Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Adams v R [2017] NSWCCA 215 Hearing dates: 21 June 2017 Date of orders: 01 September 2017 Decision date: 01 September 2017 Before: Hoeben CJ at CL at [1] R A Hulme J at [405] Wilson J at [406] Decision: Leave to appeal in relation to Grounds 1 and 3 refused. Remaining Grounds of Appeal dismissed. Catchwords: CRIMINAL LAW – conviction appeal – judge alone trial – offence of murder – victim's body not found – acceptance of tendency evidence fundamental to conviction – whether tendency evidence of Ms Hyde and Ms Brown properly admitted – whether probative value substantially outweighed prejudicial effect – whether his Honour correctly directed himself as to the use to which the tendency evidence could be put – whether his Honour needed to be satisfied beyond reasonable doubt as to the occurrence of the conduct giving rise to the tendency found – whether his Honour erred in taking into account evidence in support of other tendency incidents when considering whether an asserted tendency existed – whether certain documents were properly admitted as "business records" – whether the verdict was unreasonable – whether his Honour failed to exclude reasonable alternative hypotheses inconsistent with guilt – appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) – s 18 Criminal Appeal Act 1912 (NSW) – s 6 Criminal Appeal Rules (NSW) – r 4 Criminal Procedure Act 1986 (NSW) – s 133 Evidence Act 1995 (NSW) – ss 55, 69, 70, 97, 101,137,192 Cases Cited: Atai v R [2014] NSWCCA 210 Barca v The Queen [1975] HCA 42; 133 CLR 82 DJS v R [2010] NSWCCA 200 Doyle v R; R v Doyle [2014] NSWCCA 4 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Greenhalgh v R [2017] NSWCCA 94 Hughes v R [2015] NSWCCA 330 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14; 257 CLR 300 JWM v R [2014] NSWCCA 248 R v Adams (No 1) [2015] NSWSC 1960 R v Adams (No 2) [2016] NSWSC 1359 R v Adams (No 5) [2016] NSWSC 1563 R v Adams (No 6) [2016] NSWSC 1565 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 Thompson v The Queen [1989] HCA 30; 169 CLR 1 Thornton v R [2017] NSWCCA 86 White v Johnston [2015] NSWCA 18; 87 NSWLR 779 Category: Principal judgment Parties: Robert John Adams – Appellant Regina – Respondent Crown Representation: Counsel: G James QC/P Lange/C Parkin – Appellant M Cinque SC – Respondent Crown Solicitors: B Wrench – Appellant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2013/382738 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Adams (No 6) [2016] NSWSC 1565 R v Adams (No 7) [2017] NSWSC 179 Date of Decision: 4 November 2016 3 March 2017 Before: Button J File Number(s): 2013/382738 Judgment 1. HOEBEN CJ at CL: Offence and sentence On 27 September 2016, the appellant was arraigned before Button J in the Supreme Court of New South Wales on an indictment containing a single count: that on 24 September 1983, at Sydney in the State of New South Wales, he did murder Mary Louise Wallace. 1. The appellant pleaded not guilty and was tried by his Honour in a judge alone trial. On 4 November 2016 Button J returned a verdict of guilty of murder (R v Adams (No 6) [2016] NSWSC 1565). 2. On 3 March 2017 the appellant was sentenced to a term of imprisonment with a non-parole period of 15 years, commencing 11 June 2016 and expiring 10 June 2031 with a balance of term of 5 years expiring 10 June 2036 (R v Adams (No 7) [2017] NSWSC 179). 3. The appellant has appealed against that conviction on the following grounds: Ground 1: His Honour erred in finding that the appellant had a tendency, which had not been contended for, or notified by, the Crown. Ground 2: His Honour erred in admitting the evidence of Ellen Moon, Andrea Hyde, and Karen Brown as tendency evidence, because the evidence did not have significant probative value within the meaning of s 97 Evidence Act 1995 (NSW) and did not have sufficient probative value to substantially outweigh the prejudice. Ground 3: His Honour erred in failing to direct himself about a) the use to which the tendency evidence could be put and b) the dangers inherent in such evidence, as required by s 133 Criminal Procedure Act 1986 (NSW). Ground 4: His Honour erred in determining that he was not required, before finding that a tendency was established beyond reasonable doubt, to be satisfied of the underpinning conduct beyond reasonable doubt. Ground 5: His Honour erred in determining that, when considering whether an asserted tendency incident occurred, he was able to consider the evidence led in support of other tendency incidents, rather than being confined to the evidence led in support of the tendency incident in question and the evidence led in relation to the count of murder. Ground 6: His Honour erred in admitting the representation contained within Exhibit 4B on the basis that it fell within the business records exception to the hearsay rule, because a. The court could not be satisfied the document was a "business record"; b. It could not reasonably be supposed that the representation was made on the basis of information, directly, or indirectly, supplied by a person, who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, as required by s 69(2) Evidence Act 1995. c. It was not shown that the representation contained within the document was not made "in connection with litigation or an investigation", such that the carve out in s 69(3) Evidence Act 1995 did not apply. Ground 7: The trial miscarried because the trial judge misconstrued an argument by counsel for the appellant and inappropriately reasoned from it as if it were an admission as to a fact. Ground 8: The verdict was unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912. Ground 9: His Honour failed to exclude reasonable alternative hypotheses inconsistent with the appellant's guilt and therefore did not comply with the requirements of s 133(2) Criminal Procedure Act 1986. 1. Although some of the grounds of appeal raise issues of fact, for ease of reference Robert John Adams is referred to throughout the judgment as "the appellant". The Crown case 1. The Crown case was based on constructive murder, contrary to s 18(1)(a) Crimes Act 1900 (NSW) as in force between 16 May 1983 and 13 December 1983 for which the maximum penalty was penal servitude for life. Section 18(1)(a) relevantly provided: "18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by death or penal servitude for life." 1. The Crown relied upon a foundational offence which required proof of a prior foundational offence. The first foundational offence (primary foundational offence) relied upon by the Crown was that contained in s 37 of the Crimes Act 1900 (as at 24 September 1983) which was in the following terms: "37 Attempts to choke etc (garrotting) Whosoever: by any means attempts to choke suffocate or strangle any person, or by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance, with intent in any such case to enable himself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence, shall be liable to penal servitude for life." 1. The second foundational offence, i.e., the ultimate, indictable offence, which the appellant intended to commit, was the offence found in s 61D of the Crimes Act (as at 24 September 1983) which provided, relevantly: "61D Sexual Assault category 3 – sexual intercourse without consent (1) Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 7 years or, if the other person is under the age of 16 years, to penal servitude for 10 years." 1. It was not disputed that in the early hours of 24 September 1983 the appellant met the deceased at the Alpine Inn, Crows Nest. It was also not disputed that the appellant volunteered to take the deceased home to Drummoyne and left the Alpine Inn with her in his car. 2. The Crown contended that the appellant, after taking the deceased somewhere in his car, strangled her in order to force her to have sexual intercourse with him and that she died by his actions. The Crown further contended that he then put her body in the boot of the vehicle to dispose of later. 3. The only evidence capable of supporting the Crown case that death occurred in the context of intercourse and strangulation was evidence of the appellant's prior conduct said to evidence a number of tendencies possessed by him. Notice of those tendencies was given in a tendency notice of 17 March 2014. 4. The Crown, in closing submissions, summarised its case thus: "The basis for this foundational crime is based on the fact that the accused had developed a tendency to meet women at bars, gain their confidence, buy them drinks, sometimes tell them he was a policeman to gain their trust, offer them a lift in his car, get them in his car, and when out of sight of others strangle or choke those women to a stage where they believed that he would kill them, forcing them to have sexual intercourse with the accused." (T.1020.33-.38) 1. The Crown's need to prove that strangulation (the basis of the primary foundational offence) meant that it was accepted that the existence of some tendency to strangle was an indispensable intermediate fact of which the trial judge was required to be satisfied beyond reasonable doubt. 2. There were two further matters relied upon by the Crown: * Evidence that the appellant was spraying water into and/or washing the boot of his car on Sunday 25 September 1983; and * Evidence regarding the likelihood that a hair apparently found in the boot of the appellant's car came from the deceased. The defence case 1. The appellant did not give evidence at trial, but spoke to police in connection with the investigation in 1983. A record of interview was prepared at that time. 2. In 2013 upon his arrest, the appellant voluntarily gave an interview (an ERISP) and did so without legal representatives present. In that ERISP, the appellant adopted the account he gave to police in 1983 and in particular, denied that he attempted to choke the deceased on the night in question. 3. The position of the appellant in relation to the police and at trial was: 1. He arrived at the Alpine Inn around 2.20am. 2. There, he met Mary Wallace and left with her. 3. A short time later he pulled over to the side of the road where they engaged in some form of sexual activity. 4. He went to sleep and woke up around 5.00am to find the deceased gone. 1. The appellant accepted at trial that he raped Ms Ellen Moon. The appellant asked Ms Moon to take him to the police station at the time. He pleaded guilty to raping her, and served a term of imprisonment. 2. With respect to Ms Andrea Hyde, the appellant's case was that he and Ms Hyde had sexual intercourse but that the intercourse was consensual. 3. With respect to Ms Karen Brown, the appellant denied ever having any involvement with her. The fact that Ms Brown was raped was not challenged at trial. What was challenged was her identification of the appellant. 4. A document was provided by the appellant to the trial judge identifying the following matters, which were not in dispute: 23 – 26 September 1983 1. The appellant owned a 1982 Holden Commodore with registration MAA 265 in September 1983. 2. The deceased was heavily intoxicated at the Alpine Inn. 3. The appellant offered to give the deceased a lift home. 4. The deceased left the Alpine Inn with the appellant. 5. Some kind of sexual activity took place in the appellant's car. 6. The appellant attended a champagne breakfast at the house of Michael Smith (Duke) in the early morning of Saturday, 24 September 1983. 7. The appellant went out with Barbara Pittman on the evening of Saturday, 24 September 2016, returning home before midnight. The appellant then had sex with Barbara Pittman. 8. On Sunday, 25 September 1983, the appellant was at home, drank some beer and watched the movie "Death on the Nile" before going to sleep. 9. The appellant at some point during the period 25 – 26 September 1983: 1. Washed the clothing he wore on the night of Friday, 23 September 1983; and 2. Washed the seats of his car. Ellen Moon 1. This evidence is not in dispute. Andrea Hyde 1. The appellant picked up Ms Hyde in a car and drove to his house. 2. The appellant had sexual intercourse with Ms Hyde. 3. Ms Hyde left the house with raised "welts" around her neck. Karen Brown 1. Ms Brown was sexually assaulted by someone. 2. With tattoos "all over their body". 3. With a tattoo on their left arm. 4. In a house somewhere past Wahroonga. Pre-trial proceedings 1. In a pre-trial hearing the appellant sought to have the tendency evidence to be adduced in the Crown case rejected. The first objection was on the basis that sexual assault evidence said by the Crown to show tendencies on the part of the appellant did not pass the test contained in s 101 of the Evidence Act (the Act). The second objection was that evidence about mitochondrial DNA analysis of a hair said to have been located by police in October 1983 in the boot of the vehicle owned by the appellant did not pass the test contained in s 137 of the Act. 2. The parties were in agreement that it was appropriate for a determination of the issues by way of an advance ruling, pursuant to s 192A of the Act, to take place well before the appellant was to be tried. The proceedings were heard by Button J between 28 July 2015 and 30 July 2015 and on 27 August 2015. 3. In relation to the evidence to which the first objection was taken, the Crown sought to adduce evidence of four prior incidents of sexual assault alleged to have been committed by the appellant, or of which the appellant had been convicted. A tendency notice was served on 17 March 2014. Its relevant portions are as follows: The tendencies sought to be proved are: (1) The person whose "tendency" is the subject of the evidence sought to be adduced is Robert John Adams. (2) The tendencies sought to be proved are: 1. His tendency to act in a particular way, namely to be sexually violent towards women. 2. His tendency to act in a particular way, namely to use choking as a method of violence against women. 3. His tendency to act in a particular way, namely: 1. To meet women either in public bars or cafes by approaching them; 2. To ingratiate himself with these women; 3. to entice them into getting into his vehicle, 4. To use violence, including to place his hands around their throats and apply considerable pressure, for the purpose of forcing them to have sexual intercourse with him; and 5. To only release this pressure if and when the women acquiesced to sexual activity with him. 1. His tendency to have a particular state of mind, namely to become violent including to the point of strangling a woman if his sexual advances were turned down. 1. In relation to the second challenge to evidence, the appellant argued that the movement or provenance of the hair could not be accounted for by the Crown, in any detailed way, between 10 November 1983 (when the exhibit was delivered to the Australian Atomic Energy Commission at Lucas Heights) and 17 January 2003 (when the sealed box containing the exhibit was located at Mosman Police Station by two detectives). The appellant argued that the evidence was therefore by no means conclusive that the hair exhibit, that was the subject of mitochondrial DNA analysis, was indeed the hair exhibit seized from the boot of the appellant's vehicle. 2. His Honour ruled on 18 December 2015 that (1) the evidence about the hair analysis was admissible and (2) the tendency evidence foreshadowed in the tendency notice of 17 March 2014 was also admissible: (R v Adams (No 1) [2015] NSWSC 1960). 3. In a second pre-trial hearing, the appellant applied to be tried by a judge alone. The application was opposed by the Crown, and heard by his Honour Button J on 22 September 2016. 4. On 26 September 2016, his Honour ordered that the appellant be tried by judge alone: R v Adams (No 2) [2016] NSWSC 1359. THE EVIDENCE AT TRIAL Disappearance of the deceased 1. On Sunday 25 September 1983, the deceased, who was born in 1950, was reported missing by her father at Chatswood Police Station. She was then aged 33. At the time of her disappearance, the deceased was living alone at an apartment in Drummoyne, and working as a theatre sister at Hunters Hill Hospital. 2. On the evening of Friday, 23 September 1983 after finishing work, the deceased and her friend, Leslie Kennedy drove together to the deceased's apartment. Ms Kennedy had brought along a change of clothes, so that she could go to the farewell dinner of their colleague Ms Helen Morrison. Each of them showered and changed and they had a glass of champagne together before leaving for the dinner. 3. The deceased and Ms Kennedy caught a taxi to the Malay Restaurant in North Sydney. On the way there they picked up Mary Williams, another nursing sister colleague. 4. Present at the dinner were approximately 40 guests. Service of the meal was delayed, and quite a bit of alcohol was consumed. Helen Morrison, the guest of honour, was presented with a farewell gift by the deceased. Ms Morrison noted at that stage that the deceased was quite affected by alcohol, in that she was repeating herself and slurring her words. At the end of the evening, Ms Morrison walked home directly from the restaurant. 5. Sometime before midnight on Friday, 23 September 1983, a doctor offered Ms Kennedy a lift home. The deceased playfully accused Ms Kennedy of being "a piker" and told her that she herself had had a lot to drink. Ms Kennedy left directly from the restaurant with the doctor. 6. The function at the restaurant concluded at about midnight. The deceased left the function with Mary Williams, Debbie Mullin and her husband and Vicki Taylor. They travelled to the Stoned Crow, a nearby wine bar on Willoughby Road, Crows Nest where they met Chris Liney and two young women who were in his company. Vicki Taylor described the deceased at that stage as being in good spirits, laughing and giggling but not falling down drunk. 7. Ms Taylor gave evidence that while at the Stoned Crow the deceased went missing and people went outside to look for her. The deceased then rushed past Ms Taylor into the women's toilets of the Stoned Crow. Ms Taylor followed her in and asked her what was wrong. The deceased told her that she had been assaulted. Ms Taylor could not see any injuries to the deceased but noted that she was crying and recalled mascara running down her face. Eventually, the deceased returned to socialising within the Stoned Crow. Ms Taylor went home from the Stoned Crow at about midnight or 1am with Ms Mullin and her husband. The deceased and Ms Williams were still at that wine bar when Ms Taylor left. 8. When the Stoned Crow closed at 2am, a group comprising the deceased, Ms Williams, Mr Liney and his female flatmate Sandra Coady walked to another nearby wine bar, the Alpine Inn situated on Willoughby Road, Crows Nest. 9. Mary Williams went to buy drinks from the bar and upon her return, saw two men sitting next to the deceased. The older man was Ullie Rabsch, the bar manager of another wine bar on the lower North Shore, who had known the deceased for some years. The younger man was the appellant. Ms Williams gave the drink to the deceased and went over to sit with Mr Liney. 10. Ullie Rabsch gave evidence that he saw the deceased sitting with a male person whom he did not know in the bar area. He sat down next to her, they embraced and he asked how she had been. She told him about having been assaulted by a man at the Stoned Crow because she did not wish to go out with him. Mr Rabsch could not see any injuries to the deceased. Mr Rabsch formed the opinion that the deceased was very intoxicated, drunker than he had seen her before. 11. Sandra Coady gave evidence of taking the deceased to the women's toilets on a number of occasions where the deceased was physically sick. 12. Later, the deceased asked Mr Rabsch whether he would give her and Ms Williams a lift home when he came to leave. He explained that he would be getting a lift himself and going in the other direction. Mr Rabsch left the Alpine Inn at about 3.15am. He farewelled the deceased, noting that she was still quite intoxicated. At that stage she was still talking to the appellant. 13. Before he left, Mr Rabsch was so concerned about the deceased's state of intoxication that he offered her a lift – even though he had earlier told her he was not going her way. She declined. 14. At one stage Ms Williams saw the deceased walk towards the entrance of the bar. The women's toilets were in the same general direction. The deceased did not return for 15 minutes or so. Eventually, Ms Williams went to look for her friend. As she approached the women's toilets the appellant, who Ms Williams observed to have been one of the two men the deceased was sitting with, walked out of the men's toilet and said "Are you going to check Mary?" The appellant waited outside as Ms Williams went in to check on the deceased. 15. Ms Williams entered the women's toilets looking for the deceased. There were two cubicles, one of which was locked. Ms Williams banged on its door several times and asked "Are you alright?" There was no reply. She went back outside and told the appellant "She must be there, I can't get her to unlock the door, and she won't answer". The appellant replied "I'd better come in and have a look". Inside the women's toilets, the appellant unsuccessfully used a key to manipulate the locked cubicle door. He then tried to shoulder the door open three or so times, all of them unsuccessful. Ms Williams said "Don't do that, you'll break your shoulder", to which the appellant replied "I should be used to it, I'm a policeman". 16. The appellant succeeded in kicking open the door of the cubicle occupied by the deceased. The door flung open revealing the deceased sitting fully clothed on the toilet. Ms Williams asked if she was all right, the deceased replied something like "My head hurts". Concerned that the door had hit the deceased when it flew open, Ms Williams examined her head for injuries, but saw none. Ms Williams said "We better get you up, and get you home". The appellant said "I think she's left her bag inside" referring to the bar. Ms Williams re-entered the bar to retrieve the purse of the deceased and speak with Mr Liney. 17. Ms Williams, the deceased, Mr Liney and the appellant all walked out onto the footpath. Ms Williams said "We better get a cab" but there were no taxis around. The appellant said "I've got my car here" and pointed to a car parked out the front of the Alpine Inn. In her evidence Ms Williams recalled the car as a fairly new looking silver Commodore with unusual clear perspex bull bars on it. 18. Ms Williams asked the deceased "Do you want to go home with this fellow?" and she said "Yes". Ms Williams asked the appellant where he lived, to which he replied "Drummoyne" and whether he was all right to drive, which he replied "I'm a policeman ... You don't have to worry". 19. Ms Williams said that the deceased was so intoxicated that she required assistance to get into the appellant's car. The deceased was placed in the front passenger seat. Mr Liney asked the appellant if he would be driving near his home at River Road, Wollstonecraft (in order to obtain a lift himself), but the appellant said that he was not going in that direction. The appellant entered the driver's seat and drove off along Willoughby Road towards Willoughby. Deceased reported missing 1. From about 8.30am on Saturday, 24 September 1983, friends and family of the deceased tried to contact her. The deceased had a family function organised for the Saturday afternoon or evening, but she neither attended nor telephoned anyone. 2. Ms Williams awoke and tried to call the deceased from about 11am with no answer. Worried for the deceased she called Ms Kennedy. Ms Kennedy had been calling the deceased from about 8.30am with the phone ringing out. Concerned for the deceased she called the deceased's parents. 3. On Sunday, 25 September 1983 Ms Williams, Ms Kennedy and the deceased's father attended the deceased's flat in Drummoyne. Ms Kennedy noticed the deceased's car still parked out front. The deceased's father broke into her flat. They entered and looked around. There was no sign of the deceased. Ms Kennedy who had been with the deceased in the flat on the Friday evening prior to going to the dinner, noticed that the flat was undisturbed. She noticed the champagne glasses they had been drinking from were in exactly the same place. At 10.30pm the deceased was reported missing by her father to Chatswood police. Identification and arrest of appellant 1. On Tuesday, 27 September 1983 Ms Williams made a statement to police about the events of the evening of 23 September 1983. She prepared an identikit picture of the man who departed the Alpine Inn with the deceased. It was not disputed in the trial that the image approximated the appearance of the appellant that weekend. 2. On Thursday, 29 September 1983 information was provided to investigating police to suggest that the appellant may have been the man who departed the Alpine Inn with the deceased. 