New South Wales Court of Criminal Appeal CITATION: Johnson v R [2010] NSWCCA 86 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 26 November 2009 JUDGMENT DATE: 7 May 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Latham J at 3 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - Conviction appeal - Murder (x2), Steal property from a dwelling, attempting to obtain money by deception (x3) - Crown case based on circumstantial evidence - Whether verdicts were unreasonable/unsupported by evidence - Whether trial was fair - Alleged misconduct by investigating police - Alleged defects in prosecution case - Alleged incompetent legal representation - Alleged error by trial judge in admitting evidence and exhibits - Alleged error by trial judge in directions to jury. CATEGORY: Principal judgment CASES CITED : R v Birks (1990) 19 NSWLR 677 Steve v R [2008] NSWCCA 231 PARTIES: Peter James Johnson - Appellant Regina - Crown Respondent FILE NUMBER(S): CCA 2006/3414 COUNSEL: Self Represented - Appellant M Grogan - Respondent Crown SOLICITORS: Self Represented - Appellant S Kavanagh (Solicitor of Public Prosecutions) - Respondent Crown LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2006/1229 LOWER COURT JUDICIAL OFFICER: Whealy J LOWER COURT DATE OF DECISION: 7 March 2007 IN THE COURT OF CRIMINAL APPEAL 2006/3414 McCLELLAN CJ at CL HOWIE J LATHAM J 7 MAY 2010 PETER JAMES JOHNSON v R Judgment 1 McCLELLAN CJ at CL : I agree with Latham J. 2 HOWIE J : I agree with Latham J. 3 LATHAM J : The appellant challenges his conviction after a trial concluding on 7 March 2007 on two counts of murder, one count of steal property from a dwelling, three counts of attempting to obtain money by deception, and 12 counts of obtaining money by deception. All of the offences arose out of the strangulation of a retired married couple who were well known to the appellant and lived on a rural property near Windsor, NSW. In the days following the murders on 23 September 2005, a number of bank accounts in their names were unlawfully accessed by the offender. 4 It was the appellant's case at trial that he was not the offender. There was no dispute that the person who had murdered the victims in their home had taken their property and used their bankcards to obtain cash. The only issue was whether the Crown's circumstantial case satisfied the jury beyond reasonable doubt that the appellant was that person. 5 The appellant, who represented himself on the appeal and demonstrated a thorough knowledge of the evidence at trial and the nature of the circumstantial case against him, essentially submits that the trial was unfair and that a miscarriage of justice has occurred, because of perceived inadequacies in the nature and quality of some of the evidence, and the alleged incompetence of his legal representatives. The appellant also maintains that the verdicts of the jury were unreasonable and cannot be supported, having regard to that evidence (ground 6). 6 Leaving to one side the ground of appeal asserting incompetent representation (ground 3), grounds 1, 2, 4, and 5 seek to impugn the sufficiency, accuracy and reliability of the evidence in the Crown case, the trial judge's decisions to admit a large number of exhibits, and his Honour's rulings on evidence and directions to the jury. Assuming there was no pertinent failing in the quality of the police investigation or in the presentation of the Crown case at trial, the Crown's circumstantial case against the appellant was a compelling one and there was no error in the trial judge's directions to the jury or in the admission of evidence. The appellant's submissions do not suggest any error on the part of the trial judge, independently of the success of the appellant's other grounds. The Crown Case at Trial 7 The appellant provided handyman services to Mr and Mrs Hughes in and about their home. He last provided such services to them in about March 2005. 8 The appellant's marriage broke up in early 2005 and was characterised by a bitter financial dispute which continued throughout 2005. The appellant was in receipt of unemployment benefits and he owed a considerable amount of money to various creditors. 9 The appellant determined that he would leave New South Wales and purchase a hotel business in South Australia. He commenced negotiations with a Mr and Mrs Brian Rolfe in relation to the purchase of the Hoyleton Hotel and on 27 June 2005 the Rolfes agreed that the appellant would purchase the lease for the hotel with the intention of buying the freehold over a period of time. A contract was executed in early July 2005 which required a deposit of $10,000. The appellant did not have these funds but he told the Rolfe's that he was going to obtain the money from the sale of a number of horses, which would also assist in financing the overall purchase. 10 An application was made to the South Australian Licensing Board for the transfer of the hotel licence. Mr Jeff Stevens, who was acting for both of the parties, requested the appellant to provide details of the source of finance for the completion of the purchase of the lease. These details were not provided. Originally, the settlement was planned for mid-August 2005 but that settlement date was ultimately set aside and a new settlement date of 31 August 2005 was set. This date also came and went and a further settlement date of 18 November 2005 was agreed upon. 11 Mrs Rolfe spoke to the appellant many times by telephone between July and September 2005. The appellant told her that he was intending to sell his horses and was still keen to proceed with the transaction. On 19 September 2005 Mr Stevens forwarded a notice of termination of the contracts to the appellant. This was an attempt to make the appellant comply with his contractual obligations. The appellant received these notices of termination on or about the 21st of September 2005. There were however further telephone discussions between the appellant and the Rolfes whereupon it was agreed that if he were to pay $10,000 immediately, the contracts would be reinstated. The Rolfes asked the appellant to send the money to Mr Stevens by cheque. The appellant said he would bring it to them in cash. 12 Finally, it was agreed that the appellant would arrive in Hoyleton in South Australia no later than Monday 26 September 2005 with the deposit in cash. If he did not comply with this arrangement the transactions would be terminated once and for all. It was the Crown case that the appellant decided to steal and use the bankcards owned by Mr and Mrs Hughes in order to provide the deposit for the purchase of the hotel lease. 