective Sheather, after removing the bomb, examined the cartridges of high explosive and observed that the trade name printed on the cartridges was “Molanite 110”. He measured the cartridges, which were 410mm in length and 55mm in diameter.

14. [1459]

    According to Detective Sheather, one unusual feature of the construction of this bomb was that the high explosive cartridges were tied together with string or twine. Whilst in his experience he had seen high explosive cartridges bundled together, they had always been held by sticky tape or gaffer tape or something similar. He had never previously encountered high explosive cartridges tied together by string or twine. [754]

15. [1460]

    Detective Sheather spoke with a senior officer at ICI, Mr Paul Kohout, who examined the detonator and confirmed that it was a No.6 ICI Copper Cup Instantaneous Electric Detonator and that it was in working order. [755]

16. [1461]

    In the course of undertaking further investigations, the detonator was exploded and the remnants sent to the MRL for further analysis.

17. [1462]

    The high explosive cartridges were submitted to Mr Gothard at the DAL of the Department of Health at Lidcombe. He received and analysed them on 14 February 1985. He concluded that the items were found to contain aluminium particles, ammonium, sodium and nitrate. These are chemical components ordinarily found in Molanite. Based on the chemical composition found by Mr Gothard, as well as the wrapper which (when in an unexploded state) described the substance as Molanite, I am satisfied that the four high explosive cartridges were Molanite. That was the type of wrapper in which ICI produced Molanite, and the content of the high explosive cartridges had chemical components consistent with them being Molanite. As is obvious from the tests carried out by Detective Sheather, the detonator was a live detonator capable of functioning when attached to a power source.

18. [1463]

    Detective Heffernan, in his evidence (which I accept), described an exercise undertaken by members of Task Force Reddan whereby a similar vehicle to Mr Tall’s car was subjected to a similar bomb as that found by Mr Tall. [756] This exercise was filmed, and was intended to show the effects upon a motor vehicle similar to a Holden Torana of the detonation and explosion of a bomb of the size found Mr Tall’s car. It was obvious from that exercise that had the bomb been detonated in February 1985 by Mr Tall turning the ignition on and starting his car, the size of the explosion was such that anybody in the test vehicle would have been killed. I am satisfied the elements of the police reconstruction were sufficiently similar to the context of the bomb in Mr Tall’s car to replicate what was likely to have happened if that bomb exploded.

19. [1464]

    Having regard to the bomb being immediately in front of the driver’s seat of Mr Tall’s car, and the method of ignition requiring a person to be seated in the driver’s seat, I am satisfied that whomever placed the high explosive in that position intended to kill the driver. Having regard to the size of the explosion, had there been anyone else in the car, they too would have been killed.

20. [1465]

    At the time the bomb was placed in the Holden Torana, it was parked in close proximity to the house at Northmead. Had there been an explosion, then the house too would have been seriously damaged (if not completely destroyed), and any person in the house would have been likely to suffer significant bodily injury and, perhaps, death.

21. [1466]

    It is the Crown case that the bomb was placed in the Holden Torana because it was parked outside the house at 12 Kira Avenue, Northmead, which was formerly owned by Mr Gary Watts. The Crown case is that Mr Watts’ professional role as a lawyer who was acting for Ms Blanchard, the Accused’s former wife, provided the motive for the attempted explosion.

22. [1467]

    The Crown’s case arrived at that conclusion because, although Mr Watts had sold the property on 29 June 1984 and moved out at about that time, both the 1984 and 1985 White Pages Telephone Directory recorded the address as being that of Mr Watts. In 1984 and 1985 the White Pages were produced annually and consequently it often took some time for an address to be updated. Both the 1984 and 1985 versions of the White Pages were available, and in circulation at the time of this Event.

23. [1468]

    Secondly, the Crown relied upon the context of the Family Court proceedings to show that it was likely that Mr Watts was the intended target. The Crown submitted that none of the tenants of the house, nor the family that owned the house at that time (having purchased it from Mr Watts), had any reason to be the target of any bomb.

24. [1469]

    As well, the Crown relied as a further circumstance, upon the fact that there were features of the bomb which were similar to the bomb used in Event 7.

25. [1470]

    As a further circumstance, I note that the first two initials of the number plate on the Holden Torana were “GW”. This provides an additional connection between the Holden Torana and Mr Watts.

The Tenants

1. [1471]

   In February 1985, there were three tenants who were living in the house at Kira Avenue, Northmead: Mr Tall, Ms Jennifer Adams and her brother, Mr William Adams. The three tenants were close friends.

2. [1472]

   Mr Tall was employed in the North Rocks area. The only matter raised with him in cross-examination which might conceivably form a basis for someone to bear a grudge against him was his involvement in a fatal motorcycle accident in July 1984.

3. [1473]

   A young woman, who was a pillion passenger on the motorcycle ridden by Mr Tall, was fatally injured in the accident. Mr Tall was charged by police in relation to that accident and dealt with by conviction through the Court system. Mr Tall’s evidence, which I accept, was that the family of his victim did not blame him at all for what had occurred. He said he was never threatened by any members of the family of the deceased pillion passenger. He said that the father of the deceased had expressed to him his disappointment about what had happened and that the deceased’s mother was of the same view. Mr Tall pleaded guilty to the offences with which he was charged and received a sentence which involved him performing community service of about 200 hours or so.

4. [1474]

   The evidence of Mr Tall about his interaction with the family of the deceased pillion passenger was corroborated by the evidence of Ms Christine Tyrell, the sister of the deceased. She told the Court, and I accept, that her brother Phillip did not ever express any sense of ill-will or animosity towards Mr Tall, and nor did her father.

5. [1475]

   The clear effect of this evidence is to demonstrate that there was simply nothing arising out of the unfortunate motorcycle accident in which Mr Tall was involved which could have given rise to any sense of animosity towards him. There is no evidence this accident could have provided a reason why he may have been a target of the bomb which was found in his car.

6. [1476]

   As well, I found Mr Tall to be an impressive witness who gave his evidence entirely honestly. I have no reason to disbelieve his description of the attitude of the family of his deceased passenger. There is no evidence to the contrary of what he said. Quite the reverse, there is evidence corroborating it. There is no basis to conclude that Mr Tall was the target of the bomb which was placed there.

7. [1477]

   I conclude that Mr Tall could not have been the intended target. Had the bomb exploded, he would have been an entirely unrelated and ultimately tragic victim of a mistaken identity.

8. [1478]

   One of Mr Tall’s housemates was Ms Jennifer Adams. Ms Adams, now known as Ms McNeally, gave evidence to the effect that she had no enemies and no reason to be the target of any bomb. Her evidence was that she (and her fellow housemates) generally got on well with their neighbours and the people living in the street. She said that from time to time, she and the other tenants had friends over for social gatherings. However, there were no serious hostilities or disputes between people of which she was aware at such gatherings which might lead to any rational consideration of her being a likely target.

9. [1479]

   Ms McNeally gave evidence that she arrived home after midnight on the evening before the bomb was discovered, having been out with her brother and his wife. Early on the morning of Sunday 10 February 1985, she left the house to seek some emergency dental treatment. The first she knew about the bomb was on her return after receiving her dental treatment. Upon her return she observed a large number of police cars in the vicinity of the house, and that her neighbours, together with Mr Tall and her brother, were out on the street.

10. [1480]

    She denied placing the bomb in the Holden Torana or knowing anything about how it got there.

11. [1481]

    She gave evidence that her former boyfriend, who was also known to Mr Tall, had not treated her well and that was the reason why she ended her relationship with him. He apparently was accustomed to threatening her and using bullying tactics during their relationship.

12. [1482]

    She said that she had broken up with this former boyfriend before she moved into the house at Northmead. On two occasions after their break up, she had observed him walking past her place of work in Parramatta and gazing in. He was obviously trying to engage her attention in an effort to speak with her. She did not respond to his invitation to go outside to speak with him. She was not enamoured of her former boyfriend, whom she described as a bully and a thug.

13. [1483]

    Undoubtedly, the breakup of Ms McNeally and her former boyfriend would have provoked an emotional reaction from the former boyfriend. However, there is simply no basis to conclude that he knew where she lived or ever visited her there. Moreover, there is absolutely no evidence that any animosity between the pair was of such a degree that he would place a bomb in a vehicle near her house. Even if he were so inclined, it makes no sense why he would place the bomb in a car next to Ms McNeally’s car, rather than in her car, which he would, I infer, have been able to identify.

14. [1484]

    This person was rightly excluded by the Police in their investigations as a reasonable possibility of being someone who may have placed the bomb. I am satisfied that the person had nothing at all to do with the placing of the bomb in Mr Tall’s car.

15. [1485]

    The third tenant was Mr William Adams. He was a schoolteacher in February 1985, and had known Mr Tall for many years. Mr Adams was woken by Mr Tall on 10 February 1985, who asked him to come and look at the car. He said that he had never seen explosives before and he was unable to say how the bomb came to be in Mr Tall’s car. He said that did not put the explosives there and that he had no information about who might have put them there. I entirely accept this evidence.

16. [1486]

    Mr Adams said that he had not been threatened with serious harm by anyone at all and he was not aware of any person, friend, associate or family member who would wish him serious harm at that time.

17. [1487]

    He did identify an individual whom he told police had been involved in a heated exchange with Mr Tall over what seems to have been a complete misunderstanding. It was wrongly claimed that Mr Tall had made a phantom call to the individual’s mother and this agitated the individual.

18. [1488]

    The confrontation was, apparently, relatively brief. Mr Tall denied any suggestion that he had ever met the individual’s mother and that he had ever made a phone call to her. The incident was said to have happened some time previously. Mr Tall and Mr Adams went to the Parramatta Police Station to report the occurrence. A statement was given. Apparently nothing further was heard from the individual. There is simply no reason to conclude that this past incident was in any way connected with the bomb found in Mr Tall’s car.

The Owners

1. [1489]

   Mr and Mrs Evans owned the house at 12 Kira Avenue, Northmead at the time the bomb was found there. Mr Evans’ evidence was that, having purchased the property from Mr Watts, he and his wife moved into the house in mid‑1984. A few months after moving in to the Northmead property, he was transferred to work in Canberra. He moved with his wife and children to Canberra. He arranged for the property at 12 Kira Avenue to be rented out through an estate agent in North Parramatta. He did not meet the tenants before they moved in, but left all of the arrangements to the real estate agent. [757]

2. [1490]

   In Canberra, at least initially, Mr Evans worked as a Project Manager on the construction of the new centre for the Australian Federal Police (“the AFP”). He was employed by Thiess‑Watkins Ltd, a large construction company, which had a small presence in NSW. [758]

3. [1491]

   On the evening of the day that the bomb was found, he was visited by two AFP officers at his house in Canberra and was asked by them whether he had any enemies. His evidence, which I accept, was that he told them: [759]

4. [1492]

   Mr Evans’ evidence was that he knew nothing about how the bomb came to be placed in the Holden Torana outside the home in which he was not then residing.

5. [1493]

   Although he had commenced working in Canberra for Thiess-Watkins, by February 1985 he had changed jobs and commenced working for Concrete Constructions Ltd, another major building contractor, on a project at the Australian Defence Force Academy. Mr Evans accepted in evidence that he had heard rumours about corruption within Thiess-Watkins and that he had suspicions about it, but he had not seen any evidence at all of it. His principal concerns, which made it frustrating for him to work with that company, were about the quality of sub-contractors doing work for the company. That was one of a number of reasons why he left Thiess-Watkins. [760]

6. [1494]

   It was suggested to him in cross-examination that he was in a position of danger at Thiess-Watkins. This was the evidence: [761]

7. [1495]

   I accept this evidence. Mr Evans was a careful and thoughtful witness. He answered these questions in a straightforward manner. There is no evidence adduced which supported the propositions which are of great generality about which he was asked, and which he denied. He worked in Canberra prior to leaving Thiess-Watkins, on a site which was happy. He did not regard the people with whom he worked as dangerous or malicious people. He was of the firm view that they were not adversely disposed towards him. He did not see himself as being at any risk whatsoever from anyone working at Thiess‑Watkins, and there is no evidence that he was. Even after being informed about the presence of the bomb, he did not suggest to the AFP or the NSW Police that they should look into the affairs of Thiess-Watkins.

8. [1496]

   As well, if the bomb had been placed by someone concerned about Mr Evans’ role with Thiess‑Watkins, it would be surprising (to say the least) that it would be placed at the house he owned in Sydney, considering he was living and working in Canberra at the time. In other words, if someone associated with his Canberra-based employment thought it appropriate to harm him, I would expect that the person would have done so in Canberra, not Sydney.

9. [1497]

   There is simply no basis to conclude that Mr Evans, his wife or members of his family were the intended target of the bomb at 12 Kira Avenue. There was some evidence that the police had warned him of suspicious behaviour with respect to receipt of mail and parcels addressed to him. This related to an apparent break-in at the Baulkham Hills Post Office. [762] Whatever that incident was and however the police reacted to it, the evidence about that incident did not amount to any adequate basis for concluding that it was in any way related to the bomb in the Holden Torana motor vehicle.

10. [1498]

    I am satisfied that the intended target of the bomb was not Mr Tall, either of his flatmates, Mr Evans or any member of the Evans family.

Observations

1. [1499]

   The only other evidence relevant to the happening of Event 6 was the evidence given by Mr Tall about seeing a male person in the vicinity of the house late on the evening before the bomb was discovered.

2. [1500]

   At about 10pm or thereabouts, Mr Tall recalled being woken from his sleep in the lounge room of the house by what he described as a “clunking or metallic sound”. He heard it coming from outside the house. He walked to the front door, turned on the front light, and looked through the screen door towards the street to see what he could. He did not leave the house and go outside. He observed a figure on the edge of the property walking up the hill towards to the house next door. The person was outside the boundary of the property when he was first seen, probably more on the nature strip. He did not take much notice of what he saw. His quick judgment of the person he thought he saw was that it was his next door neighbour. He only saw the face for a second or so. Although he did not know his neighbour’s name, he confirmed in his evidence that it was the neighbour who lived on the left hand side of his house looking towards to the street. Having glimpsed the person that he thought was his neighbour, Mr Tall satisfied himself that nothing was going on outside the house, so he closed the front door, turned the outside light off, and retired to bed.

3. [1501]

   Mr Tall’s evidence was that he only saw this man for a very short period of time. He was about 15 or more metres away from him. His immediate judgment was that the person was his neighbour. There was no reason to doubt that Mr Tall’s impression was accurately recorded. Whether or not the person at the front of the house was his neighbour is not able to be determined.

4. [1502]

   Mr Robert Best was the next door neighbour of the house at 12 Kira Avenue, and was the owner of a caravan which was parked outside the house (something to which Mr Tall referred in his evidence). Mr Best did not have any serious disputes with any of his neighbours or anyone else with whom he had come into contact. Mr Best’s physical appearance did not match Mr Tall’s description of the person whom he saw fleetingly, and whom he identified as his neighbour. Mr Best was not asked whether he had been out walking on the evening before the bomb was discovered. That matter was simply unaddressed in the evidence by either of the Crown or the Accused.

5. [1503]

   I am satisfied from evidence about Mr Best’s height, and the photograph tendered of his general appearance [763] , that he was not the person actually seen by Mr Tall outside 12 Kira Avenue on the night before the bomb was discovered. However, that does nothing to establish that the person seen by Mr Tall was in any way associated with the planting of the bomb. My conclusion in that respect is unchanged.