3. At 11.15pm on Thursday, 29 September 1983 Detective Sergeant Counsel and Detective Senior Constable Matthews observed the appellant driving his vehicle, a brown 1982 model Holden Commodore sedan registration number MAA 265 (NSW), in Willoughby Road, Crows Nest. At that time, the vehicle was registered in the name of the appellant. Police stopped the vehicle and spoke to the appellant. Police conducted a search of the vehicle during which they located a quantity of Indian hemp secreted under the driver's seat. The appellant was placed under arrest. Both the appellant and his motor vehicle were taken to North Sydney Police Station. The car was seized by police, and retained for a number of weeks. Police interview with appellant on 29 September 1983 1. The appellant refused a formal interview but voluntarily discussed his movements with detectives on 29 September 1983. Later during an ERISP conducted on 20 December 2013, the substance of his version of events of 30 years before was put to the him and he accepted the police record of the September 1983 interview was correct. 2. At trial Detective Sergeant Counsel gave evidence of the version of events provided by the appellant in 1983, along with the typed interview notes. The following is a summation of the evidence. 3. The appellant told police that he was working as a carpenter at Lane Cove National Park. He said he was working on an observation deck area at a location within the park known as Jenkins Hill. On Friday, 23 September 1983 he finished work at 4.30pm and attended a number of bars in the Crows Nest area. He attended the Alpine Hotel at around 2.20am on Saturday, 24 September 1983 where he met a female, during which time they talked and consumed a number of drinks. At this stage of the interview, the appellant was shown a photograph of the deceased and told them that she was the female whom he had met. 4. A short time later, the deceased left the bar area and went to the toilet. Later he went to the male toilets and as he came out he saw the deceased's friend standing outside the female toilets. He inquired as to the whereabouts of the deceased and was informed by the friend that she was still in the toilet and that the cubicle door was locked. They both entered the female toilets and he knocked on the door and attempted to open the lock with his keys. This proved unsuccessful so he forced the door and when the door was opened, he observed the deceased sitting on the toilet and she appeared to be fully clothed. 5. Both women had a short conversation and then all three of them left the toilet and walked to the front of the wine bar as he believed they were going somewhere for coffee as had previously been arranged. The deceased got in the front passenger seat of his car and he had a short conversation with Ms Williams. He then entered his motor vehicle and drove off on Willoughby Road. He travelled about 90m on Willoughby Road, turned left and stopped the car. They kissed for a while and then he took his pants down to his knees and they began playing with each other. He then got on top of her while she was still seated in the passenger seat of the vehicle and attempted to have intercourse with her. He was unable to say if in fact he had full intercourse with her. He then got back into the driver's seat and a short time later fell asleep. 6. He awoke around 5am to find the deceased missing from the vehicle. He then drove to his home, drank two twist-top bottles of beer, changed clothing and did some washing. The washing he did consisted of sheets, pillow cases and work clothing. 7. Shortly afterwards, he left his home and went to a champagne breakfast at St Leonards where a friend of his named Duke was having a 31st birthday party. He arrived at the party around 7am and he took with him a case of beer. When he got to the party he drank for a couple of hours and then went to sleep on the grass in the backyard, waking about midday. After waking, he returned home, slept for about two hours, woke up and had a shower and then went back to the party where he remained until around 6.30pm and then returned to his home. 8. On Sunday, 25 September 1983 he stayed at home and on the afternoon of Monday, 26 September 1983 he washed both front seat covers of his car because the passenger seat "had cum on it and it smelled". When further questioned regarding his motor vehicle, he stated that apart from washing his seat covers, he washed the car and vacuumed the front section. He later sprayed water on the boot as it previously had leaks in it and the back window had been replaced and the boot lid had been resealed. He just wanted to see that it did not leak. 9. After the interview was completed, the appellant was charged with possessing a prohibited drug (the cannabis located in the vehicle) and impersonating a police officer (based on the things that he had said at the Alpine Inn). 10. On the same evening, Robin Fletcher, an associate of the appellant, was telephoned by him. The appellant asked Mr Fletcher to bail him out on his two pending charges. The appellant also said "Tell the sergeant what I was wearing" referring to the attendance of the appellant at the champagne breakfast on the Saturday morning. Mr Fletcher told the detectives that the appellant was wearing a T-shirt, black shorts and a pair of thongs. The appellant was released to bail. Events of the weekend of 24 and 25 September 1983 1. Evidence was given by a number of witnesses as to the movements of the appellant for the weekend of the 24 and 25 September 1983. 2. On Saturday, 24 September 1983 a champagne breakfast was held at the home of Michael "Duke" Smith in the Sydney suburb of Naremburn. The appellant arrived early, possibly around 6.30am. Many of the guests confirmed that he was present. One guest, Robin Fletcher, observed the appellant to produce a case of beer from boot of his vehicle on arrival. Mr Fletcher recalled discussion at the party about the boot being wet when the beer was taken from the car. 3. A number of guests recalled the appellant being at the breakfast in casual clothing featuring a T-shirt, shorts, and thongs as opposed to his smarter outfit of the evening before. More than one guest saw the appellant fall asleep at the social event later on the Saturday morning, perhaps at around 10am. 4. At some stage on Saturday, 24 September 1983 Barbara Andrews (nee Pittman) saw the appellant out the front of his flat. He invited her to a party that evening. She neither accepted nor declined. He asked her to call him later that afternoon with an answer. She did so at about 2pm, and accepted the invitation. 5. At about 6pm, the appellant picked up Ms Andrews at her home, but informed her that they should go to the bar of a hotel instead of a party. They returned briefly to his flat and the appellant changed his clothes. They walked to a hotel in Chatswood and had some drinks there. At about 9 or 9.30pm, they returned to his home, watched television and had sex. Ms Andrews arrived back at her own home at about 11.45pm on the Saturday. 6. On Sunday, 25 September 1983, at 3pm Ms Andrews went for a drive with her sister and daughter. The car broke down and had to be towed to a service station. The three of them walked home. On returning to her unit, she saw the appellant sitting in the driver's seat of his car. The car was parked on the pavement in front of his flat, and all the doors and the boot lid were open. She then entered her unit. She later saw the appellant hosing out the boot of his car. 7. In cross-examination Ms Andrews could not be certain whether she had informed anyone, before giving evidence in the trial, that she had seen the appellant cleaning his boot on Sunday, 25 September 1983. 8. In December 1982, Suzanne Newhouse (nee Beckingham) began sharing a flat with the appellant in McIntosh Street, Chatswood. Also residing at the flat at that stage was Mr Ross Adams whom she understood to have been renting the flat for some years. 9. At about 10.30pm on Friday, 23 September 1983 Ms Newhouse attended a friend's house in Willoughby for a period of time. Upon her return home, there was no other person in the flat. Ms Newhouse retired to bed at 11.30pm and left her bedroom door open. 10. She awoke to the sound of the phone ringing about 8.30am on Saturday, 24 September 1983. The male caller asked where "the bastard" was, referring to the appellant. She told the caller he was not home. He told her to tell the appellant that "PJ" rang and that he was calling from the Big House Hotel in the centre of Sydney. After the call ended, she went back to bed for a short period. Thereafter, she got up and went to the newsagent to collect the newspapers and then returned to the flat. 11. At about 10.30 or 11am Ms Newhouse saw the appellant return to the flat. She asked how his night had been and he replied "Just the normal". The appellant obtained a beer from the fridge, went to the lounge-room of the flat and watched television. He was wearing dark trousers and a cream shirt. Ms Newhouse told the appellant about the telephone call from "PJ". The appellant left the house for a short time and returned after about half an hour. 12. At about 11.45am Ms Newhouse left the flat. At that time, the appellant was in his room with the bedroom door shut. Ms Newhouse returned at about 2pm and the appellant's bedroom door was still shut. After about an hour, the appellant came out of his room. He was wearing a T-shirt, shorts and thongs. He told Ms Newhouse that he was going to a party. At about 4pm, Ms Newhouse left the flat to help a friend to move house. When she left, she saw the appellant's car parked in the street. At about 2 to 2.30am on Sunday, 25 September 1983 Ms Newhouse returned to the flat and saw that nobody was home. She watched TV in the lounge room and then went to sleep at 3.30am. Nobody was home at the time she went to bed. 13. Ms Newhouse woke up at about 8am and started to watch television. At about 9.30 or 10.30am the appellant had come home. He went to the fridge, obtained a beer and then went to the lounge room to watch television. Ms Newhouse went out for groceries, and returned 15 minutes later. When she came back to the flat, the washing machine (which was located in the kitchen) was operating. Later that day, Ms Newhouse did her own load of washing. Once the washing cycle stopped, she went downstairs to hang her washing on the clothesline of the block of units. 14. Ms Newhouse noticed two car seat covers, which were brown with black and red stripes on them, hanging on the clothesline. She knew they were the appellant's as she had driven with him in his car before. She described the appellant's vehicle as an SL Commodore, beige or tan, four door sedan with bull-bars on the front. She also saw brown sheets hanging on the line. They were the same sheets that she had given to the appellant to be given to one of his friends. 15. Later Ms Newhouse washed her father's car which she was using at the time. She returned upstairs to the flat and saw that the appellant was present. He left the flat and she wondered where he had gone. Ms Newhouse entered the appellant's bedroom. From his bedroom window, Ms Newhouse looked down to the parking area in front of the block of flats and saw that the appellant had the floor mats out of his car and that its boot was open. The car was parked on the paved area at the front of the block of flats. She saw the appellant walk back up to the flat, take the vacuum cleaner downstairs and vacuum out his car. Ms Newhouse then saw the appellant with a hose in his hand and saw him scrubbing the interior of the boot using a rag. She also saw that he had removed a number of items from the boot including a bag of tools, some clothes, some tools, a piece of carpet and an orange towel. 16. Ms Newhouse stated that in the approximately ten months she had lived with the appellant she had only observed him clean his car on two or three occasions and had never seen him wash the boot of the car before. 17. At approximately 6pm, Ms Newhouse went to her parents' house to return her father's car and to have dinner with her family. At about 9.30pm, Ms Newhouse returned to the flat. She saw that the appellant was watching a movie on television. Later he went to his bedroom and she retired to bed. 18. On Monday, 26 September 1983 Ms Newhouse got up at about 6.45am. Whilst she was getting ready for work, she saw the appellant come out of his bedroom wearing his work clothes. She was aware that the appellant was working at Lane Cove National Park. At about 5.45pm Ms Newhouse arrived home from work. She saw the appellant sitting on the lounge and the washing machine was operating. After it had finished the appellant removed from it the clothes that he had been wearing on the morning of Saturday, 24 September 1983. 19. In cross-examination Ms Newhouse agreed that she first provided information to police about the events of the weekend when they came to the flat before her first formal statement of 2 October 1983. She did not recall, however, what she had said on that first occasion or the questions that they had asked. 20. She accepted in cross-examination that she did not tell police during that initial questioning that she had observed the appellant washing out his boot but provided this information in a subsequent undated letter to police before providing her first statement. 21. On Friday, 30 September 1983 the appellant (after his arrest and interview with police) telephoned Ms Newhouse. He asked her why she had let the police into the flat they shared and told her that she had no right to do so. The appellant also asked her what she had told police. Ms Newhouse said that she had no familiarity with police and asked "What am I supposed to do?" She refused to tell the appellant what she had told the police. After that phone call Ms Newhouse moved out of the shared flat in Chatswood. 22. Ross Adams met the appellant through the rugby club and it was during the 1983 season that the appellant offered him a room in his flat in McIntosh Street, Chatswood. When Ross Adams moved into the flat, one bedroom remained vacant and it was shortly afterwards that Ms Newhouse moved in. 23. About 10 or 10.30am on Saturday, 24 September 1983 Ross Adams was returning to his home. He stayed for only a brief time before departing. As he was driving away from the block of flats, he passed the appellant in the street as the appellant was driving towards him. 24. Around the time that the deceased disappeared (but not necessarily on the weekend in question) Ross Adams saw the appellant washing his car. He also saw the appellant leaning over the boot and from his bodily movements, he believed the appellant was scrubbing the interior of the boot. He saw a carpet on the ground next to the boot. He saw all of this from his bedroom window within the flat. 25. Shortly afterwards, Ross Adams asked the appellant why he had been cleaning his boot. The appellant told him that he had killed some ducks at Lane Cove. 26. Sometime in 1988 or 1989, Ross Adams was drinking with the appellant at Gladesville RSL Club. He asked the appellant "What happened to that nurse?" The appellant leant over, put his face quite close to that of Ross Adams, and said in a serious tone "What's that to you?". Police investigation 1983 1. On 30 September 1983, Detective Sergeant Counsel attended the apartment of the deceased in the company of Detective Sergeant Butcher and Dr Simon Baxter. Fingerprints were collected from the scene, along with a hairbrush that contained a number of hairs. 2. The same day police conducted a search of the appellant's unit in McIntosh Street, Chatswood. They seized a number of items including the vacuum cleaner used by the appellant to clean his motor vehicle. Police located two invoices in his bedroom relating to the pouring of 26 concrete piers at the recreation area, Lane Cove National Park in vicinity of Lady Game Drive. The invoices indicated that the concrete piers were poured on Monday, 26 September 1983 (two days after the deceased was last seen). 3. Detective Sergeant Walsh of the Police Scientific Section and members of the Police Rescue Squad used metal probing rods and a mechanical auger to examine the soil under the concrete piers with no result. 4. Dr Baxter was involved in the process of examining the motor vehicle of the appellant. A fingerprint was found on the interior of the boot but it was the fingerprint of neither the deceased nor the appellant. 5. On 5 October 1983 the appellant attended Chatswood police station and supplied a sample of his blood. 6. On 6 October 1983, Detective Sergeant Walsh vacuumed the boot of the appellant's car. He placed the contents in a brown paper bag. He labelled it "83/1363, Re missing person Mary Louise Wallace, Matter vacuumed from boot of Holden Commodore Sed. No. MAA-265, B.J.W D/Sgt 2/C Chatswood, 6/10/83". He handed the paper bag to Detective Milroy. 7. Pauline Margaret Biddle-Broadfoot had trained with the deceased as a nursing sister in 1969 and had remained friends. They socialised together, had travelled overseas and had worked together. Ms Biddle-Broadfoot was shown a photograph of the boot of a car with the NSW registration number plate MAA 265. She gave evidence that the clog depicted in the photograph was similar to a clog that would have been worn by the deceased. 8. Lesley Kennedy gave evidence the deceased often wore clogs in the operating theatre, they were black in colour and kept in the operating area. She also had leather bound clogs she would wear socially. Ms Kennedy was also shown the photograph of the boot of the car which had the NSW registration number MAA 265 depicting the clog. Ms Kennedy said she could identify it as the same kind of clog that the deceased used to wear and that it was the clog that the deceased wore on the evening of Friday, 23 September 1983. 9. During the week of 20 October 1983, Susan Holman (nee West) started work at a kiosk at Lane Cove National Park. At about 1pm one day that week, the appellant came to the counter of the kiosk and spoke to her. 10. He said that he had just gone up the road "to get rid of $10,000". When she asked him why he said he had given it to his solicitor. He said that he was the "prime suspect" in the murder of "the nurse from Crows Nest". The appellant said that he was not the boyfriend of the deceased, but had just met her that night. He said that he had driven the deceased around the corner and had passed out with his pants around his ankles. He told Ms Holman that he did not remember anything. He also said "Do I look like I have a murderer's face?". 11. He told Ms Holman that he was subject to "holding charges" and could not go anywhere. He also said that his financial situation was being investigated. 12. The appellant also said to Ms Holman "You better watch out, or I might hit you over the head and rape you as well". Ms Holman responded "If you do that, you might find yourself with a knife in your guts". The appellant laughed and walked off. 13. At some stage during that conversation, Ms Holman told the appellant that the kiosk had a problem with mice. One or two days later, the appellant returned to the kiosk and told Ms Holman that he had a solution to the mouse problem. He produced an upturned coffee cup. Underneath it was what Ms Holman believed was a live funnel web spider. She felt frightened by the actions of the appellant. 14. A few days later, Ms Holman was about to close up the kiosk when the appellant appeared. He asked her for a Cornetto ice-cream, which she gave him. He also spoke of setting up a mouse trap. Whilst she was locking up, the appellant placed his arm around her waist, and rubbed his body up and down against her. She removed his hand from her person, locked the door of the kiosk and walked straight to her car. Later she told her boyfriend what had happened and shortly afterwards made a statement to the police. 15. On 10 November 1983 police received an anonymous handwritten letter which claimed that the body of the deceased was buried in a crevice in bushland. The envelope also enclosed a portion of a page from a street directory with an area marked as a suggested location for a search. It bore a postmark that showed the place of mailing as Katoomba and the date of the postmark as 7 November 1983. A fingerprint detected on the letter was not that of the appellant. 16. On 10 November 1983 police took the material vacuumed from the boot of the car of the appellant, along with hairs obtained from the hairbrush, to the Australian Atomic Energy Commission Laboratory at Lucas Heights for the purpose of an examination that featured irradiation. Chief Inspector John Goulding conducted that examination. No meaningful results could be obtained. A couple of weeks after 10 November 1983 detectives retrieved the samples from Lucas Heights that had not been destroyed, and placed them at the Chatswood Crime Scene Office. 17. In early 1984 police received a letter relating to the disappearance of the deceased. It bore a postmark that showed the place of mailing as Dee Why and the date of the postmark as 20 February 1984. The letter stated "From Alpine came RA with MW in Tow Into MMA to see what's the go Not To Drummoyne, but Willoby we go Sex with MW, then death + Bury Low Never FIND MW, GONE From BOOT, GONE to DARKNESS Fuck you coppers, BIG JOKE EH, Help me please". 18. Police made a number of searches for the deceased in the subsequent months and years but they all proved unsuccessful. Police also made enquiries with taxi companies and hospitals in an attempt to locate the deceased without success. The investigation wound down without anyone being charged with an offence relating to the disappearance of the deceased. Investigation re-opened in 2002 1. In October 2002, police re-activated their enquiry into the deceased's disappearance. Detective Sergeant Puffet became the officer in charge of the investigation. Efforts were made to locate all of the items seized as exhibits in the original investigation, all of the statements taken, and all of the documents otherwise created. Detective Puffet and Detective Senior Constable McKillop located the cardboard box at the Mosman Police Station storage unit that was labelled to the effect that it contained the exhibits from the original investigation. The exhibits were extracted, examined, and photographed. 2. On 17 January 2003 Detective Sergeant Puffett and Detective Senior Constable McKillop attended Mosman Police Station. They searched the exhibit room and located a sealed box of exhibits. Attached to the top of the box was a piece of paper, on which the following words were: "ALLEGED MURDER WILLOUGHBY ROAD CROWS NEST Victim: Mary Louise WALLACE OIC: FSG: D/Sgt WALSH, Chatswood Job: 83/446 Date: 29.09.83 Exhibits: (listing the exhibits contained)" 1. The box was immediately transferred to Manly Police Station. Detective McKillop entered the box into a system of records at that location with exhibit number C-783410. 2. On 21 January 2003 Detective Ure collected all of the exhibits attached to C-783410 from the exhibit room at Manly Police Station. He transported them to the Chatswood Police Station, which had been re-opened. They were signed into the Chatswood Crime Scene Specimen/Item Register (CSSIR) as 25/B48877 at 3.45pm by Detective Colver. The exhibits (including the bags in which they were contained) were all individually photographed, bagged and sealed in clear plastic evidence bags by Detective Colver. 3. At some stage, Detective Puffet and other police inspected the original search sites, including the area around the Lane Cove National Park observation deck (which had been demolished since 1983) and Ku-ring-gai Chase National Park but nothing was found. 4. There was also physical surveillance of the appellant at certain stages. 5. On 29 January 2003, Crime Scene Officer Flippence transferred the exhibit items from the box to the Department of Analytical Laboratories (DAL) at Lidcombe. They included the hairs vacuumed from the boot of the vehicle of the appellant and the hairs from the hairbrush inferred as belonging to the deceased. An examination of some of the hairs at the time found that they were unsuitable for nuclear DNA testing. Investigation re-opened in 2008 1. The case was then again re-opened by investigators attached to the Unsolved Homicide Team, Homicide Squad in 2008. Detective Nicole Jones became the officer in charge of the investigation and gave evidence. 2. Enquiries were conducted with all police services in Australia, Centrelink, the Department of Immigration, the Registry of Births, Deaths and Marriages, all major financial institutions in Australia, the Health Insurance Commission and the Australian Taxation Office. There was also a process of checking unidentified bodies found in New South Wales since the disappearance of the deceased. No sign of the deceased was detected. 3. On 24 June 2009 police attended the area known as Jenkins Hill situated within the Lane Cove National Park and identified the area believed to be where the appellant had constructed an observation deck in 1983. The observation deck no longer existed but it was confirmed that the concrete footings of the observation deck were still in the ground. Between 5 and 7 October 2010, a further excavation of Jenkins Hill took place but nothing of relevance was found. 4. Johan Duflou, forensic pathologist, gave evidence as to the possible mechanisms of death as a result of manual strangulation. 