13 According to the Crown case, the appellant left Patricia Ingrey's home at Bligh Park, where he resided, early on the morning of 23 September 2005. At some time between 11am on 23 September and 11:39am that day, Mr Hughes left his home and went to the Pitt Town post office to retrieve his mail. The jury was asked to infer that, during Mr Hughes' absence, the appellant spoke to Mrs Hughes and persuaded her to let him into the house. There, he forced her into a cane wicker chair in the master bedroom and used a number of items of clothing to tie her to the chair. These were a ladies fashion scarf, a navy blue tie and the cord to Mr Hughes' dressing gown. She was tied to the chair at each wrist and ankle. Either then or later that morning, the appellant tied four further ligatures around the neck of Mrs Hughes and strangled her to death. These were two ladies scarves and two tea towels. 14 When Mr Hughes returned from the post office and entered the house he was struck from behind with a blow to the rear of his head. He was taken to a second bedroom in the house and was tied to a cane wicker chair. This bedroom was used as a study. The appellant used two men's ties and the cord to Mrs Hughes' dressing gown to tie Mr Hughes to the chair. At some stage, Mr Hughes was gagged with a scarf and blindfolded with a tea towel. 15 The appellant obtained the bankcards and the pin numbers from either or both Mr and Mrs Hughes. At some stage, Mr Hughes was also strangled by the use of ligatures around the neck. DNA profiling on six items found at the home were later found to derive from a major contributor with the same DNA profile as the appellant. 16 The DNA profile located on the red and white scarf which had been tied around the neck of Mr Hughes was found to be from two male contributors. The appellant had the same DNA profile as the second contributor, accepting that Mr Hughes was the other major contributor. The location of the DNA found on the scarf was consistent with friction between the hand of the assailant and the scarf material, when the knot was tied. 17 The appellant's DNA profile was also located on both scarfs taken from Mrs Hughes' neck, the cord used to tie Mr Hughes, the dark blue tie used to tie the ankle of Mr Hughes and a swab from the cane chair in which Mr Hughes was found. The location of the DNA on each of the materials used to tie the victims was consistent with the DNA material having been deposited at a time when the items were tied. 18 The appellant did not seriously dispute at trial that the DNA material found at the crime scene was his, or that it was at least consistent with being his. Rather, the appellant gave evidence that at various times he had been asked to clean out the drawers and cupboards in the house, to shake out clothing and to remove powder and other debris, following domestic painting and sanding in the house. The appellant also gave evidence that he had occasionally brought washing in from the line or hung out washing on the line, including intimate clothing belonging to Mrs Hughes. 19 The appellant also introduced evidence of injuries to both his arms which reduced his strength, thus making it unlikely that he could have restrained and strangled the deceased. He maintained that he was not in any financial difficulty and that he did not proceed with the purchase of the hotel because he was misled about its condition and profitability. During the trial, the appellant gave evidence that he had access to $51,000 in cash on the morning of 27 September 2005. He said that he had sent this money in a trunk to Hoyleton in July 2005. When the trunk was later given to the police and found to be empty, the appellant maintained that the police had taken the cash from the trunk when it was seized in November 2005. 20 The bodies of Mr and Mrs Hughes were not discovered until late in the evening of 29 September 2005 when their son went to the home following a period of time during which family members had tried unsuccessfully to contact them. 21 At about 1:16pm on 23 September 2005, the appellant attempted to withdraw funds from Mr Hughes' account at the Riverstone National Bank ATM. This attempt and a further attempt to access a cheque account in the name of Mr Hughes at the ANZ bank failed. At about 1:42pm the appellant drove to an ATM located at St George Bank at Rooty Hill. The appellant successfully withdrew $1000 from the account of Mrs Hughes and a few minutes later successfully withdrew a further $1000 from the joint account of Mr and Mrs Hughes, using the same ATM. Expert evidence from Telstra indicated that the appellant's mobile phone was near to the Riverstone ATM and to the Rooty Hill ATM at the relevant times that day. The appellant maintained at trial that he was at the home of Patricia Ingrey at Bligh Park or at a nearby service station. 22 On 23 September 2005 at about 10:25pm, the appellant went to an ATM at the Windsor ANZ bank and withdrew $200 from Mr Hughes' account. CCTV footage of the person who used the machine on this occasion and again on 25 September at 5:12am demonstrated certain physical characteristics that were consistent with the appellant, albeit none of the witnesses positively identified the appellant from that film. 23 Further withdrawals from the Hughes' various bank accounts were made on the 24 September and 26 September 2005. In total, the sum of $12,400 was taken from the various bank accounts. The appellant arrived in Hoyleton in South Australia on the evening of 26 September 2005. Early the next morning, he gave Mrs Rolfe $10,000 in cash in order to reinstate the contracts. 24 There were no further withdrawals from the bank accounts of Mr and Mrs Hughes after 4:31am on 26 September 2005. The Crown relied upon this circumstance in order to demonstrate that the appellant knew he would be implicated in the murders if he attempted to use the bankcards en route to, or in South Australia. 25 On 4 November 2005, the appellant wrote to the Office of the Liquor and Gaming Commission, informing them that the supposed source of the funds for the purchase of the Hoyleton Hotel would be provided from the sale of thoroughbred horses. The enclosed documents confirming the sale of three horses, referred to a horse named "Admiral Quest". The purchaser, at a sum of $60,000, was a Mrs Ann Hoinville of Maroota South. A friend of the appellant, Ms Collins, gave evidence at trial that she was the person described as Ann Hoinville. She had agreed to sign the document at the appellant's request but she did not have any intention of buying a horse from the appellant nor any means to do so. The appellant himself conceded during his evidence that this was a bogus transaction. The appellant remained in Hoyleton until 18 November 2005 when he was arrested by the South Australian police. The Evidence on the Appeal 26 The appellant relied upon a number of affidavits filed in the appeal. They were five affidavits of the appellant dated 20 November 2009, 13 November 2009, 28 October 2009, 17 May 2009 and 6 May 2009, an affidavit of June Ingray dated 17 May 2009, and an affidavit of the appellant's son, Robert James Johnson, dated 6 April 2009. 