6. [1504]

   It is simply speculative to connect the person seen outside the house at that time as being associated in any way with the placement of the bomb. Whilst it is possible that the sound heard by Mr Tall which woke him up may have been the closing of the Holden Torana’s bonnet, it strikes me as being equally consistent with a noise from somewhere else in the vicinity. It seems unlikely that the person placing the bomb in the Holden Torana would have done so in a way which would have led to a detectable noise of a kind sufficient to wake Mr Tall. It is unlikely given that the bomb was fully configured and armed, that the bonnet would have been closed with any noise being made accidentally by or through the carelessness of the offender.

7. [1505]

   I conclude that this evidence does not assist in identifying any individual associated with the placing of the bomb into Mr Tall’s Holden Torana motor vehicle.

Crown Case Circumstances

1. [1506]

   It is time now to consider the circumstances relied on by the Crown to prove that the Accused was the person responsible for placing the bomb in Mr Tall’s motor vehicle.

2. [1507]

   I will consider the circumstances by addressing the following matters, the combination of which the Crown submitted proved it case:

3. [1508]

   I will now consider each of these circumstances in turn.

Opportunity

1. [1509]

   The Occurrence Book for the Liverpool Fire Station records that prior to 10 February 1985, the Accused (as a member of C Platoon) finished his last shift at 8am on 9 February 1985. He did not commence his next shift until 8am on 12 February 1985. [764]

2. [1510]

   I am satisfied that the Accused was not rostered on for work at the Liverpool Fire Station at the time when the bomb must have been placed in Mr Tall’s vehicle. As earlier discussed, I am also satisfied that he was not recalled to duty at this time at a fire station other than the Liverpool Fire Station.

Motive

1. [1511]

   The Crown’s case is that Mr Watts’ involvement in taking steps on behalf of Ms Blanchard in the Family Court proceedings provided a compelling reason for the Accused to have placed the bomb in Mr Tall’s vehicle where the intended target was to be Mr Watts. Orders sought by Mr Watts (on behalf of Ms Blanchard) had the effect of restricting the Accused’s access to his daughter and progressing the sale of the former matrimonial home, all of which was adverse to the interests of the Accused.

2. [1512]

   The Accused submitted that this was not an accurate reflection of Mr Watts’ involvement in his matter. He submitted that he did not know that Mr Watts was Ms Blanchard’s lawyer and that the family law proceedings were not such as would enable this conclusion to have been drawn.

3. [1513]

   Ledlin Watts & Associates (of which Mr Watts was one of the two principals) commenced acting for Ms Blanchard in the family law proceedings on 9 November 1982. [765] They ceased to act on 15 February 1985, shortly after the discovery of the bomb at Northmead. [766]

4. [1514]

   Mr Watts had the primary responsibility of dealing with Ms Blanchard’s family law matter, apart from a period of time in 1983 when he was absent on leave from his practice. [767] During that period, and at other times, he was assisted by a lawyer in his employ, Mr Harry Cormack. [768]

5. [1515]

   Initially, Mr Watts received instructions to address the sale of the former matrimonial home which had been ordered by Justice Gee. [769] Mr Watts moved promptly to put his client’s instructions into action by writing to the lawyer for the Accused on 14 December 1982 (10 days before Christmas), requesting the Accused to take steps to list the former matrimonial property for sale and to take associated actions. [770] Mr Watts asserted that the matter needed the Accused’s urgent response.

6. [1516]

   I note that by the time the letter was sent, Justice Gee’s orders for the sale of the property were by then about 20 months old. There had been no appeal against the order for the sale of the property and, notwithstanding correspondence following up Justice Gee’s orders, the Accused remained in the house and had done nothing about listing the house for public sale. The only action appeared to have been some desultory and unsuccessful negotiations by the Accused to purchase Ms Blanchard’s share. The Accused was clearly determined to stay in the matrimonial home and resisted (in one way or another) the orders of the Family Court for its sale.

7. [1517]

   A copy of the letter of 14 December 1982, including the letterhead which identified Mr Watts by his full name (Garry Allan Watts) was sent to the Accused by his lawyer on the day it was received. [771] The Accused was thereby appraised at that time of the tone of his wife’s lawyer’s approach to the issue of the sale of the matrimonial home. The tone of this letter suggested there no further delay would be tolerated. Even though the letter was sent to the Accused by Mr Byrnes (his lawyer) to obtain instructions, there was no reply to it.

8. [1518]

   It is now appropriate to consider the events in the family law proceedings between December 1982 and the discovery of the bomb in Mr Tall’s car in 1985. In particular, it is important to draw attention to the role of Mr Watts or those who worked for him throughout this time.

9. [1519]

   On 10 February 1983, Ms Blanchard filed an application for further orders designed to enable the efficient sale of the matrimonial home. [772] That application was given a return date of 28 March 1983. [773]

10. [1520]

    On 22 March 1983, an amended application was filed. [774] The amended application included an order that the Accused was to vacate the matrimonial home and another order which restricted the Accused’s access to Trudi at any pre-school or school outside periods of authorised access. It also included an order that the Accused be restrained from taking Trudi beyond the Sydney metropolitan area without Ms Blanchard’s written consent. This would have precluded the Accused from taking Trudi to see his father at Helensburgh.

11. [1521]

    On 25 March 1983, [775] an affidavit of Ms Blanchard was filed setting out details of the Accused’s non-compliance with the orders made and arrangements for access. In particular, Ms Blanchard referred to various things occurring at a preschool in Revesby insofar as the Accused was visiting Trudi on non‑access days. The affidavit noted that the Accused had collected Trudi for a day of access on 17 March 1983 [776] and that, as at the time the affidavit was sworn, Trudi had not been returned. The affidavit sought an order for Trudi’s immediate return, for the suspension of access and a further order that the Accused be restrained from attending at the Revesby preschool. [777]

12. [1522]

    Insofar as the affidavit of Ms Blanchard referred to events at the Revesby preschool, these events were corroborated by an affidavit sworn on 15 April 1983 by the Director of the preschool. [778]

13. [1523]

    On 28 March 1983, Justice Baker ordered that the Accused forthwith return Trudi to Ms Blanchard, as Trudi had not been returned since being collected by the Accused on 17 March 1983. He also restrained the Accused from exercising access to Trudi other than in accordance with the order of 30 April 1979, which had first provided for access. He made procedural orders and stood the matter over to 18 April 1983.

14. [1524]

    According to the Accused’s affidavit of 18 April 1983, Trudi was returned to Ms Blanchard on 7 April 1983. She was taken on a holiday to Cooma by the Accused, outside the parameters of the Court orders and without the permission of Ms Blanchard. [779]

15. [1525]

    On 18 April 1983, the matter came before Justice Gibson, who made procedural orders and stood the matter over to 26 April 1983 for a short hearing of two hours. In court on 18 April 1983 was Mr Trench of counsel (as His Honour then was), instructed by Mr Harry Cormack, a lawyer employed by Ledlin Watts for Ms Blanchard. Mr Byrnes appeared for the Accused, who was also in court on that day. Mr Cormack gave evidence in this trial that, [780] while he (Mr Cormack) was still in the courtroom after Justice Gibson left the Bench, the Accused approached him and said words to the effect “You make sure that lump of wood has my child available for access”. [781]

16. [1526]

    Mr Cormack said that he was again approached by the Accused after he left the Court room and was on the ground floor of the Court building, when the Accused said “Make sure that bitch has my child there for access”. [782] Mr Cormack said that he had asked Mr Byrnes to take his client away.

17. [1527]

    In cross-examination there was no challenge to the first conversation, but the second conversation was challenged in two senses: first that the Accused did not use the word “bitch” and secondly that the conversation included reference to two specific days for the Accused to have access.

18. [1528]

    Mr Cormack himself has no recollection of what had been the substance of the hearing in court on that day. There is no transcript available. As the only orders made were procedural in nature, it seems likely that little of substance actually took place. Mr Cormack’s memory of all that occurred on that day was not good. However, at least with respect to the first of the two conversations, he was not specifically challenged. Mr Byrnes, who was called by the Crown, was not asked in his evidence (including in cross-examination) whether he had any recollection, or any different recollection, of such a conversation.

19. [1529]

    I accept Mr Cormack’s evidence of these conversations. I am satisfied that they are the very sort of remarks that a young lawyer would clearly remember in contrast to what else happened in court on that day.

20. [1530]

    In accepting Mr Cormack’s evidence, I have had regard to an interview which he had with Detective Sergeant Inkster on 15 May 1985. Detective Sergeant Inkster recorded that conversation with Mr Cormack after it had occurred in a running sheet. [783] The running sheet was not shown to or adopted by Mr Cormack at the time it was completed. [784] However, Mr Cormack’s evidence in the trial accorded with what is set out in that record in all but two respects: first, whether the Accused used the word “bitch” to describe Ms Blanchard; and secondly, whether Mr Cormack rang the AFP rather than his office from a telephone booth.

21. [1531]

    It is clear from Detective Sergeant Inkster’s evidence in re-examination, that it would be wrong to regard the running sheet as being the equivalent of a formal written statement. He said that the running sheet was compiled by him after he returned from the interview in Penrith to the offices of the JBTF. [785] Those offices were located in the Sydney CBD.

22. [1532]

    Detective Sergeant Inkster said that the running sheet was to be used as an aide memoire to give an indication of what a potential witness had outlined. He said it was like notes. [786]

23. [1533]

    I have not the slightest doubt that Mr Cormack rang his office and not the AFP. The entry to that effect by Detective Sergeant Inkster is erroneous. There was no reason for Mr Cormack to ring the AFP from the telephone booth. He was not seeking their assistance, nor was he reporting any matter relevant to their jurisdiction. I think that Detective Sergeant Inkster was in error when he recorded that in his running sheet.

24. [1534]

    I am also satisfied that the Accused used the word “bitch” to Mr Cormack. I accept that Detective Sergeant Inkster did not record it but, having regard to the purpose of the running sheet described by him, I am not surprised that he may have omitted that word. After all, the sense of the Accused’s existing attitude to Ms Blanchard was adequately conveyed by the use of the phrase “lump of wood”. The Accused clearly had no regard for Ms Blanchard, and no respect for her.

25. [1535]

    Finally, I observed Mr Cormack’s demeanour carefully, how he went about answering questions, the directness of his answers and his willingness to acknowledge his lack of recall of certain things. There was nothing about any of these matters, or the manner of giving evidence generally, which would cause me to doubt his truthfulness.

26. [1536]

    What the incident with Mr Cormack shows is that in April 1983 the Accused spoke to Mr Cormack about Ms Blanchard in a derogatory and demeaning way as though she was not a real person and stating that his requirements for access were to be met as and when he demanded them. This was at a time when there was an amended application on foot by Ms Blanchard (signed and filed by Mr Cormack) seeking an order enabling the matrimonial home to be sold and suspending the Accused’s access to Trudi. I further note that the Accused did not approach Ms Blanchard herself nor the barrister she instructed on this occasion with these derogatory statements. From this I have concluded that the Accused used this occasion, despite his lawyer Mr Byrnes being present, to approach a young lawyer in an attempt to overbear him and deter him from taking steps on behalf of Ms Blanchard (who was his client), or else discourage him from advising her to continue the course of seeking the suspension of the Accused’s access.

27. [1537]

    There are two further incidents which were the subject of evidence by Mr Cormack which are directly relevant to Event 6. These two incidents were said by him to have happened on the same day as those statements by the Accused.

28. [1538]

    The first incident was said by Mr Cormack to have occurred outside the Family Court building, in a carpark. Mr Cormack gave evidence that he was, at this time, using Mr Watts’ motor vehicle (as Mr Watts was on leave). Mr Cormack’s evidence was that after leaving the Family Court building on 18 April 1983 he walked across the road to a carpark, where he had parked Mr Watts’ vehicle. He observed the Accused, who had been walking up the street with his lawyer Mr Byrnes, leave the company of his lawyer and walk back to the entrance to the carpark. Whilst observing Mr Cormack, the Accused appeared to be writing something down. Mr Cormack thought that he might have been writing down the numberplate of the car he was driving. Mr Cormack was disturbed by this, so he drove to a nearby public phone box and telephoned his office to report what had happened. [787]

29. [1539]

    In his evidence, Mr Cormack was asked to describe where the public phone box was. He said that he believed it was in George Street, and marked the location on an aerial photograph, which showed it to be near to Charles Street. [788]

30. [1540]

    As subsequent evidence showed, he was mistaken about where in George Street that public phone box was - it was clearly further along George Street to the east than the place he had marked on the map. [789] But, I see no reason to doubt Mr Cormack’s evidence that he went to the public phone box and called his office to report what had happened. The visit to the public phone box was recorded in a more contemporaneous version in a running sheet prepared by Detective Inkster. [790] I have earlier noted that the reference to the AFP in that running sheet was an error on the part of Detective Inkster. I am satisfied Mr Cormack telephoned his office.

31. [1541]

    I accept Mr Cormack’s evidence of this event. I am satisfied that his concern at what he had observed in the carpark, especially after what had occurred in Court and in the Court building, propelled him to tell his office what had happened.

32. [1542]

    The second incident was said by Mr Cormack to have occurred when he was at the telephone box. Mr Cormack gave evidence that whilst he was in the public telephone box he saw the Accused drive towards and then past the phone box. Having apparently recognised Mr Cormack, the Accused then put his hand “in the shape of a gun” and gesticulated towards Mr Cormack, in what Mr Cormack thought was a threatening manner.

33. [1543]

    Having regard to what had transpired in the Court room and the Court building between the Accused and Mr Cormack, the gesture described by Mr Cormack is consistent with the Accused’s angry and aggressive behaviour. This is particularly so when one considers the threatening nature of the content of what was said by the Accused to Mr Cormack after the hearing. It is also consistent with the attempt by the Accused to intimidate Mr Cormack by standing near the entrance to the car park and appearing to write something down.

34. [1544]

    I am satisfied that the gesticulation occurred. I accept that such a gesture was both a threat by the Accused to a relatively newly-admitted lawyer and an attempt to convey a sense that the Accused would not react well if he did not get his own way. This is particularly pertinent given that, at the time, the next hearing was fixed to take place within the next fortnight (on 26 April 1983). Although that application did not proceed as the Accused withdrew his instructions to his lawyers and did not appear in Court on that day, its proximity at the time of the gesture remains relevant.

35. [1545]

    Throughout the balance of 1983 and up to March 1984, Mr Watts and Mr Cormack pursued Ms Blanchard’s interests vigorously. What occurred in the proceedings within this time period is more fully considered in Event 3. [791] For the purposes of considering this Event, it is sufficient to say that over this period orders were made, on the application of Ms Blanchard through her lawyers, effectively reducing the Accused’s access to his daughter and ensuring progression of the sale of the house in which he was then living.

36. [1546]

    On 6 March 1984, which was the day the bomb exploded at the home of Justice Gee, the application by Ms Blanchard (which was listed before Justice Gee) to restrict the Accused’s access to his daughter to each alternate Saturday proceeded in the absence of the Accused. [792] Justice Watson heard the application and made orders upholding the application. However, due to the absence of the Accused in Court, His Honour provided for a period of two weeks in which the Accused could apply to set aside the orders. [793] The Accused did not make any application.