5. Professor Duflou gave evidence that there were three major mechanisms proposed in relation to death due to manual strangulation. The first was compression of the blood vessels supplying oxygen to the brain. The second was compression of the airway, i.e., the air passages or throat. The third mechanism was as a result of stimulation of various nerves in the neck and, potentially, other parts of the body which cause the heart to slow down or stop. 6. Professor Duflou gave the following evidence: "Q. Now, if you have a scenario and take this scenario into account, thanks, of someone who is forcefully having sex with another against their will and is holding them around the neck during that whole period and, at the conclusion of that, the person dies who's been strangled, if that fits within the airway compression in the neck blood vessel occlusion in terms of time, that would be a reasonable scenario in terms of killing someone by these methods, would it not? A. Yes, it would be, if the length of sexual intercourse was that long and the neck compression was maintained for that long." (T.480-481). 1. Professor Duflou also agreed that the scenario given in relation to forced sexual intercourse and holding the person around the neck could also result in vasovagal arrest, as well as the neck blood vessel occlusion and airway compression. 2. In late 2013, a swab was taken from the inside cheek of the sister of the deceased for mitochondrial DNA (mtDNA) comparison purposes. 3. The swab from the sister of the deceased, the hairs said to be from the hairbrush, and the hairs said to be from the vacuuming of the boot were sent to Dr Dadna Hartman at the Victorian Institute of Forensic Medicine in Victoria for mtDNA testing. 4. Hairs said to be from the vacuuming of the boot of the appellant, and hairs said to be from the hairbrush were also sent to Elizabeth Brooks, expert hair analyst, within the Australian Federal Police in Canberra. 5. Ms Brooks gave a Power Point presentation on "An Introduction to Forensic Hair Examination". Her report of 15 January 2014 and supplementary report of 10 June 2014 made clear that all of the hairs located had been naturally shed. There was nothing to suggest that they had been pulled out. She also expressed the opinion that the hairs vacuumed from the boot were "visually" identical to the hairs taken from the hairbrush. While accepting that there was no statistic that expressed the rarity of that occurrence, Ms Brooks expressed the opinion that such a match was "incredibly rare". 6. Dr Dadna Hartman gave a Power Point presentation on "Mitochondrial DNA Analysis". Dr Hartman expressed the opinion that the hairs vacuumed from the boot had the same mtDNA profile as the hairs taken from the hairbrush. The buccal swab from the sister of the deceased revealed a slightly different mtDNA profile but Dr Hartman expressed the opinion that that variation was not exclusionary, and could be explained as a natural variation between siblings. 7. Dr Hartman provided calculations seeking to reflect the rarity of such a match. Her final position, encapsulated in a Power Point presentation that became exhibit 4E, was that adopting a conservative approach, 1 in 518 persons in the Australian community would be expected to possess that mtDNA profile. 8. David Bruce performed DNA testing on a reference sample from the appellant for comparison to exhibits gathered in the 1983 investigation: cigarette butts, five hairs from the vacuum cleaner, carpet fibres, khaki overalls, a fibre from vice grips, tapelift of concrete receipt invoice, swab of vice grip and swab of bristles of blue hair brush and stored samples of an envelope. There was no match to the appellant. 9. Matthias Zierholz, a handwriting expert, was asked to examine the letter and extract from a street directory that were sent to police on 7 November 1983 and the subsequent letter sent to police on 20 February 1984 and its envelope and to compare those documents with letters sent by the appellant from prison in 1986. 10. Mr Zierholz came to the conclusion that the samples of writing were different. There could be three explanations for that difference. The first was that the samples of writing were created by different persons. The second was that they were created by the same person, who deliberately disguised his or her handwriting. The third was that they came from the same person, but his or her handwriting had changed over time. 11. Mr Zierholz ruled out the second possibility of disguise. He did not rule out the third possibility because he felt that he had insufficient material upon which he could do so. Arrest and re-interview (ERISP) of appellant on 20 December 2013 1. On the morning of 20 December 2013, the appellant was arrested at his home on a charge of murder. He accompanied Detective Jones and other police to a police station. There he participated in an ERISP. 2. The recorded interview was played in the trial on 4 October 2016. The following is a summation of the evidence on the ERISP. 3. The appellant agreed that he owned a brown Holden Commodore in 1983. 4. He agreed that in 1983, he was a carpenter at Lane Cove River Park. He also agreed that on Friday, 23 September 1983 he finished work at about 4.30pm, went home, drank a few beers and watched television. From 7pm until midnight on Friday, 23 September 1983 he was at the Crows Nest Hotel drinking with friends. 5. He recalled going to the Alpine Inn at approximately 2.20am on Saturday, 24 September 1983. He had driven there and believed that he might have parked out the front of the wine bar. He estimated that he had consumed 20 to 30 schooners of beer before arriving at the Alpine Inn. He recalled talking to the deceased at the Alpine Inn and attempting to "pick her up". 6. He recalled the incident in which he had kicked open the door of the cubicle in the women's toilets and seeing the deceased inside. He recalled having described himself as a police officer or an airline pilot. He explained that he was in the habit of telling lies about his occupation in order to impress women. 7. He recalled the deceased telling him that she lived in Drummoyne and the fact that he had offered her a lift. His intention had been to take the deceased to his house and to have consensual sex with her. 8. When he drove away from the Alpine Inn he was drunk. After he drove the car around the corner, he pulled over and he and the deceased "fooled around". He could not recall whether they had had sexual intercourse. When he woke up in his car, the deceased was gone. Although he accepted that he had told police in 1983 that he had woken at approximately 5am, at the time of the ERISP he was not sure of the time. 9. After that, he drove to his flat in Chatswood, drank two beers and changed his clothes. He did not see either Ms Newhouse or Ross Adams when he returned home, which he thought was at about 5.10am. 10. He did not remember the time at which he arrived at the champagne breakfast but agreed with his 1983 statement that it would have been at about 7am. There he consumed a few beers and then went to sleep on the grass in the backyard. He agreed that he had woken up at about midday. 11. He recalled meeting Ms Andrews and having sexual intercourse with her on the Saturday evening. 12. On Monday, 26 September 1983 he went to work at Lane Cove River Park between 7.30am and 4.30pm. He washed the seat covers of his car that afternoon. 13. He agreed that he was arrested whilst driving his car on 29 September 1983. He recalled the police seizing his vehicle for a time and his vacuum cleaner. He also recalled giving a sample of his blood. 14. He could not recall how long Ms Newhouse lived with him. He denied that he would have washed the boot of his vehicle with water and rags. 15. He could not provide any explanation of why a hair of the deceased might have been in the boot of his car. 16. The interview concluded with the appellant informing the independent officer that he had no complaints about any aspect of it. Tendency evidence Andrea Hyde 1. As at early August 1975 Ms Hyde was a 28 year old single woman. She had been sharing a house with a Ms Peters for six months after having been divorced. She had also had an abortion in late July 1975 and was experiencing bleeding and pain as a result. 2. On a day which was close to the end of the week in the winter of 1975, and soon after the abortion had been performed, Ms Hyde met the appellant at a café near Circular Quay. The appellant told her that he was the foreman on a building site at Circular Quay and was a "Kiwi". 3. Ms Hyde described the appellant as "A big bloke, probably six foot at least, he was about 28 years of age, he had sort of blondie/brown coloured hair, medium length and straight". She thought he had blue eyes, he appeared solid with a medium build and no distinguishing features or tattoos (T.598). After the two of them chatted for a period at the cafe, the appellant drove Ms Hyde back to her workplace. The car which he drove was an old Holden station wagon (T.598). 4. The next day as agreed, the appellant came by the workplace of Ms Hyde in his car. She finished work at 6pm. The general plan was that they would go out to dinner, perhaps to a Chinese restaurant on the north side of Sydney. The appellant arrived dressed in his work clothes and told Ms Hyde that he needed to change before they went out for a meal. He drove Ms Hyde to a suburb with very large houses and parked the car. He invited Ms Hyde inside his home – a small worker's cottage – for a cup of coffee. 5. When she entered the home, Ms Hyde had with her a leather handbag, a purse containing details of her identification and a pay envelope. She was wearing a T-shirt, a brown skirt, brown tights and brown leather shoes with small heels. She was also wearing Moroccan beads as a necklace and "baubly" earrings to match. She was wearing a pad because of the bleeding which she was experiencing due to her recent medical procedure. 6. While the appellant was getting a drink, he said something about sex, like "How about it?" She told him that she was bleeding. Shortly thereafter, the two of them were sitting on a lounge. The appellant groped her both inside and outside her clothing. She physically tried to stop him. 7. The appellant then picked her up and threw her onto his bed. She made it clear to him that she did not want to have sex with him by saying something like, "I don't want to do this, you know, I'm not up for this". 8. The appellant placed both of his hands around her neck, and began strangling her, squeezing his hands to the extent that her ability to breathe was affected. Because she was being strangled, Ms Hyde said "OK, do it". Her tights, underpants, pad and shoes were removed. She was forced to perform oral sex on the appellant. He placed his penis in the vicinity of her anus, but did not penetrate her in that way. At the time she was saying "No, please don't" and the appellant stopped. 9. After that, the appellant had penile/vaginal intercourse with her. She said that he ejaculated inside her. After that came to an end, the appellant told her to go into the bathroom and wash herself. He unlocked the main front door of the cottage so she could do this. He went to the kitchen and got a face washer and gave it to her. Ms Hyde took the washer, went outside and ran from the house, leaving behind many of her personal items. After Ms Hyde fled she waved down a passing vehicle and the driver assisted her to notify the police. 10. In cross-examination Ms Hyde disagreed with the suggestion that she had consensual intercourse with the appellant that night. She disagreed with the proposition that he had not choked her. 11. The following additional evidence was given in relation to Ms Hyde. 12. At about 6.45pm on 4 August 1975 Antonia De Boer was driving from her home in Wollstonecraft with two children whom she was taking to a scout meeting at the Lavender Bay Scout Hall in McMahons Point. As she was about to turn left into Munro Street, she saw a woman she did not know (Ms Hyde) running towards her car. She was waving her arms and screaming. 13. Ms De Boer stopped the car and Ms Hyde opened one of the back doors and got in. Ms Hyde was distressed, crying and appeared to be in a state of shock. She spoke of a man having attacked and raped her and said "He tried to murder me". Ms De Boer drove the four of them to the Scout Hall and introduced Ms Hyde to the Scout Master, Graeme Keed. 14. Mr Keed saw that Ms Hyde was not wearing her shoes, was shaking, half crying, very much distressed and appeared very frightened. She was not actually crying but trembling or physically shaking. He did not see any physical injury to her. 15. Shortly after that, Scout Group Leader, Henry Ball, arrived. Mr Ball saw that Ms Hyde was sobbing. Although her clothing appeared generally normal, he noticed that she was carrying her shoes. Mr Ball walked to a telephone box, but found that it was engaged. While waiting, he saw a Holden station wagon of a greyish colour with roof racks drive by; there was no dispute that it was the appellant's car. 16. While walking back to the Scout Hall after telephoning the police, Mr Ball saw a man on the street. That man turned around and started to walk back down Mitchell Street in the direction of Munro Street. That man was the appellant. Mr Ball described him as being about six foot tall, slim build, with dark hair and a beard, dressed in shorts, what appeared to be a T-shirt and short socks and desert boots. Mr Ball then saw the appellant walk away. 17. When he came back to the Scout Hall, Mr Ball spoke to Ms Hyde. She said that her attacker had "raped and strangled" her and that he still had all her personal belongings: her diary, and her handbag. She asked him to go and attempt to get them back. She said three or four times that she had been "raped and strangled". 18. Uniformed police, Constable Wayne Hill and Senior Constable Andrews arrived at the Scout Hall at about 7.20pm. They first spoke to Mr Ball and thereafter to Ms Hyde, who by that time was sitting in the back of a car. Constable Hill noticed that Ms Hyde was upset and sobbing. Senior Constable Andrews pointed out to Constable Hill the area of Ms Hyde's neck. Constable Hill noticed red marks on it. He described what he saw as a "general reddening of the area" (T.705-708; T.729-730). 19. The two uniformed officers went to the home of the appellant in Munro Street and knocked on the door but there was no answer. 20. At approximately 11.15pm Ms Hyde was in the company of Constable Diane Waring. Ms Hyde was crying off and on. She appeared upset and distressed. Constable Waring did not notice any injuries to her throat. 21. At about 8.30pm police forced entry into the appellant's home. He was not there. They took possession of two blankets. They also found an earring, which was in two pieces, in the fold of one of the blankets. The earring was shown to Ms Hyde at North Sydney Police Station and she said it was hers. Ms Hyde was then taken to Royal North Shore Hospital. 22. Detectives returned to the appellant's home and saw a station wagon with registration EFM 336 parked outside. The appellant was home. He asked them "What's the trouble?" Police informed him that they had received a complaint of rape. His response to that allegation was "I fucked her, but I didn't rape her". The appellant was informed of his rights. He told police that Ms Hyde had left a number of items in his home and that they were in his car. He removed a bag containing the items from the rear of his vehicle and provided them to the police. 23. At about 10.45pm Dr Jurgis Grudzinskas examined Ms Hyde at the hospital. He noted "No abnormalities on head or neck", although he did note that the entrances of her vagina and anus were slightly excoriated. He also noted that Ms Hyde had an IUD contraceptive device in place. She told him that she had had a termination 10 days earlier. Swabs were taken from her vagina, her panties, her pantihose, the clothing of the appellant, the two blankets, and some other items of women's clothing. 24. Later that evening, Ms Hyde arrived home. Her flatmate, Ms Peters, was in the living room. Ms Peters noted that Ms Hyde's face was grey. Ms Hyde told her that she had been raped and that she had thought that she would be killed. 25. In a record of interview with police conducted at 3.20am on 5 August 1975 (Exhibit BBB), the appellant said that he and Ms Hyde had indeed engaged in sexual intercourse, but she had done so completely freely. There had been no complaint on her part at any stage, and she had said nothing then about having recently had an abortion. He said he had not picked her up or thrown her onto the bed. It was she who had removed her underpants before they had sex. After they had sex she said she had just had an abortion and she became "uptight". She asked if she could have a shower. The appellant showed her where to go, to the outdoor bathroom. After 10 minutes or so he realised that she had disappeared. He agreed that she left behind at his home two bags, her coat, her pantihose, her underpants, and the (sanitary) pad. 26. The appellant said he walked and then drove around the neighbourhood looking for Ms Hyde but did not find her. He then went to his wife's home to pick up a sewing machine and then to his girlfriend's home to have a meal. On returning home, he found that someone had forced entry to his home, however, because nothing had been taken or damaged, he did not report that break-in to the police. 27. Ms Hyde gave evidence at the committal, at the end of which the appellant was committed to the Supreme Court for trial on a charge of rape. Subsequently, Ms Hyde left Sydney and travelled to Darwin in order to avoid giving evidence in the trial. Ellen Moon 1. As at 30 May 1976, Ellen Moon was living on the Lower North Shore of Sydney. At about 8.15pm that day, she left an earlier social event to go to the Mosman Skiff Club at the Spit. She drank no alcohol while there. She danced with a man who introduced himself to her as Bob and who told her that he was from New Zealand and was a carpenter. She described him as being about 5 feet 11 inches tall, of medium build, olive complexion, with long straight hair that was brushed to one side, wearing a brown body shirt and dark pants with a light blue stripe. It was not disputed that it was the appellant. 2. The appellant spoke of the possibility of dinner and a cup of tea. Ms Moon declined the invitation and announced that she was leaving. The appellant offered to walk her to her car. Ms Moon said goodbye to her friends and the two of them left the club together. As they walked towards her car the appellant said that he wanted to get a jumper from his vehicle. They walked together to his car. Once there, the appellant asked Ms Moon more than once to sit in his car with him which she ultimately did. 3. The appellant asked Ms Moon whether she wanted to drive to a location where they could see a better view. She replied that there would not be much of a view at night. The appellant drove the car around to the other end of the car park. 4. The two of them sat in the car together for a period and kissed. When the appellant tried to undo the top of her jacket, she resisted. The appellant became aggressive. He said (referring to his penis) "If you don't touch me by the time I count to five, I will choke you and kill you". Ms Moon did not comply. As a result the appellant placed his hand around her neck and pressed hard on her windpipe, with the result that Ms Moon was struggling to breathe. She became terrified that she would be murdered. She said "OK, OK" (T.720). 5. The appellant then took her hand and placed it on his penis on the outside of his pants. After that, he removed her shoes and jeans. Ms Moon resisted again. The appellant tightened his hold on her throat and said "Either fuck me now or I will fuck you when I kill you, and you won't be able to talk when you are dead, I will strangle you and throw you in the river". Ms Moon, fearing death, did not struggle further. Thereafter they had intercourse, including ejaculation, without her consent. 6. Afterwards, the appellant said "I've done a terrible thing. Take me to the police station". He dressed and then slowly drove the two of them to Ms Moon's car. He let her leave in her own car and she drove home. 7. Ms Moon was living in a group house. Her flatmate, Ms Harridge, had been home for about 45 minutes when she saw Ms Moon walking toward the door. Ms Moon ran to Ms Harridge in tears. Ms Harridge noted that Ms Moon was "suffering from redness to the front of her throat. It extended from about the bottom of her throat to the top of her throat and all the front". Ms Moon told Ms Harridge and another flatmate what had happened to her, and the police were contacted. Police later arrived at the house. 8. At 12.10am the next day, Constable Miller spoke to Ms Moon at her home. She was upset and he noted red marks around her neck. She was taken to Mosman Police Station. 9. At 12.30am, two female police officers met Ms Moon at Mosman Police Station. She was taken home again, where she changed out of the clothes she had been wearing and was thereafter conveyed to Royal North Shore Hospital for a medical examination. One of the police officers noticed red marks around Ms Moon's neck. 10. The examining doctor observed no injuries to Ms Moon's genitals but saw signs of recent intercourse. The doctor also noted reddening of the skin of her neck and lower jaw. 11. At 2.15am police went to the home of the appellant at Munro Street, North Sydney. There they saw a 1967 Holden Station Sedan, registration EFM 366, parked outside. The appellant identified himself to police and admitted that the car out the front of the house belonged to him. He was told an allegation of rape had been made against him and that he was going to be taken to the police station. He replied "Yes, but I want to get dressed first". After being cautioned that he was not obliged to say anything, the appellant identified the clothes and underwear that he had been wearing that night (which were in his bedroom). He agreed to accompany the police and handed his car keys to one of the officers, who drove his car to the police station. 12. Later, detectives asked the appellant whether he would show them where the offence had allegedly taken place. He agreed and told them it was "down at the Spit". While at The Spit with detectives, he said "I must have been mad", "I need psychiatric help. I must be mad to do these things", "If I was of two minds, when I did these things, what do you think I would get?", and "I do need help". 13. The appellant pleaded guilty to the offence of rape, was convicted of that offence and was sentenced to a period of imprisonment. Karen Brown 1. Karen Brown had moved to Sydney in 1977 or 1978 and was employed as a clerk at an office in North Sydney. She was sharing a home in Lane Cove with her friend Vicki Panton (nee Robinson). 2. One evening in late July or early August 1978, shortly after her twenty-first birthday, Ms Brown and a female friend went to a wine bar which was on the corner of the Pacific Highway and Miller Street in North Sydney. The venue was dark and crowded and a band was playing. 3. Shortly before closing time, Ms Brown was approached by a man who introduced himself as Bob. He had blue eyes, a moustache, his hair came just below his ears, he possessed a heavy-set build and was about six feet tall. She described him as wearing either a short-sleeved shirt or a long-sleeved shirt that was rolled up and blue jeans. He had a tattoo on his left arm. 4. Bob offered her a lift home and she accepted. His car, a white Holden 4-door sedan was parked about 50 metres down a side street from the bar. They walked to the car and got in. 5. He immediately drove off and took Ms Brown to a nature reserve located some 15 minutes from the bar. A single road led into the reserve. Ms Brown thought she could see the harbour from where the car stopped, but she could not see the Sydney Harbour Bridge. Bob parked the car on a strange angle on the grassed area of the reserve whereby the exit of Ms Brown from the car was blocked by a cliff or rocky outcrop. Ms Brown believed that she and Bob would have a "kiss and a cuddle" and thereafter he would drive her home and ask her out. Once he had parked the car at the reserve, he manually engaged all of the internal locks in the car. Then he suddenly reached over, forced himself on top of Ms Brown, removed her wrap-around skirt, pulled her underwear down, and had penile/vaginal intercourse with her without her consent. 6. Ms Brown was crying. The appellant had both of his hands around her neck and was squeezing her throat whilst he was having sexual intercourse with her. Although her airway was not sufficiently blocked for her to pass out, she was terrified. 7. Eventually, he ejaculated and the intercourse came to an end. The two of them sat in the car. Ms Brown wanted to flee, but felt that there was "nowhere to run". They sat there silently for a time. 8. Eventually Bob drove out of the park. The car travelled somewhere near the Pacific Highway. Ms Brown recalls seeing yellow and green signs displaying the names of suburbs including Chatswood and Wahroonga. She saw the buildings of Knox Grammar and a hotel built of stone. Although the car stopped at various traffic lights, all of the internal doors were locked and Ms Brown was too terrified to try to escape. 