27 The material contained within the appellant's affidavits largely traverses the evidence at trial and seeks to lay the foundation for the appellant's submissions on the various grounds of appeal. The appellant's affidavit of 20 November 2009 asserted that there was a last page missing from a number of statements within the brief that was served upon him by Det Sgt Watson in January and March 2006. Detective Watson's affidavit of 26 November 2009 and his further evidence on the hearing of the appeal established that there were no missing pages, rather the appearance of an extra page was the product of the template used in the production of statements within the Police Service. 28 Paragraphs 2 to 51 of Ms Ingray's affidavit concern the events the subject of evidence at trial and certain conversations Ms Ingrey claims to have had with various police officers and witnesses before trial. Paragraphs 58 and 59 describe certain "tests" carried out by Ms Ingray after the trial, some of which seek to meet evidence adduced at the trial but which, in any event, were not relevantly unavailable to the appellant so as to qualify as fresh evidence for the purposes of the appeal. Paragraph 52 concerns an alleged conflict between a statement made by the appellant's solicitor to the appellant, and information given to Ms Ingrey. It falls into the same category, in that the conflict was known to the appellant during the trial. Paragraphs 54, 55 and 57 contain material that was not relevant to any issue in the trial. Paragraphs 53, 56 and 60 contain material that was dealt with at trial, either by way of evidence or by way of rulings by the trial judge resulting in the exclusion of that evidence. The appellant does not maintain that those rulings were wrong at law. 29 Robert Johnson's affidavit concerns a debt in the sum of $12,000.00 owed to the appellant, arising out of a loan in May 2005. According to the affidavit, the appellant's son could not repay the debt at the time it was requested and had not repaid the debt prior to the appellant's arrest. This evidence was available at trial, notwithstanding that it is asserted that the appellant's solicitor told the appellant's son that he was not required to give evidence. In any event, the appellant relied upon the evidence of the debt at trial towards proof that he had funds available to him for the purchase of the hotel. 30 In short, none of the affidavits relied upon by the appellant advanced the case that was put on his behalf at trial. 31 Affidavits by the appellant's counsel and solicitor at trial were the subject of cross examination by the appellant. That evidence is addressed later in these reasons when dealing with ground 3 of the appeal. It should be noted that the appellant abandoned any claim to legal client privilege for the purposes of this ground. The Appellant's Submissions 32 The appellant's written submissions consist of 160 close-typed pages, and 108 hand written pages, all of which meticulously address almost every aspect of the evidence in the trial. Before turning to those submissions, it is helpful to attempt to place them in the context of the ultimate conclusion that the appellant maintains the jury ought to have reached, and which he now urges upon this Court. 33 The appellant goes further than simply submitting that the Crown's circumstantial case was incapable of proving beyond reasonable doubt that he was the offender. The appellant mounts a positive case to the effect that the objective evidence proved that an intruder killed the deceased on either 26 or 27 September 2005, having held the Hughes captive in their home for a number of days. Given that the appellant left the Windsor area on 26 September (after ringing a veterinary practice concerning a suspected injury to "Admiral Quest") and arrived in South Australia in the evening of that day, it was clear, according to the submissions, that the appellant was not that intruder. 34 In support of the submission that the deceased were killed as late as 26 or 27 September 2005, the appellant relies upon the proposition that Mr and Mrs Hughes left the property on the morning of 23 September, picked up the mail in Pitt Town, then proceeded to Riverstone Electronics (apparently a business frequented by Mr Hughes) where Mrs Hughes attempted to use the ATM at Riverstone and later used the ATM at Rooty Hill. Further, the appellant relies upon food scraps on the boot of the vehicle belonging to Mr and Mrs Hughes that was parked in the driveway on 27 September (noted by a pest exterminator who visited the property on that day) and food scraps in the kitchen, both of which, according to the appellant, are consistent with a meal being consumed after 23 September. Next, the appellant relies upon the evidence of Dr Du Flou to the effect that decomposition of the bodies could have occurred over two days and suggests that various environmental factors were capable of affecting the samples of fly and maggot infestation in the bodies, such that the evidence from the forensic entomologist was consistent with death occurring on or after 26 September. 35 The appellant points to a number of features of the evidence that indicate the presence of an intruder. The appellant submits that the fact that the single bed in bedroom three of the Hughes' home had been slept in, the evidence of damage to the slide bolt of the main front door, the presence of a cigarette butt in a Dyson vacuum cleaner under the carport, a shoe or boot impression on either side of the lounge chair where the offender sat, an unidentified fingerprint on the driver's seat belt buckle in Mr Hughes' car, the presence of a lens from a pair of glasses found on the dressing table in bedroom one, the presence of spectacles on a table in the family room, an unidentified fingerprint on an AWA radio also found on the table in the family room, and the presence of three place mats, three bath towels, and a bucket containing dirty water, were all probative of the intruder breaking into the premises, remaining in the home overnight, taking meals with the Hughes, driving the Hughes' vehicle, killing the couple and then attempting to clean up afterwards. The appellant points to a wound on Mr Hughes' head, which he maintains is more consistent with a left-handed assailant than with a right-handed assailant. 