37. [1547]

    The orders which were made not only limited the Accused’s access to one day each fortnight, but also restrained the Accused from retaining Trudi outside the defined hours on the defined access day. Moreover, the AFP was given a standing authority to intervene to retrieve Trudi if these parameters of access were breached by the Accused. These were orders which significantly curtailed the Accused’s access to Trudi. Importantly, these orders significantly impacted upon not just the extent of the Accused’s access but also restrained him from doing what he had been accustomed to doing with respect to returning Trudi (i.e. returning Trudi after access days at a time which suited the Accused).

38. [1548]

    As set out in Event 5, [794] I am satisfied such was the feeling of animosity engendered in the Accused by these orders that he was motivated to place the bomb at Justice Watson’s home in July 1984. This occurred only a relatively short time after these orders were made.

39. [1549]

    It is appropriate to recognise and note that Justice Watson was only able to make these orders because Mr Watts (as Ms Blanchard’s lawyer) had brought the application for the orders to Court. These same orders then made such an impact on the Accused that the Accused placed a bomb at the Judge’s home with the intention to kill him.

40. [1550]

    On 12 March 1984, the Accused attended in person at the Registry of the Family Court at Parramatta and sought and received a copy of Justice Watson’s orders of 6 March 1984. [795] This was within the 14 day period for application to set aside the orders allowed by the orders.

41. [1551]

    The Accused submitted that the evidence did not show that he had ever encountered Mr Watts in court, and that the evidence did not show that he had any understanding that Mr Watts was acting for Ms Blanchard. I reject this submission because of the following facts.

42. [1552]

    On 25 September 1984, Mr Watts, in his capacity as Ms Blanchard’s lawyer, filed an application seeking various injunctions against the Accused. [796] His name and signature were clearly visible on the application. In a letter from the lawyer for the Accused dated 21 March 1984, which was annexed to an affidavit of Ms Blanchard, Mr Watts is clearly nominated as the person with whom Mr Byrnes was in contact. [797] This affidavit was served with the application.

43. [1553]

    The application and the two accompanying affidavits containing this material were served personally on the Accused on 30 October 1984. [798] Consequently, I am satisfied that the Accused knew the full name and identity of Mr Watts as Ms Blanchard’s lawyer as at that time, if not earlier. It was a little over three months later that the bomb was placed in Mr Tall’s car.

44. [1554]

    The September 1984 application sought two orders. [799] The first was an order that the Accused forthwith vacate and remain away from his home at Tallowood Avenue, Casula. The second order sought exclusive occupancy of the home by Ms Blanchard, to enable the sale of the house to be effected.

45. [1555]

    The application was returnable on 2 November 1984 but, for reasons associated with delayed service, the absence of the Accused (who did not appear) and an administrative error in the Registry, the application was first dealt with by the Court on 7 December 1984. At this time, Mr Watts appeared for Ms Blanchard and Mr Byrnes appeared for the Accused. [800] The Accused was present in Court on that day. [801]

46. [1556]

    On 7 December 1984, the Accused was ordered to file any affidavits in opposition to the application within 14 days. The hearing of the application was stood over for a short hearing to 15 February 1985. [802] After the orders were made on 7 December 1984, the Accused withdrew his instructions to Mr Byrnes to act on his behalf. Mr Byrnes filed the appropriate documentation. [803]

47. [1557]

    The Accused did not file any affidavit in opposition to the application as the orders required. He did not attend Court on 15 February 1985. Orders were then made by Justice Gee, who presided over the short hearing.

48. [1558]

    Based upon the evidence which was before him, and no doubt having regard to previous orders of the Court, Justice Gee formed the following opinion of the Accused’s conduct since the original order for the sale of the property was made on 15 April 1981. He said: [804]

49. [1559]

    I note that although these remarks were made after the bomb was discovered in Mr Tall’s vehicle, His Honour’s remarks on what had occurred were based entirely on the evidence that was before him which predated 10 February 1985. This was evidence the Accused had in his possession by no later than 30 October 1984, when he was served with the application and the affidavits.

50. [1560]

    The Accused did not contest the facts by filing an affidavit at any time before the hearing was due to take place. It must have been obvious to him when he did not do so that the orders as sought from the Court by Mr Watts would successfully be made.

51. [1561]

    Put differently, the Accused was confronted by an application drawn by Mr Watts and supported by evidence which had been put into an affidavit at Mr Watts’ firm. This application was left unanswered, despite ample time being given to the Accused to put on a response. It can be inferred from this that the Accused viewed the application as unanswerable. No doubt being confronted with this position was a matter which affected the Accused’s perspective of Mr Watts, particularly given the application concerned the Accused’s ability to remain in the former matrimonial home at Casula.

52. [1562]

    Mr Watts ceased to act for Ms Blanchard within a day or so of the bomb being found in Mr Tall’s vehicle.

53. [1563]

    It seems to me that a number of ongoing matters or themes can be identified as emerging from the Family Court proceedings between April 1981 (when orders were made by Justice Gee) and February 1985 (when Mr Tall found the bomb in his car).

54. [1564]

    First, the conclusion expressed by Justice Gee (which I have set out above) is one which I am satisfied is an accurate description of the Accused’s attitude towards, and approach to, the disputed issues in the family law proceedings. I find this accurately encapsulates the Accused’s mindset following the April 1981 orders of Justice Gee. Essentially, upon my own consideration of the evidence that was before Justice Gee, I reach the same conclusion as His Honour did on 15 February 1985.

55. [1565]

    Although the conclusions were expressed a few days after 10 February 1985, when the car bomb was discovered, I am satisfied that the findings were entirely apt for the period leading up to the bomb placement in Mr Tall’s vehicle.

56. [1566]

    Secondly, the more determined approach by Mr Watts (and his employee Mr Cormack) in looking to obtain orders on behalf of Ms Blanchard, with respect to both the sale of the former matrimonial home and the restriction of the Accused’s access to Trudi, focussed on the Accused’s behaviour. In particular, Mr Watts used the Accused’s dereliction of the Court’s orders as the basis for obtaining the orders which were adverse to the Accused. That is, Mr Watts and Mr Cormack concentrated their efforts for Ms Blanchard by drawing attention to the Accused’s behaviour and his ongoing failure to behave appropriately and comply with the Court’s orders.

57. [1567]

    Mr Watts’ approach was also to ensure, as far as possible, that Ms Blanchard’s evidence was supported or corroborated by an independent person’s account on affidavit. [805] This meant that applications made Mr Watts on behalf of Ms Blanchard were harder for the Accused to resist.

58. [1568]

    I am satisfied that the conduct of Mr Watts (and his employee Mr Cormack) in pursuing their client’s cause angered the Accused. This can be seen from his behaviour after the hearing before Justice Gibson on 18 April 1983. It was also evidenced by the Accused’s attitude towards Mr Debreczeny [806] , a valuer, when he attended at Tallowood Avenue to the value the property, [807] and when Mr Ogl from L J Hooker Liverpool attempted to appraise the property at Tallowood Avenue for the purpose of its sale. [808] On both of these occasions the Accused was described as hostile and aggressive. This description is also consistent with Mr Cormack’s evidence as to his interactions with the Accused.

59. [1569]

    Fourthly, the Accused’s conduct in relation to the proceedings indicated a predetermined course where he did not wish to engage substantively with any of the issues before the Family Court. This is particularly so towards the end of 1984, in advance of the hearing of Ms Blanchard’s application on 15 February 1985, where the Accused withdrew instructions from his lawyer, failed to file any affidavit to contest the proceeding and then, although he was well aware of the hearing date, he did not attend court on 15 February 1985.

60. [1570]

    It would not be inconsistent with this approach from the Accused for him to have then followed an alternative course outside the Family Court to attempt to achieve his desired outcome in relation to his home and Trudi. One such course would be to remove the lawyer for Ms Blanchard, who had been an opponent of substance and who had achieved success for Ms Blanchard, from the proceedings by placing a bomb in the car at the lawyer’s home address (as recorded in the current White Pages). [809] Consequently, the alleged actions of the Accused in relation to Mr Tall’s car are not inconsistent with his approach to the proceedings.

61. [1571]

    Fifthly, I am satisfied that the Accused knew well before February 1985, that Mr Watts was the principal of the firm Ledlin Watts & Associates, and that he was acting for Ms Blanchard.

62. [1572]

    I am satisfied from all of the evidence that the Accused had a motive to attack Mr Watts by placing a bomb at his home in the car parked there. This motive remains relevant even if the Accused were to be mistaken as to the location of Mr Watts’ home.

Intended Target

1. [1573]

   As I have earlier discussed, the evidence does not establish that there was any reason for Mr Jeffrey Evans (the owner of the property at 12 Kira Avenue, Northmead) or his family to be the target of the bomb which was placed in the Holden Torana.

2. [1574]

   Neither the nature of his work nor the identity of his initial employer in the ACT provided any reason at all for Mr Evans to be targeted. Mr Evans’ evidence was that, as an executive in the building industry, he had good relations with the Unions. Though I note there is evidence in this trial that certain unions were antagonists within that industry at that time, [810] I accept Mr Evans’ evidence that he had a good relationship with the unions and no ill-will existed between him and any member of a union. I was particularly impressed with and entirely accept, Mr Evan’s evidence that when he was working at Thiess‑Watkins he was not a position of danger nor did he ever feel at risk or any reason to worry about his safety. [811] If Mr Evans was the target of this bomb, it would be far more likely for any attack to have been mounted in Canberra and not in Sydney. This is particularly so when one considers that any hypothesis concerning Mr Evans being the target appears to relate to his work in the ACT.

3. [1575]

   There was some evidence elicited from Mr Evans regarding a break-in at the Baulkham Hills Post Office. One of the items tampered with was the redirection instruction given by Mr Evans for the purpose of forwarding mail. [812] I am satisfied from the nature of the incident described that there was no demonstrated connection or even possibility of a connection to the bomb in Mr Tall’s motor vehicle. This finding has taken into account evidence concerning precautionary advice which was given to Mr Evans by officers of the AFP following the incident.

4. [1576]

   Accordingly, I reject any submission to the effect that Mr Evans, or members of his family, were targets of the bomb placed in Mr Tall’s motor vehicle.

5. [1577]

   I also reject the Accused’s submission that Mr Tall (or either of his fellow tenants) was the target of the bomb. I regard such submissions as being based on nothing more than speculation. Mr Tall, who was about 27 years old in 1985, was working as a staff member at a school at North Rocks which educated children suffering from visual and hearing disabilities. [813] There was nothing suggested as possibly arising from this employment which would result in Mr Tall being the target of the bomb.

6. [1578]

   Little else was identified in the evidence about Mr Tall’s background. As considered above, prior to February 1985 Mr Tall had been involved in a motorcycle accident which resulted in the death of a young woman who was the pillion passenger on the bike. Mr Tall was charged and pleaded guilty to a driving offence arising out of this accident. Mr Tall’s evidence was that there was no ill-will between him and members of his pillion passenger’s family arising out of the accident. [814] Ms Christine Tyrell, the older sister of the young woman who was killed in the accident, gave evidence that her family did not express to her any feelings of animosity towards Mr Tall. [815] She was unchallenged on that evidence.

7. [1579]

   I repeat what I have earlier said, that I accept the evidence of Mr Tall, corroborated by Ms Tyrell, that there was no animosity towards him arising out of the motorcycle accident. I am satisfied that it provides no basis at all for the Accused’s submission that Mr Tall was properly to be regarded as the target of the bomb.

8. [1580]

   Finally, the Accused submitted in rather extravagant terms that because Mr Tall and his fellow tenants (who were all about the same age) had parties in the house at Northmead from time-to-time, the house was a “party house” at which most people consumed alcohol and some people smoked marijuana on a recreational basis. The Accused submitted the Court ought conclude that the bomb was intended for Mr Tall or his fellow tenants for reasons associated with conducting a party house.

9. [1581]

   Mr Tall described the parties as being “of maybe 20 to 30 people”, [816] and held every few weeks or months. Ms McNeally, who was one of the other tenants, gave evidence to a similar effect. [817]

10. [1582]

    Her brother, Mr Adams, also gave evidence about the frequency of the parties. [818] Properly understood, my view of Mr Adams’ evidence is that it was to the same effect as that of Mr Tall and Ms McNeally. If my understanding is incorrect, then I prefer the evidence of Mr Tall and Ms McNeally. All three witnesses denied that any drug dealing occurred at the house. I accept the evidence of the three witnesses in that respect. There is no evidence to the contrary.

11. [1583]

    The submissions by the Accused's lawyer are aptly encapsulated in his own words: “And what about the Tall bomb? Party house. Just horrible”. [819] The submission appears to be that because Mr Tall and his fellow tenants held parties, he was the target of the bomb. This submission is entirely rejected. There is no factual basis for such a submission. I regard this submission as a nonsense.

12. [1584]

    In summary, I am satisfied on the evidence that Mr Tall was not the target of the bomb in the car.

13. [1585]

    Ultimately, the Accused did not submit that either of Mr Tall’s fellow tenants could possibly be the targets of the bomb. In any event, the evidence with respect to why they would be the target of a bomb was more elusive than that relating to Mr Tall. I am satisfied the other two tenants were not the targets.

14. [1586]

    As earlier mentioned, Mr Watts’ name was recorded in the then current White Pages Street Directory as still living at 12 Kira Avenue, Northmead. [820] Contrary to the Accused’s submissions, there is no reason to think that the entry for Mr Watts’ address at 12 Kira Avenue, Northmead would not be recognised as being his home address. Mr Watts’ two business addresses, Bankstown and Parramatta, appeared slightly above that entry and were readily recognisable as relating to a lawyer. The entry using his first name and correct middle initial recorded Northmead as the residential address. The submission that a person acting reasonably, when reading the entries, would choose the entry for a Mr Watts at Kingsford, where such an entry did not include Mr Watts’ first name but only the initial, is entirely unpersuasive. Northmead is the closest geographical listing for Garry Watts to the business address of Mr Watts as a lawyer. In my view, if the White Pages were the source of the Accused’s knowledge, the proximity of the business address to the Northmead address would have enabled the Accused to draw a rational conclusion that the Northmead address was that belonging to Ms Blanchard’s lawyer.

15. [1587]

    Given that the Accused had a motive to do harm to Mr Watts, that the White Pages showed that he still lived at 12 Kira Avenue, Northmead and that neither the owner nor the tenants were a possible target, I am satisfied that Mr Watts was the target of the bomb placed in Mr Tall’s Holden Torana, the numberplate of which included his initials “GW”.

Coincidence

1. [1588]

   I have earlier concluded that this Event was one of a number of Events that occurred in the period between 1980 and 1985 involving violence which were not coincidental i.e. the Events did not happen coincidentally but rather were causally linked.

2. [1589]

   I have found the Accused responsible for each of Events 2 and 7. The Crown relies on the absence of coincidence as an explanation for these Events as a circumstance, together with the Accused’s commission of the other offences, as a strong factor pointing to the guilt of the Accused of this offence.

3. [1590]

   I am satisfied that this is a factor to which it is appropriate to have regard in the overall assessment of whether the Crown has satisfied me beyond reasonable doubt of the guilt of the Accused of this offence.

4. [1591]

   Furthermore, there is another circumstance which arises on the evidence that is specifically relevant to coincidence reasoning in Event 6.