9. They arrived at an older house that may have had a veranda. There were motorbikes near the house. Bob led Ms Brown into the house. They walked down a hallway and she had a vague recollection of seeing an unclean kitchen at the end of it. Bob took her to a bedroom, closed the door and locked it with a key. There was a dirty mattress on the floor. 10. Bob ordered Ms Brown to take her clothes off. She complied through terror. She laid down on the mattress, he got on top of her and they had penile/vaginal intercourse again without her consent. Ms Brown was crying and telling him to take her home as well as experiencing pain. 11. While she was being sexually assaulted, Ms Brown noted that Bob had coloured tattoos – one on his left arm and some on his back. 12. The sexual intercourse came to an end and Ms Brown lay very still. Thinking that he was asleep, she got up in an effort to escape. As soon as she did so, Bob got up, pushed her back onto the mattress and started to sexually assault her violently again. She pleaded with him to stop and to take her home. She was hysterical, crying and making a lot of noise. Bob refused to stop and was repeatedly yelling at her to "shut up" and "be quiet". 13. Eventually the sexual assault came to an end. At some stage during the night, Ms Brown asked the man to let her out of the room so that she could use the toilet. He told her to "piss on the mattress" instead. Having no other option Ms Brown urinated on the mattress. 14. The next day, after daybreak, Bob's demeanour changed. He offered Ms Brown a lift home. She dressed and he drove her along the Pacific Highway. He told her not to tell anyone what he had done and specifically told her not to go to the police. Ms Brown asked him to drop her at a location near Chatswood that was in fact some distance from her home so that he would not know where she lived. 15. After she got out of the car Ms Brown walked behind it and noted its number plate. She then walked into a block of units and waited for the man to drive away. She then walked the rest of the way home. 16. When Ms Brown arrived home, her friend Ms Panton came into the room and Ms Brown told her what had happened. Vicki Panton gave evidence that Ms Brown appeared upset and told her that she had been raped. Ms Panton took Ms Brown to a friend, Jennifer Goss (nee Greenwood). Ms Goss noted that Ms Brown was "Distressed, teary, and traumatised". Ms Goss gave evidence that Ms Brown told her that she had been raped. When Ms Goss suggested that the police be called, Ms Brown strongly rejected the idea and appeared to be frightened. 17. However, someone called the police and two officers arrived. Ms Brown told them some but not all of what had happened. They seemed to her to be uncaring and to blame her for what had occurred. She told the police that she did not wish to assist in an investigation. 18. On 21 November 2012, after reading a document that recounted something of the events involving the man Bob and Ms Brown in 1978, Detective Senior Constable Jones contacted Ms Brown. Ms Brown said that she was willing to provide a statement and did so on 15 January 2013. She also made a sketch of Bob's bedroom and a sketch of the nature reserve where they had parked. 19. On 15 January 2013, Ms Brown took part in a photo identification parade. She was shown 20 photographs of young men, each of whom had a full head of dark hair and a moustache. She chose two photographs as being "similar to" the man who had raped her. Of the two, she said that photograph number 7, which was the appellant, was more similar to the man than photograph 14. 20. Ms Brown said she had memorised the number plate of Bob's car so that she could be on her guard if he ever returned and retained it in her mind for decades. In November 2012 she told Detective Jones that the number plate was either DMB 055 or DMB 065. As at 19 September 1978, the appellant was the owner of a 1964 Holden sedan, brown with a white roof, with the registration DMB 055 and resided at an address in Hewitt Street, Wahroonga (Exhibit 4B). 21. On 20 December 2013, when arrested and charged with the murder of the deceased, the appellant was photographed. He had a large tattoo of an eagle covering much of his back but no tattoos on his arms. 22. In the ERISP conducted on 20 December 2013 Detective Jones put to him a summary of the allegations of Ms Brown to which the appellant said "No, as I said, I can't, I can't recall her, I can't recall it". The appellant's case 1. The appellant's case in relation to the deceased was as he had explained in his interview with the police in 1983 and the ERISP of 20 December 2013. 2. With respect to the allegation of sexual assault on Ms Hyde, in his record of interview of 5 August 1975 the appellant agreed that he and Ms Hyde had engaged in sexual intercourse but that she had done so consensually. He denied any acts of coercion and denied placing both his hands around her throat. Only after they had concluded their sexual interaction did Ms Hyde tell him of having just had an abortion and then became "uptight" and left his premises, leaving behind her property. 3. With respect to the allegation of sexual assault on Ms Moon, there was no dispute about her evidence. He had pleaded guilty to and been convicted of having raped her. 4. With respect to the allegation of sexual assault on Ms Brown, there was no dispute that sexual assaults and kidnapping had occurred but what was disputed was that it was the appellant who had committed the crimes. Reasoning of the trial judge 1. On 18 December 2015 before the trial commenced, Button J made a preliminary ruling that the evidence about the hair analysis and the tendency evidence was admissible (R v Adams (No 1) [2015] NSWSC 1960). 2. The basis for his Honour's decision was as follows. At [19] – [48] his Honour reviewed the history of the hair samples – where they had been stored, how and by whom they had been moved until they came into the hands of Elizabeth Brooks, a senior forensic scientist employed by the Australian Federal Police and Dr Hartman, a molecular biologist. His Honour summarised the effect of that evidence as follows: "49 To summarise then the salient aspect of the Crown case with regard to the hair sample said to have been taken from the boot, it can be seen that the Crown can generally account for the movement of the matter vacuumed from the boot of the car from October 1983 until November 1983. 50 The Crown can also generally account for the movement of a number of items said to include a hair taken from that matter from January 2003 until today. 51 But the Crown cannot account, in any detailed or coherent way, for the movement or provenance of the hair (that is, the hair that it submits was seized from the boot of the car of the accused in 1983, and was also the hair that was analysed in 2013) between 10 November 1983 (when the items were delivered to the AAEC at Lucas Heights) and 17 January 2003 (when the sealed box was located at Mosman Police Station by two detectives). In particular, where the items went on which dates during that period of over 19 years is shrouded in mystery, as is the question of who placed them in the box, who fixed the two printed labels to the box, and who sealed it. 52 To use an expression well-known to criminal lawyers, the chain of custody with regard to the exhibit that was the subject of scientific analysis cannot be established. The result is that the evidence is by no means conclusive that the hair that was the subject of mitochondrial DNA analysis is indeed the hair that was seized from the boot of the car of the accused. That state of affairs founds the controversy about s 137 of the Act." 1. At [86] Button J noted that the appellant conceded that pursuant to s 70 of the Act there was some evidence (namely the labelling of the box and of the brown paper bag containing the hair that was subsequently analysed) that the hair that was analysed in 2013 was indeed the hair that was taken from the boot of the car of the accused in 1983. 2. His Honour also noted (at [87]) that it was not disputed that it was open to him to infer that the markings on the brown paper bag were placed there by Detective Walsh. It was also not disputed that it was open to his Honour to infer that the various markings were placed on the paper bag and on the box in the course of a "business" as defined in the Dictionary of the Act. It was also accepted that the evidence of the analysis of the hair was relevant as that concept is defined in s 55 of the Act. The appellant submitted that the evidence should be excluded by reason of s 137 of the Act. 3. His Honour resolved the issue as follows: "105 I do not consider that s 137 of the Act is engaged. I say that for the following reasons. 106 First, I agree with the joint position of the parties: the evidence is certainly relevant. The finding of a hair that has a DNA profile consistent with that of the deceased in the boot of the last person known to have seen her alive is relevant to the question of whether that person murdered the deceased. 107 I also accept the joint position that, pursuant to s 70, the representations contained in what was written on the labels on the box and on the brown paper bag are admissible, as an exception to the rule against hearsay, as proof of the truth of their contents. The things that are written on various items are therefore some evidence that the hair that was analysed is indeed the hair that was seized 30 years before. 108 Secondly, I accept that there remains some controversy about what is meant by "taking evidence at its highest" in the context of assessing its probative value when considering s 137 (and indeed s 101) of the Act. But, on the facts of this particular case, I think that taking the evidence at its highest can mean nothing other than proceeding on the basis that the hair that was analysed in 2013 is indeed the hair that was seized from the boot of the car in 1983. That is surely the capability of the evidence, to focus upon the concept encapsulated by the use of the phrase "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" contained in the definition of "probative value" in the Dictionary of the Act. 109 At least in the circumstances of this controversy, I accept the submission of the Crown that it is the task of the jury to assess the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. It is not my task. In other words, it is the task of the jury to determine whether they accept that the analysed hair is the seized hair, and in due course whether they accept the further proposition that it is the hair of the deceased. Neither of those decisions is vouchsafed to me. … 111 Even leaving aside all of the tendency evidence for the sake of this discrete exercise, the evidence (taken at its highest), that located in that boot was a human hair that has a DNA profile that is only shared by a reasonably small percentage of members of the Australian population, one of whom is the deceased, is, to my mind, very probative in the Crown case." 1. In relation to the possibility of unfair prejudice, his Honour found that in cases where s 70 of the Act applied, it would often be the situation that the person who took the sample or marked the exhibit would not be able to be cross-examined. In addition, his Honour did not accept that a jury would focus upon the evidence of the link between the deceased and the boot of the car rather than on the break in the chain of possession. His Honour's conclusion was: "118 In summary, I assess the probative value of the evidence of the hair analysis as quite high. Although I consider that the evidence is prejudicial in the sense that the accused will not be able to impugn it by cross-examination, that is a result of a choice made by Parliament; the evidence is not unfairly prejudicial. Nor is it unfairly prejudicial for the reason that the jury will fail to attend to criticisms of it; to the contrary, I am confident that the jury will understand and fairly assess the attack made upon it." 1. In relation to the admission of the tendency evidence, his Honour accepted that the possibility of unfair prejudice was extremely high and that there was a risk that if the jury heard the tendency evidence, the jury would be simply overwhelmed by the multiplicity of women who were said to have suffered at the hands of the appellant. That being so, his Honour recognised that the real question was whether the foreshadowed evidence was so compellingly probative as to substantially outweigh the very significant possibility of unfair prejudice. 2. His Honour set out his conclusion as follows: "145 To my mind, the probative value of each of the tendency incidents, even if one analyses each of them entirely on its own and without the context of the others, is compellingly high. The preliminary test in s 97 of "significant" probative value is amply fulfilled by each of them. My summary above makes stark the striking similarities between what is said to have occurred to each of the four tendency complainants, and what is alleged to have occurred to the deceased. And it can be seen that many of the attributes of the Crown case for murder that are not disputed are shared with many of the attributes of the surrounding circumstances of the tendency incidents. 146 It is true that there is no direct evidence, in the Crown case for murder, of sexual assault or the infliction of violence. That is significant, but not determinative. The point of tendency evidence is to infer from the conduct of an accused person on another occasion what he or she has done on the occasion that founds the count in the indictment. Whilst there is force in what senior counsel for the accused has said – namely, that the absence of any direct evidence of important parts of the murder allegation gives rise to a greater potential for "bootstrapping" based upon the tendency evidence – I do not consider that that potential detracts from the compelling nature of the tendency evidence. … 148 Furthermore, if one turns to analyse the four tendency incidents as a whole (by that I mean, in the context of each other, as opposed to individually) the probative value of the evidence is, in my opinion, even more compelling. On the assumption that it is accepted, it certainly demonstrates that many years ago, the accused had a tendency to meet young women; inveigle them into his motor vehicle; and thereafter violently sexually assault them. Indeed, the evidence is redolent of the offender having possessed a settled and specific modus operandi with regard to the infliction of violence upon women for his own sexual satisfaction, or perhaps of him having suffered from a repetitive compulsion in that regard. 149 In particular, manual strangulation can be seen to be an explicit part of incidents one, two and three, and, by way of the reference to the possibility of unconsciousness, as possibly an implicit part of incident four. … 153 As can be seen from my analysis above, however, the evidence of each incident taken at its highest is far more specific than a mere proclivity to engage in a certain kind of crime. To the contrary, as I have said, the circumstances of each incident are extremely probative as to what may have happened on the evening the deceased disappeared, because of their specific commonalities with the interaction between the accused and the deceased. … 155 To express my view in terms of s 101 of the Act, I am affirmatively satisfied that the (extremely compelling) probative value of the evidence with regard to each tendency incident substantially outweighs the (undoubted) prejudicial effect that the tender of that evidence will have upon the minds of the jury in the murder trial." 1. In the principal judgment R v Adams (No 6) having reviewed the factual evidence and identified those issues which were agreed and those which were in dispute, his Honour proceeded to resolve those issues. His Honour started with the tendency evidence, and in particular that of Ellen Moon. That was an appropriate place to start since all of the factual issues raised by Ms Moon's evidence were accepted by the appellant. Accordingly, his Honour made findings in relation to Ms Moon to the criminal standard, i.e. beyond reasonable doubt. 2. The second step in his Honour's reasoning was to assess whether the evidence of Ms Hyde should be accepted. He did this in two stages. The first was to only look at the evidence adduced in relation to Ms Hyde and determine whether intercourse occurred with her consent and whether the appellant inflicted violence upon her in the form of strangulation in order to overcome her lack of consent. 3. Having reviewed the evidence for and against Ms Hyde's version of events, including that she was unclear about the sequence of events at the home of the appellant, his Honour concluded that Ms Hyde was telling the truth when she spoke of being raped and placed in fear of death, literally at the hands of the appellant. Having reached that conclusion, independently by an analysis only of the evidence relating to Ms Hyde, his Honour then took into account his findings beyond reasonable doubt as to the circumstances surrounding the crimes against Ms Moon committed by the appellant less than a year after his interaction with Ms Hyde. 4. His Honour found that the similarities were compelling – a meeting between the appellant and a young woman, the meeting occurring in a public place of conviviality, the availability of the motor vehicle of the appellant, the inveigling of the young woman to a location chosen by the appellant on a pretext, an initial pleasant interaction, a sudden change on the part of the appellant, full penile vaginal sexual intercourse featuring ejaculation being insisted upon by the appellant and the allegation of strangulation in the context of forced intercourse. His Honour observed that this was precisely what the appellant had admitted that he did nine months later to Ms Moon. 5. His Honour's conclusion was: "382 Taking into account the evidence of Ms Hyde; the evidence of disinterested witnesses with regard to the circumstances surrounding her flight and immediate complaint; and taking into account the undisputed criminal conduct of the accused towards Ms Moon, I am satisfied that the accused had intercourse with Ms Hyde without her consent, and in order to overcome that lack of consent he strangled her to the point of fear of death. And although, as I have already said, I do not consider that I am required to be satisfied of that proposition to the criminal standard before I can use the evidence for a further purpose, I indicate that I am indeed satisfied of it beyond reasonable doubt." 1. The third step in his Honour's reasoning was to consider the evidence relating to Karen Brown. His Honour noted that in her case, the issue was not whether the events recounted by her occurred, but whether the appellant was the person involved. On that issue, his Honour accepted that there was no evidence directly identifying the appellant as the perpetrator. 2. His Honour listed the strands in the Crown's circumstantial case as follows: 1. The man who approached Ms Brown at the bar generally fitted the description of the appellant and in 2013 she had identified his photograph as being "similar" to her assailant. 2. The man introduced himself as "Bob". 3. The perpetrator drove to the northern suburbs of Sydney and in particular, past landmarks such as Knox Grammar. 4. The perpetrator took Ms Brown originally to a waterside reserve in the inner northern suburbs of Sydney. 5. Ms Brown spoke of there being tattoos to much, if not all, of the back of the perpetrator. 6. Ms Brown's recollection of two variants of a number plate that matched the number plate recorded as having been that of a car owned by the appellant. (This evidence was vigorously contested.) 1. His Honour also took into account the evidence casting doubt on whether the appellant was the person who sexually assaulted Ms Brown. That evidence was primarily the absence of any tattoos on the appellant's arms (which Ms Brown said she observed) and the difficulty which the Crown had in establishing the accuracy of the representation that one of the variants of a number plate remembered by Ms Brown was the number plate of a car which at the time was owned by the appellant. 2. Based only on the evidence relating to Ms Brown, his Honour concluded that the appellant was the person who sexually assaulted her. In addition to that evidence, his Honour then took into account his findings beyond reasonable doubt that the appellant was the person who had sexually assaulted Ms Moon and Ms Hyde in the circumstances which each of them had described. 3. That process again revealed a pattern. A meeting with a young woman, in the evening, at a public place of conviviality, the male person presenting as pleasant and attractive, introducing himself as "Bob", the male person and Ms Brown ending up in an available motor vehicle, with Ms Brown consenting to some form of shared affection. It was then that the male changed so that sexual intercourse with ejaculation took place, each woman was treated very much as an object: Ms Hyde by being sexually assaulted when bleeding from the vagina as a result of an abortion; Ms Moon by being threatened with death to be followed by a defilement of her body; Ms Brown by being ordered to urinate on the mattress when she pleaded to be permitted to use the toilet. 4. What his Honour regarded as particularly significant was that the male person used strangulation in the course of the sexual assaults with the result that the victim was placed in terror. 5. His Honour noted: "415 Sexual assault, although regrettably not rare in either 2016 or the 1970s, constitutes a criminal deviation from the normal sexual interaction between adults. Sexual assault involving full intercourse, ejaculation, and the infliction of physical violence (above and beyond the violence of the sexual assault itself) is rarer. And sexual assault featuring those attributes, and manual strangulation to the point of the victim being placed in fear of death, is rarer again." 1. His Honour's conclusion was: "417 In short, the compelling – indeed irresistible – conclusion, founded upon the combination of the direct evidence about the tendency complaint of Ms Brown, combined with the behaviour of the accused towards Ms Moon and Ms Hyde, is that the accused is indeed the perpetrator of the offences against Ms Brown. 418 Again, although I do not consider that I am legally required to reach the criminal standard of satisfaction before I can use the evidence of Ms Brown with regard to the count on the indictment, I am satisfied beyond reasonable doubt that the accused is the man who brutalised that young woman, and severely damaged her life. That is the third step in my reasoning." 1. On the basis of that analysis of the evidence of the three tendency witnesses, his Honour concluded that "The accused possessed a tendency to rape women and to strangle them ancillary to that crime". His Honour made that finding beyond reasonable doubt. 2. Having found beyond reasonable doubt that the appellant had that tendency, his Honour found that a pattern emerged when one considered the events of the evening of 23 September 1983. 3. There was an interaction between the appellant and a young woman, commencing at a public place designed for socialising, the public place being on the Lower North Shore of Sydney, the appellant not being in the company of his own male or female friends, having a car readily available, inveigling the deceased into the car, including by way of a false pretext of being a police officer, being alone with the deceased in the car and having some sort of sexual contact with the deceased in the vehicle culminating in his ejaculation. 4. His Honour found that the indisputable fact which had to be added to that pattern of factors was that after having been in the presence of the appellant in those circumstances, the deceased had been neither seen nor heard of by any person. The inevitable conclusion was that not only was she dead but that she died very soon after her departure from the Alpine Inn. The last person known to have seen the deceased was the appellant. 5. His Honour then considered the evidence relating to the appellant's activities on the weekend of 24 – 25 September. His Honour disregarded the evidence of Ms Newhouse, Ms Andrews and Mr Ross Adams. What his Honour did take into account were matters that were not in dispute in relation to that weekend. 1. A connection between the appellant, a hose and the boot of his car in that he was hosing the boot in an effort to identify leaks in its seal. 2. The appellant washed the seat covers that weekend because he wished to remove seminal staining arising from his sexual interaction with the deceased. His Honour identified the issue in relation to that weekend as what precisely the appellant was doing with his car and why. 1. On that issue, his Honour accepted that the hair examined by Ms Brookes and Dr Hartman was the hair vacuumed from the boot of the appellant's vehicle by Detective Walsh in 1983. On that basis, his Honour was satisfied that the hairs found in the boot of the appellant's vehicle were those of the deceased. That did not end the matter. The primary position of the appellant at trial was that the presence of the deceased's hair in the boot was due to innocent secondary transfer, particularly in circumstances when it was known that the deceased had been in the front seat of the car and that sexual contact had taken place. Thereafter, on the weekend the appellant had been at the boot of the car, not only when hosing it but when cleaning the car generally. 