36 A number of matters are worthy of mention in response to this broad outline. There was no evidence that Mr Hughes visited Riverstone Electronics on 23 September or that Mrs Hughes was unfamiliar with the accounts accessed by the use of ATMs. The evidence of food scraps is equivocal and says nothing about when they were placed there. The evidence of Dr Du Flou and the forensic entomologist was equally consistent with death occurring on 23 September. 37 The evidence at trial established that Mr Hughes, who snored heavily, often slept in the single bed in the third bedroom so as not to disturb Mrs Hughes. The existence of various items and fingerprints that remained unidentified may have suggested the presence in the home of someone other than the Hughes, but could not be probative of when they were placed there. The damage to the front door was in the same category. The appellant's hypothesis gives rise to the inherently unlikely prospect that the person who broke into the home chose to remain there, eat meals with the couple, and drive their car, all the while risking apprehension if the Hughes telephoned for help or simply left in the middle of the night. It also ignores the evidence of a neighbour who noticed that Mr Hughes' car did not leave the driveway after 23 September. Ground 1 – Misconduct by the Investigating Police 38 The first three matters raised by the appellant under this ground were of no relevance to the issues in the trial. The first complaint is that the police prepared a misleading and prejudicial statement of facts for the purposes of extraditing the appellant from South Australia, in collusion with a firm of Adelaide solicitors who appeared for the appellant on the extradition application. The second complaint alleges that the police included incorrect and prejudicial information in support of their application for an arrest warrant. The third complaint is that the police colluded with Mrs Rolfe (co-owner of the Hoyleton Hotel) in her attempt to take possession of four oil paintings belonging to the appellant. None of these incidents, assuming the appellant's account of them can be accepted, have been shown to have any connection with the nature and quality of the evidence presented at trial. 39 The next complaint under this ground is that the officer in charge obtained the co-operation of, and influenced the evidence of, Mr Phillip Burns by giving him possession of the appellant's utility. The appellant offered Mr Burns the vehicle as security for a loan on 8 September 2005. The existence of the loan and the fact that Mr Burns held the registration papers was not in dispute. Mr Burns' evidence at trial established that the appellant told him that he (the appellant) was going to Noosa Heads, at a time when the appellant knew he was going to South Australia. There was evidence in the Crown case which established that the appellant had told other acquaintances the same thing. The appellant also acknowledged in his evidence that he had told everyone, except Ms Ingrey and her family, that he was going to northern NSW. There is no basis for assuming that Mr Burns gave false or misleading evidence because the police gave him the vehicle. 40 The appellant next asserts that the officer in charge gave information to Ms Collins about the appellant that was designed to influence her evidence adversely to the appellant. This assertion derives from Ms Ingrey's affidavit at paragraph 42. It was not in dispute at trial that Ms Collins had initially denied to police that she knew anything about an agreement to buy a horse called "Admiral Quest", but that she had later admitted her signature was on the document and that she had signed it at the appellant's request. It was put to, and denied by, Ms Collins that she had purchased a horse, "Karingal Top Cut", from the appellant in late 2004 for $15,000 and that she and Ms Ingrey exchanged horses. Although her name appeared on an insurance form as the owner of "Karingal Top Cut", she explained that the appellant told her he needed to put his horses in different names in order to get them insured and she complied with his requests. Given the undisputed evidence regarding "Admiral Quest", Ms Collins' evidence on the subject of "Karingal Top Cut" was credible. It is not clear how Ms Collins' evidence was relevantly influenced, nor is there any admissible evidence that the officer in charge made any of the statements to Ms Collins that the appellant attributes to him. 41 Ms Ingrey's brother, Mr Kruijer, gave evidence at trial that he saw the appellant at Ms Ingrey's on 22 September and that the appellant's trailer was packed for the trip to South Australia. Mr Kruijer left for South Australia on 24 September and arrived there on 27 September. His evidence was inconsequential. The appellant's allegation that the officer in charge gave untrue, prejudicial information to Mr Kruijer (also derived from Ms Ingrey's affidavit at paragraph 45), even if substantiated, does not relevantly affect any issue in the trial. 42 The appellant next addresses a matter that was explored on the voir dire but not put before the jury. It concerned the discovery by Ms Johnson, the appellant's former wife, of a balaclava in a filing cabinet belonging to the appellant. The appellant's submissions refer to a leather mask that he had purchased and given to Ms Ingrey. Whatever the import of Ms Johnson's proposed evidence and the possibility that the item described by her was the leather mask, it was not evidence in the trial and could not have had any bearing on the jury's deliberations. 43 The appellant raises alleged discrepancies between the statement of Ms Johnson and those of the police concerning the provision of the appellant's mobile phone number to police. Ultimately, the appellant submits that Ms Johnson supplied misleading information to police and that this aspect of her behaviour should have been explored at trial. Similar criticisms are made of a witness, Mr Mott, who also gave information to police. The basis for the appellant's submissions about these two witnesses is speculative at best. Both witnesses were cross examined at trial and relevant matters of credit, particularly with respect to Ms Johnson, were left for the jury's consideration. 