5. [1592]

   In the bomb found in Mr Tall’s car at Northmead, the high explosive used was Molanite and the detonator was a No.6 ICI Instantaneous Copper Cup Electronic Detonator, which had been manufactured before 27 May 1981.

6. [1593]

   I have concluded in Event 7 that the same explosive, Molanite, and an identical detonator, a No.6 ICI Instantaneous Copper Cup detonator manufactured before 27 May 1981, were used in the Kingdom Hall explosion. Event 6 and Event 7 were a little under six months apart.

7. [1594]

   According to evidence of records kept by the Australian Bomb Data Centre, the combination of Molanite and a No.6 ICI Instantaneous Copper Cup detonator manufactured before 27 May 1981 had not been seen in any other reported explosion recorded at the Centre. [821]

8. [1595]

   I am satisfied that this similarity of explosive and detonator combination seen in both Events 6 and 7, when taken in the evidentiary context that such a combination is an anomaly, is a relevant consideration.

9. [1596]

   The Crown has relied upon the circumstances that each of Events 2 to 7 did not happen as a matter of coincidence in order to point to the guilt of the Accused across these six Events. As noted above, the Crown has satisfied me of the applicability of coincidence reasoning as a relevant circumstance for Events 2 to 7. However, I am further satisfied that the specific similarity concerning the explosive and detonator used in both Events 6 and 7 strengthens the use of coincidence reasoning as a circumstance in relation to Events 6 and 7.

10. [1597]

    As I have already concluded in this judgment, I am satisfied beyond reasonable doubt that Event 7 was carried out by the Accused. Consequently, the specific connection between Events 6 and 7, as well as the more general lack of coincidence of Events 2 to 7, are both circumstances of significant weight in my consideration of whether the Crown has proved the Accused’s guilt in relation to Event 6.

Tendency

1. [1598]

   As earlier indicated, I have found that the bombing of the Kingdom Hall at Casula by the Accused has satisfied me that, at that time in July 1985, he was a person who had a tendency:

2. [1599]

   Since drawing that conclusion, I have now considered and found that the Crown has satisfied me beyond reasonable doubt that the Accused murdered Justice Opas. This murder occurred in circumstances where the Judge had foreshadowed that he might make orders adversely affecting the Accused’s access to his daughter. About eight weeks before he was shot, Justice Opas suspended the Accused’s access to his daughter completely in circumstances that would have given rise to feelings of antipathy and animosity by the Accused towards the Judge.

3. [1600]

   It is therefore necessary to decide if I have been satisfied by the Crown that the circumstances of and surrounding the murder of Justice Opas prove that the Accused had the two tendencies described in [1598] above in June 1980 when that crime occurred.

4. [1601]

   In order to reach a conclusion about any tendency on the part of the Accused, I direct myself that I must be satisfied that the Accused was the person who murdered Justice Opas and that the acts undertaken by him to carry out the murder in the circumstances in which it occurred, prove that the Accused had each of the tendencies identified above at [1598].

5. [1602]

   My conclusion about Event 2 (the murder of Justice Opas) was that the Judge was shot when he answered the front gate bell of his home in a targeted attack which occurred in a very short space of time. [822]

6. [1603]

   I am satisfied that Justice Opas was targeted because of his role and conduct as a Judge of the Family Court of Australia sitting in the Parramatta Registry.

7. [1604]

   I am satisfied that the motive for the Accused to murder Justice Opas was that the Judge had made a number of orders which significantly impacted the Accused’s access to his daughter. I am convinced these orders, along with the acrimonious interactions between the Accused and the Judge in Court, caused the Accused to feel animosity towards the Judge.

8. [1605]

   Having regard to these conclusions, and the obvious fact that the murder of Justice Opas by shooting him was an act of extreme violence, the Crown has satisfied me that the Accused (as at June 1980) had a tendency to have the particular state of mind, and to act in a particular way, as the Crown alleges above at [1598].

9. [1606]

   Having reached the conclusion that the conduct of the Accused in 1980 and 1985 exhibited the tendencies alleged by the Crown, and in the absence of any evidence to suggest that in any way the Accused had changed during the period, I am satisfied that the Accused was a person who had these tendencies throughout that period.

10. [1607]

    In those circumstances, I will take into account the following three matters. First, that the guilt of the Accused has been proved beyond reasonable doubt in regards to both Event 2 and Event 7 as a factor which counts in favour of the Crown’s submissions. Secondly, arising from this conclusion, the Accused was a person who, at the time the bomb was found in Mr Tall’s car, had a tendency to hold animosity towards those who adversely affected his access to his daughter. I am satisfied that this animosity manifested as an intention to kill. Thirdly, that the Accused was a person who had a tendency to commit violence against a person who acted in a way, such as by seeking orders from the Family Court of Australia, which could adversely affect the Accused’s access to his daughter. I am satisfied that Mr Watts, as the solicitor for Ms Blanchard who sought access orders adverse to the Accused’s interest, would be a person towards whom the Accused had a tendency to commit violence.

No Other Reasonable Hypothesis

1. [1608]

   The Crown submitted, and I accept, that the evidence does not permit of any other rational hypothesis except for the guilt of the Accused.

2. [1609]

   It is appropriate to note here that the Accused’s lawyer did make a submission that a reasonable hypothesis available on the evidence was that the bomb was targeted at Mr Watts, but for reasons unconnected with his acting as Ms Blanchard’s lawyer in the Family Court proceedings.

3. [1610]

   The submission was based upon the fact that in about September 1981, there had been a fire at the Bankstown offices of Ledlin Watts & Associates. [823] The fire commenced in the kitchen. After this fire, security was employed to protect the building in which the firm’s offices were located until the building could be properly secured. However, whilst his office had security measures implemented after the fire, Mr Watts said that at no time did have any security at his home prior to 10 February 1985. [824] Notably, the evidence does not reveal what caused the fire. The fact that it started in the kitchen suggests that it may well have been accidental. What is clear is that there was absolutely no evidence that the fire was intentionally lit by a party who had a grudge (or other motive) against Mr Watts, nor that any grudge had continued for over four years. In short, this evidence does not give rise, without more, to any hypothesis at all that connects it to the bomb found at Northmead.

4. [1611]

   I reject the Accused’s submission that there is any reasonable hypothesis to be drawn from this evidence.

5. [1612]

   I am satisfied that there is no other reasonable hypothesis consistent with the innocence of the Accused available on the evidence.

Summary and Conclusion

1. [1613]

   The Crown seeks to prove the guilt of the Accused on Count 9, the placing of the bomb in Mr Tall’s car, by way of circumstantial evidence. The Crown must do so beyond reasonable doubt. I remind myself that I must apply the circumstantial evidence direction and that I am only to find the Accused guilty of this offence if the Crown has satisfied me beyond reasonable doubt that the guilt of the Accused is the only rational inference that the circumstances enable me to draw.

2. [1614]

   I find that the Crown has satisfied me beyond reasonable doubt that the Accused placed the bomb in Mr Tall’s car. I am so satisfied because the Accused had the opportunity to commit the offence and because he had a motive to place the bomb because of the feelings of antipathy he held against Mr Watts for pursuing orders which adversely impacted on his access to his daughter. The Accused was a man who had a tendency to take such action when someone acted, as Mr Watts did, to his disadvantage with respect to access to his daughter.

3. [1615]

   As well, for me it is a circumstance of real weight in favour of the proof of the guilt of the Accused that I am satisfied the Event cannot have occurred merely as a coincidence with Events 2 to 5 and 7. This Event is linked to those others, as I have earlier found, in the ways that I have earlier found. As I have been satisfied that the Accused committed Events 2 and 7, this is a matter which points strongly to the guilt of the Accused of this offence.

4. [1616]

   I have carefully considered all of the circumstances to which the Accused has drawn attention in submission. In my view their combined effect does not provide any matter of substance or cause me to have any doubt at all about the guilt of the Accused. In so reasoning, I approach that issue in accordance with the directions of law which I have given myself above and with which I am obliged to comply before I can be satisfied by the Crown beyond reasonable doubt of the guilt of the Accused.

5. [1617]

   I conclude that I have been satisfied by the Crown beyond reasonable doubt that the guilt of the Accused of the offence in Count 9 is the only reasonable hypothesis available on a consideration of all of the evidence and inferences to be drawn from it.

6. [1618]

   I find the Accused guilty of the offence of placing an explosive device into a vehicle parked at 12 Kira Avenue, Northmead on 10 February 1985 with intent to murder, as reflected in Count 9 on the Indictment.

7. [1619]

   There is no need to consider Count 10 on the Indictment.

8. [1620]

   At about 1.50am on 6 March 1984, a bomb exploded at the home of Justice Gee at 42 Neridah Avenue, Belrose. The house was destroyed. Justice Gee, who was asleep in the front bedroom of the house, was injured. He managed to escape from the debris with his two children and take refuge with a neighbour.

9. [1621]

   There were no eye-witnesses to the bombing of Justice Gee’s home. There were witnesses of various contemporaneous happenings, such as the presence of motor vehicles in surrounding streets. However, the Accused and his motor vehicle were not identified by anyone to have been in Belrose in the early morning of 6 March 1984.

10. [1622]

    Accordingly, the Crown’s case is a circumstantial one. I remind myself that because this is a circumstantial case, I must keep in mind and apply the circumstantial evidence direction, as found earlier in this judgment at [88]-[92].

Counts on the Indictment

1. [1623]

   It is not in issue in this trial that the bomb exploded. It is also not in issue that the explosion destroyed Justice Gee’s home. Nor is it in issue that whoever placed the bomb and detonated it, did so with the intention to murder Justice Gee. I am satisfied that an intention to murder Justice Gee is the only intention that can be inferred from the action of placing and detonating a bomb at his front door while he slept.

2. [1624]

   The evidence called and tendered by the Crown has established beyond reasonable doubt each of these elements necessary for the proof of the offence charged in Count 3 on the Indictment. The only issue in dispute is whether the Crown has proved beyond reasonable doubt that it was the Accused who carried out the placement and detonation of the bomb, and is thereby guilty of the offence in Count 3 of the Indictment.

3. [1625]

   Count 4 on the Indictment is charged in the alternative to Count 3.

4. [1626]

   The essential difference between Counts 3 and 4 is to be found in the nature of the intention of the offender. As the intention to commit murder is not in issue and has been proved beyond reasonable doubt by the Crown, and the only issue for me to consider is whether the Accused is responsible for the explosion. Given that the only difference between Counts 3 and 4 is one of intention, if the Crown does not succeed on Count 3 then it cannot succeed on Count 4. That is because the element in issue, namely the identity of the Accused as the perpetrator of the offences, is the same for each Count. There is, therefore, no need to consider Count 4 separately. Either the Crown succeeds in proving that the Accused was responsible for the bombing, in which case he would be guilty of the offence in Count 3 or else it fails to prove that he was responsible - in which case he would be not guilty of the offences in both Counts 3 and 4.

Crown Case

1. [1627]

   The Crown’s case is that Justice Gee (who sat in the Parramatta Registry of the Family Court) had presided over the contested proceedings between the Accused and Ms Blanchard on at least five occasions after the murder of Justice Opas in June 1980. The last occasion before the bomb was detonated that the matter was before the Family Court was on 31 January 1984, when Justice Gee made orders directly interfering with the Accused’s access to his daughter, Trudi. This was the last time any substantive orders were made in the Accused’s matter before the explosion at Justice Gee’s house. Although there was a short hearing before Justice Baker in February 1984, nothing of consequence occurred at this hearing. [825] The proceedings had been stood over until 10am on 6 March 1984 for a final hearing. It was in the early hours of that day that the bomb exploded.

2. [1628]

   The Crown submitted that the orders that had been made by Justice Gee on 31 January 1984, together with the orders which were being sought on a final basis by Ms Blanchard on 6 March 1984, either had or else would have (if granted) affected the Accused’s access to his daughter in a significantly adverse way. As well, the Crown relied upon the fact that orders had been made by Justice Gee in 1981 providing for the sale of the matrimonial home at Tallowood Avenue and an equal division of the net proceeds.

3. [1629]

   The Crown’s case is that the Accused had a strong motive to carry out the bombing, and that certain circumstances point strongly towards the Accused being the offender. First, Justice Gee was listed to hear the proceedings on the day of the explosion. Secondly, the Accused was not rostered on duty as a fireman at the time of the explosion. Thirdly, the Crown relies on coincidence reasoning to prove that the Accused was responsible for the explosion. Finally, the Crown relies on tendency evidence as adding to the circumstances which prove the guilt of the Accused.

4. [1630]

   The Crown pointed to a number of specific circumstances which were established on the evidence, but in particular the Crown noted that the Accused’s attitude to the orders made by Justice Gee was one of deliberate disobedience which manifested in a number of different ways. This included the Accused keeping Trudi for such a period beyond the Court orders that an officer of the AFP was required to attend and remove Trudi from the Accused’s house and return her to Ms Blanchard. This only occurred because of the orders made by Justice Gee with respect to access.

5. [1631]

   The Crown also pointed to some of the details about the bomb and where it was placed to indicate that this was an attack which was clearly targeted at Justice Gee personally. The Crown case was that this targeting could only have been related to his working as a Judge at the Parramatta Registry of the Family Court.

Accused’s Submissions

1. [1632]

   The Accused denied creating, placing or detonating the bomb at Justice Gee’s residence on 6 March 1984. In particular, the Accused disputed the Crown’s assertions about his ability to make a bomb and his feelings towards Justice Gee.

2. [1633]

   The Accused submitted that he would not have had any motivation to target Justice Gee as the Judge was even-handed in his treatment of the family law dispute.

3. [1634]

   The Accused submitted, with some emphasis, that he was not overly prejudiced by Justice Gee over the course of his family law dispute and that the judge had been relatively even-handed in his approach to the matter. In particular, the Accused disputed the Crown’s submission that he did not follow orders made by Justice Gee.

4. [1635]

   The Accused made lengthy submissions in detail on the family law dispute to support his submission that the Crown had misrepresented the nature of his family law dispute. In particular, the Accused highlighted:

5. [1636]

   The Accused again submitted that the fact that the Police did not investigate whether he had been recalled to duty at a fire station other than the Liverpool Fire Station at the time of the explosion meant that they could not establish that he had had the opportunity to carry out the explosion.

6. [1637]

   The Accused noted that the bomb was placed and detonated at Justice Gee’s home at about 1.48am on 6 March 1984. The Accused submitted that he had attended at work at 8am on 6 March 1984. He submitted that, according to the Occurrence Book entries, the four days prior to the bombing was a period of time he had off work. He said it was irrational that he would have chosen to do a bombing in Belrose only a few hours before he was required to be at work in Liverpool, when in the four previous days he was not rostered on a shift and would have had ample opportunity to carry out the bombing.

7. [1638]

   The Accused submitted that the initial police investigation of the crime scene was shambolic and disorganised, and thus key evidence was likely to have been overlooked or lost among the rubble. The Accused pointed to the fact that the safety fuse was only found on a second search of the rubble (even though it was 12 feet long) as evidence that the investigation of the scene had been cursory. [827]

8. [1639]

   The Accused relied on the fact that there were no contemporaneous notes containing details of an extensive investigation of the scene in support of the proposition that the police investigation was inadequate (on the presumption that if thorough searches had been done, the police records would have indicated it as such).