2. His Honour resolved that issue by reliance upon the tendency evidence. His Honour said: "452 In a circumstantial case, each fact informs one's understanding of the significance of other facts, and the totality of one's understanding of the combined significance of all of the facts will inform one's verdict. 453 Here, the undoubted tendency of the accused to treat young women in a certain way, combined with the circumstances in which he and the deceased were present in his motor vehicle, surely informs the presence of the hair with an mtDNA profile identical to that of the deceased in his boot. … 456 Finally, the meaning of the hair is in turn informed by the use of the hose in the vicinity of the boot. 457 In other words, in assessing the significance of the match between the hairs vacuumed from the boot and the hairs taken from the hairbrush, and the admitted use of the hose with regard to the boot, it is perfectly true that each fact on its own may mean little. But seen in the context of each other, and in the context of the established tendency of the accused, and the context of the surrounding chronology of events, they become a compelling, interconnected, inculpatory set of facts. …" 1. The appellant had submitted that if the appellant had murdered the deceased and used his boot to transport her body, his actions on the weekend were remarkably brazen and irrational in that they were done in full public gaze. His Honour's response was: "462 All of those submissions have force, and I have taken them into account. But the fact is that the accused did not and does not possess a conventional personality: he admitted many years ago that he raped and strangled Ms Moon, and I have found beyond reasonable doubt that he raped and strangled Ms Hyde and Ms Brown. Furthermore, in the ERISP of December 2013, he is to be seen and heard making a number of wryly humorous comments in the context of being accused of the murder of the deceased. 463 Not only that, Ms Moon spoke of the accused suddenly changing after his crimes were completed, expressing remorse, and speaking of his need to obtain psychiatric help. Ms Brown also spoke of the change between the man who raped and detained her in hours of darkness, and his pleasant personality the following morning in daylight. Although Ms Hyde did not speak of a sudden change (she having fled very soon after the forced intercourse came to an end), one might infer that there was such a change: on his own version, the accused packaged her belongings in a bag in order to return them to her, and there was no dispute that it was he who was searching, in his vehicle and on foot, for Ms Hyde after her departure. … 468 Finally, it is true that, if the interaction between the accused, the hose, and the boot was done with consciousness of guilt, it was done with remarkable brazenness. The inevitable reply to that submission is that, throughout the 1970s, the accused has brazenly raped and strangled three separate women, using his own name, his own vehicle, his own home, and eschewing the use of any disguise." 1. A number of scenarios were put forward on behalf of the appellant in which it was submitted that there was a reasonable explanation for the deceased's death which did not involve him. These were rejected by his Honour as follows: "475 … I reject the proposition that the man who seemingly assaulted the deceased outside the Stoned Crow wine bar could have coincidentally come across her hours later, after she had alighted from the vehicle of the accused some distance away, and that man thereupon bashed her, killed her, and disposed of her body. 476 I also reject the suggestion that the deceased suffered some kind of medical emergency after she left the deceased; if that were the case, she would readily have been found lying on the footpath or at home, unconscious or dead. 477 Other alternatives, referred to fleetingly in the running sheets and occurrence pad entries from the original investigation, were in my opinion nothing more than wisps, not rational alternative hypotheses. 478 Finally, there is not the slightest evidence to suggest that the deceased may have committed suicide." 1. The following additional scenarios were put, which involved a level of culpability on the part of the appellant. "480 It was said, for example, that it is possible (contrary to the entirety of the version of the accused given in both 1983 and in 2013, and contrary to the whole defence case) that the accused could have had intercourse with the deceased whilst she was unconscious, bearing in mind her undoubted heavy intoxication with alcohol, and thereby accidentally killed her. That would constitute, it was said, the offence of sexual assault, but not the offence of murder. 481 It was also said in the alternative that, if I were to find that the accused had inflicted physical violence on the deceased in order to force her to have sexual intercourse with him, but had not adopted the precise tactic of restricting her supply of oxygen, that would not fall within the foundational offence for felony murder either. The result would be that the accused could not be found guilty of murder, and manslaughter would need to be considered as an alternative." 1. His Honour rejected those last two scenarios on two bases. The first was the decision of the The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308. There the High Court unanimously warned against speculation about hypotheses which were completely without anchor in the evidence and the issues joined between the parties in a criminal trial. 2. Alternatively, his Honour found that it was difficult to see how the appellant by way of intercourse with the unconscious deceased could have caused her death in doing so. No health issues were identified which would bring about this result. Insofar as violence was concerned, his Honour reasoned that the only evidence of violence was the appellant's tendency to overcome resistance to sexual intercourse without consent by the use of manual strangulation. 3. His Honour's concluding paragraphs summarised the rationale for the conclusion which he arrived at: "491 In conclusion, considering all of the evidence placed before me as a set of individual facts, and as a whole – the proven tendency of the accused to rape and strangle women; the marked similarities between his interaction with the deceased and his interactions with women whom, I am satisfied, he had raped and strangled; the fact that the deceased has never been seen again after she was in the company of the accused; the fact that, within 48 hours of his interaction with the deceased, the accused undertook an activity relating to his boot that featured the use of a hose; the fact that hairs (which shared a reasonably rare profile with those of the deceased) were seized from the boot of his vehicle, and not disputed at trial to be from the deceased; and the fact that, on any analysis, the accused had ample time to dispose of the body; I am satisfied of the following beyond reasonable doubt. 492 Whilst alone in his car with the deceased early in the morning of 24 September 1983, the accused choked or strangled her with the intention of having sexual intercourse with her without her consent. That voluntary act of the accused caused her sudden death, and thereafter the accused disposed of her body, which was at some stage in the boot of his vehicle. …" THE APPEAL Ground 1: His Honour erred in finding that the appellant had a tendency, which had not been contended for, or notified by, the Crown. 1. The appellant submitted that a tendency to act "in a particular way" must be expressed in a way which enables the defence to appreciate the case which it is required to meet. He submitted that his Honour had failed to fulfil this fundamental task and as a result, had fallen into error. 2. The appellant submitted that in the voir dire judgment dealing with the admissibility of the tendency evidence (R v Adams (No 1) his Honour did not in terms relate the evidence to the tendency notice (see [223] hereof). The appellant submitted that the closest his Honour came to doing so was at [148] of the judgment, but even then there was a disconnect between the tendencies identified in that his Honour had referred to "the infliction of violence for his own sexual satisfaction" when that concept had not been specified in the tendency notice and was a matter which had not been notified by the Crown to the defence. 3. The appellant submitted that nowhere else in that judgment did his Honour set out specifically what the tendency evidence was capable of establishing. The appellant made a similar criticism of his Honour's judgment in R v Adams (No 2) [2016] NSWSC 1359, which was the judgment in which his Honour determined that the trial should be conducted before a judge without a jury. 4. The appellant submitted that even in the principal judgment, the tendency found by his Honour did not accord with the tendency notified in the tendency notice. The appellant submitted that his Honour was required by s 133(2) of the Criminal Procedure Act 1986 (NSW) to state the findings of fact on which he relied to reach his verdict. This he failed to do in that the tendency was expressed in a number of different ways throughout the judgment: "337 … Sixthly, it was agreed between the parties that, for at least two reasons, before I could return a verdict of guilty, I would need to be satisfied beyond reasonable doubt that, as at September 1983, the accused possessed a tendency to strangle women in order to cause them to submit to intercourse with him. … 419 The fourth step in my reasoning is to consider whether the Crown has established that, in the period spanning the commission of the offences against Ms Hyde in August 1975, the commission of the offences against Ms Moon in May 1976, and the commission of the offences against Ms Brown in late July or early August 1978, the accused possessed a tendency to rape women, and to strangle them ancillary to that crime. 420 My satisfaction that the accused is the man who attacked each of Ms Moon, Ms Hyde, and Ms Brown leads inevitably to the conclusion that the accused, did indeed possess such a tendency. Yet again, I am satisfied beyond reasonable doubt of that proposition. That is the fourth step in my reasoning. … 451 ... The accused had a tendency to rape and strangle women. … 491 … the proven tendency of the accused to rape and strangle women." 1. The appellant submitted that the tendency notice did not identify "a tendency to rape women and to strangle them ancillary to that crime" nor was the tendency ever put in terms of a tendency to "rape and strangle women". The appellant submitted that the tendency evidence could only be used to prove the tendency or tendencies raised by the notice pursuant to s 97(1)(a) of the Act. The appellant submitted that to use the evidence to find an entirely different tendency, involved a contravention of s 95 of the Act. In that regard, the "particular matter" referred to in s 95 should, to be consistent with the scheme of the Act, be understood to be a reference to the particular tendency notified under s 97. The appellant submitted that the fact that the evidence is admissible to prove a notified tendency cannot mean that the tribunal of fact is entitled to take that evidence to prove a different and not notified tendency. 2. The appellant submitted that an error of the same kind was found by the Court of Appeal in White v Johnston [2015] NSWCA 18; 87 NSWLR 779 at [143] where Leeming JA said: "143 The primary judge erred in admitting the evidence as significantly probative of one "particular matter" (a tendency to charge for work never performed) and then relying upon the evidence for a different purpose (a tendency to perform wholly unnecessary work with no therapeutic purpose). There was error in using the tendency evidence for a different purpose from that for which it had been adduced, to assist in a finding that none of the work performed had a therapeutic purpose. To do so was contrary to ss 95 and 97, as well as being procedurally unfair (and not only to Ms White; Ms Johnston may have wished to be heard against his Honour taking that course: cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [133])." Consideration 1. This ground of appeal raises a purely technical issue and disregards the way in which the trial was conducted, both at the interlocutory stage and when proceeding to final verdict. 2. The tendency notice is at [25] hereof. His Honour's judgment in respect of the tendency dispute set out the contents of the tendency notice at [53] and then addressed the appellant's submissions in relation to each. Of particular significance is that in his written submissions, dated 28 July 2015, senior counsel then appearing for the appellant, accepted that the evidence of both Andrea Hyde and Ellen Moon was capable of establishing all of the tendencies in the notice. He also accepted that the evidence of Karen Brown was capable of establishing all the tendencies except for 2(c)(v). The argument and judgment in respect of the tendency notice occurred over a year before the commencement of the trial. 3. Trial counsel did not at any stage of the trial raise any concern or confusion about the nature of the tendency or tendencies being asserted or the case he had to meet in respect of the tendency evidence. 4. Importantly, no complaint was made when the Crown concluded his closing address as follows: "The Crown says that the deceased was killed by the accused. Her body was then hidden by placing her in the boot of the accused's vehicle, leaving the hairs that matched those from the hairbrush of the deceased in the boot. This accords with tendency of the accused that has been proven that the accused met women, got them into his vehicle, strangled or choked them until they believed they would be killed, they then giving into sexual intercourse against their will, and to force sexual intercourse, and that tendency evidence strongly supports the Crown theory that on this night. on 24 September 1983 the accused killed the deceased and placed her in the boot of his vehicle." (T.1053) 1. Moreover, in his oral address, made the day after the Crown's closing, counsel for the appellant said: "In seeking to prove its case my learned friend has quite rightly said that the prosecution case is a circumstantial one, and in his written outline of submissions my learned friend refers to some 31 circumstances said to be part of the stew, if I might borrow your Honour's analogy. … However, when those are boiled down, in truth, my submission is that there are three principal circumstances upon which the Crown relies to, it says, establish its case. The first being the alleged washing of the car boot on the Sunday after the disappearance of the accused; the second being the apparent discovery of hair matching Ms Wallace in the boot of the accused's car; and finally an alleged tendency on the part of the accused to choke women in order to force them to permit sexual intercourse." (T.1058 – 1059) 1. Later the appellant's counsel said in his address: "Perhaps most significantly though in considering whether the allegation in relation to Ms Brown assists the prosecution in proof of its tendency, may I remind your Honour about tendencies that are alleged to be displayed in this evidence. They are set out at paragraph 126 of my written submissions, based upon your Honour's judgments, and in my submission they might be described, taking the two together, as a tendency to choke in order to overcome resistance." (T.1103) 1. The effect of these observations from both trial counsel in their closing addresses is that no error of the kind referred to occurred. His Honour did not err when using what could be best described as "shorthand" when referring to the tendency evidence. To have replicated each and every tendency in the notice when wishing to refer to the relevant tendency or tendencies would have been cumbersome and have obfuscated the reasoning in the principal judgment, rather than clarified it. It is clear that both counsel at trial were well aware of the contents of the tendency notice and the effect of his Honour's shorthand description of it. Moreover, the infliction of strangulation in order to obtain compliance with his sexual demands was the most distinctive feature of the tendencies in the notice and referred to at trial. 2. In relation to the possible consequences of error, it is necessary to keep in mind the provisions of s 6(1) of the Criminal Appeal Act 1912 (NSW) as they were analysed by the plurality (French CJ, Bell, Keane and Nettle JJ) in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [4]: "4 As will appear, the Court of Criminal Appeal is required to deal with an appeal from judge alone in three stages. The first is to determine whether the judge has erred in fact or law. If there is such an error, the second stage is to decide whether the error, either alone or in conjunction with any other error or circumstance, is productive of a miscarriage of justice. If so, the third stage is to ascertain whether, notwithstanding that the error is productive of a miscarriage of justice, the Crown has established that the error was not productive of a substantial miscarriage of justice." 1. Even if the appellant were able to establish error of the kind asserted, given the way in which the trial proceeded, it cannot amount to a miscarriage of justice, let alone a substantial miscarriage of justice. This ground of appeal has not been made out. Ground 2: His Honour erred in admitting the evidence of Ellen Moon, Andrea Hyde, and Karen Brown as tendency evidence, because the evidence did not have significant probative value within the meaning of s 97 Evidence Act 1995 and did not have sufficient probative value to substantially outweigh the prejudice. 1. The appellant amended this ground at the hearing of the appeal to add the words underlined above. No doubt this was done as a result of the decision of the High Court in Hughes v The Queen [2017] HCA 20. 2. By way of background, the appellant noted that to determine whether evidence of a tendency has significant probative value, it was necessary to consider what in the Crown case the tendency was ultimately capable of proving. On that issue the appellant referred to the decision of this Court (Bathurst CJ, Hoeben CJ at CL and Simpson JA) in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [359]-[360]: "359 As Simpson J has said on previous occasions (for example, Gardiner at [124]), proof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere. Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party … on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. 360 The process of reasoning is: • on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way; • it can therefore be concluded or inferred that the person had a tendency to act in that way; • by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency. … Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion." 1. By reference to that statement of principle, the appellant submitted that although the tendency evidence was logically capable of proving that he sexually assaulted and strangled the deceased, it was not capable of proving that he thereby killed the deceased. 2. The appellant submitted that at its highest, an established tendency of the kind pleaded by the Crown could lead to a conclusion that he would have strangled Ms Wallace to procure intercourse had she not consented to that intercourse. To go from that point to a conclusion that he killed her, required a leap into a void of logic, which could be filled only by speculation. 3. At the hearing of the appeal, senior counsel for the appellant conceded that the tendency evidence was of significant probative value. He nevertheless submitted that it was prejudicial to use it by way of a reasoning process which over valued it. This was because the conclusion it was said to support went beyond the tendency identified. The tendency identified was to inveigle young women into his car with the intention of engaging in sexual intercourse and if that intention was frustrated, to use strangulation to enforce compliance. The tendency did not support a finding that he might have killed the deceased because that had never occurred in the past. To reach that conclusion involved speculation, not tendency reasoning (Appeal Transcript, 10.15 – .38). Consideration 1. Given the concession on the appeal that the tendency evidence was of significant probative value, it is the possibility of unfair prejudice which needs to be considered. The issue of unfair prejudice is to be considered against the background that his Honour decided that the matter should proceed as a judge alone trial because of the possibility that the reasoning of the jury might be excessively influenced by the evidence of the appellant's conduct towards young women in the past and the tendencies which it established. 2. The issue raised by the amendment to this ground of appeal was effectively answered by his Honour in R v Adams (No 1) at [146] where his Honour said: "146 It is true that there is no direct evidence, in the Crown case for murder, of sexual assault or the infliction of violence. That is significant, but not determinative. The point of tendency evidence is to infer from the conduct of an accused person on another occasion what he or she has done on the occasion that founds the count in the indictment. Whilst there is force in what senior counsel for the accused has said – namely, that the absence of any direct evidence of important parts of the murder allegation gives rise to a greater potential for "bootstrapping" based upon the tendency evidence – I do not consider that that potential detracts from the compelling nature of the tendency evidence." 1. It is that reasoning which is said to be illegitimate and to give rise to error. 2. The appellant's argument, as amended, misconstrues the nature of tendency evidence. Such evidence does not have to prove a tendency to commit a particular crime. This is clear from what this Court (Beazley P, Schmidt and Button JJ) said in Hughes v R [2015] NSWCCA 330 at [183] – [185] and from what the majority (Kiefel CJ, Bell, Keane and Edelman JJ) said in Hughes v The Queen. In Hughes v R this Court said: "183 In making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which the person is charged. This was emphasised by the Court in Saoud where Basten JA observed, at [44], that "the nature of the similarities will depend very much on the circumstances of the case". 184 The critical point made in these authorities is that tendency evidence need not show a tendency to commit acts that constitute the crime or crimes with which the accused is charged. There only needs to be a "tendency … to act in a particular way" (s 97(1)) relevant to the conduct subject of the charge. Relevance is determined by reference to the Evidence Act, s 55, that is, evidence which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 185 When regard is had to the inferential nature of tendency evidence and the requirement that it be relevant evidence, it is apparent that tendency evidence is not only directed to the particular type of conduct that constitutes an element of the charge. There is a wide range of evidence relevant to the determination of the guilt of a person of a particular crime. When the question of admissibility of tendency evidence arises the question is whether conduct said to exhibit a tendency allows, by an inferential process of reasoning, that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is the subject of the charge or charges: see Gardiner at [124] per Simpson J." 1. In Hughes v The Queen the majority in the High Court said (at [40] – [41]): "40 … The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford [2009] NSWCCA 306; 201 A Crim R 451 at 485 [125]: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. … 41 The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged." 1. It follows that the approach of his Honour and the finding made by him that the tendency evidence was admissible was open. This ground of appeal has not been made out. Ground 3: His Honour erred in failing to direct himself about a) the use to which the tendency evidence could be put and b) the dangers inherent in such evidence, as required by s 133 Criminal Procedure Act 1986. 1. The appellant submitted that s 133 of the Criminal Procedure Act required his Honour to comply with the following requirements: "(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." 