44 The appellant also claims that certain information could only have been acquired by the police if they were intercepting his phone service in South Australia and that requests by the appellant for all intercept material had been denied. There was no evidence of any intercept material, or any warrant authorising such action. It could not have benefited the appellant at trial to inform the jury that he may have been under surveillance. Disregarding that claim, any conduct or conversation that advanced the appellant's case could have been related by him in the course of his evidence. 45 Similarly, the appellant maintains that the officer in charge and another police officer improperly influenced the two witnesses who gave evidence of the consistency between the appellant's physical characteristics and the person depicted on CCTV footage from the ANZ bank at Windsor on 23 and 25 September 2005. There is no admissible evidence that the police officers said anything to these two witnesses concerning the availability of an expert who would be giving evidence for the Crown. No such expert was called on this issue. Neither witness positively identified the appellant from the film, in spite of the appellant's assertions that the conduct of the police was designed to that end. 46 In summary, the appellant submits that the alleged instances of improper conduct by the police towards certain witnesses supports the conclusion that the police acted corruptly throughout their dealings with other Crown witnesses and that these issues ought to have been explored before the jury. As the foregoing makes clear, there is no satisfactory evidentiary basis for the proposition that the police improperly influenced the evidence of any witness or withheld relevant information. Ground 1 of the appeal fails. Ground 2 – Alleged Defects in the Crown Case. 47 The submissions under this ground primarily explore a number of circumstances and features of the forensic evidence that were not relied upon by the Crown at trial. These include those matters that are outlined above at [35]. The appellant also relies upon the absence of statements and materials in the brief of evidence that was served upon him, relating to telephone intercepts and surveillance allegedly carried out in South Australia immediately prior to his arrest. That complaint is dealt with at [44] above. 48 The submission that the alleged conversations, if recorded covertly, may have contradicted some Crown witness regarding the death of the horse "Admiral Quest" and provided evidence of the appellant's possession of $51,000, is misconceived. Assuming the appellant spoke of such things immediately before his arrest, they were nonetheless self-serving statements made two months after the death of the victims. The appellant's case at trial, that he had funds to purchase the hotel and that he had no reason to kill Mr and Mrs Hughes, was vigorously pursued in cross examination of witnesses and by the appellant's evidence. As against that, there was a wealth of evidence in the Crown case, much of it uncontradicted by the appellant in his evidence, that the appellant had borrowed various amounts of money in the months leading up to his departure for South Australia and he had spoken to others of his financial plight. 49 I turn to the unexplained features of the crime scene that are said to support the alternative hypothesis advanced by the appellant. Those features are :- (i) the house brick (ii) the shoe impressions (iii) the damaged front door (iv) the cigarette butt in the Dyson vacuum cleaner (v) the position of two cane chairs in the family room (vi) the AWA portable radio on a table in the family room (vii) a pair of glasses on the same table 50 The appellant engages in speculative reasoning about the presence of a house brick, depicted in photographs (included in Exhibit A at trial) taken at the house on 30 September 2005. It is positioned on the floor inside the front door, consistent with its use as a door-stop. It did not assume any prominence in the evidence at trial. However, the appellant theorises that the brick was used by the intruder to inflict a "V" shape injury to Mr Hughes' head and that the failure by police to conduct forensic tests on the brick represents a serious defect in the Crown case. There was no evidence from which the inference could be drawn that the brick was used as a weapon in the assault on Mr Hughes. 51 The submissions relating to a number of shoe impressions in the home, that were electrostatically lifted by the crime scene officer and discounted as insignificant, are similarly speculative. The impressions were consistent with the boots worn by police officers, a number of whom had walked through the house prior to the arrival of the crime scene personnel. The appellant claims that two impressions adjacent to a chair, found facing the front door, did not conform to police footwear and were thus likely to have been left by the intruder whilst seated in the chair awaiting the arrival of Mr and Mrs Hughes. The failure to investigate this matter is said to represent another defect in the Crown case. 52 The appellant submits that damage to the slide bolt of the front door, which was first observed by police on 19 October 2005, occurred when the intruder forced entry to the premises in the absence of Mr and Mrs Hughes. None of a considerable number of police officers who attended the home late in the evening of 29 September and in the early hours of 30 September, and thereafter, but before 19 October, noticed any damage to the front door. The front door bolt was depicted in an undamaged state in photographs admitted at trial, although the appellant claims that the absence of a close-up shot of the front door bolt supports his submission that the police deliberately concealed that evidence. 53 A cigarette butt found in part of a Dyson vacuum cleaner in the carport was taken for DNA testing. However, the DNA profile could not be matched to any known male. The appellant seeks to link the cigarette butt to the intruder. 54 The glasses on the table in the family room were not seized for forensic examination on the basis that the police concluded they belonged to one of the victims. This was a wholly reasonable assumption. The appellant suggests they belonged to the intruder, but that submission is, once again, purely speculative. The same observations apply to the presence of the portable radio. It is not apparent from the submissions what significance attaches to the two cane chairs. 