9. [1640]

   The Accused submitted that there was insufficient evidence to establish that he had ever had access to or experience with explosives; had any knowledge of bombs or bomb making; or that he had purchased or been provided with a fuse. This was despite years of surveillance and multiple searches of his home.

10. [1641]

    The Accused submitted that he had never made threats against Justice Gee and that there was no evidence that he knew Justice Gee’s address or phone number.

11. [1642]

    The Accused pointed to evidence that a 1970s model blue/green station wagon sedan with a white roof had been spotted outside Justice Gee’s house by a witness just before the explosion and which left after the explosion occurred. He submitted that this was likely to have been the bomber’s vehicle. The Police did not identify the driver of the vehicle however the Accused submitted that the vehicle was not identified as being his.

12. [1643]

    The Accused also made submissions about Mr Shoukat Abroo, Dr Silvano Mariti and the members of the Family Law Action Group (“FLAG”) as suspects who each constituted a reasonable hypothesis consistent with his (the Accused’s) innocence of any of the Events the subject of the Indictment, including the explosion at the home of Justice Gee. These submissions are considered in greater detail and rejected later in this judgment.

The Events of 6 March 1984

1. [1644]

   Justice Gee lived with his wife and two high school-aged children at 42 Neridah Avenue, Belrose. [828]

2. [1645]

   The house was a single storey, brick veneer home which was built in about 1972. [829] The main bedroom occupied by Justice Gee was at the front of the house to the left (as one faced it from the street) of the building. [830] The house had four bedrooms and a number of living areas. At the front was an ornamental curved brick wall which provided some privacy for the front door from the street. It was adjacent to an ornamental pond near the front porch of the house.

3. [1646]

   Mrs Helen Gee was not in the house on the evening of 6 March 1984. She was an in-patient at the Royal North Shore Hospital, as she suffered from a chronic health condition.

4. [1647]

   Justice Gee retired to bed after his daughter, at about 9.20pm. [831] His son retired to bed at about 10.20pm. [832] All was well at that time.

5. [1648]

   Shortly before 2am, probably about 1.50am, there was a loud explosion which woke Justice Gee and his children. [833] They each managed to get out of the house and make their way to a neighbour’s house. It was immediately apparent that significant structural damage had occurred. The Police and ambulance were called. [834]

6. [1649]

   Detective Senior Constable Millingen from the Ballistics Unit was called to the scene of the explosion. He arrived at about 3am. [835] By the time of his arrival, a number of police officers – including senior police officers – were already at the scene. Having secured the scene, he organised a search outside the boundaries of Justice Gee’s home. Debris was removed (either that evening or else when the search resumed the following day) from an area which stretched about 50m from Justice Gee’s home. [836]

7. [1650]

   Detective Senior Constable Millingen found that the seat of the explosion was on the front doorstep of the house. The explosion had demolished the front ornamental wall as well as the whole of the front of the house. [837] The blast wave travelled through the house extensively damaging all of it.

8. [1651]

   A 12 foot long piece of burnt safety fuse was found at the site during the search. It was of a type called “Selective Buff” and was imported into Australia by ICI Australia Pty Ltd. This particular type of safety fuse ordinarily burns at the rate of 1 foot per 30 seconds. That would mean that the burning time for the safety fuse was about six minutes. In other words, the safety fuse which was connected to the detonator, and which caused the detonator to function, would have burned for about six minutes before it reached the detonator. [838] Thereafter the explosion would have been instantaneous.

9. [1652]

   No bomb fragments were found at the scene, which would suggest that the bomb was in a container such as a pipe or something similar.

10. [1653]

    Mr Michael Liddy, a scientist from the Division of Analytical Laboratories of the NSW Department of Health, attended the scene at Neridah Avenue, Belrose. He was unable to recover any explosive residue from the scene or from items submitted to him for later analysis. [839]

11. [1654]

    Detective Senior Constable Millingen formed the opinion that the explosive was a form of “blasting explosive” similar to gelignite. [840] I accept this opinion. As I have earlier concluded, [841] for the reasons I there expressed, I do not accept the opinion of Mr O’Reilly that the probabilities were that a home-made explosive was used in this explosion.

12. [1655]

    It is unnecessary to make a finding about the quantity of the explosive used. Having regard to the nature and extent of the damage, it is obvious that the explosion was carried out with the intention to murder Justice Gee.

13. [1656]

    There was no evidence, and no submission was made, that suggested that the explosion was connected with the personal life of Justice Gee and his family. The only possible reason for the bombing was one connected with his role as a Judge of the Family Court of Australia sitting at the Parramatta Registry since his appointment on 25 July 1980. [842]

14. [1657]

    Justice Gee, after the explosion, was taken to the Royal North Shore Hospital where he remained as an in-patient until 17 March 1984. He suffered various injuries including lacerations to his left leg and arm.

15. [1658]

    Neridah Avenue in Belrose at that time was a suburban street with single houses on each block, typical of that part of Sydney. It runs parallel to the main road, Forest Way, which runs generally north-south from Frenchs Forest through to Mona Vale Road at the northern edge of the suburb of Belrose. Neridah Avenue does not connect directly to Forest Way. The nearest exits to Forest Way were via Wyatt Avenue to the north or Ralston Avenue to the south.

Observations

1. [1659]

   Mr Peter Jones, who lived near the corner of Wyatt Avenue and about 400m from the home of Justice Gee, was woken by the explosion at 1.48am. [843] He dressed, went outside to his garage first (which was towards the back of his block) and then walked out and stood in the street. He saw a Holden station wagon, musty green in colour, drive along Charleroi Avenue and then turn right at the intersection of Wyatt Avenue. The car accelerated quickly away. [844] Mr Jones estimated that it was about five minutes between when he heard the explosion and when he saw the car. He did not identify the driver as the Accused. [845]

2. [1660]

   The evidence of Mr Jones was not challenged, and I accept that he accurately told the Police what he saw and heard.

3. [1661]

   Mr Anthony Seaegg lived in Fiona Street, quite close to the home of Justice Gee. He returned to his home at about 1.30am, having been at a social function. He drove north along Neridah Avenue. He observed a Holden or Falcon style of vehicle which was a station wagon sedan, blue/green in colour, with a white “turret”. It was parked outside No.33 Neridah Avenue, facing in a northerly direction.

4. [1662]

   Mr Seaegg retired to bed and was awoken by the sound of the explosion. He went out to the front of his house and learned that Justice Gee’s home had been the target of a bomb explosion. He observed that the blue/green car was no longer parked where he had seen it. [846] His attention was drawn to the vehicle originally because he had had to drive around it – Neridah Avenue was quite narrow. [847]

5. [1663]

   The Accused submitted that the Court ought be satisfied that the car which Mr Seaegg had observed was the car used by the person responsible for placing the bomb at Justice Gee’s home. He further submitted that it had not been identified as being his vehicle. Hence, he submitted, the Crown has not disproved a hypothesis consistent with his innocence.

6. [1664]

   The basis for this submission seems to be that it was unusual for a car to be parked on the street in Neridah Avenue, rather than in a driveway or garage, and that it had left by the time Mr Seaegg had walked outside after the explosion. In my view the Accused’s submission is nothing more than speculation. There is no basis upon which to draw the inference which is contended for. First, as Mr Seaegg said, the cars which were parked on the street belonged to visitors rather than residents. It is an equally open conclusion that the driver of the vehicle was visiting another house on the street and not placing a bomb at Justice Gee’s house.

7. [1665]

   Secondly, Mr Seaegg’s timing suggests that it was about 20 minutes between when he entered his house (having the seen the motor vehicle a few minutes earlier) and when he walked outside after the explosion. Based only on his observations, the car could have left at any time in that period. There is no reason to conclude that it left shortly before the explosion (i.e. within the six minute safety fuse burning time).

8. [1666]

   I reject the Accused’s submission that the vehicle seen by Mr Seaegg was, on the probabilities, the car belonging to the person responsible for placing and detonating the bomb at the home of Justice Gee. That is because I cannot reasonably draw the inference contended for.

9. [1667]

   Although it is unclear from the Accused’s submissions, it seems to be suggested that the vehicles seen by Mr Seaegg and by Mr Jones are one and the same vehicle. In my view, the timing of the observations do not permit that conclusion.

10. [1668]

    When Mr Seaegg was woken by the explosion he went straight outside. He observed that the car was no longer parked in Neridah Avenue. He did not see it at all which means that, as well, it was not visible in Fiona Street where he lived.

11. [1669]

    Charleroi Road, where Mr Jones lived, joins Fiona Street. Mr Jones’ house was only a few hundred metres from the intersection of Charleroi Road and Fiona Street. When Mr Jones heard the explosion, it was sometime before he walked to the front of his property – he estimated about five minutes (although he said it could have been three) which was when he saw the motor vehicle.

12. [1670]

    Even allowing for the inaccuracies of the time intervals, given the relatively short distance involved (a few hundred metres), it is simply not possible for a car to have left – assuming that was just before Mr Seaegg looked out into the street - and then about five minutes later to have been driving past Mr Jones’ house. In my estimation, it would take no more than 30 seconds to a minute to travel the distance between where the car was parked and Mr Jones’ house.

13. [1671]

    As well, given that the vehicle seen by Mr Seaegg was parked to the south of Justice Gee’s house, if it was the same vehicle seen by Mr Jones to the north of Justice Gee’s house, it must have driven past Justice Gee’s home at the time of, or shortly before, the explosion.

14. [1672]

    In my view, if the car was the one being used by the person placing the bomb, the most likely escape route for the driver would have been to the south – in the direction away from Justice Gee’s house, where access could also have been gained to Forest Way.

15. [1673]

    Finally, the burning time of the safety fuse – six minutes – provided more than sufficient time for the person who placed the bomb and lit the fuse to return to their car and leave the area before the explosion occurred. That would be the most obvious and common sense approach for any offender to take so as to avoid detection. As well, it would, as a matter of common sense, be far more likely that the person would leave the scene by driving their motor vehicle in a manner which did not attract attention. I think it highly unlikely that the person responsible for the bomb would have waited until after the explosion to leave the area.

16. [1674]

    These factors persuade me that the observations by Mr Jones and Mr Seaegg of motor vehicles in Neridah Avenue and Charleroi Road on the early morning of 6 March 1984 are not relevant in identifying the person responsible for the bomb, as they, on the probabilities, were entirely unrelated to the bomb at Justice Gee’s home.

Crown Case Circumstances

1. [1675]

   It is now appropriate to consider the circumstances relied upon by the Crown to prove that the Accused was the person responsible for placing and detonating the bomb at Justice Gee’s home.

2. [1676]

   The circumstances can conveniently considered under the following headings which, the Crown says, in combination, prove its case:

3. [1677]

   I will now consider each of these in turn.

Opportunity

1. [1678]

   According to the Occurrence Book for the Liverpool Fire Station, [848] C Platoon, of which the Accused was a member, commenced its shift at 8am on 6 March 1984. The shift concluded at 6pm on that day. The Accused was recorded as present when the 8am shift started.

2. [1679]

   It appears that the Accused was recorded as being on sick leave for each shift from 6pm on Wednesday 29 February 1984 through to the shift commencing at 6pm on Monday 5 March 1984. There is a note in the Occurrence Book on 29 February 1984, which records the receipt of a medical certificate dated that day with respect to the Accused which noted that the Accused would be unfit for duty until Saturday 3 March 1984. C Platoon was not rostered on for duty on either 4 or 5 March 1984. The Occurrence Book noted that the Accused continued on sick leave during those two days.

3. [1680]

   I have earlier declined to find that, on any specific occasion, the Accused was actually recalled to duty because of a lack of evidence that this in fact occurred. However, it should be noted that in this specific instance the Accused could not have been the subject of recall to duty whilst he was on sick leave – as he was on the days leading up to Tuesday 6 March 1984.

4. [1681]

   I am satisfied that there was more than sufficient time available for the Accused, having placed and detonated the bomb, to travel back to his home in Casula, and then to the Liverpool Fire Station in time to commence his shift.

5. [1682]

   I am satisfied that the Accused had the opportunity to place and detonate the bomb which exploded at Justice Gee’s home.

Motive

1. [1683]

   Putting it briefly, the Crown’s case is that the Accused had a motive to place and detonate the bomb at Justice Gee’s home because of the orders which had been made and which the Accused anticipated might be made in the family law proceedings when presided over by Justice Gee. The Accused submitted that this was not so.

2. [1684]

   I earlier found that up until June 1980, with one exception, Justice Opas had heard and dealt with the family law proceedings between the Accused and Ms Blanchard. When Justice Opas was murdered, there were two extant applications – both brought by Ms Blanchard and filed on 13 May 1980. One was an application for Dissolution of Marriage. [849] The other was a lengthy application for “Property Orders, Maintenance and Custody”. [850]

3. [1685]

   The application for the Dissolution of Marriage was finalised by Justice Baker on 3 November 1980. On that day, his Honour also made some procedural orders with respect to the property application.

4. [1686]

   The Accused, in an affidavit sworn 30 October 1980, opposed the relief sought in Ms Blanchard’s property application. Principally, Ms Blanchard’s application sought orders which would have had the following effect:

5. [1687]

   The Accused swore an affidavit on 5 March 1981, [851] which included this as its final paragraph:

6. [1688]

   The proceedings were heard by Justice Gee on 15 April 1981. His Honour delivered an ex tempore judgment on that day. [852] It is apparent from the reasons for judgment that the Accused’s submission was that he should be permitted to remain in the house and pay Ms Blanchard the amount of $15,000 (being all he could borrow). [853] As that was less than a reasonable sum for Ms Blanchard’s proportion, the Accused offered to execute a trust document in favour of Trudi for the sum of $7,000 and to charge that sum against the house.

7. [1689]

   The lack of reality which this proposal bears to the matters being considered by the Family Court is noteworthy. [854] It was most apparent by the suggestion that a proportionate share between the Accused and Ms Blanchard of their joint matrimonial property could involve a part of the equity in the home being held for Trudi, when it in fact belonged to Ms Blanchard. I am persuaded that this offer evidences two things. First, the measure of attachment of the Accused to the home and his strong wish to keep it and to remain there. Secondly, his disregard for the Family Court and the provisions of the Family Law Act, which provided that his wife would be entitled to an appropriate proportion of the joint assets. The Family Law Act did not enable promises to be made for a child of the marriage to receive a share of the matrimonial property. The offer of the Accused was intended to deprive Ms Blanchard of such sum of money as she would have been entitled to.

8. [1690]

   Justice Gee ordered that the matrimonial home be sold and the net proceeds be divided equally. [855] He made orders providing for the division of other assets, and an increase in the maintenance being paid by the Accused for Trudi. He did not make any orders at all about custody and access.

9. [1691]

   On 8 May 1981, the Accused (through his lawyer) told his wife that he was unable to borrow sufficient money to pay her $22,000 for her half share of the matrimonial home. [856] He was endeavouring to find alternate finance. He sought Ms Blanchard’s confirmation of that sale agreement, and her confirmation for an extension of the time for him to acquire her interest.

10. [1692]

    Ms Blanchard’s lawyers responded to that letter on 10 July 1981. Ms Blanchard rejected the offer of $22,000. She indicated that the property would be placed on the market. She said that she would be prepared to consider an offer from the Accused if and when he was in a financial position to make such an offer. [857]

11. [1693]

    The issue was again taken up in correspondence by Ms Blanchard’s lawyers (who had been recently instructed at that time) on 2 July 1982. [858] Other ongoing issues were also raised. There is no evidence as to what had happened, if anything, in the 12 months since the letter of 10 July 1981.