1. The appellant noted that in Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [27] the High Court said of the then equivalent of s 133: "27 Fourthly, whilst they are differently framed, the requirements of s 33(2) and (3) are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33." [Footnotes omitted] 1. The appellant submitted, in reliance upon that statement of principle, that by virtue of s 133(2) his Honour was required to state the manner in which he could use the evidence of the tendencies he had found proved. The appellant submitted that his Honour had failed to do so and that his Honour's reasoning was entirely opaque on this issue. The appellant was particularly critical of his Honour's statement at [453]: "453 Here, the undoubted tendency of the accused to treat young women in a certain way, combined with the circumstances in which he and the deceased were present in his motor vehicle, surely informs the presence of the hair with an mtDNA profile identical to that of the deceased in his boot." 1. The appellant submitted that the use of the word "informs" was not appropriate to summarise a rational process of reasoning. The appellant submitted that what was required was for his Honour to direct himself with particularity about the way in which the tendency evidence might be used in relation to the charge before him. 2. The appellant relied upon another statement of principle from Fleming v The Queen as follows: "30 Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded." 1. The appellant submitted that his Honour failed entirely to comply with the dictates of subs 133(3) in that at no stage during the course of his judgment did he warn himself about the dangers of misusing tendency evidence, although such a warning was required. 2. In support of that proposition, the appellant again relied upon Fleming v The Queen as follows: "32 The obligation imposed by s 33(3) "to take the warning into account" is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law. 33 The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account." [Footnote omitted] 1. The appellant submitted that the obligation on his Honour to give himself an appropriate warning concerning the use of the tendency evidence, was particularly important in the present case where the tendency evidence was bound to give rise to feelings of abhorrence. The appellant submitted that on the contrary when summarising the tendency evidence his Honour was anything but dispassionate: "410 … Each woman was treated very much as nothing more than an object …" The appellant submitted that in the light of such unnecessary rhetorical flourishes, it was particularly important for his Honour to give himself adequate warnings to dispel any perception that he had been improperly influenced by the tendency evidence. 1. The appellant submitted that at trial it was common ground that a tendency direction was required to be given. The appellant submitted that because such a direction was not given, a miscarriage of justice has been occasioned. Consideration 1. No objection in terms of this ground of appeal was made during the trial. There was, however, a specific request for a direction made on behalf of the appellant at trial at T.1008, which was referred to by his Honour when he said: "HIS HONOUR: Just turning to yours, Mr Lange, Shepherd direction, that's your point about the tendency as an IIF [indispensable intermediate fact]? LANGE: It is, your Honour." (T.1008.34) 1. In Greenhalgh v R [2017] NSWCCA 94 Basten JA (with whom Button and N Adams JJ agreed) said at [21]: "21 Finally, in cases where no direction was sought, it will usually be a precondition to a grant of leave under r 4 that the omitted direction should be expressly formulated. It will be difficult for the appeal court to assess the significance of the omission, being far removed from the context provided by the trial; it will be almost impossible if the terms of the proposed direction are not formulated." As a matter of general observation, it seems to me that an appellant should always have such an obligation when complaining about an absent direction regardless of whether r 4 applies. 1. The omitted direction was not formulated in the written submissions, either at trial or in the appeal. The closest formulation of it in oral submissions on appeal was that there was an obligation on the part of his Honour to warn himself not to be affected by the emotional nature of the evidence and to be wary of reasoning towards a conclusion by a bootstrapping process (Appeal transcript 10.40 – 11.6). 2. There is also a distinction between a direction and a warning which the appellant's submissions on this ground did not address. The terms "warning" and "direction" were used interchangeably in the written submissions. On this issue the observations of the plurality in Filippou v The Queen assist: "52 … Subject to statute, judges are required to give juries particular warnings such as a Longman warning, a Domican warning, an accomplice warning or a Pollitt warning, for the purpose of alerting juries to particular difficulties with particular classes of evidence with which they are unlikely to be familiar. Perforce of s 133(3) of the Criminal Procedure Act, the same applies to trial by judge alone. As was explained in Fleming, the obligation under s 133(3) "to take [a] warning into account" requires that the particular warning be included in the judge's reasons for judgment. But it is different in the case of directions other than warnings. Apart from warnings of the kind referred to in s 133(3), judges are required to give juries certain ineluctable directions as to matters such as the functions of the judge and jury, the burden and standard of proof, what constitutes evidence, the drawing of inferences from direct evidence, the care to be exercised in drawing inferences and, if an inference forms an essential step in the jury's process of reasoning to guilt, the need to be satisfied of that inference beyond reasonable doubt. Such directions are principles of law within the meaning of s 133(2) and therefore, in the case of trial by judge alone, must be applied. But it is sufficient if a judge's reasons show either expressly or by implication that they have been so applied." [Footnotes omitted] 1. A similar observation was made by this Court in JWM v R [2014] NSWCCA 248 by Hall J (R A Hulme and Davies JJ agreeing) where his Honour said: "147 A tendency warning will be required as a matter of law where there is a significant risk that the jury might embark on impermissible tendency reasoning having regard to the evidence placed before it and the arguments of counsel. … 149 Where a tendency warning is merely desirable, rather than necessary, a miscarriage of justice will not be found…" 1. In this case there were extensive discussions recorded in the transcript as to how his Honour should direct himself in relation to the tendency evidence (T.997 – 1006 and T.1015 – 1018). It is also clear from R v Adams (No 1) and R v Adams (No 2) that his Honour was well aware of the dangers of engaging in impermissible tendency reasoning. In both those judgments his Honour set out clearly the balancing process which had to be carried out when considering both ss 97 and 101 of the Act. It is clear from his Honour's analysis of the prejudicial effect of the tendency evidence that using tendency evidence impermissibly had to be avoided. 2. When setting out his directions of law, his Honour included in them appropriate directions in relation to the standard of proof issue in tendency evidence (see [337] – [339] of the principal judgment). It is clear from the above that by implication his Honour was well aware of the risks associated with improperly using tendency evidence and that he took those considerations into account when reaching his conclusions in the primary judgment. While it can be said that his Honour did not expressly direct himself in the principal judgment in the manner in which a jury would be directed, Ground 3 still fails. This is because the whole point of the directions which are now said to be absent is to ensure that the evidence is correctly used and is not misused. In a judgment such as this, which fully exposed at great length his Honour's reasoning towards a verdict, it is clear that his Honour correctly used the evidence and did not in any respect misuse it. The appellant has not established to the contrary. 3. Moreover, the only specific criticism is that in AWS [72] to the effect that his Honour used language that did not indicate a dispassionate analysis. There is no merit in that submission. 4. The observations in Thornton v R [2017] NSWCCA 86 (per Ward JA; Campbell and N Adams JJ agreeing) are of assistance on this issue. There, it was said: "163 Pursuant to s 133(2) of the Criminal Procedure Act 1986 (NSW), the trial judge was required to include in the reasons for judgment the principles of law applied and the findings of fact on which her Honour relied. She was required to refer expressly to all warnings that would be required to be given had there been a jury. In other words, her Honour was required to expose her reasoning process (see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6]). Her Honour was also required to explain the reason for findings of fact (Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30]). 164 The obligation to give reasons has been considered in various authorities. Most often cited in this context is Soulemezis v Dudley (Holdings) Pty Ltd (albeit a case in the civil context). There, Kirby P said: "This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues."" 1. This ground of appeal has not been made out. Ground 4: His Honour erred in determining that he was not required, before finding that a tendency was established beyond reasonable doubt, to be satisfied of the underpinning conduct beyond reasonable doubt. 1. The appellant noted that his Honour had dealt with this issue at [353] – [358] of the primary judgment. In doing so, his Honour rejected the conclusion of Hodgson JA (Kirby and Whealy JJ agreeing) in DJS v R [2010] NSWCCA 200 at [56]. The appellant submitted that it was not only this case which had made a finding to that effect, but there were other Court of Criminal Appeal decisions which had reached a similar conclusion using similar reasoning but on different subject matter. In his submissions, the appellant accepted that although his Honour had determined that it was not necessary to find that the underpinning conduct on which the tendency was based to the criminal standard, he had in fact done so in this case. 2. The appellant submitted that nevertheless, this Court should consider the issue and make a finding that the decision of this Court in DJS v R was correct and that his Honour's conclusion on the issue was wrong. Consideration 1. As was properly conceded by the appellant, although his Honour determined not to direct himself that each alleged tendency incident must itself be proven beyond reasonable doubt, on each occasion that his Honour made a finding with respect to a particular incident of the tendency evidence, he added a further finding in which he indicated that nonetheless he found the tendency evidence proved beyond reasonable doubt. Accordingly, no useful purpose would be served by this Court undertaking the theoretical exercise which the appellant invited it to do. 2. Moreover, given the approach which his Honour followed in his fact finding as to the occurrence of each tendency incident, this is not an appropriate vehicle in which to consider the question. Any decision by this Court in such circumstances would be strictly obiter. In addition, the matter has not been fully argued. Although it was raised in the appellant's written submissions, it was for obvious reasons dealt with somewhat cursorily by the Crown and was only faintly pressed in oral submissions on the appeal. 3. Because a finding by this Court, along the lines submitted by the appellant, would be moot and have no practical effect on the outcome of the appeal, this ground should be dismissed. Ground 5: His Honour erred in determining that, when considering whether an asserted tendency incident occurred, he was able to consider the evidence led in support of other tendency incidents, rather than being confined to the evidence led in support of the tendency incident in question and the evidence led in relation to the count of murder. 1. The appellant submitted at trial that in determining whether the tribunal of fact was satisfied that the conduct led in support of an alleged tendency was proven beyond reasonable doubt, regard could not be had to the other alleged tendency incidents. The appellant submitted that in rejecting this submission, the trial judge erred in law. 2. The appellant noted that his Honour set out his reasons for reaching the conclusion which he did at [352] of the principal judgment. There, his Honour said: "352 The second direction that I have not adopted is as follows. I have already indicated that I accepted the joint position of the parties that, for two reasons, the alleged tendency of the accused must be proved beyond reasonable doubt. I do not accept, however, the submission of defence counsel that, in considering any alleged tendency incident, the evidence in support of that incident must be considered in complete isolation from the evidence in support of other tendency incidents, and indeed from the direct evidence about the count of murder. That is because I do not believe that it is the law of New South Wales that such a restrictive and artificially divided approach is to be taken to various incidents said to underpin and demonstrate an overarching tendency." 1. The appellant submitted that there was nothing inconsistent with the proposition that, in determining whether a tendency incident has been established, regard may be had to all of the evidence in the case and the proposition contended for in this ground of appeal, namely that regard may not be had to other tendency incidents. 2. The appellant submitted that where evidence of a tendency incident is led for the purposes of establishing a tendency, it would be putting the cart before the horse to use that tendency incident to find a different tendency incident proved. That is because, in almost all cases, the reasoning process that would enable a conclusion that one tendency incident was proved by reference to another tendency incident is itself tendency reasoning. Such tendency reasoning could not safely be employed until the tribunal of fact had positively determined that the tendency was established. It was submitted that this was the only way in which the evidence of one tendency witness could possibly have been used by Button J to substantiate the allegations of the other tendency witnesses. 3. In putting forward that submission, the appellant accepted that it was conceivable that there might be cases where a tendency was proved based on one single tendency incident. If that tendency were proved, the tendency could validly be relied upon to determine whether other tendency incidents occurred and might bolster the prospect of finding those tendency incidents occurred beyond reasonable doubt. The appellant submitted that the difference between that reasoning and the snowball reasoning engaged in by Button J was that the trial judge did not find a tendency proved based upon a single incident. The appellant submitted that his Honour assumed the existence of the very tendency that the evidence in question was led to prove, in order to satisfy himself (erroneously) beyond reasonable doubt that the tendency incident occurred, and then positively found the existence of the tendency that he had already assumed existed. 4. The appellant submitted that the sort of snowball reasoning which was found to be permissible by Button J was plainly inconsistent with s 97 of the Act. This was because his Honour, having erroneously held that reasoning of that kind was permissible, then proceeded to engage in such an exercise explicitly at [370] of the principal judgment (reliance upon the incident with Ellen Moon to find the incident with Andrea Hyde proved) and at [409] (explicit reliance upon the incident with Ellen Moon and Andrea Hyde to find the incident with Karen Brown proved). 5. The appellant submitted that his Honour's conclusion on this point amounted to an error of law and caused the trial to miscarry. Consideration 1. The appellant's submission is inconsistent with the approach of the majority in Hughes v The Queen and the observations by Bathurst CJ (Price and Campbell JJ agreeing) in Doyle v R; R v Doyle [2014] NSWCCA 4. 2. As was pointed out in Hughes v The Queen at [16] the assessment of the probative value of tendency evidence requires identifying the tendency and the fact or facts in issue which it is adduced to prove. At [40] the majority said: "40 … The test posed by s 97(1)(b) is as stated in Ford: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. … 41 … In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged." [Footnotes omitted] 1. At [61] the majority said: "61 As explained above, there are two matters which must be considered. The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered "by itself". In the words of s 97(1), the evidence of either "conduct" or "a tendency" can be used to determine the tendency relied upon by "having regard to other evidence adduced or to be adduced". In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence." 1. It is against that background statement of principle that the majority gave an illustration of how the principle would be given effect to. Of particular significance on this issue was the concession by the appellant, which was noted by the majority and in relation to which no adverse comment was made. That concession is inconsistent with the proposition argued for by the appellant in this ground. 2. The illustration by the majority was: "62 This point can be illustrated by reference to an example given by the appellant in oral submissions, which was that there was a "world of difference" between the evidence concerning EE (count 10), who was 15 years old and whom the appellant encouraged to commit indecent acts in a park and in a driveway, and the evidence concerning SH (counts 3 to 6), which involved intrusive acts "in a darkened bedroom, in her bed, when she was only six, seven or eight". One problem with this comparison is that it ignores the fact that in relation to, for example, count 4, involving SH, the evidence of EE needed to be considered together with the evidence involving (i) counts 1 to 3 and counts 5 to 11, (ii) uncharged acts relating to the complainants SH, JP, AK and SM, and (iii) uncharged acts relating to the tendency witnesses VOD, AA and BB. Indeed, one of the appellant's concessions on this appeal was that the tendency evidence from counts 1 to 2 (JP) and 3 to 6 (SH) was cross-admissible. This evidence, which was conceded to be admissible, reinforced the other tendency evidence. When considered together, all the tendency evidence provided strong support to show the appellant's tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection." The "cross-admissibility" of the tendency evidence referred to by the High Court was a far more extreme example than that engaged in by his Honour in this case and is contrary to the proposition argued for in this ground. 1. Observations to similar effect were made by Bathurst CJ in Doyle v R; R v Doyle where his Honour said: "134 I have set out above the address of the Crown Prosecutor so far as it related to tendency evidence. The Crown submitted to the jury that those portions of the tendency notice which referred to activities involving sexual misconduct could be used as showing the tendencies in the notice, but stated that the tendency had to be proved beyond reasonable doubt. The trial judge also made it clear that to prove the tendency beyond reasonable doubt the jury had to be satisfied beyond reasonable doubt both that the activities said to have given rise to the tendency occurred and that those activities gave rise to the tendency in question. 135 In these circumstances the trial judge, in my opinion, did not fall into error in not directing the jury that if and only if they were satisfied beyond reasonable doubt that one or more of the charged acts occurred without having regard to the evidence relating to the other charged acts, they could then use that conclusion as tendency evidence in respect of the other charges if satisfied beyond reasonable doubt that the tendency was established. In one sense a failure to give such a direction was favourable to the appellant, as the direction did not suggest that evidence relating to the charged acts could be used to establish the tendencies complained of. 136 I do not think this position is affected by the fact that the trial judge directed that the jury should not look at the acts in isolation but consider all the evidence to determine if the acts took place. The acts in question were those summarised in the direction and the direction emphasised the need for satisfaction beyond reasonable doubt that those acts in fact took place. 137 As I indicated, the appellant submitted that the direction referred to in the preceding paragraph involved what he described as circular reasoning. It is correct that as a matter of logic a fact cannot be proved by a chain of reasoning which assumes the truth of that fact: Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 532; Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1 at 17. That does not mean, however, that the evidence of a fact said to establish a tendency need be proved by considering its existence or otherwise divorced from other evidence at the trial. That was made clear in Thompson supra at 17 in the following passage from the judgment of Mason CJ and Dawson J when considering what is now described as coincidence evidence: "The nine points of similarity advanced by the prosecution and apparently accepted by the trial judge went too far. In considering whether the deaths at Richardson displayed the necessary degree of similarity to the deaths of the two sisters, it was impermissible to include as a fact the matter which it was sought to prove, namely, that the deaths did not occur by accident. The points of similarity accepted by the trial judge assumed that the two sisters were shot through the head, as were the victims of the Richardson killings. That was tantamount to assuming the truth of the fact in issue which the similar fact evidence was tendered to prove. As Brennan J. pointed out in Sutton: ''It is a canon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact. That canon has a particular application in determining the cogency and hence the admissibility of similar fact evidence. When the Crown seeks to tender similar fact evidence as the foundation for inferring a fact to be proved in a trial, it is erroneous to assume the truth of the fact to be proved in determining the cogency of the evidence. ... That proposition does not preclude reference to direct evidence of the fact to be proved in determining the cogency of similar fact evidence. Similar fact evidence tending to confirm the existence or occurrence of such a fact may be confirmed by direct evidence of the same fact.' We would only add to that passage the comment that there does not seem to be any reason why the evidence of the fact to be proved which confirms the similar fact evidence, or adds to its cogency, should be confined to direct evidence. The similarity between the killings at Richardson and those of the two sisters was to be considered in the light of the whole of the evidence." 1. There was a significant difference between the evidence in this case and the evidence which the High Court was considering in Thompson v The Queen [1989] HCA 30; 169 CLR 1. In this case, the appellant had pleaded guilty to the offences against Ms Moon. It was therefore uncontested that his Honour could find beyond reasonable doubt that the appellant engaged in the conduct asserted against him by Ms Moon. 2. Once that was accepted, it provided the anchor which enabled his Honour to make findings as to the facts giving rise to the tendency in the evidence of Ms Hyde and Ms Brown. In such circumstances, there was no assumption of the truth of the fact that was to be proved. Rather, there was a process of logical reasoning which started with an incontestable fact and built upon it. There was nothing circular in that process. 3. Implicit in this ground of appeal is an assumption that the tendency evidence, particularly that of Ms Moon, could not be used when considering the evidence of Ms Hyde and Ms Brown, and when determining whether the relevant tendencies had been established. The fallacy in that approach has been set out at [305] – [310] hereof. 4. It is also of some significance that the appellant's submission in support of this ground of appeal is contrary to the draft direction in the Criminal Trial Courts Bench Book produced by the Judicial Commission. 5. This ground of appeal has not been made out. Ground 6: His Honour erred in admitting the representation contained within Exhibit 4B on the basis that it fell within the business records exception to the hearsay rule, because a. The court could not be satisfied the document was a "business record" b. It could not reasonably be supposed that the representation was made on the basis of information, directly, or indirectly, supplied by a person, who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, as required by s 69(2) Evidence Act c. It was not shown that the representation contained within the document was not made "in connection with litigation or an investigation", such that the carve out in s 69(3) Evidence Act 1995 did not apply 1. In order to understand this ground of appeal, it is necessary to set out the reasoning of the trial judge, which is contained in R v Adams (No 5) [2016] NSWSC 1563. Exhibit 4B was previously Exhibit H on the voir dire and is referred to as such throughout the judgment. There was no issue that Exhibit 4B was part of Exhibit M on the voir dire which comprised a bundle of documents which was located years later in the box of exhibits connected with the investigation of the disappearance of the deceased in September 1983. The relevant representation relied upon by the Crown was: "ADAMS … Robert John … 19.9.78 Owner of 64 holden sedan. brown/white roof. no DMB 055". 