55 Each item (i) to (vii) was disclosed by the evidence at trial, even though the Crown regarded each of them as irrelevant to its case against the appellant. There were a number of other everyday things in various locations around the home, including a green cigarette lighter, a black sock and a drinking glass, which the appellant seeks to link to the presence of the real offender. The appellant's submissions contain a great deal of detail, gleaned from the crime scene photographs and plans. Each and every item in every room of the house that was not part of the Crown case against the appellant is seized upon in order to demonstrate that proof of the charges against the appellant was somehow incomplete, and that the failure to investigate every object in the home fell short of prosecutorial standards. 56 The appellant's submissions under this ground labour under the misapprehension that it was not open to the jury to convict him unless every feature of the crime scene was satisfactorily explained or attributable solely to the appellant. The existence of evidence that did not implicate the appellant does not, however, equate to the existence of evidence that exonerates him. 57 The appellant's submissions under this ground also devote considerable attention to the DNA evidence. Despite copious references to the evidence of the Crown expert and the method of sampling the DNA from various items, in order to lay the foundation for the submission that the DNA material was contaminated and the chain of possession was unsatisfactory, the appellant does not ultimately depart from the defence case at trial, namely, that his DNA profile on the relevant items was placed there entirely innocently when working around the home. 58 The area of dispute between the Crown expert and the defence expert was essentially confined to the DNA profile identified as the second major contributor on one ligature, the red and white scarf. Even so, the defence expert agreed that he could not exclude the appellant as a contributor. There was no issue at trial that swabs were taken from each chair where the bodies were found bound and gagged. The defence was able to take advantage of the fact that the swabs from the chair where Mrs Hughes was found did not contain the appellant's DNA profile. In that regard, any challenge to the chain of possession of the samples would have considerably diluted the force of the submissions arising out of that fact. 59 The appellant's submissions with respect to the fingerprint evidence or lack thereof are in a similar vein to those summarised at [55] above. The evidence, admitted without objection, established that a number of fingerprints were found in the premises and in Mr Hughes' car that could not be identified, save that they did not belong to either of the victims. The appellant's counsel at trial relied upon that feature of the evidence to raise the spectre of the presence of a person or persons, other than the appellant. The appellant complains that it was not established whether all the unidentifiable prints originated from one person. That issue was not explored at trial, but even if it had been, it did not improve the defence position. At the end of the day, the only thing that could be said about the unidentified prints was that they did not match any prints held in the national data base. 60 The appellant's submissions also query the reliability of the expert evidence relating to the rate of decomposition of the bodies in order to suggest that death did not occur until 26 September 2005. Reference to this submission is made at [34] above. The response to this submission is contained within [36] above. The submissions also fail to appreciate that the evidence of the forensic entomologist and from the autopsy report complemented other objective evidence in the trial, namely, that the victims were last seen on 23 September, that they failed to keep an appointment later that day, that the last known telephone conversation with Mr Hughes was before 11am on 23 September and that newspapers dated 21 and 22 September were found in the carport. The first attempted use of the ATM after 1pm on 23 September was also consistent with theft of the bankcard after the death of the victims. 61 The appellant's complaints about alleged deficiencies in the autopsy report do not identify how, assuming such deficiencies existed, they could have given rise to a miscarriage of justice. The author of the report was ill and unable to attend the trial. No objection was taken to the interpretation of the report through Dr Du Flou. There was nothing controversial about the autopsy, in the sense that it did not assist in identifying the offender. 62 Further submissions are made to the effect that relevant evidence was missing from the trial. Firstly, the appellant maintains that there were a number of emails sent and received by a computer belonging to Mr and Mrs Rolfe at the Hoyleton Hotel that were not the subject of evidence at trial. The relevance of the emails reproduced from the hard drive of the Rolfe's computer was the history of the communications between the appellant and the Rolfe's concerning the contract to purchase the hotel. The circumstances surrounding the failed purchase of the hotel were explored in some detail at the trial. A solicitor who later acted for the appellant in respect of the purchase confirmed the appellant's evidence at trial that the appellant decided on 17 November 2005 not to proceed with the purchase on the basis that the business was not as viable as he had thought. 63 The critical issue from the Crown's perspective was the fact that the appellant was informed prior to 23 September 2005 that the contract would be rescinded if the appellant failed to pay the deposit. That evidence came from a solicitor, who sent a letter of termination on 19 September to two addresses nominated by the appellant. The appellant does not explain how missing emails are capable of affecting the evidence of that solicitor. 64 Secondly, the appellant complains that exhibit book entries were only produced for the exhibits entered at Windsor Police station and that there were a number of other police stations where exhibits were taken. The appellant asserts that a deliberate decision was taken to exclude entries in the exhibit books relating to items sent for forensic examination. That assertion is without an evidentiary basis. The specific exhibits that were forensically examined, but not the subject of evidence at trial, are not identified. 65 Thirdly, the appellant asserts that his mobile phone records for the period 23 to 26 September 2005 are incomplete and inaccurate. He relies upon certain discrepancies between the records produced at trial (Ex MM) and the statement of a Telstra employee that was included in the brief. The discrepancies were explored at trial and were satisfactorily explained. 