12. [1694]

    Ms Blanchard again offered to consider selling her interest in the matrimonial home to the Accused, but such offer was conditional upon her capacity to obtain an up-to-date valuation of the home promptly.

13. [1695]

    There was further correspondence between the lawyers for the parties, but no resolution was reached regarding the sale of the property at Tallowood Avenue.

14. [1696]

    Ms Blanchard continued pressing for the sale. As noted in Event 6, the correspondence changed tone in December 1982, [859] when Ledlin Watts & Co took over acting for Ms Blanchard and sent a letter dated 14 December 1982. This change of tone was to be observed in that these new lawyers made it plain that there would be no further delay in the implementation of the orders of Justice Gee for the sale of the property. There was no reply of substance to the Ledlin Watts letter of 14 December 1982.

15. [1697]

    Although, in considering Event 6, I have already recorded the events in the family law proceedings between December 1982 and March 1984, it is convenient here to reproduce (without alteration) that account. In particular, it is important to draw attention to the role of Justice Gee in the proceedings and the impact of orders made.

16. [1698]

    On 10 February 1983, Ms Blanchard filed an application for further orders designed to enable the efficient sale of the matrimonial home. [860] That application was given a return date of 28 March 1983. [861]

17. [1699]

    On 22 March 1983, an amended application was filed. [862] The amended application included an order for the Accused to vacate the matrimonial home and orders limiting the Accused’s access to Trudi outside of the agreed access days. It also included an order that the Accused be restrained from taking Trudi outside the metropolitan area of Sydney without Ms Blanchard’s written consent. This would have precluded the Accused from taking Trudi to see his father at Helensburgh. That would have been obvious to him.

18. [1700]

    On 25 March 1983, [863] an affidavit of Ms Blanchard was filed setting out details of the non-compliance by the Accused with the orders and arrangements for access. In particular, Ms Blanchard referred to various events occurring at a preschool in Revesby insofar as the Accused was visiting Trudi on non‑access days. The affidavit noted that the Accused had collected Trudi for a day of access on 17 March 1983, [864] and, as at the time the affidavit was sworn, Trudi had not been returned. The affidavit sought an order for the immediate return of Trudi, the suspension of access and that the Accused be restrained from attending at the Revesby preschool. [865]

19. [1701]

    Insofar as the affidavit of Ms Blanchard referred to events at the Revesby preschool, these events were corroborated by an affidavit sworn on 15 April 1983 by the director of the preschool. [866]

20. [1702]

    On 28 March 1983, Justice Baker ordered that the Accused forthwith return Trudi to Ms Blanchard, as Trudi had still not been returned since she had been collected by the Accused on 17 March 1983. He also restrained the Accused from exercising access to Trudi other than in accordance with the order of 30 April 1979 which provided for access. He made procedural orders and stood the matter over to 18 April 1983.

21. [1703]

    According to the Accused’s affidavit of 18 April 1983, Trudi was returned to Ms Blanchard on 7 April 1983. She was taken on a holiday to Cooma by the Accused, outside the parameters of the Court orders and without the permission of Ms Blanchard. [867]

22. [1704]

    On 18 April 1983, the matter came before Justice Gibson, who made procedural orders and stood the matter over to 26 April 1983 for a short hearing of two hours. In court on 18 April 1983 was Mr Trench of counsel (as His Honour then was), instructed by Mr Harry Cormack, a lawyer employed by Ledlin Watts for Ms Blanchard. Mr Byrnes appeared for the Accused, who was also in court on that day. Mr Cormack gave evidence in this trial that while he (Mr Cormack) was still in the courtroom after Justice Gibson left the bench, [868] the Accused approached him and said words to the effect “You make sure that lump of wood has my child available for access”. [869]

23. [1705]

    Mr Cormack said that he was further approached by the Accused after he left the Court room, when he was on the ground floor of the Court building, when he said “Make sure that bitch has my child there for access”. [870] Mr Cormack said that he had asked Mr Byrnes to take his client away.

24. [1706]

    As I explained in my findings concerning Event 6, I find that I am persuaded that I should accept Mr Cormack’s evidence of this conversation.

25. [1707]

    On 25 May 1983, the proceedings came before Justice Gee. [871] The Accused was present. He did not have lawyer appearing for him on that day. Justice Gee enquired of the Accused whether he wished to proceed with the foreshadowed application to transfer the proceedings to the Sydney Registry of the Family Court.

26. [1708]

    That foreshadowed application was set out in an affidavit sworn by Mr T.F. Byrnes, the Accused’s lawyer, on 18 April 1983. [872] I note that Mr Byrnes had ceased to act for the Accused, who had withdrawn his instructions. A Notice of Ceasing to Act was filed on 26 April 1983. [873]

27. [1709]

    Justice Gee enquired of the Accused whether he wished to proceed with the foreshadowed application to transfer the proceedings to the Sydney Registry of the Family Court. The Accused did not answer Justice Gee. Rather, the Accused said that he personally did not think that it would make any difference. He persisted with his non-answer to Justice Gee’s direct and entirely proper questioning. In light of that displayed attitude, Justice Gee stood the matter down in his list and referred the Accused to obtain legal advice from the duty lawyer provided by the Legal Aid authorities. [874] Justice Gee also enquired of the Accused whether counselling might assist in relation to the outstanding issues. The Accused responded “No. Not at all. I have been through that before”. [875]

28. [1710]

    When the matter returned to Court, the duty lawyer (a Mr Davis) appeared and informed Justice Gee that the Accused did not want him to appear for him. The following exchange then occurred directly between Justice Gee and the Accused about whether he (the Accused) was proceeding with the transfer application: [876]

29. [1711]

    Justice Gee then excused the duty lawyer and stood the matter down in the list until he had time to hear it. [877] The matter was called on again later in the day after lunch, but the Accused was not present. [878] It seems that he had left the Court building. His Honour stood the proceedings over to 16 June 1983, and ordered that notice be given to the Accused of the next hearing day. [879]

30. [1712]

    The proceedings were listed before Justice Gee on 16 June 1983. The Accused had not been served with the requisite notice. It seems that, at least on one occasion, the Accused had refused to answer his door to the process server. [880] The proceedings were, as a consequence of the non-appearance of the Accused, stood over to 19 July 1983.

31. [1713]

    Although the Accused was notified of this adjourned date by registered mail, when the matter was called on before Justice Gee he was not in attendance either in person or by a lawyer. [881] Justice Gee proceeded to hear the application in the absence of the Accused. [882] He delivered judgment orally at the conclusion of the argument. His Honour made the orders sought with respect to enabling the sale of the matrimonial home. As well, Justice Gee made orders restraining the Accused from visiting Trudi at school on any day other than on authorised access days, and also from removing Trudi from the Sydney Metropolitan Area without the written consent of Ms Blanchard. His Honour also ordered that the Accused have reasonable access to Trudi and that such access was to include at least each alternate Saturday. [883]

32. [1714]

    These orders were served personally on the Accused on 23 August 1983. [884] The Accused applied for and was sent a copy of the transcript and reasons for judgment of Justice Gee. [885]

33. [1715]

    The Accused, I am satisfied, would have read the transcript and seen that Justice Gee made remarks which were open to be understood by the Accused as being critical of him and his attitude to the proceedings. His Honour had said that the “… [Accused] may not turn up having regard to his departure on the last occasion” [886] and, further, he later remarked on the Accused’s “… lack of interest in these proceedings”. [887]

34. [1716]

    As noted in Event 6 at [1545], the lawyers for Ms Blanchard pursued her interests vigorously in early 1984. On 27 January 1984 Mr Cormack, on behalf of Ms Blanchard, filed proceedings seeking various orders dealing with custody and access. [888]

35. [1717]

    The application was made on an ex parte basis to Justice Gibson. [889] Orders were sought for the return of Trudi forthwith to Ms Blanchard, and that a warrant be issued to the AFP to retrieve Trudi from the Accused. Justice Gibson made these orders, but suspended the operation of the second order issuing the warrant. He stood the proceedings over to 31 January 1984.

36. [1718]

    Service of this order was attempted at the matrimonial home at Tallowood Avenue, Casula. I am satisfied that the Accused was present on the day when service was attempted at his house, and intentionally declined to answer the door when the process server knocked on it. [890]

37. [1719]

    On the morning of 31 January 1984, Ms Blanchard contacted the Accused to enquire when he was returning Trudi to her. He said that he was not going to do so. When pressed further, he hung up. Ms Blanchard gave evidence on oath of this conversation. [891] Justice Gee discharged the order suspending the issue of a warrant to the AFP to retrieve Trudi on 31 January 1984, and stood the rest of the application over to 13 February 1984. [892]

38. [1720]

    The consequence of this order was, in light of the fact that the Accused had not returned Trudi, to enable officers of the AFP to locate the Accused and retrieve Trudi from him and return her to Ms Blanchard.

39. [1721]

    The warrant was executed at about 9pm on the evening of 31 January 1984, when Trudi was retrieved and returned to Ms Blanchard. [893] The circumstances in which that occurred are fully described in an affidavit of Ms Blanchard sworn on 17 February 1984. [894] That affidavit also referred to other difficulties with access on many previous occasions. Ms Blanchard has affirmed in this trial the correctness of the contents of the affidavit she swore in the Family Court proceedings. [895] I accept the accuracy of Ms Blanchard’s description of the events surrounding the retrieval as set out in her affidavit sworn 17 February 1984.

40. [1722]

    I note that up until the time that the warrant was executed on 31 January 1984, there is no evidence that the Accused knew of the terms of the application which had been made or the orders which Justice Gibson had made. However, I am satisfied that he did know after the warrant was executed, because a copy of the orders of the Court of 27 January 1984 was attached to the warrant.

41. [1723]

    On 20 February 1984, there was also filed a further application by Ms Blanchard to define access and for a restraining order against the Accused. [896] This application was made returnable before the Court on 6 March 1984. That was the same day upon which the earlier application filed on 27 January 1984 had been listed by Justice Baker on 13 February 1984. [897]

42. [1724]

    Service of the two applications filed in January and February 1984, together with the two affidavits sworn by Ms Blanchard, was made upon the Accused on 25 February 1984. The circumstances of this service were fully described by Mr Gavan in an Affidavit of Service sworn on 29 February 1984. [898]

43. [1725]

    Mr Gavan, in this trial, gave evidence that the affidavits of service which he swore in the Family Court proceedings were accurate at the time they were made. [899] That statement was not challenged in cross-examination and I accept it.

44. [1726]

    The circumstances described by Mr Gavan on 25 February 1984 point strongly to the conclusion that the Accused knew that he was to be served with documents relating to the Family Court proceedings and was intentionally refusing to accept service. I am satisfied the Accused had knowledge of the applications because of the documents attached to the warrant when it was executed on 31 January 1984.

45. [1727]

    In the course of the Accused’s conduct in avoiding service of the documents, it appears that he was being assisted by Mr Duncombe, the Station Officer at the Liverpool Fire Station. I am satisfied that because the documents were handed to Mr Duncombe at the Liverpool Fire Station whilst the Accused was at work there. It follows that Mr Duncombe would have handed them on to the Accused who, I am satisfied, would have read them.

46. [1728]

    The two applications made by Ms Blanchard were listed for hearing before Justice Gee on the morning of 6 March 1984. Because of the injuries suffered by Justice Gee as a consequence of the explosion at his home on that morning, the matter came before Justice Watson, who heard and dealt with it in a way which will be more fully described later.

47. [1729]

    From this review and the underlying evidence, I am satisfied that the following circumstances are established from the family law proceedings:

48. [1730]

    I am satisfied that this history, when considered in the context of the proceedings generally (including what had happened in 1979 and 1980), is such that I ought to conclude that the Accused would not have been at all pleased with the orders made in Court by Justice Gee. The Accused would reasonably have been concerned about the likely outcome of any hearing on 6 March 1984 if it were listed before Justice Gee. It follows that I do not accept the submissions of the Accused that he had no reason to hold feelings of antipathy towards Justice Gee, or that Justice Gee had made orders in his favour such that he would perceive that he had been treated fairly in an overall sense by Justice Gee.

49. [1731]

    As well, I am satisfied that, having regard to the number of occasions that Justice Gee had dealt with the proceedings (including on the last occasion when the Accused had been present for a hearing), the Accused would not unreasonably have anticipated that Justice Gee would again be hearing the matter. That reasonable anticipation could have been confirmed by reading the Sydney Morning Herald, in which the lists of matters were published on the day before they were to be heard. [900]

50. [1732]

    I accept the Crown’s submission that that the Accused displayed a pattern of disobedience to the Family Court orders with regard to both custody and access, and the sale of the matrimonial property. This can most readily be evidenced by reference to the affidavit material in the Family Court file, [901] and the need for Ms Blanchard to seek the orders which she did in the period between May 1981 and March 1984 (particularly in 1983 and 1984). This evidence showed a pattern of behaviour of the Accused ignoring the Family Court orders to do what was in his own best interests to achieve his dual aims of unrestricted access to his daughter and to remain in the matrimonial home.

51. [1733]

    I am satisfied that the Crown has established on the probabilities that the Accused had a motive to place and detonate the bomb at Justice Gee’s home, so as to prevent Justice Gee hearing the proceedings on 6 March 1984. I am satisfied this was because he thought that there was a reasonable prospect that Justice Gee would make orders consistent with his past orders, which would be contrary to the Accused’s interests and which would adversely interfere with his access to his daughter, Trudi.

Coincidence

1. [1734]

   I have previously found that the Crown has satisfied me beyond reasonable doubt that the Accused murdered Justice Opas in June 1980, that he was responsible for placing the bomb in Mr Tall’s car in February 1985 and that he was responsible for the explosion at the Kingdom Hall in July 1985.

2. [1735]

   I have also previously found that Events 2 to 7 did not occur coincidentally, i.e. they were not unrelated. I am satisfied that they were causally related.

3. [1736]

   This is a circumstance which I am persuaded I should take into account as telling strongly in favour of the Crown’s proof of the guilt of the Accused of the bombing Justice Gee’s home.

4. [1737]

   Put differently, if Events 2 to 7 did not occur by coincidence and are therefore linked, and the Accused is guilty of carrying out Events 2, 6 and 7 (as already established), then there is a strong likelihood based on coincidence reasoning that he will have carried out Event 3 as well.

Tendency

1. [1738]

   Similarly with Event 6, the Crown relies on the fact that it has been established that the Accused had, at the time of the bombing of Justice Gee’s house, a tendency:

2. [1739]

   The tendencies of the Accused, which I am satisfied the Crown has established were in existence at the time that this bomb was placed in the vehicle, are a circumstance which I am satisfied can, and should, be taken into account as a factor pointing to the guilt of the Accused.

No Other Reasonable Hypothesis

1. [1740]

   As earlier noted, the Accused submitted that the motor vehicles seen on the streets of Belrose around the time of the bomb explosion (which were not identified as belonging to him) were in fact the same vehicle, which was used by the person who placed the bomb. It was submitted that the Crown had not disproved that this was a reasonable hypothesis, and that it was consistent with the innocence of the Accused.