2. There was no dispute that the representation was relevant. This was in the context of the evidence of Ms Brown that she had memorised the number plate of the motor vehicle driven by the man who had raped her in late July/early August 1978 as either DMB 065 or DMB 055. 3. There was no issue that s 59 of the Act generally prohibits the receipt of out of court representations to prove the truth of their contents. It was agreed that s 183 of the Act permitted his Honour to draw inferences from documents in determining questions of admissibility related to those documents – in this case, Exhibit 4B and Exhibit M on the voir dire. It was also agreed that the moving party on the question of admissibility must establish matters of fact on the balance of probabilities (s 142(1) of the Act). 4. The exception to the rule against hearsay upon which the Crown relied was the "business records" exception contained in s 69 of the Act. That section provided: "69 Exception: business records (1) This section applies to a document that: (a) Either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) At any time was or formed part of such a record; and (b) Contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) By a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) On the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) Was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, in Australian or overseas proceeding, or (b) Was made in connection with an investigation relating or leading to a criminal proceeding; … (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)." 1. His Honour found that the document was created for the purpose of a business. His Honour rejected the proposition that s 69(1)(a) required that the Court must be satisfied that a document emanated from a particular business. His Honour was also satisfied that Exhibit 4B was a document created by the NSW Police Service for its own purposes. 2. In relation to that last issue, his Honour was not satisfied that the evidence of Mr Andrews, a retired police officer, prevented him from making that finding. His Honour noted that Mr Andrews was giving evidence in 2016 about a document that was 40 years old, he had not served as a police officer for many years and then as a uniformed senior constable. His Honour observed that there may have been all kinds of intelligence documents held by the New South Wales Police Service with which as a uniformed officer, Mr Andrews was not familiar. Accordingly, his Honour found that Exhibit 4B came within s 69(1) of the Evidence Act. 3. In relation to s 69(2) his Honour found that a consideration of Exhibit 4B as a whole showed that it recorded the precise registration numbers of many vehicles said to be associated with the appellant. That was in the context of it being a record of the NSW Police Service. His Honour inferred on balance that those recorded details, including the representation in dispute, were ultimately derived by way of a chain of information from records held by the relevant traffic authority in 1978. His Honour also inferred that those records were ultimately founded on the actual act of registration whereby a person would physically present registration papers at a motor vehicle registry, pay for the registration of the motor vehicle and have papers stamped by way of a receipt by a clerk who recorded that event in the records of the traffic authority. His Honour rejected the defence submission that the "chain" failed to commence with personal knowledge. 4. In the alternative, his Honour did not accept that the legislation operated so constrainedly as to not permit evidence of a representation about the registration number of the motor vehicle that is ultimately founded upon records about that very fact held by the Roads and Maritime Services. 5. In summary his Honour was satisfied on the balance of probabilities that the representation was made, at the least, on the basis of information indirectly supplied by a person who might reasonably be supposed to have had personal knowledge of the asserted fact that the appellant was the owner of a motor vehicle with the asserted attributes. His Honour reached that conclusion bearing in mind the breadth of the approach to personal knowledge permitted by s 69(5) of the Evidence Act. 6. In relation to s 69(3) of the Act, it was agreed between the parties that the subsection constituted an "exception to the exception". Although his Honour favoured an interpretation of s 69(3) which imposed the onus upon the party opposing the admissibility of the representation, he approached the matter on the basis that it was incumbent upon the Crown to prove that the tendered representation did not fall within the exception in s 69(3). 7. His Honour concluded that a sharp contrast was to be drawn between Exhibit G on the voir dire (the admission of which was excluded) and Exhibit 4B. Exhibit G showed all the hallmarks of a particular document reciting representations which were all for the purpose of a particular investigation, leading to a particular charge. In contrast, on the balance of probabilities, Exhibit 4B was an intelligence report that the police maintained about the appellant for general information purposes. His Honour found that although it referred to particular asserted crimes of the appellant (stealing petrol in 1972, committing rape in 1975), it could not be linked to any particular investigation or litigation. Rather, both Exhibit 4B and Exhibit M on the voir dire, of which it was a part, were in the nature of overviews of the life of the appellant and his physical characteristics, his offending, his vehicles and his intersections with the police and the criminal justice system. 8. Even though Exhibit M on the voir dire was found in a box containing the exhibits relating to the investigation of the disappearance of the deceased, his Honour inferred on balance that the document was placed there simply to assist anyone who came to reinvestigate the matter, not because the document, when created, was connected with an investigation or a proceeding. In that regard, his Honour stressed that it was not the document which must be connected to the investigation or a proceeding to be excluded pursuant to s 69(3), rather it was the preparing, obtaining or making of the representation contained in the document that must possess that characteristic. His Honour found that there was nothing to suggest that the representation contained in the document was made with regard to a particular proceeding, or with regard to a particular investigation. 9. In relation to s 137 of the Act, his Honour found that there was nothing to suggest that the representation was made capriciously or without due care but that Exhibit 4B as a whole indicated a careful noting of many aspects of the life of the appellant. 10. His Honour noted that in accordance with R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 and IMM v The Queen [2016] HCA 14; 257 CLR 300 when considering admissibility he should assess the probative value of the evidence at its highest. On that basis, the representation provided an important link between the appellant and the attack on Ms Brown. His Honour found its probative value to be very high. 11. In relation to unfair prejudice, his Honour noted that the appellant was not precluded in theory or practically, from disputing the accuracy of the representation. His Honour accepted that the author of the representation was not available for cross-examination but that this was a factor in many statutory provisions of the Act. Accordingly, although his Honour accepted that some forensic prejudice would accrue to the appellant by the admission of the hearsay evidence, pursuant to a mechanism created by Parliament, he did not consider that such prejudice would outweigh the probative value of the representation. 12. The appellant submitted that the representation in Exhibit 4B was the only evidence led by the Crown capable of establishing that the number plate recalled by Ms Brown had any association with the appellant. The appellant submitted that his Honour erred in admitting this representation for the three reasons set out in the ground of appeal. a. The court could not be satisfied the document was a "business record". 1. The appellant submitted that there were three pieces of evidence which were capable of shedding light on the provenance of the document. Items (1) and (3) were not contentious: 1. There was the evidence of the officer-in-charge of the investigation that she found it in a box from the old investigation into the disappearance of the deceased. 2. There was the evidence of Mr Andrews, who was serving as a policeman in the 1970s. That: • He had never seen a document of that kind before. • All police documents had a "P" number and this document did not. • That although the type of information recorded in Exhibit 4B was typically recorded in information and intelligence gathering reports, he did not recognise the document to be such a report. • The other documents that Exhibit 4B was located with were not documents of a kind that would ordinarily be attached to an intelligence report. 1. His Honour was entitled to look the document and make an assessment of it. 1. Because that was the only relevant evidence, the appellant submitted that on balance it favoured the document not being a police record. In addition, the Crown had not excluded the possibility that the document came from another department, such as Immigration, Corrective Services and the like. b. It could not reasonably be supposed that the representation was made on the basis of information, directly, or indirectly, supplied by a person, who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, as required by s 69(2) Evidence Act. 1. The appellant noted that for the purposes of s 69 "a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)" (s 69(5)). The appellant submitted that the only way in which a person could obtain knowledge of the fact of registration of a vehicle was by perusing the records of the relevant registration authority. What the person would have had to do was to "see, hear or otherwise perceive" the contents of a document. However, the means by which the contents of a document can be adduced are prescribed by s 48 of the Evidence Act. The appellant submitted that in accordance with s 51, this section was a complete code of the manner in which the contents of a document could be adduced. 2. The appellant submitted that s 48 did not provide that the contents of a document (the first document) could be adduced by producing a different document (the second document) which asserts a fact, which could only be contained in the first document. The appellant submitted that the fact that there was an exception to the hearsay rule for business records was not intended to be a workaround to the strictures of the rules about adducing the contents of documents in s 48. c. It was not shown that the representation contained within the document was not made "in connection with litigation or an investigation", such that the carve out in s 69(3) Evidence Act did not apply. 1. The appellant submitted that the question to be considered under s 69(3)(b) of the Act was whether the representation, as opposed to the document, "was made in connection with an investigation relating or leading to a criminal proceeding". There was no evidence whatsoever as to the original source of the representation so that the Crown was unable to discharge the burden of proof and his Honour erred in holding that the representation was admissible as a business record. Consideration 1. The overwhelming inference from a perusal of the document and its source as a part of Exhibit M on the voir dire, justified his Honour's conclusion that the document was created by the Police Service. It was clearly a document of an intelligence type. For the reasons which his Honour articulated, he was entitled to disregard the evidence of Mr Andrews on that point. I am satisfied that the document did emanate from the Police Service. 2. In relation to s 69(2) of the Act, his Honour addressed the issue of s 48 of the Act at [40] where he remarked: "40 A further preliminary matter was that defence counsel resisted any reliance by the Crown upon the mechanistic provisions facilitating proof of a document to be found in s 48 of the Evidence Act. Because the Crown Prosecutor made it clear, however, that he was not relying on that section, I need not discuss it further." 1. The background to that statement by his Honour is to be found at T.769 where the following exchange occurred: "LANGE: This then comes back to the argument I advanced earlier; namely, that personal knowledge requires something more than reading a record. HIS HONOUR: I take your point that on one thesis one might infer, you resist the inference, but one might infer that all of this is derived from the motor registry, and I take your point that that has an important role to play with regard to the requirements of section 69(2). I just don't, respectfully, understand how 48 has a role to play if Mr Crown is just trying to tender a copy of a document, which is voir dire exhibit H which is part, it seems, of voir dire Exhibit M. I don't understand how the motor registry comes into it in a direct sense, I appreciate it comes into it in an indirect sense, and because of that I don't understand how section 48 plays a role. LANGE: It is only in the indirect sense that I rely upon 48. I've already advanced the submission that looking at, it was perhaps not a computer screen back then, but looking at a list of cards is not acquiring personal knowledge for the purpose of section 69. What I seek to do is to say there is no other way of proving the contents of what were on a card. HIS HONOUR: Mr Crown is not relying on section 48 is perhaps the answer to that. LANGE: Yes, and that may well be the case. HIS HONOUR: If that's the case, you don't need to jump at shadows, Mr Lange, unless you hear to the contrary from Mr Crown. LANGE: It is only used in that sense. If your Honour is against me on the acquisition of personal knowledge through the reading of the card then the argument fails. But is, as it were, another step in the argument that my friend can't then go into that corner to produce it. I hope that is now clear as to how it works. HIS HONOUR: Yes, that is clear now, Mr Lange, I understand." (T.769.17 –.50) 1. Once one accepts that the document containing the representation came from the Police Service, an inference is available that a police officer made an inquiry of the relevant registry and observed a card or some other document which provided the information contained in the representation. That seems to come clearly within the terms of s 69(2) and 69(5) of the Act. 2. There are, however, other indications of a degree of precision in the preparation of the document. Exhibit 4B contained eight entries dating from 3 April 1972, through to 19 September 1978, which noted the known address of the appellant. In the entries of 3 April 1972, 4 August 1975, 31 May 1976 and 19 September 1978 there were descriptions of cars associated with him. In the first three entries the word "uses" in respect of the car is noted. It is only in the entry of 19 September 1978 that the appellant is described as "owner of the vehicle". Accordingly, a strong inference is available that there was a reason for the different terminology used in the document. "Uses" suggests that the information was based upon an original source which was something or someone other than the appropriate authority for the registration of cars at the time. Conversely, the use of the word "owner" strongly suggests that the original source of the information was the relevant motor vehicle registry. 3. Given that the document originated from the Police Service, one can infer that a police officer would have gone to the relevant registry, at least initially to obtain information as to the ownership of the vehicle, rather than rely upon some second hand source which has not been identified. 4. In relation to s 69(3) accepting that the Crown has the onus of establishing on balance that the representation was not made in connection with an investigation relating or leading to a criminal proceeding, the analysis provided by his Honour is persuasive. There is a clear difference between Exhibit 4B and Exhibit G on the voir dire, which was rejected pursuant to s 69(3). As his Honour pointed out, the representation had all the hallmarks of being prepared for intelligence purposes. There was nothing to link it to any particular investigation. This is particularly so when one has regard to the other entries on that page of the document. 5. That conclusion is not invalidated by the fact that it was found in a box containing exhibits relating to the investigation of the disappearance of the deceased. As his Honour said, the more likely inference is that the document was placed in the box to assist anyone who came to reinvestigate the matter, not because when the document was created it was connected with an investigation or a proceeding. 6. Finally, as his Honour pointed out, it is not the document which has to be considered under s 69(3), it is the representation. The relevant representation had nothing to do with the investigation of the death of the deceased. 7. This ground of appeal has not been made out. Ground 7: The trial miscarried because the trial judge misconstrued an argument by counsel for the appellant and inappropriately reasoned from it as if it were an admission as to a fact. 1. The appellant submitted that his Honour inappropriately concluded that hair found in the boot of the appellant's car was in fact the hair of the deceased from a submission of counsel for the appellant that accepted nothing of the sort. The appellant submitted that his Honour then reasoned from that concession to conclude that the appellant murdered the deceased. 2. The appellant submitted that one of the main planks of the Crown's circumstantial case was that expert mtDNA analysis and hair comparison evidence suggested that a hair vacuumed from the boot of the appellant's car in 1983 came from the deceased. This was said to support the inference that the appellant had placed the deceased's body in the boot of his car. 3. The appellant submitted that for such an inference to be available, a number of matters needed to be positively established by the Crown: 1. The hair in fact came from the boot of the appellant's car. 2. The hair examined by Ms Brooks was: 1. The hair from the boot of the appellant's car. 2. The comparison sample hair was the hair of the deceased. 1. The hair in fact examined by Dr Hartman (the mtDNA expert) was: 1. The hair from the boot of the appellant's car; and 2. The comparison sample hair was the hair of the deceased. 1. The appellant also submitted that even if those matters were established, the rational hypothesis consistent with the appellant's innocence was the possibility of innocent transfer bearing in mind that there was no issue between the parties that the deceased had been in the appellant's car. The appellant submitted that even on the Crown case, he had apparently cleaned the passenger area of the vehicle before cleaning the boot of the car thereby creating a factual basis for transfer having occurred. 2. The appellant submitted that it was plain from the defence written and oral submissions that the position of the appellant was not as his Honour found, that the hair in the boot in fact belonged to the deceased. Rather, the submission was, that even if it were open to find that the deceased's hair was in the boot the inference of guilt contended for by the Crown could not be drawn unless the Crown had excluded the possibility of innocent transfer. 3. The appellant submitted that his Honour's approach to this question elevated the "primary position" i.e. innocent transfer to an admission of fact that the hair in the boot was the hair of the deceased. 4. The appellant submitted that this misunderstanding by his Honour led to a miscarriage of justice because his Honour proceeded to draw the inference of guilt from that supposedly admitted fact. 5. The appellant submitted that by resorting to this erroneous understanding of the submission by the appellant, his Honour sidestepped the consideration of four essential matters: 1. Whether the Crown had negatived the possibility of innocent transfer; 2. Whether the evidence of Ms Brooks should be accepted at all; 3. Whether the evidence of Ms Brooks was capable of giving rise to a conclusion that the hair belonged to the deceased; and 4. Whether the evidence of Dr Hartman was capable of giving rise to a conclusion that the hair belonged to the deceased. Consideration 1. The appellant's written submissions at trial were dated 26 October 2016. In that document, this issue was dealt with as follows: "III. The scientific evidence A. The unresolved issue of transfer 60. The Crown contends that the hair of Ms Wallace was found in the boot of the accused's vehicle. Presumably, the Crown asks the Court to draw the inference that the deceased's body was placed in the boot at some stage. However, it is submitted that the evidence suffers from a number of defects. 61. Firstly, even assuming that the hair supposedly located in the boot is that of Ms Wallace, the Crown cannot exclude the possibility of transfer, as it must (compare Fitzgerald v The Queen (2014 88 ALJR 779). There is no dispute that Ms Wallace had been in the accused's vehicle. Moreover, on Ms Newhouse's evidence, the accused had apparently cleaned the passenger area of the vehicle before cleaning that boot. Transfer of the hair could have occurred during that process, and certainly that possibility could not be excluded." 1. That written submission then set out at (62) relevant evidence from the trial regarding possible transfer and concluded as follows: "62 It is submitted that the prosecution cannot exclude the possibility of transfer, and therefore, the Court could not possibly conclude that the hair was deposited in the boot because Ms Wallace's body had been placed in the boot. Therefore, it is sin (sic, in) actual fact unnecessary for the Court to consider the further arguments advanced below". 1. That disclaimer was sufficient for his Honour to approach the matter in the way in which he did. However, the issue was discussed further. At T.1086.27 – 1087.13 the following exchange took place: "LANGE: ... there is a fundamental difficulty which the Crown faces right at the outset before one turns to the expert evidence. That is the question of transfer. Even if one were to assume the hair located in the boot was that of Ms Wallace, in my submission, the Crown has not excluded the possibility of transfer as it must. There is no doubt that Ms Wallace had been in the accused's vehicle. There seems to be no question that the accused washed the car or cleaned the car in some way which involved also the cleaning of the seat covers upon which presumably Ms Wallace sat at some stage. It was therefore a possibility, I submit, that her hair became transferred on to the seat covers. In the cleaning process, it may well have been that the hair transferred to the boot. … HIS HONOUR: Your criticisms of the DNA and the hair analysis are ancillary in that your starting position is to say it could be Ms Wallace's hair or hairs in the boot but there were also animal hairs in there, and there were other human hairs in there it seems, and because of the possibility of transfer from the front seat to the boot, it has no probative value. That is it in a nutshell? LANGE: And your Honour does not need to proceed further with the strength of the scientific evidence, that is so. But, of course, I have still dealt with the other scientific evidence lest your Honour finds that possibility has been pursued by the Crown which, in my submission, it has not." 1. Thereafter, the appellant's submissions, both in writing and orally, addressed what he identified as the "many deficiencies in the scientific evidence". 2. It should also be noted that his Honour was well aware of the deficiencies in the scientific evidence and specifically referred to those relating to Ms Brooks at [434] – [439] and concluded that they had "considerable force". His Honour set out his conclusion as follows in R v Adams (No 6): "443 As can be seen from the above, in short I accept some but not all of the criticisms that defence counsel has made of the examination of the hairs by Ms Brooks. But the primary position of defence counsel was that the hairs said to have been taken from the boot could indeed be hairs of the deceased. In other words, the primary position of defence counsel was not that the analyst was mistaken, or mixed up, or unconsciously biased, in expressing the opinion that the hairs from the boot were identical to the hairs from the hairbrush. I repeat: his primary position was that the hairs from the boot are indeed the hairs of the deceased. 