66 The appellant seeks to challenge the reliability of the CCTV footage from the ANZ bank at Windsor on 23 and 25 September 2005, and the evidence of certain witnesses relating to the images on that film. A related set of submissions seeks to challenge the evidence relating to the location of the appellant's mobile phone at the times corresponding to the use of ATMs between 23 and 26 September 2005. 67 Dealing firstly with the evidence relating to the CCTV footage, the film depicted a male person, wearing the same or similar clothing on each occasion and appearing to hold a cloth or fabric against the left side of his face. On 23 September the person is seen to light a cigarette. The appellant was a smoker and was described in the evidence of Ms Johnson and Mr Mott to walk in a somewhat hunched over fashion, always looking down. These were characteristics that were observable on the CCTV footage. It was a matter for the jury whether the person depicted on film bore relevant similarities to the appellant. 68 The appellant's submissions re-agitate the evidence which was relied upon at trial, namely that the appellant was at Ms Ingray's home on the morning of 25 September 2005. The Crown's position was that it was more than possible for a vehicle to travel from Bligh Park to Windsor at that hour of the morning. Further, the appellant restates the effect of the evidence of Mr Porter, an expert called by the appellant on the Voir Dire, concerning the poor standard of the image quality on CCTV recordings, the lack of any visible facial detail and the absence of any natural motion. All of these matters were canvassed in cross examination of Ms Johnson and Mr Mott. 69 The trial judge gave very explicit directions to the jury that their evidence was not identification evidence and that identification evidence was potentially unreliable for a number of reasons. In so far as the appellant seeks to rely upon "new" evidence that he required reading glasses to negotiate the buttons on an ATM, that evidence is not relevantly fresh. Moreover, the appellant does not state that he had told his legal representatives at trial of any visual impairment and the appellant wore glasses whilst giving evidence. 70 With respect to the ATM transactions on 26 September 2005, the appellant once again restates his evidence at trial, namely that he left Bligh Park for Hoyleton at about 3:30 am on 26 September and that, having regard to the route he took and the various stops along the way, he could not have arrived at Hay at 1 pm if he had left Windsor as late as 4:28 am, being the time at which the ATM was operated by the offender. Submissions based on this evidence were made on the appellant's behalf and were no doubt considered by the jury. 71 The evidence at trial from an employee of Telstra established that an SMS sent by Ms Ingrey at 1:33 pm on 23 September was inconsistent with the recipient of the message, namely the appellant, being in the Bligh Park area. That communication and others from 1:15 pm were consistent with the appellant being at Garfield St Riverstone, the site of the NAB ATM. Later cell sites accessed by the same phone were consistent with the phone travelling to Rooty Hill before 1:42 pm, the time at which a withdrawal of $1000 was effected from Mrs Hughes' St George account. 72 Essentially, the appellant seeks to rely upon a report from an expert concerning the one SMS at 1:33 pm. The expert concludes that he cannot exclude the possibility that the SMS was received in the vicinity of a garage, south of Bligh Park, where the appellant maintains he had gone to buy petrol. This very confined opinion does not take account of the remainder of the evidence relating to a series of communications received by the appellant's phone up to 1:42 pm. In any event, a disagreement between two experts with respect to a single communication could not disturb the convictions otherwise regularly obtained. 73 None of the appellant's complaints concerning the adequacy, accuracy or reliability of the evidence produced at trial are capable of giving rise to any misgivings about the strength of the Crown case. A consistent theme in the appellant's submissions is that his convictions can only be upheld if the Crown case was completely flawless and that anything less constitutes reasonable doubt. That is not the law. The jury were required to consider all of the circumstances pointing to the appellant's guilt as a whole. The verdicts, which reflected the force of the combination of those circumstances, are not called into question by the absence of evidence on matters of little consequence to the issues in the trial. This ground of the appeal also fails. Ground 3 : Incompetent Legal Representation. 74 In general terms, the appellant submits that his legal representatives did not devote sufficient time to pre-trial conferences and that they failed to seek an adjournment of the trial. More specifically, the appellant complains of the failure of his legal representatives to adequately explore two specific issues, namely an injury to the appellant's left arm which is said to cast doubt on the appellant's ability to restrain the deceased, and the use of gloves in the course of the commission of the offences. The appellant also complains of inadequacies in cross-examination of various witnesses and the failure to issue subpoenas for the attendance of other witnesses on the appellant's instructions. Finally, the appellant claims that his legal representatives failed to capitalise on the presence of a "red thread" at the crime scene and evidence concerning the appellant's capacity to pay for the purchase of the Hoyleton Hotel. 75 The complaint with respect to the issue of subpoenas may be briefly dealt with. The appellant's trial was legally aided. The appellant's solicitor sought the approval of the Legal Aid Commission to issue subpoenas as instructed by the appellant but was refused funding for a number of those subpoenas on the basis that the material was not sufficiently probative. The appellant's solicitor informed the appellant of the reasons for that decision. Otherwise, the appellant's solicitor issued 14 subpoenas, variously to witnesses to give evidence and to organisations requesting the production of records, notes, documents and all correspondence. Subpoenas issued on the appellant's instructions to service stations for the production of CCTV footage from relevant dates were not productive. Those businesses were no longer in possession of any relevant film. 76 Contrary to the appellant's assertion that there were four pre-trial conferences with his solicitor, the appellant's solicitor at trial provided evidence of eight pre-trial conferences, at which extensive notes were taken. In addition, there were extensive telephone conferences, numerous shorter telephone conferences and communications with Ms Ingrey, including some 202 typed pages constituting the appellant's instructions. 