2. [1741]

   I have earlier found that I was satisfied that the motor vehicles were not connected to the bomb which exploded at Justice Gee’s home. The drivers of the motor vehicles are not reasonable hypotheses consistent with the innocence of the Accused.

3. [1742]

   The Accused has also pointed to Dr Silvano Mariti, Mr Shoukat Abroo and one or more members of FLAG (an acronym for the Family Law Action Group) as being responsible for the bombing of Justice Gee’s home. In later parts of this judgment, I consider and reject these identified names as possible perpetrators of this bombing.

4. [1743]

   I have been satisfied by the Crown that there are no other reasonable hypotheses consistent with the innocence of the Accused.

Circumstances Identified by the Accused

1. [1744]

   In his submissions, the Accused identified a number of circumstances which he argued stood in the way of a conclusion that he committed this offence beyond reasonable doubt.

2. [1745]

   Whilst some of the Accused’s submissions asserted matters of fact without any evidentiary basis (which I have therefore disregarded), the following circumstances have been established.

3. [1746]

   The home of the Accused was searched on 29 February 1980, 9 August 1980 and 31 July 1984. There were also later searches. During those searches, the Police did not find any explosives, detonators, safety fuse or any explosive residues.

4. [1747]

   However, the searches in 1980 were approximately four years before the bomb was detonated at Justice Gee’s home. I therefore do not regard it as likely that the Accused would have had in his possession at that time any explosive which was used in March 1984. As well, the 1984 search happened about four to five months after the explosion at Justice Gee’s home. Consequently, if the Accused was responsible, I regard it as most unlikely that he would have kept explosives or detonators from the bomb at his house in July 1984. That is particularly so given that his house had been searched after each of Events 1 and 2. He therefore would have expected another search after Event 3. Nevertheless, the absence of explosives or detonators is a matter which must be kept in mind, although I regard it as carrying little weight.

5. [1748]

   As I have noted, [902] the evidence in this trial does not suggest that the Accused had any knowledge or experience in dealing with explosives. This is a relevant circumstance. However, as I have also noted, [903] the Crown has proved to my satisfaction that there was available to the Accused (as a member of the community generally) publications, books and manuals which provided information and instructional material covering the making of a relatively simple bomb of the kind used to destroy Justice Gee’s home.

6. [1749]

   There was no evidence in the trial which identified the Accused, or his motor vehicle, at the scene of the explosion or anywhere in the Belrose area at any time. The evidence did not suggest that the Accused made any threat to harm Justice Gee. The evidence did not suggest that the Accused knew of Justice Gee’s address. However, given that Justice Gee and other Judges in the Parramatta Registry of the Family Court were driven to and from their homes in readily identifiable Commonwealth cars, there was a simple means to discover where Justice Gee lived. I will keep these circumstances in mind when considering whether the Crown has proved the guilt of the Accused beyond reasonable doubt.

Summary and Conclusion

1. [1750]

   In coming to consider whether the Crown has proved the guilt of the Accused beyond reasonable doubt with respect to the placing and detonation of the bomb at Justice Gee’s home, I remind myself that I must apply the directions of law which I have previously given myself about the proof of a circumstantial case.

2. [1751]

   In particular, I note that the guilt of the Accused must be proven beyond reasonable doubt. I note that I must return a verdict of not guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the Accused. The guilt of the Accused must be the only rational inference that I am able to draw when all of the circumstances have been considered.

3. [1752]

   The Crown has satisfied me beyond reasonable doubt that the Accused committed the offence charged in Count 3 of the Indictment. That is because I am satisfied beyond reasonable doubt that the Accused was the person who placed and detonated the bomb at Justice Gee’s home. It is to be recalled that this was the only issue in dispute in this trial with respect to this Count.

4. [1753]

   I am satisfied beyond reasonable doubt that the Accused was the offender for several reasons. First, I am satisfied that he had the opportunity to commit the offence, in the sense that he was not rostered on at work as a fireman at the time. Secondly, he had a strong motive to place the bomb and detonate it, because Justice Gee had made orders which were adverse to him in the ways earlier described. Thirdly, the Accused was a man who had a tendency to commit violence against individuals who acted in ways which interfered with his access to his daughter.

5. [1754]

   The timing of the explosion adds considerable weight in my assessment to the proof that the Accused was the person who placed and detonated the bomb. The fact that the explosion occurred at Justice Gees’ house in the early hours of the same morning that the Accused’s proceedings were listed to be heard by Justice Gee, in circumstances where the application which was to be considered could have removed completely (or else further restricted) the Accused’s access to his daughter, is a relevant circumstance.

6. [1755]

   A circumstance which I assess to be of considerable weight as pointing to the proof of the Accused’s guilt, is the fact that this Event 3 is not to be seen as coincidental to Event 2 (the murder of Justice Opas) and Events 4 to 7. Those Events were not coincidences. They were Events linked by a number of factors, as have earlier been described.

7. [1756]

   I have been satisfied that the Accused was the person responsible for the murder of Justice Opas, the placing of the bomb in Mr Tall’s car and the explosion at the Kingdom Hall (Events 2, 6 and 7). This is a circumstance which I regard as being of considerable significance in pointing to the guilt of the Accused of this offence.

8. [1757]

   I have considered all of the other circumstances that have been proven by the evidence. Although not all of them support a finding of guilt, none of them constitute a reasonable hypothesis consistent with the innocence of the Accused.

9. [1758]

   I am satisfied that the Crown has proved beyond reasonable doubt that the guilt of the Accused of the offence in Count 3 is the only reasonable hypothesis available on a consideration of all of the circumstances.

10. [1759]

    I find the Accused guilty of the offence in Count 3 on the Indictment. I am satisfied beyond reasonable doubt that the Accused exploded an explosive substance at 42 Neridah Avenue, Belrose on 6 March 1984 with the intention to murder Justice Gee and destroy his home.

11. [1760]

    There is no need to consider Count 4 on the Indictment, which is only charged in the alternative to Count 3.

12. [1761]

    At about 10.20pm on Sunday 15 April 1984, a bomb exploded at the front of the Family Court of Australia building at Parramatta causing extensive damage to the building. Fortunately, no-one was killed or injured.

13. [1762]

    Count 5 on the Indictment charges the Accused with the commission of an offence contrary to s 204 of the Crimes Act, that he maliciously placed an explosive substance near a building, being the Family Court of Australia building at Charles Street, Parramatta, with the intent to damage the building.

14. [1763]

    The Accused does not put in issue any of the essential elements of this offence, except that he submitted that he was not the offender. In other words, the Accused accepts (as do I) that the Crown has proved beyond reasonable doubt each of the essential elements of the offence except that of the identity of the offender. The Accused denies that he is the offender.

15. [1764]

    No-one was seen placing the bomb or detonating it. The Crown’s case is a circumstantial one. I remind myself that because this is a circumstantial case, I must keep in mind and apply the circumstantial evidence direction, as found earlier in this judgment at [88]-[90].

Crown Case

1. [1765]

   The Crown’s case is that the Accused assembled, placed and caused to be exploded a pipe-bomb at the front entrance of the Family Court of Australia building at Parramatta at about 10.20pm on 15 April 1984.

2. [1766]

   The Crown submitted that, as with previous counts on the Indictment, the Accused was motivated by anger borne from his ongoing matter which was being heard in the Family Court at Parramatta at the time. The Crown submitted that the timing, place and nature of the explosion meant that the bomb was aimed at the Family Court as an institution rather than at a specific individual. Nevertheless, the nature of the bomb meant that it carried a real possibility of harm to others.

3. [1767]

   The Crown relies on tendency reasoning and coincidence evidence with the other Events, the subject of the Indictment, as proving their case in relation to this Count beyond reasonable doubt.

4. [1768]

   I have, in an earlier part in this judgment, dealt with the establishment of tendency and coincidence evidence.

5. [1769]

   The Crown submitted that the following facts could be established on the evidence in relation to the Family Court proceedings involving the Accused and his former wife, Ms Blanchard:

6. [1770]

   The Crown submitted that the Police investigation had produced sufficient evidence to establish that the offender had placed a bomb against a structural pillar at the front of the Family Court of Australia building and caused the detonation of it.

7. [1771]

   The Crown submitted that based upon the materials discovered at the site of the explosion, the Court should accept that the type of bomb was a pipe-bomb which had been created by arc-welding.

8. [1772]

   Further, a hessian bag (sometimes described as “jute”) and PVC electrical tape were both found at the site. The Crown submitted that this meant that it was likely that the bomb was inside the hessian bag and that the bomb had utilised the PVC tape. Similar items were found at the Accused’s home.

9. [1773]

   The Crown submitted that the Accused had the same welding skills as those used in the manufacture of the pipe-bomb. The Accused had been enrolled in an arc-welding course at NSW TAFE in 1979. A search of the Accused’s home on 31 July 1984 by the Police found a substantial quantity of arc‑welding equipment as well as literature relating to welding. During the same search of the Accused’s home, the Police found six hessian bags and a roll of red PVC tape in the Accused’s garage.

10. [1774]

    The Crown ultimately submitted that the Accused had the requisite skills and equipment to undertake the construction, and cause the detonation, of the pipe-bomb used in this bombing.

11. [1775]

    The Accused was on duty as a fireman at the Liverpool Fire Station on 15 April 1984, and his shift concluded shortly after 6pm that evening. The Crown submitted that the Accused had the opportunity to commit the offence.

Submissions for the Accused

1. [1776]

   The Accused denied constructing, placing or causing the detonation of the bomb at the Family Court of Australia building at Parramatta. He submitted that the evidence does not support the conclusions central to the Crown’s case and that its case is insufficient to eliminate several reasonable hypotheses consistent with his innocence.

2. [1777]

   The Accused disputed the Crown’s submissions that the evidence establishes that a pipe-bomb was used. The Accused pointed to the evidence and expert report of Mr Francis Lawton which noted that a pipe-bomb was not commonly used to do damage to a building.

3. [1778]

   Furthermore, the Accused submitted that there was no evidence that explained how he would have had access to the type of pipe which the Crown alleges was used. The Accused also noted the evidence that the type of pipe used appeared to be uncommon in Australia and had potentially come from a ship.

4. [1779]

   The Accused rejected any suggestion that the pipe could have come from the coalmine at which his father had formerly been employed, noting that his father had retired more than a decade before this bombing occurred.

5. [1780]

   The Accused disputed the Crown’s submission that the evidence had established that the red PVC tape found at the scene had been used in the construction or detonation of the bomb. The Accused pointed to the evidence of Detective Ransome given during the trial when he said that the PVC tape which had been found was not particularly damaged, and could have been unrelated to the bomb.

6. [1781]

   The Accused drew the Court’s attention to evidence from Dr Thomas Hickie that the brown fabric material (recovered from the debris after the explosion) was likely to have come from women’s clothing. Accordingly, the Accused submitted that the Crown’s theory that the bomb was in a hessian bag could not be established. However, it is clear that this confuses Dr Hickie’s evidence about the nature of the brown fabric and the pieces of coarse woven fabric which was part of a hessian bag.

7. [1782]

   Furthermore, the Accused submitted that both the red PVC tape and the hessian bag were items which were in wide circulation at the time, were reasonably common and readily found in households throughout Sydney. The fact that the Accused had such PVC tape and hessian bags in his home, he submitted, would not carry any great weight in pointing to his guilt for this offence.

8. [1783]

   The Accused drew attention to the timing of the bomb and the fact that he had completed his work a few hours before the bomb exploded. He submitted that it would have been illogical for him to have placed the bomb within a few hours of completing his work when he was required to be at work at 8am the following day, and that it would have been much easier for him to place the bomb during a period of time when he was not rostered on to work.

9. [1784]

   The Accused submitted that the vague descriptions from the investigating officers, unsubstantiated by any contemporaneous records, have made it impossible for the Crown to establish that the Police had conducted a thorough or sufficient investigation. Consequently, the Accused submitted that this meant the Crown could not satisfy the Court that there was no hypothesis consistent with his innocence.

10. [1785]

    The Accused pointed to evidence from a meeting held by members of the Family Law Action Group (“FLAG”) at an earlier time on the night the bomb exploded, where the President of the group, Mr John Loudon, was said to have stated “It won’t be long before someone bombs the Family Court”.

11. [1786]

    The Accused noted two suspects, Mr John Carroll and Mr Terrence Bryne, who were both powder-men and would have had access to explosives, and that the Crown had failed to exclude them as being the people who might have carried out the bombing. The Accused also made lengthy submissions concerning Mr Loudon, as the President of FLAG, other members of FLAG, and also Dr Silvano Mariti as suspects who would each have constituted a reasonable hypothesis consistent with the Accused’s innocence. I have elsewhere dealt with Dr Mariti.

12. [1787]

    The Accused submitted that unlike many other suspects, he had never threatened the Court or a Judge of the Court. The Accused pointed to the inadequacy of the Police investigations, and that significant records, which he asserted would have been kept, were no longer available.

Events of 15 April 1984

1. [1788]

   The Family Court of Australia was the only occupant of a building located at the corner of Phillip Street and Charles Street, Parramatta. The Parramatta River, which runs in a generally east/west direction, is located to the north of the building. George Street is the next principal road to the south of the building.

2. [1789]

   Adjacent to the building, on the northern side, was a house in which Mr Anthony Laws, the building’s part-time caretaker, lived with his wife and two children (including his son Mr Peter Laws). [904] Just after 10pm Mr Anthony Laws parked his vehicle in the basement carpark of the building and then checked to see that all of the doors were secure. He noticed nothing untoward. He entered his home and prepared to go to bed. At a time estimated to be between 10.15pm and 10.20pm, he heard a very loud explosion and his house shook. Together with his son, Peter, they managed to climb out of the house through a window. They walked to the middle of Charles Street where each of them observed that the front of the Family Court building had been extensively damaged. [905] The Police were called and arrived quite quickly.

3. [1790]

   Later on, Mr Anthony Laws observed that the area on the right-hand side of the building, near the entrance and a support pillar, was severely damaged and that many windows were broken. Mr Laws, who had died by the time of trial, said in his statement given to the Police on 17 April 1984 that he had not noticed anyone acting suspiciously around the area of the Family Court building at any relevant time. [906]

4. [1791]

   Photographs taken of the building on the following morning show significant internal and external damage. The photographs also make it clear that the greatest amount of damage was to be seen on the front right-hand side pillar. It was in the south-western corner of the building. Next to it was a built up garden bed with brick walls and which adjoined the pillar. [907]

5. [1792]

   Detective Senior Constable David Ransome was the on-call officer for the Ballistics Unit and attended the scene on the evening of 15 April 1984.

6. [1793]

   My findings with respect to this bombing derive largely from Detective Ransome’s evidence. I entirely accept his evidence on this issue. Detective Ransome was well-qualified by this time as a police bomb technician and had also received extensive post-blast analysis training. [908] He had particular practical experience in building pipe-bombs, exploding pipe-bombs and examining the damage caused by bombs of that kind. [909]

7. [1794]

   Detective Ransome arrived at about 11pm and was the Officer in Charge of examining the crime scene. [910] The examination lasted for a couple of days and included the immediate scene at the Family Court building, and also the surrounding areas.