444 The simple explanation for that was said to be entirely innocent secondary transfer. … 445 It is perfectly true that the fall back position of defence counsel was that the analysis of Ms Brooks (and indeed of the mtDNA analyst, Dr Hartman) should be discounted for a large number of reasons. But I think that, as the tribunal of fact, I am entitled to analyse the evidence on the primary position of defence counsel. 446 To summarise my discussion of the scientific evidence so far: it was not effectually disputed by defence counsel that the hairs analysed by Ms Brooks came from the boot of the vehicle of the accused; it was not disputed that the accused was using a hose on his boot within 48 hours after the deceased was last seen alive by any other person; and it was not disputed that the hairs analysed by Ms Brooks and Dr Hartman could be from the head of the deceased." 1. His Honour analysed the evidence of Dr Hartman and the criticisms of it at [447] – [448]. His Honour set out his conclusion as follows: "449 There is some force in that, as there is in his other criticisms of the mtDNA evidence. But, again, I understood them to be ancillary positions adopted by defence counsel. As I have said, the primary position was that the hairs taken from the boot could indeed be those of the deceased, but they ended up there by way of entirely innocent and commonplace secondary transfer. 450 Again, I believe that I am entitled to take the primary position of defence counsel at face value, and to factor it into my reasoning." 1. What his Honour did was to accept the invitation of defence counsel and focus primarily on the primary position adopted by the defence, i.e. that the Crown had not excluded the possibility that the hair in the boot, if it belonged to the deceased, got there by way of innocent transfer. 2. This ground of appeal has not been made out. Ground 8: The verdict was unreasonable within the meaning of s 6(1) Criminal Appeal Act. Ground 9: His Honour failed to exclude reasonable alternative hypotheses inconsistent with the appellant's guilt and therefore did not comply with the requirements of s 133(2) Criminal Procedure Act. 1. The appellant submitted that the verdict of the trial judge was unreasonable within the meaning of s 6(1) Criminal Appeal Act having regard to the evidence on a number of bases. Alternatively, he submitted that his Honour failed to give reasons why other reasonable hypotheses inconsistent with the appellant's guilt had been excluded by the evidence. The appellant submitted that his Honour was accordingly in breach of the requirements of s 133 of the Criminal Procedure Act. 2. In support of that overall submission, the appellant relied upon three categories which he described as "the elements category", "the tendency incidents category" and "the tendency reasoning category". The Elements Category 1. In this category the appellant relied upon the evidence (or lack thereof) going to three elements of the charge, namely: 1. That the deceased did not consent, or would not have consented, to any sexual intercourse that occurred or was to occur between the deceased and the appellant; 2. That the appellant knew that the deceased was not consenting, or would not consent to, any sexual intercourse that occurred, or was to occur, between the deceased and the appellant; or 3. That the appellant did an act that caused the death of the deceased or that the appellant choked, suffocated or strangled the deceased. 1. The appellant submitted that his Honour's verdict could not be supported because: 1. There was no evidence that any sexual intercourse between the appellant and the deceased which took place, or was to take place, was non-consensual. All of the evidence that could shed light upon that question pointed to the contrary. 2. There was no evidence that the appellant knew that any sexual intercourse was not being consented to, or would not be consented to. 3. The only evidence that the accused attempted to "choke, suffocate or strangle the deceased" was evidence of the tendency. There was no evidence to support any finding that the occasion arose in the appellant's dealings with the deceased for that tendency to manifest itself. 1. The appellant submitted that the unstated premise of the tendency was that it manifested itself when there was a need to compel a victim to engage in sexual intercourse. The appellant submitted that to find that the need for that tendency to manifest itself with the deceased on this night was unreasonable. 2. The appellant submitted that the fact that he had a particular tendency was of no significance unless the occasion arose for that tendency to manifest itself and had that occurred, it was more probable than not that he strangled the deceased and thereby killed her. 3. The appellant submitted that in order to establish that the tendency manifested itself, it was necessary for the Crown to show that there was a need to force sexual intercourse because the deceased did not acquiesce or that he went further than the evidence ever indicated that he had gone, i.e. to continue strangling the deceased notwithstanding her acquiescence. The appellant submitted that there was no evidence of a need to force sexual intercourse and there was no evidence of lack of consent. 4. The appellant submitted that it remained a reasonably available inference that the deceased did consent to a sexual interaction of some nature. Alternatively, the deceased may have been so intoxicated that she was simply incapable of resisting any sexual advances by the accused. The appellant submitted that in either circumstance, there was no need for the strangulation part of the tendency to manifest itself. The appellant submitted that absent proof of lack of consent the Crown could not establish that he acted upon any tendency which might be proved and therefore the case against him must fail. 5. The appellant submitted that the Crown did not lead any evidence sufficient to demonstrate that the deceased did not consent to any sexual intercourse with him. The appellant submitted that the only evidence from which any inference about consent could be drawn supported the suggestion that intercourse was consensual. 1. The appellant told the police that it was consensual. 2. The deceased told Ms Williams that she wanted to go home with the appellant. 3. The deceased opted to go home with the appellant rather than with her friend Mr Rabsch. 4. The deceased was looking for a relationship at that time. 5. The deceased was described variously by her friends as a "fun party girl" and a "wild child" (T.26.49 – 27.1). 6. When asked whether "It would be right to say that [the deceased] would meet men and have flings with them sometimes?" Ms Biddle-Broadfoot replied "Yes, that probably is right" (T69.30 – 32). 1. The appellant submitted that at no stage in the conviction judgment did his Honour address the arguments put on his behalf that the Crown could not prove beyond reasonable doubt that he had acted upon some tendency. 2. The appellant submitted that there was no evidence to support the suggestion that any strangulation led to the deceased's death. 3. The appellant submitted that even assuming that a conclusion that the deceased was not consenting was available on the evidence, the final condition of the asserted tendency was that he would stop strangling a woman if she acquiesced to sexual intercourse. Accordingly, the Crown needed to show that the deceased either did not acquiesce to that sexual intercourse such that he choked her to death or, alternatively, that the deceased acquiesced but he continued to strangle her to death nonetheless. 4. The appellant submitted that there was no evidence in the trial which was capable of suggesting that he would have continued to strangle the deceased, notwithstanding her acquiescence. The only evidence on this point was that relating to Ms Moon, Ms Hyde and Ms Brown which was all indicative of him ceasing strangulation if the woman in question acquiesced (save for the evidence of Ms Brown). 5. The appellant submitted that on this issue, the evidence was all one way and that the trial judge could not, had he directed himself to the actual tendencies relied upon by the Crown, have been satisfied that the occasion for the tendencies to manifest arose in the course of his dealings with the deceased. The appellant submitted that his Honour made no finding of fact which supported his ultimate conclusion that he choked or strangled the deceased with the intention of having sexual intercourse with her without her consent. 6. The appellant submitted that as a result of the above analysis: 1. His Honour could not safely have concluded that any tendency to strangle manifested itself in his dealings with the deceased; 2. His Honour could not safely have concluded that any sexual intercourse between him and the deceased was, or would have been, non-consensual. Tendency incidents category 1. The appellant's submissions under this heading analysed in detail the factual matters relating to the evidence of Ms Hyde and Ms Brown to the effect that it was not open on the evidence for his Honour to accept their version of events and to find beyond reasonable doubt that their evidence supported the relevant tendencies. 2. In relation to Ms Hyde, the appellant set out a number of inconsistencies in her evidence, the effect of which was to render it unsafe so that his Honour could not accept it. 3. In relation to Ms Brown, the appellant referred to the "impermissible tendency reasoning" relied upon by his Honour which was the subject of earlier grounds of appeal and need not be repeated here. The appellant also relied upon an overall absence of evidence to establish that although the events as described by Ms Brown occurred, he was the perpetrator. 4. On that issue, the appellant listed the relevant evidence and offered reasons why, absent the "impermissible tendency reasoning", it was insufficient to establish beyond reasonable doubt that he was the perpetrator. The appellant set out the available evidence as follows: 1. The man who approached Ms Brown in the bar generally fitted his description; 2. Her assertion in 2013 that the photograph of him shown to her in the array was "similar" to her assailant; 3. The man introduced himself as "Bob". 4. The perpetrator drove to the northern suburbs of Sydney and in particular into the suburb of Wahroonga where he lived at about that time. 5. The man took Ms Brown originally to a waterside reserve in the lower northern suburbs (it not being disputed that at about this time the appellant was employed at the Lane Cove River Park). 6. Ms Brown spoke of there being tattoos to much, if not all, of the back of the perpetrator (it not being in dispute that he had a large tattoo of an eagle on his back which had been there for many years). 7. Ms Brown memorised two variants of a number plate that matched the number plate recorded as having been that of a car owned by him. 1. The appellant submitted that all of that evidence was significantly qualified. It lacked precision. It did not take into account that Ms Brown said that the perpetrator had a tattoo on his arm which he did not have. The appellant noted that there were problems with the admissibility of the number plate evidence in Exhibit 4B, which had already been alluded to in another ground of appeal. The appellant submitted that leaving aside the advantage which his Honour had in seeing the witnesses give their evidence, the absence of a tattoo on his left arm should have been decisive in causing his Honour to exclude the possibility that the appellant was Ms Brown's assailant. 2. In conclusion, the appellant submitted that the evidence relating to the tendency incidents involving Ms Hyde and Ms Brown was so lacking in probative value that it could not have been safely concluded beyond reasonable doubt that the tendency incidents relied upon occurred and that he possessed any tendency as asserted by the Crown. The appellant submitted without both of those matters being established, he could not have been found guilty beyond reasonable doubt. Tendency reasoning category 1. The appellant submitted that the evidence as to the events which followed the appellant's dealings with the deceased painted a picture which was bizarre and, having regard to one's understanding of ordinary human behaviour, wildly out of step with the norm. The appellant submitted that had he killed the deceased, his actions in relation to the car and other matters attributed to him were so brazen as to be highly improbable. 2. The appellant submitted that other than the inferences drawn from his demeanour in the ERISP, his Honour rejected his submissions solely by reference to the evidence led in support of the tendencies asserted by the Crown. 3. The appellant submitted that while it was permissible for the Crown to lead evidence of a tendency to have a particular state of mind under s 97(1) of the Act, the only tendency to have a particular state of mind notified to him in the tendency notice was: "His tendency to have a particular state of mind, namely to become violent including to the point of strangling a women [sic] if his sexual advances were turned down." 1. In the absence of notice being given about a different asserted tendency, his Honour was not permitted to use the tendency in such a way – notwithstanding the fact that it may have been admissible for another purpose (s 95 of the Act). The failure to exclude alternative hypotheses inconsistent with the appellant's guilt 1. The appellant submitted that to enable his Honour to be satisfied beyond reasonable doubt of his guilt, it was necessary not only that his guilt should be a rational inference but it should be "the only rational inference that the circumstances would enable him to draw" (Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104). 2. The appellant submitted that his position has always been clear. He left the Alpine Inn with the deceased, they had some form of sexual contact in his car, he fell asleep and when he awoke she was gone. He then went to a champagne breakfast where he was sighted by a number of people from as early as 6.30am. The appellant submitted that the rational alternative hypothesis available in this case was that the deceased did in fact leave the car and some misfortune befell her. He submitted that the Crown had not excluded this possibility as it was obliged to do. 3. The appellant submitted that there was nothing "fanciful" about this, nor was this a case where the available hypotheses consistent with innocence "may cease to be rational or reasonable in the absence of evidence to support them (because) that evidence if it existed at all must be within the knowledge of the accused (The Queen v Baden-Clay at [50]). Evidence of the appellant's account was before the Court and, as such, the availability of that alternative hypothesis was not based upon mere conjecture. 4. The appellant submitted that the reasoning of his Honour at [474] – [490] was erroneous. It evidenced no consideration of the version of events that had been maintained by him over 30 years and which was consistent with his innocence. The voluntary exodus of the deceased from the car and the meeting of her fate other than at his hands had not been excluded by the Crown. It was not for him to posit what may have happened to her in the early hours of 24 September 1983 or subsequently. Consideration 1. The relevant principles in relation to an unreasonable verdict in a judge alone trial were recently restated in Thornton v R by Ward JA as follows: "204 In Filippou v The Queen, the majority (French CJ, Bell, Keane and Nettle JJ) made clear (at [11]-[12]) that the finding of guilt in a judge alone trial is to be treated as if it were a jury's finding of guilt. In the absence of a misdirection leading to a miscarriage of justice, such a finding is not to be disturbed unless, relevantly, there is no or insufficient evidence to support the finding, or the evidence is all one way or the finding is otherwise unreasonable. This Court has applied this principle recently in Parton v R [2016] NSWCCA 291. 205 In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, the High Court (going on to recognise (at 494) that a doubt experienced by an appellate court, making full allowance for the advantage enjoyed by the trial judge, will be a doubt which the trial judge ought to have experienced) said that: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted) 206 In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) said (at [113]): It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt. (Footnotes omitted) 207 In Filippou, at [12], the plurality adopted and adapted the following from M v The Queen: "It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may …conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 1. As R A Hulme J observed in Atai v R [2014] NSWCCA 210 at [134], the assessment of the credibility and reliability of the evidence of witnesses is quintessentially one for a jury (or in this case the trial judge) to determine. In a case such as this where the appellant attacked the credibility of witnesses, this Court must be acutely conscious of his Honour's advantage. 2. In relation to Ground 9, his Honour was clearly aware of his obligation as the tribunal of fact in relation to rational hypotheses consistent with innocence. In that regard, his Honour gave himself the following direction in the principal judgment at [336]: "336 Fifthly, bearing in mind that the Crown case is a circumstantial one, before I could return a verdict of guilty of murder, I would need to be satisfied beyond reasonable doubt that no rational hypothesis, other than guilt of the offence charged, is available on the facts that I find to be established (Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44; Peacock v The King (1911) 13 CLR 619; [1911] HCA 66)." Moreover, his Honour dealt with each of the suggested rational hypotheses consistent with innocence and rejected them (see [243 – [247] hereof). 1. It is noteworthy that in his submissions, the hypothesis relied upon by the appellant was not one of those rejected by his Honour in the principal judgment but is the version of events which he gave in 1983 and repeated in his ERISP. The whole of the Crown case was in effect directed at establishing the guilt of the appellant and implicitly therefore negativing his version of events. The question raised by this ground of appeal is simply another way of asserting the issues raised by Ground 8, i.e. that the verdict was unreasonable. His Honour's concluding summary at [491] – [492] of the principal judgment (see [249] hereof) is a sufficient answer to Ground 9, subject of course to those conclusions being available on the evidence. 2. In relation to the first of the appellant's categories (the elements category), the submission is that there was insufficient evidence to prove lack of consent, knowledge of lack of consent and an act of the appellant causing death. When considering that issue, it needs to be kept in mind that in a circumstantial case inferences can be drawn regarding matters which are not the subject of direct evidence, and that one looks at the total effect of the evidence, not individual parts in isolation. 3. The difficulty with the appellant's submissions under this heading are that they substantially disregard the effect of the tendency evidence. Moreover, they do not accurately describe the other evidence which was available. The evidence in support of the relevant tendencies included in the case of each of the tendency witnesses a sudden change in personality from being a caring person to one who was aggressive and dominating. Consistent with the tendencies identified by the Crown, that may well have occurred between the appellant and the deceased after they left the Alpine Inn. Moreover, the deceased's apparent advanced state of intoxication may have caused her to behave in an irrational or violent manner. This is particularly so in circumstances where she said she had already been assaulted on that night. In any event, the only direct evidence on the issue is that of the appellant which was directly under challenge in the Crown case. 4. That there was no evidence to support a finding that the opportunity arose in the appellant's dealing with the deceased for a tendency to choke or strangle to manifest itself is contrary to the weight of evidence once the relevant tendency is accepted. The totality of the circumstances leading up to the deceased leaving the Alpine Inn with the appellant in the early hours of the morning, and the fact that she was never seen again, was sufficient evidence upon which to draw inferences that an altercation involving sexual intercourse arose leading to the appellant attempting to choke, suffocate or strangle the deceased. 5. When considering the circumstances surrounding the departure of the appellant with the deceased from the Alpine Inn, it is not without significance that the appellant told a number of lies. He said he was a policeman and therefore safe to drive the deceased. He said he lived at Drummoyne, which was where the deceased lived, which was also a lie. He told Mr Liney that he was not able to give him a lift to River Road, Wollstonecraft which would have been on his way had he in fact been heading towards Drummoyne. In all the circumstances, it was well open to his Honour to find that the appellant was determined to get the deceased into his car and that he lied to her friends about his occupation and about where he was taking her, making out that he had her welfare in mind. 6. The appellant's challenge to various factual elements in the evidence of Ms Hyde and Ms Brown disregards the position of advantage that his Honour held as the tribunal of fact. His Honour accepted that there were some problems with their evidence, but took into account that they were recounting events which had occurred some 40 years before. As his Honour appropriately observed, it would have been very odd if there had not been some inconsistencies or a lack of recollection of some aspects. It was open to his Honour to accept their evidence and to find beyond reasonable doubt that the incidents described by them occurred. 7. When setting out the evidence in relation to Ground 8, the appellant has undervalued, or entirely disregarded, the tendency evidence. Implicit in that approach was an assumption that the tendency evidence, particularly that of Ms Moon, could not be used when considering the evidence of Ms Hyde and Ms Brown and when determining whether the relevant tendencies had been established. That has already been dealt with in this judgment. When one has regard to the effect of that tendency evidence, it significantly undercuts the evidentiary challenge made by the appellant to his Honour's fact finding, in particular, his Honour's fact finding concerning Ms Hyde and Ms Brown. Accordingly, it was well open to his Honour to be satisfied as to those matters beyond reasonable doubt. 8. As has been set out earlier in this judgment, his Honour outlined clearly (at [361] – [423] of the principal judgment) his reasoning leading to a verdict of guilty, in particular, the inferences which he could draw. That reasoning did depend very much upon the tendency evidence. If his Honour's use of the tendency evidence in this way was appropriate and open to him (as I have found in relation to Grounds 1 – 5) then nothing put in the appellant's submissions in relation to Ground 8 has invalidated his Honour's reasoning process. 9. His Honour dealt with the "irregularity" of the appellant's conduct on the weekend of 24 – 25 September 1983 and the evidence in relation thereto was closely examined. Specifically, his Honour rejected a considerable portion of that evidence, in particular, that of Ms Newhouse, Ms Andrews and Mr Adams. Nevertheless, it was well open to his Honour to conclude, as he did at [468] of the principal judgment: "468 Finally, it is true that, if the interaction between the accused, the hose, and the boot was done with consciousness of guilt, it was done with remarkable brazenness. The inevitable reply to that submission is that, throughout the 1970s, the accused has brazenly raped and strangled three separate women, using his own name, his own vehicle, his own home, and eschewing the use of any disguise." Conclusion 1. The orders which I propose are that leave to appeal in relation to Grounds 1 and 3 should be refused and that the remaining Grounds of Appeal be dismissed. 2. R A HULME J: None of the asserted errors raised by the various grounds of appeal have been made good and I am satisfied upon my own assessment of the evidence that it was open to Button J to return a verdict of guilty. I respectfully agree with the reasons of Hoeben CJ at CL and have nothing to add. 3. WILSON J: I agree with Hoeben CJ at CL. ********** Amendments 04 September 2017 - [272] - Typographical error in quote at [40]. 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. Decision last updated: 04 September 2017