77 Neither the appellant's solicitor or counsel recall any instruction to adjourn the trial or any complaints made by the appellant to them about their conduct of the trial. The appellant's solicitor did not, contrary to the appellants claim, apologise to the appellant for not being prepared for trial. The appellant's complaint that he received limited correspondence from his solicitor is explained by the fact that the appellant instructed his solicitor not to forward correspondence to the gaol because the appellant believed that his correspondence was being vetted and supplied to the police. According to the appellant's solicitor, the appellant was informed at every stage of his trial of the progress of the defence and was consulted about the manner in which the defence was to be conducted. 78 The appellant's legal representatives consulted with and briefed a number of experts, including a DNA consultant, a neurophysiologist, an engineer, a forensic scientist, an electrical engineer and a neurologist. Particularly with regard to the injury to the appellant's left arm, the neurologist was briefed in order to provide an opinion regarding the appellant's capacity to tie knots and restrain the victims. That expert attended court and was further interviewed by the appellant's legal team. Both the appellant's solicitor and counsel made the forensic decision not to call the neurologist, given that the neurologist was not prepared to express the view that the appellant could not have undertaken the relevant activity. That decision was communicated to and discussed with the appellant during the conference at trial. 79 The line of enquiry that the appellant now asserts ought to have been pursued at trial concerning the gloves, relates to the evidence of trace DNA, matching the appellant's profile, found on various items within the home. The appellant seems to be asserting that a pair of gloves, given to him by Mr Hughes in November 2000, were left on a table near the laundry when the appellant last worked at the property. The appellant theorises that the offender found the gloves, put them on and committed the offences, thereby leaving the appellant's trace DNA on ligatures and furniture. The conference between the appellant's solicitor and a DNA expert discounted this scenario as "highly unlikely". The forensic decision not to pursue this aspect of the appellant's instructions was entirely appropriate and understandable. 80 A similar false issue is raised by the appellant concerning the alleged presence of a "red thread" at the crime scene and the failure by investigating police to match the thread to any item of clothing belonging to the appellant. Counsel cross-examined the officer in charge to the effect that a "red thread" had been found at the crime scene, a suggestion that was denied. The appellant himself gave evidence that the officer in charge referred to a "red something" in the course of arresting the appellant. Ultimately, counsel submitted to the jury that, upon the appellant's arrest, police took possession of two jackets, one of which "had red on it", from among a number of jackets. It was suggested rhetorically that the appellant's evidence, that he had heard the officer in charge say "Take those two. We want to match the red", was consistent with that selective choice. There was no evidence that a red thread was found at the crime scene and no suggestion in the Crown case that such an item existed. The appellant's legal representatives made as much mileage as was available to them from the state of the evidence. 81 The appellant maintains that his legal representatives failed to cross-examine Michael Hughes, the deceased' son, with respect to a debt of $506 owed by him to his employer. The debt was incurred some three years before the murders. The proposed object of the cross examination appears to be to suggest that Michael Hughes had a motive to kill his parents for financial gain. The appellant's solicitor refers to a conference with the appellant and his counsel on 18 January 2007, at which time the decision was taken by the appellant not to pursue that line of enquiry. 82 The remaining specific complaint is a failure by the appellant's counsel to further cross-examine the appellant's former wife and Ms Collins and to call the appellant's son on the subject of the availability of funds for the purchase of the hotel. Both the appellant's former wife and Ms Collins were cross-examined on relevant issues. Persistent and aggressive cross-examination carried the risk of disclosing other prejudicial evidence of the appellant's dealings with these witnesses. The appellant's solicitor was specifically instructed by the appellant not to call his son and it was never suggested to him that the appellant's son was in a position to provide finance for the purchase of the hotel. 83 Accused persons are generally bound by the manner in which counsel conduct trial proceedings. Counsel have a wide discretion, consistent with the independent role of the barrister, and that wide discretion will not be disregarded by an appellate court, regardless of whether forensic decisions are made by counsel without instructions, or involve errors of judgment or even negligence. Objectively, there was no "flagrant incompetence" of counsel or any material irregularity in the conduct of the trial by the appellant's legal representatives that would give rise to a miscarriage of justice : see R v Birks (1990) 19 NSWLR 677 ; Steve v R [2008] NSWCCA 231. 84 This ground of the appeal fails. Grounds 4, 5 and 6 – Error in Admitting Evidence and Exhibits, Error in Directions, Verdicts Unsupported by the Evidence. 85 The appellant makes no further submissions in support of these grounds. Their success is entirely dependent upon the success of grounds 1, 2 and 3 combined. Having regard to the conclusions I have reached on those grounds, I would not uphold the remaining grounds of the appeal. 86 The order I propose is that the appeal be dismissed. ********** 26/05/2010 - Amendment to Coversheet - Coversheet not dated - Paragraph(s) N/A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.