8. [1795]

   Detective Ransome established that the seat of the explosion had been in the raised brick garden bed adjacent to the eastern side of the front south‑western pillar. The location was identified from his inspection of the damage to the area. [911] Although swabs were taken of the area, no explosive residue was identified. [912]

9. [1796]

   During the search, a number of metal fragments were found which, from their appearance, Detective Ransome identified as being fragments of a metal pipe. [913] Most of the fragments were found in the garden bed. Detective Ransome formed the opinion that, based upon their appearance and their distribution around the explosion scene, the metal fragments formed a part of a pipe-bomb. [914] I accept this opinion.

10. [1797]

    During the search, Detective Ransome gathered some badly fragmented parts of a hessian bag. He formed the opinion that the hessian bag had been extremely close to the bomb when it went off. [915]

11. [1798]

    He found other pieces of cloth material which were coloured blue and brown. [916] These pieces of material were sent for analysis to Dr Thomas Hickie at the University of NSW. Dr Hickie determined that the brown knitted fabric had most likely come from a belt and was part of a piece of women’s clothing. The blue material was identified as being part of a piece of clothing as well. The piece of hessian (or jute) was described as most likely to be part of a heavy hessian bag. [917]

12. [1799]

    I reject the Accused’s submission, because it is unsupported by this or any other expert opinion, that the jute or hessian was related to women’s clothing.

13. [1800]

    Detective Ransome concluded that a pipe-bomb had been placed on the eastern side of the pillar at the front of the building inside the garden bed; that the bomb had consisted of a length of pipe sealed at each end, and with the explosives placed inside the pipe. [918] He did not find a detonator and was unable to form any view as to how the bomb had been detonated. [919] No spent safety fuse was found – as was the case after the explosion at Justice Gee’s home on 6 March 1984.

14. [1801]

    Detective Ransome received a report from Tubemakers of Australia Ltd, a company which specialised in the provision of pipe, that the pipe had been approximately 5 inches in diameter and was galvanised at a time that was after its date of manufacture. [920] The report also noted that it was not possible to determine whether the galvanising had been done in Australia or overseas. [921]

15. [1802]

    The Accused tendered a running sheet prepared by Detective Ransome setting out the results of his enquiries with Tubemakers of Australia Ltd and the opinions which they provided to him, [922] which I accept.

16. [1803]

    Detective Ransome initiated a request for technical support and assistance to the Materials and Research Laboratories (“the MRL”) which was part of the Department of Defence. This body had been suggested to him by senior Army personnel in Sydney as the appropriate one to contact. [923] When Detective Ransome attended at the MRL, he addressed the Board seeking their assistance. They assigned Mr Robert Barnes to assist him. He met with Mr Barnes on that occasion. Mr Barnes was not part of the investigation that had occurred at the scene of the Family Court building bombing.

17. [1804]

    During the course of the investigation, Detective Ransome sent various fragments and other physical items to the MRL for Mr Barnes to examine. Mr Barnes informed Detective Ransome that he, too, thought that the explosive device was a pipe-bomb and he prepared a sketch of what it might have looked like. [924]

18. [1805]

    As is apparent from what has earlier been written, the evidence of, and the opinions formed by, Mr Barnes, have been heavily criticised by the Accused. For the purpose of making the findings of fact about this Event based upon the evidence of Detective Ransome, I have not taken into account any opinion expressed by Mr Barnes with respect to any of the factual findings relating to the Family Court building bomb.

19. [1806]

    As I have earlier said, I entirely accept Detective Ransome’s observations of fact, his opinions and the evidence which he gave about the bomb at the Family Court building at Parramatta.

20. [1807]

    There was no expert evidence in the trial, although Mr O’Reilly and the Accused’s explosives expert, Mr Lawton, expressed some views about the Family Court building bombing which contradicted Detective Ransome’s opinion that the bomb had been a pipe-bomb and that the seat of the explosion had been in the raised garden bed adjacent to the eastern side of the front south-western pillar.

21. [1808]

    To the extent that Mr Lawton’s submissions suggested that a pipe-bomb was an unlikely item to be used against a building, I do not find that this opinion is of sufficient weight to displace my acceptance of Detective Ransome’s opinion, based upon what he found and what he saw at the scene, that a pipe-bomb had been used. Perhaps using a pipe-bomb was illogical and contrary to Mr Lawton’s experience. However, that does not mean that a pipe-bomb was not used. On the contrary, having regard to what was found at the scene, I am well satisfied that this was a pipe-bomb.

22. [1809]

    I note that the bomb exploded late on a Sunday evening when the Family Court was not operating. On the probabilities, having regard to where the bomb was placed, I am satisfied that the bomb was intended, principally, to damage the Family Court building. It was placed in a concealed position inside, I am satisfied, a hessian bag or at least concealed by the hessian bag being around it. That area of Parramatta where the Family Court building was located was not on a major thoroughfare. Placing the bomb in position on a Sunday evening would have seen that act occurring at a time when it could be expected that there would not be much, if any, pedestrian or vehicular traffic.

23. [1810]

    No timing or other delay device was found; no batteries or other power source was found; no fragments of any such devices or power sources were found. It is possible that the reason for this is that the search was not appropriately conducted. However, that was not the impression I gained from Detective Ransome’s evidence. On the contrary, I gained the impression that the search, which was conducted over a number of days, was done quite carefully.

24. [1811]

    I am not persuaded that the bomb was intended to explode at a later time than it did - such as on the following morning when the Court was sitting as postulated by Mr O’Reilly. I would have expected the remnants of a delay mechanism, a power source or a timing device to have been recovered, particularly in the area of the garden bed where the remnants of the pipe were discovered, had they been part of the configuration of the bomb.

Crown Case Circumstances

1. [1812]

   It is now time to review the circumstances relied upon by the Crown to see if it has proved beyond reasonable doubt that the Accused was the person responsible for the placing of the bomb at the Family Court of Australia building on Charles Street, Parramatta.

2. [1813]

   I will proceed to consider these circumstances, in turn, under the following headings:

Opportunity

1. [1814]

   In the week leading up to the bomb exploding at the Family Court building, the Accused had a rostered four day rest period from Wednesday 11 April 1984 to Saturday 14 April 1984 (including those days). His next duty roster commenced at 8am on Sunday 15 April 1984. [925] On that day, at about 5.46pm, a fire was notified to the Liverpool Fire Station and the Accused was allocated as the driver for that call out.

2. [1815]

   The incoming shift of fire brigade officers were identified by a roll‑call which occurred at 6pm. The Accused returned to the fire station at 6.18pm when he was no longer required. The Occurrence Book for the Liverpool Fire Station records that the Accused finished his shift at that time and returned home. [926] His next shift commenced at 8am on Monday 16 April 1984.

3. [1816]

   The Accused was not on duty as a fireman at the time the bomb was likely to have been placed, or when it exploded.

Motive

1. [1817]

   In considering the facts relating to the other Events, I have considered in some detail what happened at particular hearings of the family law proceedings, and what orders were made and by which Judge.

2. [1818]

   In particular, in considering Event 3 (the bombing of Justice Gee’s home) which occurred on 6 March 1984, I have referred to the Events which occurred from May 1983 up to and including 6 March 1984. [927] In particular, I summarised [928] the effect of what had happened by that time and the attitude of the Accused. It is unnecessary to repeat all that is there written. I concluded [929] that I was satisfied that the Accused had a motive to place and detonate the bomb at Justice Gee’s home so as to prevent him hearing the proceedings on 6 March 1984.

3. [1819]

   Justice Watson heard the applications which were listed on that day. The Accused did not attend. In my consideration of Event 5, I have set out a description of what occurred in Court that day, the orders which were made by Justice Watson and the effect that the orders were likely to have had on the Accused. [930] I concluded that the Crown had satisfied me that there was a motive in the Accused to harm Justice Watson by placing a bomb at his front door, because the order made by Justice Watson would have created strong antipathetic feelings in the Accused towards the Judge. [931]

4. [1820]

   The Crown also relies on the incident which gave rise to a complaint being laid in the Local Court at Burwood. The details of that complaint, and the facts surrounding it, are recounted in my consideration of Event 5 and do not need to be repeated. [932]

5. [1821]

   It can be seen by reference to what was occurring in the family law proceedings in the period of 12 months or so leading up to the bombing of the building on 15 April 1984, that orders had been made which significantly constrained the access of the Accused to his daughter.

6. [1822]

   As well, it was clear that there were attempts being made and steps being taken by Ms Blanchard’s lawyer to effect the sale of the former matrimonial home. None of these things had any benefit for the Accused, and were interfering with the way in which he wished to order his life, and to exercise his access, namely in an unrestricted way, to his daughter, and to remain in the home at Tallowood Avenue, without paying a reasonable price to Ms Blanchard for her share and without the property being sold.

7. [1823]

   I am not satisfied that the Accused would have had any feelings about the Family Court building itself. Leaving aside the circumstances of a person who may be confined in a particular building in a custodial institution, it is hard to imagine that anyone would have strong feelings about a building, particularly in circumstances where the Accused does not seem to have spent any lengthy period in the building at Parramatta. However, there is no reason to think that such feelings harboured by the Accused with respect to both Justice Gee and Justice Watson, and what was happening generally to him, would not be harboured by him against the Family Court at Parramatta, as an institution and anyone, relevantly to the Accused, connected with it such as the Judges and the practitioners who practised there.

8. [1824]

   I am satisfied that such was the experience which the Accused was undergoing at the Family Court, that by April 1984, he harboured a deep resentment for the Family Court as an institution and that institution in particular, as it existed at Parramatta. Such feelings were, in my assessment, a sufficient reason or motive for him to place, and cause the detonation of, the bomb on 15 April 1984.

Tendency Evidence and Coincidence Reasoning

1. [1825]

   In dealing with the previous Events and, as well, when I earlier discussed at length the submissions dealing with the Crown’s case on tendency evidence and coincidence reasoning, I have expressed, and given reasons for, my conclusions that the bombing of the Family Court building at Parramatta was one of a number of violent offences which included the use of bombs, which occurred in connection with the Parramatta Registry of the Family Court and which did not happen coincidentally. Those findings are directly applicable here. It is open to the Crown to rely upon the fact that I have found the Accused responsible for a number of the other Events which did not occur coincidentally with each other, or with this particular Event.

2. [1826]

   The Crown submitted that the absence of the Events happening coincidentally provides a circumstance which points strongly to the guilt of the Accused.

3. [1827]

   As well, I am satisfied for the reasons previously given, and particularly with respect to Events 2 and 7, that the Accused was a person with two established tendencies which were in existence on 15 April 1984. The first of those tendencies was to have a particular state of mind, namely to hold animosity towards individuals or institutions who acted in such a way as to adversely affect the Accused’s access to his daughter. The second tendency which I am satisfied existed, was one to act in a particular way, namely to commit violence against individuals or institutions who or which acted in such a way as to adversely affect the Accused’s access to his daughter.

4. [1828]

   The tendency of the Accused to act in this way is a circumstance upon which the Crown is entitled to rely and which points to the guilt of the Accused in this case because the explosion of the bomb on 15 April 1984 at the Family Court was an act of violence; it was carried out maliciously; the bomb was not an insubstantial device; and, the damage which was caused, both internally and externally, was significant.

No Other Reasonable Hypothesis Consistent with the Innocence of the Accused

1. [1829]

   In considering the submissions made on this question, my attention was directed to three possible reasonable hypotheses covered at length in the Accused’s submissions.

2. [1830]

   Two of these possible reasonable hypotheses, Dr Silvano Mariti and the Family Law Action Group (“FLAG”), are dealt with separately in this judgment and does not need to be considered here.

3. [1831]

   The third arises from eyewitness accounts of the bomb at the Family Court, and is appropriate to consider here.

4. [1832]

   The evidence of Mr Peter Laws, the son of the part-time caretaker of the Family Court building at Parramatta, described that, having gone outside to the street immediately after the explosion, he saw a car driving slowly up Charles Street in a northerly direction towards the Family Court building, from the direction of George Street. Mr Laws waved at the vehicle, which then stopped and did a U-turn. He described the vehicle as being a sedan which looked like a Holden Commodore in make and which was a light colour similar to yellow. [933]

5. [1833]

   Mr Anthony Laws gave a similar description. He said he saw a light-coloured car in the style of a Commodore. [934]

6. [1834]

   Nothing else is known about this vehicle. The driver was not identified either by their gender or their bodily features or anything else. The observations of the two witnesses, which I entirely accept, did not identify the number of people in the car. The car did not seem to be in a hurry to drive away from the scene of the bombing. Rather, a very short time after the explosion, it seems to have been driving slowly towards the building.

7. [1835]

   This simple sighting gave rise to a submission from the lawyer for the Accused that seemingly had these components:

8. [1836]

   Although not explicitly put in this way, the submission seems to be that:

9. [1837]

   It followed, as it seems to be put in submissions on behalf of the Accused, that the Crown had not excluded as a reasonable hypothesis that Dr Mariti caused the bomb at the Family Court of Australia building in Parramatta to explode. This is a hypothesis consistent with the innocence of the Accused.

10. [1838]

    I regard the hypothesis in the way in which I have described as being conceived through nothing more than speculation and the unconstrained imagination of the Accused or his lawyers, I reject it as a reasonable hypothesis for these reasons:

11. [1839]

    The Crown has therefore satisfied me that the “man in the car” is not a person connected with the bombing, and is not a hypothesis consistent with the innocence of the Accused.

Summary and Conclusion

1. [1840]

   In summary, I have concluded that the bombing of the Family Court of Australia building at Parramatta was one of a number of Events in the period between March 1984 and July 1985 which did not happen coincidentally. Rather, I have concluded that there was a link between them.

2. [1841]

   The Accused had the opportunity to carry out the bombing in that he was not at work at the time the bomb was placed and detonated. As well, the Accused had sufficient experience and qualifications in welding to enable him to have constructed a pipe-bomb, which I am satisfied was used in this bombing.

3. [1842]

   The bombing occurred at a time when the Accused’s family law proceedings were ongoing and when orders were being made by Judges of the Court which interfered with his access to his daughter.

4. [1843]

   I have previously found that the Accused was responsible for a number of the Events which I regard as not being coincidental. It is a matter of significant weight that this bombing falls into that category of Events which were linked and which did not occur coincidentally.

5. [1844]

   As well, I have previously been satisfied that the Accused had a tendency to commit acts of violence against people or institutions which acted in a way which was adverse to his access to his daughter. The bomb at the Family Court, which was intended to cause significant damage if not the destruction of the Court, was an expression of violence towards the Family Court of Australia as an institution.

6. [1845]

   There is no other reasonable hypothesis consistent with the innocence of the Accused established on the evidence.

7. [1846]

   I have been satisfied beyond reasonable doubt by the Crown that the Accused was the person responsible for placing and detonating the bomb at the Family Court of Australia building in Parramatta on 15 April 1984.

8. [1847]

   Shortly before 8.15am on 4 July 1984, a bomb exploded at the front door of an apartment at 175 Greenwich Road, Greenwich which was the home of Justice Raymond Watson and his wife, Mrs Pearl Watson.

9. [1848]

   Mrs Watson was killed instantly and Justice Watson was seriously injured. The building was substantially damaged.

10. [1849]

    No-one was seen placing the bomb at the Watson unit. The Crown’s case is therefore a circumstantial one. I remind myself that because this is a circumstantial case, I must keep in mind and apply the circumstantial evidence direction, as found earlier in this judgment at [88]-[92].